Saturday, February 21, 2009

Article 18 & 19, Explanation of the Draft Constitution of the Khilafah

The following is from the draft english translation of the Arabic book مقدمة الدستورأو الأسباب الموجبة له (Introduction to the constitution and the evidences that make it obligatory) published by Hizb ut-Tahrir 1382 Hijri (1963 CE). Please refer to the original Arabic for accurate meanings. Please note some of the adopted opinions of the Hizb have changed since the time the book was published so any of the adopted literature published after this book which contradicts what is mentioned in this book abrogates those specific points.

Article 18: The rulers are four types
The Khalifah, The Delegated Assistant, The Wali and the Amil. Other than these four are not considered rulers, but employees.

Article 19: It is forbidden for anyone to assume the rule or any action considered to be a ruling matter, unless he is Muslim, free and just.

Allah (swt) has conclusively forbidden the Muslims from appointing a Kafir ruler over them.

Allah (swt) says:

وَلَنْ يَجْعَلَ اللَّهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلًا
"And never Allah will grant to the disbelievers a way over the believers." T.M.Q. [4 -141]

Allowing the Kafir to rule over the Muslim is to grant him a way over him and Allah (swt) has conclusively and categorically prohibited this by using the Arabic preposition "Lan" meaning "will not", and this serves as a Qareena (conjunction) stipulating that the prohibition of allowing the Kafir to have any dominion over the Muslims is conclusive and decisive. It denotes that it is forbidden. Besides, Allah (swt) has imposed the condition of Islam on the witness of the Raja'a (return to one's wife after divorce), i.e. he should be a Muslim.

Allah (swt) says:

فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِنْكُمْ
"So when they fulfill their appointed term, either take them back on equitable terms or part with them on equitable terms, and take for witness two persons from amongst you endued with justice." T.M.Q. [65-2]

The understanding is that the witnesses could not be from other than the Muslims. Allah (swt) has also imposed Islam as a condition upon the witness in a matter of Deen.

Allah (swt) says:

وَاسْتَشْهِدُوا شَهِيدَيْنِ مِنْ رِجَالِكُمْ
"And get two witnesses out of your own men." T.M.Q. [2-282]

Which means not other from your own men. If Shari'ah imposed Islam as a condition for such a witness in both these matters, the more reason why Islam should be imposed as a condition for the ruler. Furthermore, the rule means the implementation of Shari'ah rules and the execution of the judges' sentences and they are commanded to rule by Shari'ah, which stipulates that the implementing person should be a Muslim, because he believes in what he implements, and the Kafir could not be trusted with the implementation of Islam; thus the person implementing the rules should be a Muslim. Furthermore, the rulers are those in authority and when Allah (swt) ordered us to obey those in authority; he imposed the condition of being Muslim for those charged with authority.

Allah (swt) says:

يَا أَيُّهَا الَّذِينَ آَمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الْأَمْرِ مِنْكُمْ
"Obey Allah and obey the Messenger and those charged with authority from amongst you." T.M.Q. [4 - 59]

In this verse Allah (swt) says "from amongst you “, i.e. from amongst other than you. Allah (swt) also says:

وَإِذَا جَاءَهُمْ أَمْرٌ مِنَ الْأَمْنِ أَوِ الْخَوْفِ أَذَاعُوا بِهِ وَلَوْ رَدُّوهُ إِلَى الرَّسُولِ وَإِلَى أُولِي الْأَمْرِ مِنْهُمْ
“When there comes to them some matter touching safety or fear they divulge it.If only they had referred it to the Messenger or to those charged with authority amongst them"T.M.Q [4 -83]
And again, Allah (swt) says in this verse "from amongst them" i.e. the believers, not from amongst other than the believers. This indicates that the person charged with authority must be Muslim. The phrase "those charged with authority.” mentioned in the Qur'an is always qualified as being in reference to those in authority from among the Muslims. This confirms that the ruler must be a Muslim. Besides, the ruler enjoys the total obedience of the Muslims and the Muslim is not obligated to obey the Kafir because the obligation upon him is confined to obeying the Muslim person charged with authority.

Allah (swt) says:

يَا أَيُّهَا الَّذِينَ آَمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الْأَمْرِ مِنْكُمْ
"Obey Allah and obey the Messenger and those charged with authority from amongst you." T.M.Q. [4 - 59]

Therefore, Allah (swt) ordered the obedience of those in authority from among the Muslims and did not order the obedience of other than the Muslims; which indicates that the Muslims are not obligated to obey the Kafir person in authority, and there can be no ruler without obedience. It would be wrong to say that a Muslim is obligated to obey the Kafir if he happens to be a director of a department, because the head of department is not a person charged with authority, but rather a hired employee, thus obedience to him is in the first instance derived from the order issued by the person charged with authority stipulating that the head of department should be obeyed, and the point at issue is pertaining the person charged with authority, not the hired employee. Therefore, it is not fitting for the person charged with authority over the Muslims to be other than a Muslim; he cannot be a Kafir.

Hence, it is categorically forbidden for the rulers to be Kafir.
As for the condition stipulating that the ruler must be a man, this is derived from what has been reported on the authority of Abu Bakr who said: "Allah (swt) has made me benefit during the days of Al-Jamal, from a word which I heard from the Messenger of Allah (saw), when I was on the verge of joining the people of Al-Jamal and fight alongside them.

When he (saw) heard that the people of Persia appointed to the throne the daughter of Kisra he said: "People who hand their affairs to a woman shall not succeed."

Therefore, the Messenger of Allah (saw)'s saying that success will not come to those who appoint a woman to be in charge of their affairs, this saying acts as a prohibition against appointing a woman, for it is a form of request. Since this information has come in the form of a reprimand, it therefore serves as a Qareena denoting that the prohibition is decisive; thus the appointment of a woman to be in charge of people's affairs is Haram and that is why being a man is a condition for becoming a ruler. As for imposing the condition of being just upon the ruler, this is because Allah (swt) has made it a condition upon the ruler to be just.

Allah (swt) says:

وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِنْكُمْ
"And take for witness two persons from among you endued with justice." T.M.Q. [65-2]
Therefore, the more for he whose position is higher than the witness, i.e. the ruler, to be just, because if the witness should be just, the more reason the ruler should be just. As for the condition of being a freeman, this is because the slave does not have control over his own affairs, thus he could not have control over other people's affairs. Besides, slavery necessitates that the slave's time is owned by his master. These are the evidences of this article.

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