Sunday, March 08, 2009

Part 8, The Islamic Rules of Trade - All Bribery is Forbidden (Haram)

Due to the current global financial crisis there is increasing interest in the Islamic Economic System, the most comprehensive book on this topic is 'The Economic System of Islam' by Sheikh Taqiuddin an-Nabhani. However as people have many questions relating to the Islamic rules of trade we will be posting related extracts from the draft translation of the Fiqh masterpiece 'The Islamic Personality, Volume 2' by Sheikh Taqiuddin an-Nabhani.

ALL BRIBERY IS FORBIDDEN (HARAM)

Whoever holds an authority which obliges upon him to discharge one of the people’s interests, then the fund he takes in order to execute such interest is bribery; it is not a wage in any way whatsoever. The difference between the wage and bribery is that the wage is taken in return for undertaking an action which is not obliged upon him; while bribery, it is taken in return for performing an action he is obliged to perform without a return from the one for whose sake the action is performed or in return for not performing an action obliged upon him to perform.

Accordingly bribery is the fund given in order to carry out an interest obliged upon the taker to execute or to execute an interest where the taker does not do that which he is obliged to do, whether the interest is obtaining a benefit or removing a harm, or it is a right or something (batil) false. The payer of the bribe is called the (rashi), its taker is the (murtashi) and the mediator between them is the (raish).

Bribery is forbidden by the explicit texts. Ahmad and Abu Dawud and Tirmidhi and ibn Majah narrated from Abdullah bin Amra who said: The

Messenger of Allah (saw) said:
“Allah cursed the briber (rashi) and bribe-taker (murtashi).”

Ahmad narrated from Tawban who said:
“The Messenger of Allah (saw) cursed the briber, bribe-taker and the mediator meaning the one who walks between the two.”

These ahadith are general covering every bribery, whether it is for seeking a right or a false and whether it is for the sake of preventing a harm or obtaining a benefit, to remove an injustice or to impose injustice; all are forbidden. It is not true to say that bribery is forbidden because it is seeking something false or wasting a right; so if it like this then it is forbidden. Whereas if it is in seeking a right or lifting injustice, then it is allowed. This is not true because this means that forbidding bribery came reasoned (with illah) so if the illah exists the rule exists and when it diappears the rule disappears. This is not correct because all the texts which came forbidding bribery are not reasoned in their prohibition by any (illah) reason, nor does exist therein nor in any text that from which one can deduce (illah) a reason for prohibiting bribery.

Accordingly its prohibition is by the unreasoned explicit text so there is absolutely no reason for it. It is also not true to say that when bribery is taken from the owner of a right to carry out the right, it is permitted for it is taking money to perform an allowed action which is carrying out the right. This is not true because the texts which forbade bribery came general so they remain in their generality covering all types of bribery. So if one wants to specify and exclude some types of bribery, this matter requires another text to specify them because the text is not specified except by a text of the Book or Sunnah, since no text came to specify, so it remains general without specification. Hence all types of bribery are forbidden without distinction between its being in seeking a right or seeking something false, lifting or imposing injustice, removing harm or achieving a benefit, all these enter under the generality of the text.

Similarly there is no difference in forbidding bribery, whether it is to the judge ruler or official or leader or other than these; all are forbidden. It is not true to say that.

Ahmad narrated from Abu Hurayrah who said: The Messenger of Allah (SAW) said:
“Allah cursed the briber and bribe-taker in judgement (hukm)”

So this is restricted in judgement, the absolute (unrestricted) is made to agree with the restricted. This is not true because the word which description is considered a restriction to it is the absolute/unrestricted not the general word. As for the general word, only specification occurs therein not restriction. So if there comes a restriction with it, then it is of the type of explicitly stating one of its individuals not of the type of restriction. Hence the word briber, bribe-taker and mediator are general words not unrestricted words, thus his statement “in judgement” is not a restriction for it such that the remaining ahadith have to agree with it. Rather it is explicitly stating explicitly one of them which is judgement; so all the ahadith remain general and they remain in their generality. Accordingly any bribery is haram whether to the judge or official or others. Bribing the policeman to remove harm is like bribing the judge, and the bribing the director of a company so as to be employed therein or so as not to be dismissed is like bribing the collector of taxes or informer of a court case so as not to inform him.

Bribing the head of workers so as to reduce the work for them or other than that like bribing the worker of the trader where the customer gives him a bribe in return for selecting to him new goods from among the goods, or bribing the worker of the printing machine where the owner of the book bribes him to perfect his work without the knowledge the owner of the printing machine. All these are bribery and all are forbidden because it is money taken in exchange for performing an action he is obliged to perform without return from the one on whose behalf he is performing the action. It is included in bribery what some of them pay to someone who has credit/acceptance within official to use his influence before him to fulfil his need, but it is not the official who takes the money, rather the one who takes the money is the one who talks to the official, so money is paid to him in exchange for his talking to him. This is also bribery because this money is given in exchange for accomplishing an interest from the one upon whom it is obligatory to fulfil it so it is bribery whether the one who accomplished the interest took it or not. It is not a condition in the bribes that the money of bribery is taken by the one who directly performs the interest; rather the condition in the money being bribery is that this money be given in exchange for executing the action, whether the person himself takes it or his friend or the one with acceptability before him or his relative or boss or other than these. This is because what matters in verifying the money being bribery is that it is taken in exchange for executing an interest supposed to be executed without exchange from the one executing it.

Similar to bribery in forbiddance is the gift given to the judges, governors and their like until some of them counted it as being of bribery because it resembles it in its being money taken in order to execute an action obliged to be executed without return from the one for whose sake the action is executed. The difference between bribery and the gift presented to judges, governors and their like is that in bribery fund is given in return for fulfilling the interest. Whereas in the gifts to judges, governors and their like, fund is given therein from the owner of the interest, not in exchange for the interest but because the one being gifted actually executes the interests by himself or by his mediation/through him whether he is gifted desiring in the execution of specific interest or after executing a specific interest or desiring in the execution of the interests when they occur. Hence bribery and gifts presented to the judge and his like are similar and one is compared by analogy with the other, however, their reality is that there is something of a difference. The forbidding of gifts to the judge, governor and their like came explicitly in the ahadith.

Al-Bukhari narrated from Abu Hamid As- Saidi

“that the Prophet (SAW) appointed ibn al-Lutaybiyya upon the sadaqat of Banu Sulaym. When he came to the Messenger of Allah (SAW) and he accounted him, he said: This is what is for you and this is a gift given to me. So the Messenger of Allah (SAW) said: ‘Why did you not sit in the house of your father and the house of your mother until your gifts came to you if you are truthful?’ Then the Messenger of Allah (SAW) stood and gave a khutbah to the people. He praised Allah and extolled Him then said: ‘As for what follows, verily I appointed men from among you upon matters over which Allah appointed me. Then one of you comes to me saying: ‘This is for you and this is a gift presented to me.’ Why did he not sit in the house of his father and the house of his mother until his gifts came to him if he is truthful? For by Allah, none of you will take anything from it without due right except that he will come carrying it on the Day of Judgement.’”

From Buraydah from the Prophet (SAW):
“Whoever we appointed upon a task and provided sustenance (rizq) for him, then whatever he takes after that is illicit wealth (ghulul)”.

The Messenger (SAW) had called it (suht) which is illegal money.

Al-Khateeb extracted in Talkhis Al-Mutashabih from Anas that the Prophet (SAW) said:

“The gifts of governors are (suht).”

It is related from Masruq from ibn Masoud that he was asked about (suht), is it bribery? He said: ‘No, but (suht) is that a man seeks your assistance upon an injustice (madhlema) so he gives you a gift. Do not accept.’ Abu Wail Shaqeeq bin Salamah.

One of the Imams of the Tabi’in, said: “If the judge takes the gift, then he has eaten (suht). And if he takes bribery, then it takes him into kufr.’ All these ahadith—the hadith of Abu Hamid and the hadith of Buraydah and the hadith of Anas—all of them are explicit in that the gifts presented to those who carry out general functions are forbidden whether they are given after performing a specific action or before performing it, or given to him because he is one of the officials, or it is presented to him because he has acceptability/credit with the one who is responsible for executing the interest; all these are forbidden.

The word gifts came in the hadith of: “The (hadaya) gifts of the governors is (suht)” is general covering all gifts to governors. Compared to the governors are all those responsible for the execution of the people’s interests and obliged to execute them without return taken from the one for whom it is executed; it is forbidden for him to take a gift or a gift be taken from those for whom is this interest desiring for its execution. The policeman, head of a company, leader of workers, and whoever is like them; are forbidden from taking gifts and the gifts for them are (suht).

However, the gift to such people is forbidden if it is not the custom of the one giving the gift to present it to them. However, if it was of his custom to gift to them whether they were responsible for the execution of interests or not, then the gift is permitted for them without any blame in it.

This is because the Messenger (saw) says in the hadith:

“Why did you not sit in the house of your father and the house of your mother until your gifts came to you if you are truthful?”

Its meaning is that the gift which is gifted to him while he sits in the house of his father and his mother without being a governor is permitted. This means that the gift, whose presenter would give it to the person if he were not official, is permitted in the case he becomes responsible for the execution of interests as it is permitted in the case he was not responsible for the execution of interests. So the ahadith of prohibition do not apply upon it and it is excluded due to the meaning of the hadith.

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