Monday, March 16, 2009

Article 22, 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 22: The Principles on which the Ruling System is based

The ruling system is based upon four principles. These are:
1. Sovereignty belongs to Shari'ah and not to the people.
2. Authority belongs to the Ummah.
3. Appointing one single Head of State is obligatory upon the Muslims.
4. The Head of State reserves the exclusive right to adopt the Shari'ah rules. He has the competence to enact the constitution and all the laws.

This article outlines the principles of the rule, without which it could not come into being. If any of these principles were absent, the rule would be non-existent. The rule in question is the Islamic rule i.e. the authority of Islam and not just any rule. These principles have been obtained after a study and from the Shari'ah evidences. The first principle stipulating that sovereignty belongs to Shari'ah has a reality, and that is the term sovereignty; it also has evidence, stipulating that it belongs to Shari'ah and not to the people. As for its reality, the term sovereignty is in fact a Western jargon referring to the one who practises and conducts the will. Hence, if the individual were the one who practises and conducts his will, his sovereignty would belong to him; and if his will were practised and conducted by someone else, he would be a slave. Likewise is the case with a nation. If the will of this nation, i.e. the collective will of its individuals, were conducted by itself through individuals from among it, to whom it delegates the competence to conduct it will with consent, such a nation would be master of its own affairs; and if its will were conducted by force, by other than itself, it would be an enslaved nation.


This is why the democratic system says: "Sovereignty belongs to the people.", meaning that it is the people who practise their own will and appoint whom they wish and give him the right to conduct their will on their behalf. This is the reality of sovereignty upon which the Shari'ah rule needs to be applied. As for the Shari'ah rule pertaining this sovereignty, it stipulates that it belongs to Shari'ah and not to the people. What conducts the will of an individual according to Shari'ah is not the individual himself; the will of the individual is rather conducted by the commands and the prohibitions of Allah (swt). Likewise the Ummah: She is not free to do what she wishes; her will is rather conducted by the commands and prohibitions of Allah (swt).

The evidence of this is deduced from Allah's (swt) saying:

فَلَا وَرَبِّكَ لَا يُؤْمِنُونَ حَتَّى يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ
"No by your God, they shall not have true belief until they make you judge in all disputes between them." T.M.Q. [4-65]
It is also deduced from the Hadith of the Messenger of Allah (saw) in which he said:

"None of you shall have true belief until his desire becomes according to what I have brought."
Hence, what controls the Ummah and the individual, and what conducts the will of the Ummah and the individual is what the Messenger of Allah (saw) has brought. The Ummah and the individual submit to Shari'ah.

Therefore, sovereignty belongs to Shari'ah. The Khalifah is not given the Baya'a by the Ummah to act as a hired employee, executing what she wishes, as is the case in the democratic system; the Khalifah is rather given the Baya'a by the Ummah according to the Book of Allah and the Sunnah of His Messenger in order to implement the Book of Allah and the Sunnah of His Messenger, i.e. to implement Shari'ah, not to implement what people want. Even if the people who gave him the Baya'a were to deviate from Shari'ah, he would fight them until they retract. It is from this evidence that the principle stating that sovereignty belongs to Shari'ah and not to the people has been deduced.

As for the principle stating that authority belongs to the Ummah, this is obtained from the fact that Shari'ah has made the appointing of the Khalifah the right of the Ummah and from the fact that the Khalifah assumes the authority through this Baya'a. As for the fact that Shari'ah has made the appointment of the Khalifah up to the Ummah, this is evident from the Ahadith of the Baya'a. Ubada Ibnul-Samit said:
"The Messenger of Allah (saw) invited us so we pledged our Baya'a to him to hear and to obey in weal and woe, in ease and in hardship and evil circumstances"


Jarir Ibnu Abdullah said:
"I pledged my Baya'a to the Messenger of Allah (saw), to hear and to obey."

It is also reported on the authority of Abu Hurayra that the Messenger of Allah (saw) said: "Three types of people Allah will not address nor will He praise them on the Day of Judgement, and a severe punishment will await them: A man by the roadside with a surplus of water and he prevents the travellers from it; a man who gave his Baya'a to an Imam for worldly gains, whenever the Imam gave him what he wanted, he was loyal to him and whenever he did not, he was not, and a man who sold another man a commodity after Asr, swearing that he was given such and such price for it while in fact he was not."

Therefore, the Baya'a is given by the Muslims to the Khalifah and not by the Khalifah to the Muslims. It is the Muslims who give him their Baya'a, i.e. it is them who appoint him as a ruler over them. This was the case with the Khulafa' Al-Rashideen (r), they took the Baya'a from the Ummah and they did not become Khulafa' except through the Baya'a given to them by the Ummah. As for the fact that the Khalifah assumes the authority through this Baya'a, this is also evident from the Ahadith pertaining the unity of the Khilafah.

It has been reported on the authority of Abdullah Ibnu Amr Ibnul A'as who said: that he heard the Messenger of Allah (saw) say:
"He who pledges his Baya'a to an Imam, giving him the clasp of his hand and the fruit of his heart, let him obe him if he can; if another comes to dispute with him, strike the neck of that man."
Nafa'a reported: "Abdullah Ibnu Omar said to me:
"I heard the Messenger of Allah (saw) say:
"Whoever takes off his hand from obedience to Allah, he will meet Allah on the Day of Judgement with no valid argument; and whoever dies while there was no Baya'a on his neck, he dies the death of the days of ignorance."
Ibnu Abbas reported that the Messenger of Allah (saw) said:
"If anyone sees in his Amir something that he hates, let him be patient with him, for he who separates himself from the authority by even so much as a hand span and dies, he dies the death of the days of ignorance."
Muslim reported on the authority of Abu Hazim who said: "I accompanied Abu Hurayra for five years and heard him talk about the Messenger of Allah (saw) who said:
"The children of Israel were governed by the prophets; whenever a prophet died, another succeeded him. There will be no prophets after me. There will be Khalifahs and they will number many." They asked : "So what do your order us?" He said: "Fulfil the Baya'a to them one after the other. Give them their due, for truly Allah will account them over what He entrusted them with."

These Ahadith indicate that the Khalifah assumes the authority through this Baya'a, for Allah (swt) has made it an obligation upon the Muslims to obey him according to the Baya'a :

"He who give his Baya'a to an Imam let him obey him.."

Therefore, he assumes the Khilafah by the Baya'a and his obedience becomes obligatory, because he is a Khalifah that has been given the Baya'a. He has therefore assumed the authority from the Ummah who has given him the Baya'a and because she is obligated to obey whom she has the Baya'a to, i.e. to whom she has Baya'a on her neck. This indicates that authority belongs to the Ummah. Besides, although the Messenger of Allah (saw) was a Prophet and a Messenger, he also took the Baya'a from the people, and it was a Baya'a of rule and authority, not a Baya'a of Prophethood.

He (saw) took it from men and women alike, but not from children below the age of puberty. Hence, the fact that it is the Muslims who appoint the Khalifah and give him the Baya'a according to the Book of Allah and the Sunnah of His Messenger, and the fact that the Khalifah assumes the authority through this Baya'a, indicates clearly that the authority belongs to the Ummah and she gives it to whoever she wishes. As for the third principle, stating that the appointment of one single Khalifah is an obligation upon the Muslims, the obligation pertaining the appointment of a Khalifah is established in the Hadith.

It is reported on the authority of Nafa'a who said: "Abdullah Ibnu Omar said to me: "I heard the Messenger of Allah (saw) say:
"Whoever takes off his hand from obedience to Allah, he will meet Allah on the Day of Judgement with no valid argument; and whoever dies while there was no Baya'a on his neck, he dies the death of the days of ignorance."
The evidential aspect in this Hadith is reflected in the fact that the Messenger of Allah (saw) has made it an obligation upon every Muslim to have a Baya'a on his neck to a Khalifah. He (saw) did not make it an obligation upon every Muslim to effectively give his Baya'a to the Khalifah. Hence, what is obligatory is the presence of a Baya'a on the neck of every Muslim; i.e. the presence of a Khalifah, whose presence makes it possible for every Muslim and gives him the right to have a Baya'a on his neck, regardless of whether he effectively gives the Baya'a or not.

As for the fact that the Khalifah should be one, this is reflected in the Hadith narrated by Abu Sai'd Al-Khudri in which the Messenger of Allah (saw) said:
"If a Baya'a has been given to two Khalifahs kill the latter of them."
This serves as clear evidence about the prohibition upon the Muslims of having more than one Khalifah.

As for the fourth principle stating that the Head of State reserves the exclusive right to adopt the rules, this has been established through the Ijma'a of the Sahaba, confirming that it is the Khalifah alone who enjoys the competence of adopting from the Shari'ah rules. It is from this Ijma'a of the Sahaba that the celebrated Shari'ah principles have been obtained, namely
"The order of the Imam settles differences"
"The order of the Imam is binding"
"The Sultan reserves the right to occasion as many new rulings for as many arising new matters."

2 comments:

zeb said...

salam alaikum

can u put the explanation of whole constitution

wsalam

Islamic Revival said...

Salams, the explanation of the whole constitution has not been fully translated yet. We post the other articles from it which have been translated inshallah