Article 17, 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 17: The rule is centralized and the administration is decentralized:

This article has been drafted to differentiate between the rule and the administration. Differentiation between them could be illustrated in two aspects:

1-    The reality of each one of them.

2-    The actions of the Messenger of Allah (saw) pertaining the appointment of the rulers and the employees. As for the reality of each one of them, the rule (Al-Hukm), the power (Al-Mulk) and the authority (Al-Sultan) mean the same thing, it is the competent entity that executes the rules.

                  This is explained in the celebrated Arabic dictionary Al-Muhit. To quote from the dictionary: "The power is the authority and the competence of the ruler.", "The rule is the judiciary, and the ruler is the executor of the rule." This means that linguistically ruling means judging, and the ruler is the executor of the rule; what is meant by the rule in this context is the terminological expression meaning the execution of the rules i.e. the power and the authority and the competence of the ruler. In other words, it is the function of the Imara which Shari'ah has made an obligation upon the Muslims.

The Messenger of Allah (saw) said:

 "It is unlawful for three to be in any part of the earth without appointing one from amongst them as Amir."

The function of the Imara is the authority utilized to repel unjust acts and to settle disputes. In other words, the rule is the government or the guardianship mentioned in the Qur'an.

 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) .

 

 Allah (swt) also says:

وَلَوْ رَدُّوهُ إِلَى الرَّسُولِ وَإِلَى أُولِي الْأَمْرِ مِنْهُمْ

"If only they had referred it to the Messenger or to those charged with authority amongst them." T.M.Q(4-83),

 It is the effective management of people's affairs. This is the reality of the rule; therefore, the government, the Imara, the power and the authority is the rule, and anything beyond this is the administration. Therefore, the work undertaken by the Khalifah and his Amirs, be it Walis or Ummal (pl. of Amil meaning governor) , in terms of looking after people's affairs by imlementing the Shari'ah rules and executing the judges' verdicts, is considered as part of the  rule. Any other function undertaken by those persons or other persons is considered part of the administration. Hence, the difference between the rule and the administration becomes clear. The Legislator has conferred this rule, with this reality upon the Khalifah whom the Ummah elects, i.e. the Amir whom the Ummah chooses. By choosing the Amir, i.e. by giving the Baya'a to the Khalifah, the Khalifah becomes the one with the competence of government, i.e. the rule becomes the competence of the Khalifah i.e. the Amir. This competence, could not be given to anyone else, unless the Khalifah delegates it to someone else himself. This is why the rule is centralized. In other words, the rule is to the Ummah and she in turn appoints a Khalifah i.e. an Amir; by giving him the Baya'a i.e. by electing him, he becomes the competent ruler; and he consequently reserves the right to delegate ruling matters to whoever he wishes; and no person can have this competence unless the Khalifah delegates him with it. Hence, the centrality of the rule becomes apparent; that is confining the competence of government to whom the Ummah has chosen, to enjoy personally the exclusive power of ruling. No other person apart from him enjoys a personal competence of government unless this is conferred upon him by the Khalifah within the specifications of this conferment, related to the place, the time and the matter at hand. We gather from this that the rule is centralized and this centralization is binding.

As for the actions of the Messenger of Allah (saw), he (saw) dispatched the Walis to their respective Wilayas and ordered them to implement the Shari'ah rules upon people. He (saw) also appointed employees to undertake certain actions, not to implement the rules. For instance, he (saw) appointed a host of Walis and gave them the right to execute the rules, without however specifying the means nor the styles of execution; he rather left it up to them. In other cases, he (saw) used to write a document containing the Shari'ah rules, not the means of execution, nor the styles of execution; he used to ask other to execute the rule of Allah. 

He appointed Amru Ibnu Hazm as a Wali and he handed him a document. He (saw) also appointed Mu'ath Ibnu Jabal and asked him how he would rule, and approved of his opinion in the matter. The Messenger of Allah (saw) appointed also Utab Ibnu Usayd as a Wali to execute the Shari'ah of Allah. He who used to be appointed as a Wali, used to also deem it within his competence to execute. Imran Ibnu Hassin was reported to have been appointed once as an Amil over the Sadaqa; so when he returned he was asked: "Where is the money?" "He replied: "Was it for the money that you sent me? We took the money from where we used to take it in the time of the Messenger of Allah (saw) and we placed where we used to always place it." This is different to the employees, for they would have their jobs specified and they would execute what they are ordered. For instance, the Messenger of Allah (saw) appointed Abdullah Ibnu Rawaha as an assessor over the Jews, i.e. he used to assess their produce before it is harvested. He (saw) used to dispatch the Ummal to levy the Zakat, so they would collect it and bring it back to the Messenger of Allah (saw); and he used to give them a wage. Basr Ibnu Said Ibnu Al-Saadi Al-Maliki said: "Omar Ibnul Khattab appointed me as Amil of Sadaqa, so when I finished and handed it over to him he paid me a wage. Upon this I said: "I did this for the sake of Allah." He said: "Take what you have been given, for I did your job in the time of the Messenger of Allah (saw) and he gave me a wage, then I said the same as you have just said; so the Messenger of Allah (saw) said to me:

 "If you have been given something without asking, take and give Sadaqa."

                  Imran Ibnu Hassin was a ruler, and he disapproved of being asked for the Zakat he had collected, for he executed the rule of Allah (swt) and gave it to those who were eligible, just like he used to do in the time of the Messenger of Allah (saw). However, Basr Ibnu Said was an employee who had performed what he had been commissioned in terms of collecting the Zakat and did not implement the Shari'ah rules. Hence, the difference between the actions of the ruler and the actions of the employee becomes apparent. The actions of the ruler is to implement the Shari'ah, i.e. to carry out the function of government, power and authority; whereas the actions of the employee (civil servant) is to carry out specific tasks and not to implement rules, and such actions are not part of the ruling matters, but rather part of the administrative tasks; and this also illustrates the difference between the actions of the ruler himself, for some of his actions are part of ruling matters, that is to implement the Shari'ah rules and execute the judges verdicts, which no other person has the competence to undertake, unless he is delegated by the one who has the power to rule, to undertake specific ruling matters; and other actions of the ruler are styles and means utilized to achieve the implementation, and these are part of the administrative matters. This type of actions does not require an appointment as far as the ruler is concerned; he also does not have to refer back to he who delegated him, because his appointment as ruler entitles him to utilize the means he deems fit and the styles he wishes, as long as the one who had appointed him does not impose specific styles and means, in which case he would have to abide by the specified styles and means. In other words, his appointment as ruler gives him the competence to undertake administrative actions provided there exist no administrative systems established by the one with the competence to rule, in which case the system must be adhered to.

Therefore, it becomes clear that the meaning of the rule being centralized is that assuming the authority, i.e. the implementation of Shari'ah is not a personally acquired right, it is rather given to the one whom the Ummah elects, and this authority is confined to him and to those whom he personally and exclusively delegates. The fact that the administration is decentralized means that the appointed ruler does not have to refer administrative matters back to the one who delegated him, he would rather perform them as he deems fit. This is established and deduced from the reality of the rule as mentioned in the Shari'ah texts, and from the actions of the Messenger of Allah (saw) pertaining the appointment of rulers. These are the evidences of this article.