Thursday, February 26, 2009

Article 20, 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 20:The Muslims reserve the right to account the ruler

It is a duty of sufficiency upon them i.e. (Fardhu Kifaya) . The non-Muslim citizens reserve the right to lodge their complaint against any unfair treatment by the ruler or against any slackness in the implementation of Islam upon them.

The ruler is appointed over the subjects in order to look after their affairs. If he were negligent in this guardianship, he then should be accounted. Although, he will be judged before Allah (swt) and although he will be punished for his negligence or abuse, Allah (swt) has conferred upon the Muslims the right to account him and He (swt) obligated them to undertake this accounting by way of sufficiency (Kifayah). Allah (swt) has made the Ummah the supervisor over the ruler's actions and responsibilities, and He (swt) obligated the Ummah to condemn him if he were to neglect these duties of his, of if he were to be slack in his undertakings.

Muslim reported on the authority of Umm Salama that the Messenger of Allah (saw) said:

" In the near future, there will be Amirs; you will like their good deeds and dislike their bad deeds; He who sees through their bad deeds is absolved from blame; and he who hates their bad deeds is also safe, but one who approves and imitates them... meaning that he who recognises the bad deeds should change them and he who cannot do so but condemns them with his heart will be safe.

Therefore, the Muslims from among the subjects should account the ruler in order to make him change his ways and they would be sinful if they approved and followed the rulers in the actions that in principle should be disowned. As for the non-Muslims, they are entitled to lodge a complaint against the injustice perpetrated by the ruler, because all types of injustice have been absolutely and categorically forbidden, whether these were perpetrated against Muslims or non-Muslims, because the harming of the Dhimmi has also been forbidden.

The Messenger of Allah (saw) said:
"He who harms a Dhimmi , I am his adversary, and if I am his adversary, I will be against him in the Day of Judgement."

Also, because some specific types of harm have been made forbidden by text, and likewise would be all types of harm.

Abu Dawood extracted from the Hadith pertaining the peace treaty which the Messenger of Allah (saw) signed with the people of Najran that the Messenger of Allah (saw) said:
"And on condition that no church of theirs is destroyed, no priest is banished. They would also not be coerced away from their faith."

Therefore, if the Dhimmi were wronged of if harm were inflicted upon him by the ruler, he reserves the right to lodge a complaint until the injustice is lifted and the perpetrator is punished. His complaint would be heard in any case, regardless of whether he was right or wrong. It has been reported that Abu Bakr (ra) talked to a Jew called Finhas with the aim of inviting him to Islam, so Finhas said to him: "By Allah o Abu Bakr we are not poor compared to Allah but He is poor compared to us; we do not humble ourselves to Him as He humbles Himself to us; we are independent of Him while He needs us. Were He independent of us He would not ask us to lend Him our money as your master pretends, prohibiting you to take interest and allowing us to. Had he been independent of us He would not have given us interest." Finhas was referring to Allah's (swt) saying:

مَنْ ذَا الَّذِي يُقْرِضُ اللَّهَ قَرْضًا حَسَنًا فَيُضَاعِفَهُ لَهُ أَضْعَافًا كَثِيرَةً
"Who is he that will lend to Allah a beautiful loan, which Allah will double unto his credit and multiply many times?" T.M.Q [2-245].

But Abu Bakr was enraged and could not contain his anger; so he hit Finhas hard in the face saying: "By He Who owns my soul, were it not for the treaty between us I would cut your head off you enemy of Allah." Then Finhas complained to the Messenger of Allah (saw) against Abu Bakr, and the Messenger of Allah (saw) listened to his complaint and then asked Abu Bakr about what had happened. Abu Bakr (ra) related to the Messenger of Allah (saw) what Finhas had said, but when he (saw) asked Finhas he denied what he had said about Allah (swt) to Abu Bakr.
Then Allah (swt) revealed the following:

لَقَدْ سَمِعَ اللَّهُ قَوْلَ الَّذِينَ قَالُوا إِنَّ اللَّهَ فَقِيرٌ وَنَحْنُ أَغْنِيَاءُ سَنَكْتُبُ مَا قَالُوا وَقَتْلَهُمُ الْأَنْبِيَاءَ بِغَيْرِ حَقٍّ وَنَقُولُ ذُوقُوا عَذَابَ الْحَرِيقِ
"Allah has heard the speech of those who say Allah is poor and we are rich. We shall write what they say and their killing the prophets wrongfully and we shall say, taste the punishment of burning." T.M.Q [3-181].

It is also known that Abu Bakr (ra) was a minister of the Messenger of Allah (saw) i.e. a Delegated Assistant; thus he was a ruler, and Finhas was a covenanter. The Messenger of Allah (saw) heard his complaint against Abu Bakr even though he was in the wrong; and if the complaint is heard from a covenantor, the more reason it should be heard from the Dhimmi, for he is granted the oath of Dhimma.

As for the complaint pertaining the mal-administration of the rules of Islam, Muslims and non Muslims alike are entitled to lodge them. Some Muslims did complain to the Messenger of Allah (saw) against Mu'ath Ibnu Jabal because he used to lengthen the recitation during the Salat. The Messenger of Allah (saw) listened to their complaint and reprimanded Mu'ath to the point where he said to him: "troublemaker." three times. Mu'ath was at the time Wali over Yemen and Imam over his people. This Hadith had several narratives. Therefore, whether the complaint was against him while he was in Yemen or while he was Imam over his own folk, it was nevertheless a complaint against someone appointed by the Messenger of Allah (saw); thus it was complaint against a ruler and a complaint against the mal-administration of the Shari'ah rules; this is so because the Shari'ah rule stipulates that the Imam should be brief in the Salat, for the Messenger of Allah (saw) said:

"He who leads people in Salat should be brief."

Therefore, it was a complaint against the abuse of the Shari'ah rule; and just like it was heard from the Muslims pertaining the rule of Salat, the complaint should be heard against all other rules and not just the Salat. Furthermore, the mal-administration of Shari'ah rules is considered an unjust act, i.e. (Mathlama), thus complaint against it is the right of the Muslim and of the Dhimmi, because the Messenger of Allah (saw) is reported to have said:

"And I hope to meet Allah(swt) without having anyone claiming a Mathalma against me."

The word "anyone" in the Hadith includes the Muslim and the Dhimmi, for he (saw) did not say "without having a Muslim", but he said: "without having anyone." These are all the evidences of this article.

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