Monday, October 28, 2013

Introduction to an Islamic Constitution for Syria and the Muslim world - Articles 5 & 6

The following is the translation of an article from the book by Hizb ut-Tahrir entitled 'Introduction to the Constitution and the necessary evidences for it' which is the explanation of its draft constitution for the Khilafah state. This draft translation is from the second edition published in 2009 which was updated from the original published in 1963. Numerous brigades in Syria have agreed to the implementation of this constitution after the removal of the corrupt system that has brutally suppressed the people for decades. 

Article 5
All citizens of the Islamic State enjoy the Shari’ah rights and duties.

Article 6
The State is forbidden to discriminate at all between the individuals in terms of ruling, judiciary and management of affairs or their like. Rather, every individual should be treated equally regardless of race, Deen, colour or anything else.

These two articles have been drafted in order to explain the rules pertaining to those who carry the Islamic citizenship irrespective of whether they were Muslims or the people of Dhimmah (non-Muslim citizen of the Islamic State). As for the Muslims, this is due to the fact that the Messenger  has denied the Muslims who live outside the Islamic State and who do not hold the Islamic citizenship from the rights enjoyed by the State’s subjects. On the authority of Sulayman Ibn Buraydah on that of his father who said: “Whenever the Messenger of Allah (saw) appointed anyone as Amir of an army or an expedition, he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He (saw) would say: “Conquer in the Name of Allah and in the Way of Allah. Fight against those who disbelieve in Allah. Conquer and do not embezzle the spoils; do not break your pledge and do not mutilate the dead bodies. Do not kill the children and if you encountered your enemies who are polytheists, invite them to three courses of action. If they respond to any of these, then accept it from them and withhold yourself from doing them any harm. Invite them to Islam; if they respond to you accept it from them and desist from fighting them. Then invite them to migrate from their abode to the abode of the Muhajirin and inform them that if they do so, they shall have all the privileges and obligations of the Muhajirin. If they refuse to migrate, tell them that they will have the status of Bedouin Muslims, but they will not get any share from the spoils of war or Fai’ except when they actually perform Jihad with the Muslims” (Recorded by Muslim). This narration indicates clearly that the one who does not migrate to Dar Al-Islam will not enjoy any of the rights of citizenship even if he were a Muslim. The Messenger of Allah  invited them to come under the authority of Islam so that they may enjoy what the Muslims enjoyed and undertake the obligations which the Muslims undertook; he  said: “Then invite them to migrate from their household to the household of the Muhajirin and inform them that if they do so, they shall have all the privileges and obligations of the Muhajirin”. This text stipulates that migration is required for them to have what we have and for our obligations to be upon them, in other words for them to fall under the laws. The understanding of the narration is that if they did not move they would not have what the emigrants had, in other words what they had in the abode of Islam (Dar Al-Islam), so this narrations explain the difference in the laws between the one who moves to the abode of the emigrants and the one who doesn’t, and the abode of the emigrants was the abode of Islam with anything else being the abode of disbelief (Dar Al-Kufr). The individual’s residence in Dar Al-Islam or in Dar Al-Kufr is referred to as citizenship. Hence, a person’s citizenship means the abode which he chooses as his residence; is it Dar Al-Islam or Dar Al-Kufr? If it were Dar Al-Islam, then the rules of Dar Al-Islam would apply to it, and in this case a person would be a holder of an Islamic citizenship. If it were Dar Al-Kufr, the rules of Dar Al-Kufr would apply to it, and the person living there would not be considered as a holder of an Islamic citizenship.

The laws encompass the Dhimmi who lives in Dar Al-Islam, so they are given the rights of residency and carry the citizenship. The Dhimmi is the one who embraces any Deen other than Islam and becomes a citizen of the Islamic State while remaining upon his faith which is other than Islam. The word Dhimmi is derived from the word Dhimmah, meaning the oath. Hence, the Dhimmi are those to whom we give an oath to treat according to the terms of peace we made with them and to proceed in interaction with them and in managing their affairs according to the rules of Islam.

Islam has come with several rules pertaining to the people of Dhimmah, in which it guaranteed the rights of citizenship for them and imposed upon them its duties. Islam also outlined that the Dhimmi enjoy the same justice we enjoy and that they should abide by the same rules that we abide by. As for that which they enjoy in terms of justice and fairness, this is derived from the general command reflected in Allah (swt) saying: “And if you judge between people that you judge with justice.” (TMQ 4:58) and in His (swt) saying: “And let not the hatred of others to you to make you swerve to wrong and depart from justice. Be just, that is nearer to piety” (TMQ 5:8) and it is also reflected in Allah (swt) saying regarding the judgement between the people of the book “If you judge, judge with equity between them; for Allah loves those who judge in equity” (TMQ 5:42).

As for abiding by that which we abide by in terms of justice, this is derived from the actions and sayings of the Messenger of Allah . He  used to exact the same punishment upon the disbelievers and the Muslims. The Messenger of Allah  punished a Jew by killing him for killing a woman, as has been recorded in al-Bukhari from Anas Bin Malik who said: “A woman who went out in Madinah wearing ornaments was attacked by a Jew who threw a stone at her, so she was brought to the Prophet  barely alive, so the Messenger of Allah said to her so and so killed you, upon which she raised her head, and so he returned and said so and so killed you, upon which she raised her head, so he returned and said so and so killed you upon which she lowered her head. The Messenger of Allah called for that person and he was killed between two stones”. He  was brought a Jewish man and woman who had committed adultery and so he stoned the pair of them as related by al-Bukhari from Ibn Umar who said “A Jewish man and woman who had committed adultery were brought to the Messenger of Allah , and so he asked the Jews what do you find in your book? They said our rabbis appeared red faced. ‘Abd Allah Bin Salam said Call them to the Torah O Messenger of Allah, and so they brought it and one of them placed his hand upon the verse of stoning and began to recite what came before and after it, and so Ibn Salam said to him Raise you hand, and the verse of stoning was there beneath his hand and so the Prophet ordered for the two accused to be stoned”

It is a duty upon us to give the people of the Dhimmah the protection given to the Muslims, due to words of the Messenger of Allah , He who kills a covenanted person unjustly shall not find the scent of heaven; its scent is found the distance of a hundred year march”, transmitted by Al-Tirmidhi who said it is Hasan Sahih. And al-Bukhari transmitted it with the words “whoever killed a covenanted person will not smell the scent of heaven; and its scent covers the distance of 40 years”.

The people of Dhimmah enjoy the same rights as those enjoyed by Muslims in terms of managing their affairs and securing their living. It is narrated on the authority of Abu Musa Al-Ash’ari that the Messenger of Allah  said: “Feed the hungry, visit the poorly and free the prisoner” transmitted by al-Bukhari through Abu Musa. Abu ‘Ubaydah said: “Therefore, the people of Dhimmah are excluded from Jihad, their prisoners are freed and if they are salvaged, they return to their Dhimmah and their oath as free, and there are narrations regarding that”. And on the authority of Ibn Abbas who said: “The Messenger of Allah  made peace with the people of Najran” and from the narration as transmitted by Abu Dawud in his Sunan “their churches would not be destroyed, and no priest of theirs would be banished and they would not be coerced away from their faith provided they did not innovate any matter and they did not deal in usury”.

The Prophet  used to visit their sick, as recorded by al-Bukhari from Anas who said “There was a young Jewish boy who used to help the Prophet  who became ill and so the Prophet  used to visit him. He sat by his head and said to him – Embrace Islam, and so he looked at his father who said to him Obey Abul Qasim, and so he embraced Islam. The Prophet  left him and he said All Praises to Allah who saved him from the fire” which indicates that it is permitted to visit them, be courteous and sociable with them. Al-Bukhari transmitted from Amru Bin Maymun from Umar Bin al-Khattab (ra) who counselled at the time of his death “And I direct the Khalifah after me with this and this, and direct him that by the oath of Allah and the oath of His Messenger , he should fulfil their oath towards them, to fight on their behalf and not to burden them with more than they could bear”.

The Dhimmi should not be interfered with in terms of their faith and their rituals, for the Messenger of Allah (saw) said according to what Abu Ubaid reported in al-amwal through ‘Urwa who said: The Messenger of Allah  wrote to the people of Yemen: “He who is upon his Judaism and his Christianity, should not be coerced away from their faith”. Custom duties are not extracted from the Dhimmi in the same way they are not taken from the Muslims. Abu ‘Ubayd reported in al-Amwal on the authority of Abdul Rahman b. Ma’qal “I asked Ziyad Bin Hadir – who did you used to tax? He said – we did not use to tax Muslims nor the one who had a covenant. So I said – so who did you tax? He said traders of war (people from states with no agreement) in the same way they would tax us if we went to them”. The tax collector is the one who extracts the custom duties.

Therefore, the Dhimmi are subjects of the State, like any other subjects, enjoying the rights of citizenship, protection, guaranteed living and fair treatment. They also enjoy the right of being treated with kindness, leniency and clemency. They can join the Islamic armed forces and fight alongside the Muslims if they choose to do so, but they are not obliged to fight and no wealth is obliged from them except the Jizya, so the taxes that are obliged upon the Muslims do not apply to them. They are viewed by the ruler and the judge in the same light as the Muslims are viewed without any discrimination in terms of the management of their affairs and the implementation of the rules of transactions and the penal code upon them. Therefore, the Dhimmi enjoys all the rights, equally and exactly as those enjoyed by the Muslim; he is also expected to perform all the duties incumbent upon him, such as the fulfilment of the oath and the obedience of the State’s orders.

In this way it can be seen that the issue with respect to being taken care of is the citizenship of the State, irrespective of whether they were Muslim or not. It is forbidden to discriminate in any way between those who hold the Islamic citizenship, due to the generality of the evidences pertaining the ruling and judicial matters and management of affairs. Allah (swt) says: “And if you judge between people that you judge with justice” (TMQ 4:48). This is a general address that applies to all people, Muslims and non-Muslims alike. Furthermore, the Messenger of Allah  said: “The evidence must be submitted by the plaintiff and the oath must be delivered by the defendant who denies the charge” as transmitted by al-Bayhaqi with a Sahih chain. This is also general and it applies to Muslims and non-Muslims alike. It is narrated from ‘Abd Allah Bin Zubayr who said: “The Messenger of Allah  has decreed that the two disputing parties should both sit before the judge” reported by Ahmad and Abu Dawud and authenticated by al-Hakim. This is also general and it includes any two disputing parties, Muslims and non-Muslims alike. The Messenger of Allah  said “The Imam is a guardian and he is responsible for his subjects.” (Agreed upon by Muslim and al-Bukhari). The term “subjects” is general and it includes all the subjects, Muslims and non-Muslims alike. Likewise, all the general evidences related to citizenship indicate that it is forbidden to discriminate between the Muslim and the non-Muslim, between the Arab and the non-Arab or between the white and the black. Rather, all the people who hold the Islamic citizenship should rather be treated equally, without any discrimination between them either by the ruler, in terms of looking after their affairs and in terms of protecting their lives, their honour and their wealth, or by the judge in terms of equality and justice.

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