Media Office Hizb ut-Tahrir Pakistan

References to Constitution

Article 1

The Islamic belief (‘Aqidah) constitutes the foundation of the state. Hence, nothing is permitted to exist within its entity, its structure or its accountability or any other aspect connected to it, unless the Islamic ‘Aqidah is its basis. At the same time, the Islamic ‘Aqidah acts as the basis of the constitution and Shari’ah laws; thus, nothing related to the constitution or to the laws is permitted to exist unless it emanates from the Islamic ‘Aqidah.

The explanation and the clarification of the evidences

The state comes into being by the emergence of new ideas upon which it is established. The authority (the governing of people’s affairs and the management of their issues) in the state changes when the new ideas change, since if these ideas turned into concepts (i.e. if their meaning was perceived and their credibility was established), they would influence man’s behaviour. This behaviour would then proceed according to these concepts. Thus, man’s viewpoint about life changes, and according to its change, his viewpoint towards the interests also changes. The authority is simply the guardianship of these interests and the supervision of their management; thus the viewpoint about life is the basis upon which the state is built and it is the basis upon which the authority is established. However, the viewpoint about life is generated by a specific thought about life. Hence, this thought about life becomes the basis of the state and the basis of the authority.

Since the specific thought about life is embodied in a host of concepts, criteria and convictions, this host of concepts, criteria and convictions is considered a basis. The authority looks after peoples’ affairs and supervises the management of their interests according to this host of concepts, criteria and convictions. Therefore, the basis is a host of thoughts and not just one single idea. It is this host of thoughts in its entirety that generated the viewpoint about life, and consequently the viewpoint towards the interests was established and the authority set about managing them according to this viewpoint. Therefore, the state was defined as being an executi entity for a host of concepts, criteria and convictions that a group of people had adopted.

This is regarding the state from the fact that it is a state i.e. from the fact that this state is the authority that looks after the interests of people and supervises the management of these interests.

However, this host of thoughts upon which the state is founded i.e. the host of concepts, criteria and convictions could either be built upon a fundamental thought or not built upon a fundamental thought. If it were built upon a fundamental thought, it would be solidly built with strong pillars and a firm entity; since it would rest upon a fundamental foundation. This is so because the fundamental thought is the thought that has no other thought behind it, and that is the intellectual ‘Aqidah. In such a case, the state would be built upon an intellectual ‘Aqidah. On the other hand, if the state were not built upon a fundamental thought, this would ease its destruction and it would not be difficult to demolish its entity and then usurp its authority. This is because it has not been built upon one intellectual ‘Aqidah upon which the state was established. Therefore, it is essential that in order for the state to be a strong entity, it must be established upon an intellectual ‘Aqidah from which ideas that the state was founded upon emanate i.e. an intellectual ‘Aqidah from which the host of concepts, criteria and convictions that represent the idea of the state regarding life emanate and consequently the viewpoint of this state towards life and this is what produces its viewpoint towards the interests.

 

The Islamic State is built solely upon the Islamic ‘Aqidah because the host of concepts, criteria and convictions which the Ummah (collective of Muslims) has adopted emanate solely from an intellectual ‘Aqidah. The Ummah has first of all adopted this ‘Aqidah and embraced it as a conclusive ‘Aqidah based on decisive evidence. Hence, this ‘Aqidah was its comprehensive idea about life and accordingly its viewpoint about life was shaped and based upon it and its viewpoint towards the interests was derived from it. The Ummah also took the host of concepts, criteria and convictions from it and therefore the Islamic ‘Aqidah is the basis of the Islamic State.

Additionally, the Messenger of Allah Description: durood established the Islamic State upon a specific basis; therefore this very basis must be the basis of the Islamic State in every era and in every location. When the Messenger of Allah Description: durood established the authority in Madinah and assumed the rule over it, he established it on the basis of the Islamic ‘Aqidah from the very first day and the verses of legislation had not been revealed yet. Hence, the Messenger of Allah Description: durood made the Shahadah (testimony) of “There is no god but Allah and Muhammad is the Messenger of Allah” as the basis of the Muslims’ life and of the relationships between people as well as the basis for removing grievances and settling disputes. In other words, it was the basis of all aspects of life and the basis of authority and government. He Description: durood did not stop at that; rather, He (swt) also legislated for Jihad and made it an obligation upon the Muslims in order to carry this ‘Aqidah to all people. Abu Dawud reported on the authority of Abu Hurayrah that the Messenger of Allah Description: durood said:  “I have been ordered to fight people until they profess that there is no god but Allah. If they said it, their lives and their wealth would be inviolable to me, except that which is by right and their account is with Allah” (Agreed upon, text used from Bukhari)

The Messenger of Allah Description: durood also made the protection of the continued presence of the ‘Aqidah as a basis for the state an obligation upon the Muslims and he Description: durood ordered the Muslims to brandish the sword and to fight if the flagrant Kufr (disbelief) were to become apparent; in other words, if the ‘Aqidah ceased to be the basis of authority and rule. The Messenger of Allah Description: durood was asked about the tyrant rulers “the most evil of the leaders”: “Do we challenge them with the sword?” He Description: durood replied “No, as long as they continue to establish prayer amongst you.” (Muslim), and he Description: durood made the Bay’a (pledge of allegiance to the ruler) based on the Muslims’ obedience to the people in authority unless the Muslims witness a flagrant Kufr. In the narration of Auf Bin Malik regarding the evil leaders “It was said O Messenger of Allah – do we not challenge them with the sword? And he Description: durood replied: "No as long as they establish the prayer” (Muslim). And ‘Ubadah B. Samit said in the agreed upon narration regarding the Bay’a “and that we would not dispute the people in authority unless we witness a flagrant Kufr (disbelief)” and in the narration of Al-Tabarani, the wording was: “open Kufr”. And in a narration by Ibn Hibban in his Sahih collection, the wording was: “unless the disobedience to Allah is flagrant”. All of this indicates that the basis of the state is the Islamic ‘Aqidah, since the Messenger of Allah Description: durood established the authority upon it, ordered the brandishing of the sword in order to maintain it as a basis for the authority and he also ordered Jihad for its sake.

The first article of the constitution was drafted based on the previously mentioned grounds. This article prohibits the state from having any concept, conviction or criterion that does not emanate from the Islamic ‘Aqidah. To have the Islamic ‘Aqidah as a nominal basis for the state would not be sufficient; rather, this basis should be reflected in every aspect related to the State’s existence and in every minor or major issue. Hence, it is forbidden for the state to have any concept about life or about ruling unless it emanates from the Islamic ‘Aqidah. The state would not tolerate any concept not emanating from this ‘Aqidah. Therefore, it would not tolerate the concept of democracy to be adopted within the state because it does not emanate from the Islamic ‘Aqidah and because the Islamic Aqidah contradicts with the concepts which emanate from it. Additionally, the concept of nationalism would not be allowed to have any consideration whatsoever because it does not emanate from the Islamic ‘Aqidah and because the concepts which emanate from the Islamic ‘Aqidah abhor it, prohibit it and outline its danger. Likewise, the concept of patriotism should not have any existence, for it does not emanate from the Islamic ‘Aqidah and because it contradicts with the concepts that emanate from the Islamic ‘Aqidah. Furthermore, the apparatus of the State would not have any ministerial departments according to the democratic understanding and nor should there be in its government any imperial, monarchical or republican concepts for these do not emanate from the ‘Aqidah of Islam and they contradict with the concepts emanating from it. Furthermore, it is categorically forbidden for individuals, movements or groups to account the Islamic State on other than the basis of the Islamic ‘Aqidah. Hence, such type of accounting that is based upon other than the Islamic ‘Aqidah would be prohibited and the establishment of movements and groups on other than the basis of the Islamic ‘Aqidah would be prohibited. The fact that the Islamic ‘Aqidah acts as the basis for the State makes all of this binding upon the State itself and makes it incumbent upon the citizens over which it rules. This is since its life, in its capacity as a state, as well as the life of every matter originating from it in its capacity as a state, and every action linked to it in its capacity as a state, and every relationship established with it in its quality as a state, must have as its basis the ‘Aqidah of the State, that is the Islamic ‘Aqidah.

As for the second issue in the article, its evidence is reflected in the fact that the constitution is the fundamental law (qanun al-asaasi) of the State; thus, it is a law, and the law itself is the order of the authority.  Allah (swt) ordered the ruler to rule by what He (swt) revealed to the Messenger of Allah Description: durood and described the one who rules by other than what Allah (swt) has revealed as a disbeliever if he believed in what he ruled by and believed in the unsuitability of what Allah (swt) revealed to His Messenger Description: durood. He (swt) described the ruler who rules by other than what He (swt) revealed but did not believe in it as ‘aassi (disobedient). This indicates that belief in Allah (swt) and His Messenger Description: durood must be the basis of the orders of the ruler; that is, the basis of the laws and the basis of the constitution. As for the command of Allah (swt) to the ruler to rule by what He (swt) revealed, in other words by the Shari’ah rules, this is established in the Book and the Sunnah. Allah (swt) says, “ By your God, they shall not believe until they make you judge of what is in dispute between them” (TMQ 4:65) and “So rule between them by what Allah has revealed” (TMQ 5:49).

Allah (swt) has confined the State’s legislation to what He had revealed and He warned against ruling by other than it. He (swt) says, “Whoever rules by other than what Allah has revealed, they are the disbelievers.” (TMQ 5:44). Also, the Messenger of Allah Description: durood said in an agreed upon Hadith, “Whoever introduces into our matter (Islam) something that is not in it, then it is rejected” (Agreed upon, text from Bukhari), and in the narration in Muslim “something that is not from it”, and in the narration from Ibn Hazm in Al-Muhalla and Ibn ‘Abd Al-Barr in Al-Tamhid “Every action which is not based upon our order, it is rejected”. This indicates that the legislation of the State must be confined to what emanates from the Islamic ‘Aqidah; these are the Shari’ah rules which we certainly believe that Allah (swt) has revealed to the Messenger of Allah Description: durood, whether their revelation were explicit; by stating that it is the rule of Allah (swt) and it is reflected in the Book, the Sunnah or the Sahabah (companions of the Prophet) unanimously consented that it is the rule of Allah (swt), or whether their revelation was implicit; by saying this is an indication of the rule of Allah (swt) taken by way of analogy whose ‘Illah (reason) is a Shari’ah ‘Illah. This is why the second issue has been drafted in the article.

In addition, since the actions of the worshippers must be confined to the address of the Legislator (swt), their governing should therefore be from Allah (swt), and the Islamic Shari’ah came to address all the actions of people and all of their relationships, whether these relationships were with Allah (swt), with themselves or with other people. Hence, there is no place in Islam for people to enact laws from themselves in order to govern their relations for they are restricted to the laws of Shari’ah. Allah (swt) says “Whatever the Messenger brought you take it; and whatever he forbade you abstain from it.” (TMQ 59:7). He (swt) also says: “It is not fitting for a believer, man or woman, when a matter has been decided by Allah and His Messenger, to have any option about their decision.” (TMQ 35:36). The Messenger of Allah Description: durood said: “Truly Allah has commanded the obligations, so do not neglect them; He also prohibited certain things, so do not violate them and He imposed certain limits, so do not transgress them.” (extracted by Al-Daraqutni from Abi Tha’labah, and confirmed as Hasan by Al-Nawawi in Al-Riyadh Al-Salihin). He Description: durood also said: “Whoever introduces into our matter (Islam) something that is not in it, then it is rejected” (Agreed upon, through Aaisha (ra) and the wording is from Muslim).

Therefore, it is Allah (swt) who legislated the rules, not the ruler, and it is He (swt) who obliged people and obliged the ruler to adhere to them in their relations and in their actions, restricted them to these rules and prohibited them from following anything else. Due to this, there is no scope for man to lay down laws to govern peoples’ relations and there is no place for the ruler to force people or to give them the choice to follow principles and rules laid down by man to govern their relations.

Article 21

The Muslims have the right to establish political parties in order to account the rulers or to reach the rule through the Ummah on the condition that their basis is the Islamic ‘Aqidah and that the rules they adopt are Shari’ah rules. The formation of a party does not require any permission. Any group formed on an un-Islamic basis is prohibited.

 

Its evidence is the words of Allah (swt) “Let there arise out of you a group of people inviting to all that is good (Islam), enjoining Al-Ma'ruf (Islamic Monotheism and all that Islam orders one to do) and forbidding al-Munkar (polytheism and disbelief and all that Islam has forbidden). And it is they who are the successful.” (TMQ 3:104). The angle of using this verse as an evidence for the establishment of political parties is that Allah (swt) ordered the Muslims to have a group which carries out the Da’wah to Islam amongst them, and likewise carries out enjoining the ma’ruf and forbidding the munkar, so His (swt) saying “Let there arise out of you a group” is an order to create a structured group which has the characteristic of the group from amongst the groups of Muslims, since He (swt) said “from you”, and the intention of His (swt) words “Let there arise from you” is to let a group from the Muslims rise and not that the Muslims be a group; in other words let their arise from the Muslims an Ummah, and the meaning is not that the Muslims should be an Ummah.

This is because the word “from” (min) in the verse is for partitioning (tab’id) and not for clarifying the genus, and the way to check is that the word “some” (ba’d) should be able to replace it, so it can be said “Let some of you arise as a group”, whereas the word min cannot be replaced with “some” in the verse “Allah promised those who believe from you” (TMQ 24:55), since it cannot be said that “Allah promised some of those who believed from you” and so in this case it is for clarifying the genus; in other words the promise is not restricted to the generation of the companions (may Allah (swt) be pleased with them) but it is for all those who believed and did good actions.

Based upon that, as long as the from (min) in the verse is for partitioning, this entails two issues: firstly, that establishing a group from amongst the Muslims is an obligation of sufficiency and not an individual obligation and secondly that the presence of a bloc that has the characteristic of being a group from the Muslims is sufficient for this obligation as long as the number of this bloc is enough such that it retains the characteristic of being a group and as long it is capable of establishing the action required from it in the verse. So the words “and let there arise” are addressing the whole of the Islamic Ummah, but they are exerted over the word Ummah – that is, the group; in other words the request is asked from all the Muslims and the thing that is requested is the creation of a group that has the characteristic of a group, and so the meaning of the verse is bring about O Muslims a group which will carry out two actions: the first of them that it will call to the good and the second that it will enjoin the ma’ruf and forbid the munkar. So it is a request for the creation of a group and this request has had the action of this group explained.

Although this request is simply an order “let there arise”, however there is an indication which points to it being a decisive request, since the action which the verse explains this group being established for is an obligation upon the Muslims to carry out as is confirmed by other verses and in numerous narrations, and so that is an indication that this request is a decisive request and accordingly the order in the verse is an obligation. Therefore the verse indicates that it is imperative upon the Muslims to establish a group from amongst themselves that will carry out the da’wa to the good – in other words to Islam – and will enjoin the ma’ruf and forbid the munkar.

This is from the angle that the establishment of a group that will carry out these two actions mentioned in the verse is obligatory upon the Muslims and they will all become sinful if this group was not in existence. As for the issue that this group mentioned in the verse to be established is a political party, then the evidence for that is two issues: firstly that Allah (swt) did not request in this verse that the Muslims carry out the Da’wah to the good and the enjoining of the ma’ruf and the forbiddance of the munkar; rather it was only requested in the verse to establish a group which will carry the two actions out and so the request is not to carry out the two actions but rather to establish a group that will carry them out, and so the order is exerted over the establishment of a group and not over the two actions. The two actions are the explanation of the work of the group, whose creation is requested, and the two actions are not themselves the issue requested, rather they are the specific characteristics for the type of group whose creation is requested.

In order for this group to be a group which is able to undertake the action in its characteristic as a group, it is imperative that it has specific issues in order to be and remain a group while undertaking the action. In order for the group to gain this characteristic which came in the verse – and that is a group that undertakes the two actions – it is imperative that it possesses what brought it about as a group and keeps it as one while it works. What makes it a group is the presence of a bond that bonds together its members such that they become a single body, i.e. a bloc. Without the presence of this bond the group whose creation is requested, in other words a group which works according to its characteristic as a group, would not be found. What keeps the group as a group while it is working, is the presence of an Amir for it whom obedience to is obligatory. That is because the Shari’ah ordered that every group of three and more must appoint an Amir; the Prophet Description: durood said “It is not permitted for three in an open space upon the Earth not to appoint one of themselves as their Amir” (reported by Ahmad through ‘Abd Allah b. ‘Amru), and because the leaving of obedience removes one from the group; he Description: durood said in an agreed upon narration with this wording from Muslim “Whoever sees something from his Amir that he hates then let him be patient since the one who separates from the group by a hand-span and then dies, the death is one of jahilliyah”; so he made going against the Amir a separation from the group. Therefore the issue that maintains the group while it is working is the obedience to the Amir of the group. And these two characteristics are necessary in order to bring about the group which will carry out the two actions while it is a group, and they are the presence of a bond for the group and the presence of an Amir to whom obedience is obligatory. These two indicate that His (swt) words “And let there arise out of you a group” means: and bring about from amongst yourselves a group which has a bond which bonds its members together and an Amir to whom obedience is obligatory.  And this is the bloc or the party or the association or the organisation or any name from the names which are applied to the group which fulfils what makes it a group and maintains it as group while it is working. And with that it becomes apparent that the verse is an order to form parties, associations, groups or their likes. As for the reality that this order is an order to bring about political parties, that is because the order is a request to bring about a specific group by specifying the action that it will carry out, and not simply any group. The verse explains the action that the group will carry out in its characteristic as a group and this explanation identified the type of group whose creation was requested; in other words it identified the type of association whose creation was requested, since the verse mentioned: to bring about from the Muslims a group that calls to the good and enjoins the ma’ruf and forbids the munkar. So this is to be a characteristic for this group, and it is a defined characteristic, so the group that meets this characteristic is the one which is obligatory to be brought about, and anything else is not obligatory. As for the call to the good, or the da’wa to Islam, then it is possible for an group to carry it out, and it is possible for a party or an organisation to carry it out. However, enjoining the ma’ruf and forbidding the munkar which came in a general form, is an action which can only be carried out by a political party, because it encompasses the ordering of the rulers by the ma’roof and forbidding them from the munkar. In fact, this is the most important action from the enjoining of the ma’ruf and the forbiddance of the munkar, and it is part of this verse, since it came in a general form “and enjoin the ma’ruf and forbid the munkar”, and the alif and lam (‘the’) represent the genus so accordingly it is from the forms of generality. This action is from the most important acts of the political party, and is what grants the political aspect to the party or association or organisation, and makes it a political party or a political association or a political organisation. And since this action, the ordering of the rulers with the ma’ruf and forbidding them from the munkar, is from the most important acts of enjoining the ma’ruf and forbiddance of the munkar, and since the enjoining of the ma’ruf and the forbiddance of the munkar is one of the two requested actions in the verse which are to be the actions of the group which must be created, accordingly the order in the verse is related to a specific group and that is the group whose work is the da’wa to Islam, the ordering of the rulers with the ma’ruf and forbidding them from the munkar, and ordering the rest of the people likewise with the ma’ruf and forbidding them from the munkar.

This is the group whose establishment Allah (swt) made obligatory upon the Muslims; in other words it fulfils all of these characteristics found in the verse describing it. The group which has this characteristic is the political party. It cannot be argued that the creation of a group which calls to Islam, and orders the people with the ma’ruf and forbids them from the munkar and does not confront the rulers is sufficient to fulfil this obligation. That cannot be argued since the fulfillment of the obligation does not occur unless the group which the Muslims brought about fulfils all of its characteristics. In other words it fulfils the enjoining of the ma’ruf and the forbiddance of the munkar alongside the Da’wah to the good, since the attachment in the verse came with the letter “and” (wa) which indicates participation, and because the words to order the ma’ruf and forbid the munkar came in a general meaning with a form from the forms of generality - therefore it has to remain upon its generality and its generality has to be fulfilled. So the obligation cannot be established unless the work of the group in enjoining the ma’ruf and forbidding the munkar was general, as it came in the verse, with no exceptions made. So if the ordering the rulers with ma’ruf and forbidding them from the munkar is excluded, or in other words if the political actions are excluded, then the group requested in the verse is not present, and this group is not the one requested by the verse because it excluded an important action from the enjoining of the ma’roof and the forbiddance of the munkar, and the verse came in its generality and so this characteristic is not complete unless the ordering of the rulers by the ma’roof and forbidding them from the munkar is part of the groups actions. For this reason the obligation as mentioned in the verse is not fulfilled except by the establishment of a political group, in other words a political party or association or organisation; that is, the group which carries out the enjoining of the ma’ruf and forbiddance of the munkar generally without excluding anything from it, and this is not found except with a political party or association or something that resembles them.

Accordingly, Allah (swt) has ordered in this verse the establishment of political parties which will carry out the work of the Islamic da’wa, and the accounting of the rulers by enjoining them with the ma’ruf and forbidding them from the munkar. This is the angle of deduction from this verse as an evidence for the article.

It cannot be argued that this verse says “Ummah”, in other words a single party, and that this means the absence of multiple parties. This cannot be argued because the verse did not say “One Ummah”, so it did not mention one group but rather it said “Ummah” in the unknown form and without any description. That means to establish a group is obligatory. If a single group was established then the obligation has been met, but it does not prohibit the establishment of multiple groups or multiple blocs. The carrying out of the obligation of sufficiency by one in which one is enough to carry it out, does not prohibit other than that one to carry out this obligation. And the word group here is the name of a genus, in other words the word group is used and what is intended by it is the genus and not the single unit; Allah (swt) said “You are the best Ummah raised for mankind” (TMQ 3:110) and what is intended is the genus. And comparable to that are the words of the Messenger Description: durood “Whoever from you sees a munkar then he should change it” (reported by Muslim through Abu Sa’id al-Khudri), so the intention is not a single munkar rather the genus of munkar, and there are many similar examples. So it holds true upon the single unit from the genus and also upon multiple units from that genus. It is therefore permitted that a single party could exist in the Ummah, and permitted that several parties could exist, but if a single party is present then the obligation of sufficiency has been met if that party carried out the required actions in the verse. However, this does not prevent the establishment of other parties, since the establishment of the political party is an obligation of sufficiency upon the Muslims, so if one party is established and others want to bring about a second party in other words to carry out that obligation it is not permitted for them to be prevented, since this is the prevention from carrying out an obligation, which is prohibited. Accordingly, it is not permitted to prevent the establishment of multiple political parties. This only applies to those political parties that are established upon what the verse mentioned; that is the call to the good, the enjoining of the ma’ruf and the prohibiting of the munkar which encompasses the rulers and accounting the rulers. As for anything else, then it has to be considered - if it was established to carry out something prohibited such as the call to nationalism, or to spread un-Islamic ideas, or similar, then the establishment of such blocs is prohibited and will be prevented by the State, with each participant being punished. If they were not established to carry out something prohibited, such as to carry out something permitted, then what is established upon a permitted basis would be permitted. However, it would not be considered establishing the obligation that Allah (swt) obligated in the text of this verse unless it was a political party which had all the characteristics mentioned in the verse.

Since the carrying out of the obligation does not require the permission of the ruler, rather to make the fulfilment of an obligation reliant upon the permission of the ruler is something prohibited, therefore the establishment of political parties and their creation does not require a permit.

 Article 24

The Khalifah is the representative of the Ummah in excercising of the authority and in implementing of the Shari’ah.

 

The Khilafah is the general leadership for all of the Muslims in the World, in order to establish the rules of the Shari’ah and to carry the Islamic call to the world. The ones whom appoint the one who undertakes this leadership, in other words appoint the Khalifah, are the Muslims alone. Since the authority belongs to the Ummah, and the implementation of the Shari’ah is obligatory upon the Muslims, and the Khalifah is a leader for them, accordingly his reality is that he is their representative in the authority and the implementation of the Shari’ah. Therefore, there is no Khalifah unless the Ummah gives him the pledge of allegiance; their pledge to him is proof that he is their representative. The obligation of obedience to him is proof that this pledge, which concludes the contracting of the Khilafah to him, gives him the authority, and this means that he is their representative in the authority. And upon this basis this article has been drafted.

Article 41

The court of the Madhalim (injustices) is the only authority that can decide whether the change in the situation of the Khalifah removes him from the leadership or not, and it is the only authority that has the power to remove or warn him.

 

The evidence is that the occurrence of any issue from the issues that the Khalifah is removed for and those for which his removal is deserved, is a complaint from the injustices, and so it must be removed. And in the same manner it is one of the issues that require confirmation, and so it is imperative to be established in front of a judge. Since the court of Madhalim (injustices) is the one which rules to remove the injustices, and its judge is the one who has the power to confirm the injustice and rule upon it, accordingly the court of Madhalim decides whether any of the previous ten circumstances have occurred or not, and whether the Khalifah is removed.

However, if the Khalifah is afflicted by any of the circumstances and removes himself, then the issue is closed, and if the Muslims see that it is necessary for him to be removed due to this situation occurring and he disagrees with them, then the issue is referred to judgement due to the words of Allah (swt) And if you differ in anything amongst yourselves, then refer it to Allah and His Messenger” (TMQ 4:59); in other words, if you and the people of authority disagreed, and this is a disagreement between the person of authority and the Ummah, and to refer it to Allah (swt) and His Messenger (saw) is to refer it to judgement, or in other words the court of the Madhalim.

The Madhalim court has the power to limit the period of notice to remove the mastery over him, or the period of grace for freeing him from imprisonment, during which the temporary leader would work, and after if the Khalifah then could carry out his powers without being under the mastery of others or imprisoned, then the work of the temporary leader would end. If the mastery over him or imprisonment did not end, then the court would rule to remove him, and the temporary leader would begin the process of appointing the new Khalifah.

Article 87

The judge of the Court of Injustices (Madhalim) is appointed to remove all injustices which have been inflicted upon any person who lives under the authority of the State, irrespective of whether the person is from the subjects of the State or not, and irrespective of whether the injustice was committed by the Khalifah or anyone below him from the rulers and civil servants.

This article has the definition of the judge of the Court of Injustices (Madhalim) and the basis for the Judiciary of Injustices (Madhalim) is what was narrated from the Prophet Description: durood when he described any act carried out by the ruler on other than the truth while ruling over the subjects as being an injustice (Madhlamah). Anas reported: “Prices soared during the time of the Messenger of Allah Description: durood so they said to him ‘O Messenger of Allah why don't you fix the prices?’ He said 'Truly Allah is the Recipient, the Extender of wealth, the Provider, and the Pricer, and And verily I hope that I will meet Allah without having anyone claiming against me a Madhlamah (complaint) I inflicted on him in blood or wealth,'” (reported by Ahmad). So he Description: durood considered price fixing as an injustice (Madhlamah), because if he Description: durood had done it he Description: durood would have done something that he Description: durood had no right to do. In the same manner, he Description: durood also made the issues that affect the public rights which the State organises for the people as part of the injustices (Madhalim), such as the irrigation of farming lands by common water by taking turns. The Messenger of Allah Description: durood looked into the dispute over irrigation that took place between al-Zubayr Bin al-‘Awwam (ra) and a man of the Ansar. He Description: durood witnessed it personally and said to al-Zubayr (ra): “You irrigate first O Zubayr and then the Ansari,” (agreed upon and the wording is from Muslim). Therefore, any injustice (madhlama) that occurs against any person, whether perpetrated by the ruler, or as a result of the State’s organisations or orders, would be considered as an injustice (madhlama), as understood from the two narrations. The matter would be referred to the Khalifah to rule upon it or whoever deputises for the Khalifah from the judges of the Court of Injustices (Madhalim).

Article 88

The judge of the Court of Injustices (Madhalim) is appointed by the Khalifah, or by the Supreme Judge. His accounting, discipline and removal are done by the Khalifah or by the Supreme Judge if the Khalifah had given him the powers to do so. However he cannot be removed during his investigation of a Madhlamah against the Khalifah, or the executive assistants, or the Supreme Judge; rather the power to remove him in these circumstances is for the Court of Injustice Acts (Madhalim).

 

The judge of Madhalim is appointed by the Khalifah, or by the Supreme Judge. This is because the Madhalim is part of the judiciary, for they are the conveying of the Shari’ah rule by way of enforcement, and all the types of judges must be appointed by the Khalifah. This is confirmed by the Messenger of Allah’s Description: durood actions since he Description: durood used to appoint the judges as was explained previously. All this means that it is the Khalifah who appoints the judge of Madhalim, yet the Supreme Judge could appoint the judge of Madhalim if the Khalifah made provisions for this in his appointment clause. It is allowed for the main court of injustices (mahkamat al-Madhalim) in the centre of the State to examine only the Madhalim that occurred from the Khalifah, his assistants and the Supreme Judge. However, the branches of the court of injustices in the provinces examine the Madhalim that occur from the governors and the other State employees. The Khalifah has the right to give the Central Court of Injustices the authority of appointment and removal of the Madhalim judges in the branch Madhalim courts that come under its authority in the provinces.

The Khalifah is the one that appoints and removes the members of the main court of injustices in the centre of the State. As for the removal of the head of the central court of injustices - in other words the Madhalim judge responsible in examining the removal of the Khalifah - it should in principle be the right of the Khalifah to remove him, as it is he who has the right to appoint him like all the judges. However, it is possible, if the power of removing the judge were left to the Khalifah during a case, then this power would lead to something prohibited. In such a situation the principle of “the means that leads to something prohibited (haram) are prohibited” would apply. The strong likelihood of such a scenario arising is enough for applying this principle.

This situation is when there is a case against the Khalifah or his assistants or his Supreme Judge (in case the Khalifah was given the mandatory power of appointing and removing the Madhalim judge). This is because keeping the mandatory power of removing the Madhalim judge in the hands of the Khalifah in this case would influence the verdict by the judge and accordingly it would limit the capability of the judge to remove the Khalifah or his assistants if deemed necessary. This mandatory power of removing the judge in this case is a means for haram, or in other words leaving it in the hand of the Khalifah in this case is prohibited.

As for the remaining cases, the rule remains as it is; in other words, the power of removing the Madhalim judge is left to the Khalifah, just like his appointment.

Article 105

The individuals who represent the Muslims’ views to the Khalifah are the Ummah Council, and the individuals who represent the people in the provinces are the Provincial Councils. It is permitted for  non-Muslims to be members in the Shura council for the sake of raising any complaints against any oppression by the rulers or misapplication of the laws of Islam.

 

This is a Council formed by individuals representing the opinion of the Muslims at large, to which the Khalifah can refer to, in order to consult on various issues. They in turn are the representatives of the Ummah in holding the rulers accountable. This is deduced from the Messenger of Allah’s Description: durood consultation with some men from the Ansar and the emigrants who represented their people. It is also derived from the Messenger’s Description: durood assigning some of his companions for consultation (shura). He used to refer to them more than others for seeking opinion, such as Abu Bakr (ra), Umar (ra), Hamza (ra), ‘Ali (ra), Salman al-Farisi (ra), Hudhayfah (ra)….

It is also deduced from the fact that Abu Bakr (ra) designated some men from the Muhajir and the Ansar for seeking their opinion when something happened. The people of the consultation (shura) at the time of Abu Bakr (ra) were the scholars and the people capable of giving legal edicts. Ibn Sa’ad reported from al-Qasim: “when something happened and Abu Bakr wanted to consult the people of opinion and the people of jurisprudence, he called from the emigrants and the Ansar. Umar, ‘Uthman, ‘Ali, ‘Abd al-Rahman b. ‘Awf, Mu’adh b Jabal, ‘Ubay b. Ka‘b and Zayd Bin Thabit. They all used to give their opinion during the Khilafah of Abu Bakr. People would also take their legal edicts (fatwa). When Umar became Khalifah he would also call these people”. There are also evidences that call upon the Muslims to account the rulers. Muslims exercised such accounting as happened at the time of the Righteous Khulafaa’. As the Ummah is allowed to be represented in consultation (shura), she is also allowed to be represented in accounting. All of this indicates that it is allowed to have a special council that represents the Ummah in accounting and in the consultation that is established by the text of the Quran and Sunnah. It is called the Ummah Council because it represents the Ummah in consultation and accounting.

It is permitted for non-Muslim citizens to be members of the Council, in order to file complaints against any injustice perpetrated against them by the rulers or against any misimplementation of Islam upon them or the lack of services to them or the like.

Article 111

The Ummah Council has five powers which are:

 

1. (a): The Khalifah has to consult the Council and the Council has the right to advise him in operational matters and actions related to carrying out the affairs of the domestic policy that do not require deep intellectual research and serious examination, like matters of ruling, education, health, economy, trade, industry, agriculture and the like, and the opinion of the Council in these areas is binding.

(b): In the intellectual matters that require deep research and serious examination, and issues which require experience and knowledge, and technical and scientific issues, and similarly the financal issues, the army, and foreign policy, the Khalifah has the right to consult the Council about them and to acquaint himself with its opinion; however the opinion of the Council is not binding in these matters.

2. The Khalifah has the right to notify the Council of the laws and rules which he wants to adopt. The Muslim members of the Council have the right to debate them and voice their opinions regarding those rules. However, if they disagree with the Khalifah regarding the validity of their deduction or their evidence, in terms of their disagreement with the method of adoption from the basis of legislation (usul) adopted in the State, then the decision will be referred to the Court of Madhalim, and its verdict in this matter is binding.

3. The Council has the right to hold the Khalifah accountable for all matters that took place effectively within the State, whether these were related to domestic or foreign affairs, financial affairs, or military matters. The opinion of the Council is binding if the majority’s opinion in such matters is binding, and it is not binding if the majority’s opinion in such matters is not binding.

If the Council and the Khalifah differed about the legitimacy of an action that had been already executed the matter should be referred to the Court of Madhalim to settle the question. Its verdict on the matter is binding.

4. The Ummah Council has the right to express discontent of the assistants, governors or the ‘amils. Its opinion in such a case would be binding and the Khalifah should dismiss them at once. If the opinion of the Ummah Council differed from the opinion of the council of the concerned province regarding contentment and discontent of the governors and ‘amils, the opinion of the council of the province overrides.

5. Muslim members of the Council have the right to restrict the nomination of candidates for the Khilafah from amongst those who fulfilled the qualification conditions as decided by the Madhalim Court. Their opinion in this is binding, and candidates other than those shortlisted by the Council should accordingly not be considered.

 

This article explains the powers of the Ummah Council. The evidences for these powers are as follows:

The first point, (a): The evidence for the fact that the opinion of the Ummah Council regarding practical actions and matters, which do not require research and deep consideration, is binding, is deduced from the Messenger of Allah’s Description: durood compliance with the opinion of the majority in going out of Madinah to meet the army of the idol worshippers in the Battle of Uhud. This is despite the opinion of the Messenger of Allah Description: durood and the senior companions to stay in Madinah and not to leave. It is also taken from his saying to Abu Bakr (ra) and Umar (ra): “If the two of you agree in a consulted matter (Mashurah) I will not differ with you” (reported by Ahmad). Therefore, the practical matters related to the opinion leading to an action, in terms of providing services to the citizens for reassuring their livelihood, and in terms of maintaining their security, strengthening their defences and driving danger away from them; the majority opinion of the Council in all of these issues is binding upon the Khalifah even if it disagreed with his wish, which happened with the Messenger of Allah Description: durood going out to Uhud in compliance with the opinion of the majority.

The first point, (b): In principle, the Khalifah takes the opinion of the scholars, experts and specialists regarding the matters of this section. This is in accordance with what happened with the Messenger of Allah Description: durood when he Description: durood took the opinion of al-Hubab b. al-Mundhir, in selecting the location of the Battle of Badr. It was reported in the Sirah of Ibn Hisham:  “When the Messenger Description: durood camped at the nearest side of the water of Badr, al-Hubab b. al-Mundhir was not content with that site. He said to the Messenger: “O Messenger of Allah! Did Allah make you camp in this place where we can’t depart from it, or is it the opinion, war and strategy?” He Description: durood said: “It is rather the opinion, war and strategy”. Hubab b. al-Mundhir said: “O Messenger of Allah, this is not the (right) place. Move the people till we come to the side of the water near to the people (enemy), we camp there, then we seep away the water from the other part, we build a basin on top of it, we fill it with water. Then we fight against the people where we drink and they do not”. The Messenger of Allah Description: durood said: “You gave the (right) opinion”. So the Messenger of Allah Description: durood and the Muslims stood up and walked till they reached the near side of the water from the enemy and camped there. Then he Description: durood ordered that the water be seeped away which was done. He Description: durood built a basin on top of the seeped wells, filled it with water and threw in their (water) pots.” So the Messenger of Allah Description: durood agreed with the opinion of al-Hubab and followed it.

In this incident, which has to do with opinion, war and strategy, the views of the people have no weight in taking the decision. Rather the view of the expert is what is considered. Similar to this are technical matters and thoughts which require study and scrutiny, together with definitions. In all such matters, reference is made to the experts and specialists, rather than to the ordinary people’s opinion. There is no value in such matters with the majority, but rather weight is given to knowledge, experience, and specialisation.

This also applies to financial matters, because the Shari’ah has determined the types of funds which must be collected and the areas over which they need to be allocated (spent). The Shari’ah has also determined the cases when taxes are imposed; therefore there is no point in seeking the opinion of the people in the collection and allocation of funds. Similar to this is the army; the Shari’ah has left to the Khalifah the right of managing the army’s affairs, and it determined the rules of Jihad. There is no validity in the opinion of the people over matters decided by the Shari’ah. This also applies to the relationship of the State with other States, because this is of the thought that requires study and deep insight and is related to Jihad. Furthermore, it is a part of opinion, war and strategy. Therefore, there is no point in the opinion of the people in this matter, whether it is the majority or minority. However, the Khalifah is allowed to present these matters to the Ummah Council for its consultation and opinion, because such presentation is from the permitted issues (mubah) and the opinion of the Council in these matters is not binding as in the incident of Badr. Rather the decision is entrusted with the concerned person.

The following examples are to distinguish the difference between points (a) and (b):

For deciding the building of a bridge over a river to serve the interests of the people in a village, almost isolated in terms of communications and the like, then the majority opinion of the council on this matter is binding to the Khalifah in building the bridge to solve the communication problem of the village. As for deciding the right technical location for building the bridge, and the best engineering design of the bridge, whether it should be a suspension bridge or standing over pillars in the river, etc; the experts and specialist people are consulted in such matters, rather than the majority opinion of the council.

Likewise, building a school for the children of a village, where its children find great difficulty in reaching the schools in the towns, the majority opinion of the Ummah Council on this matter is binding to the Khalifah. In regards to the choice of the location of the school in the village in terms of the soil strength suitable for design, as well as the style of its building, whether is possessed by the State, i.e. whether it is built, bought or leased, in such matters the experts and specialist people are consulted and the majority opinion of the council is not sought, though the Khalifah is allowed to consult with them over the matter, but their opinion is not binding.

As regarding a country at the frontiers, defying the danger of an enemy, then the majority opinion of the Ummah Council is binding in terms of the village’s fortification and driving the danger of the enemy away from it, and preventing its exposure to killing and expulsion after any aggression from the enemy. However, the method of building such fortifications and any fighting means used to drive the danger away from it; such things need the consultation of the experts and specialist people, rather than the majority opinion of the council.

The second point: Legislation belongs to Allah (swt) alone. Allah (swt) says:

"Verily, the decision rests with Allah only." (TMQ 12: 40)

"But nay, by your Lord, they will not be true believers until they make you judge of what is in dispute between them, and find within themselves no dislike of that which you decided and submit with full submission." (TMQ 4: 65)

In the explanation of the Messenger Description: durood to His (swt) saying: “They have taken as lords beside Allah their rabbis and their monks”, (TMQ 9:31), Al-Tirmidhi reported through ‘Adiyy b. Hatim who said: “I came to the Prophet Description: durood while wearing a cross of gold in my neck. He said: O Adiyy! Throw out this idol. And I heard him reading in chapter of Baraa’ah: “They have taken as lords beside Allah their rabbis and their monks” (TMQ 9: 31). He Description: durood said: As regarding they did not worship them; but when they allowed them something they took as halal and when they forbade them of something they prohibited it”.

Therefore, legislation is not taken from the opinion of the council, neither by consensus or majority. It is rather taken from the Book of Allah (swt) and the Sunnah of His Messenger Description: durood, and from that which is indicated by them through valid Ijtihad. Thus, the Messenger Description: durood refused the opinion of many Muslims regarding the Hudaybiyah peace treaty, and said: “I am the servant of Allah and His Messenger, and will never disobey his order”. This is because the peace was a revelation from Allah (swt) and therefore the opinion of the people is not sought regarding legislation. Based on that, the adoption of the Shari’ah rules, enacting of laws and the adoption of the rules and canons are of the mandatory powers of the Khalifah alone as explained before. It is all derived from the Shari’ah texts, irrespective if it was from his Ijtihad or that of other respected mujtahids. However, it is allowed for the Khalifah to submit to the Ummah Council whatever he wants to adopt of Shari’ah laws and canons so as to find out its opinion regarding it. This is like what Umar bin al-Khattab (ra) did when he referred to the Muslims over the divine rules, which the companions did not object to, as in the incident of the conquered lands of Iraq, when the Muslims asked him to divide the lands amongst the fighters who opened them. So Umar (ra) asked the people, but his opinion settled on keeping the land with its landlords on condition that they pay a known Kharaj over it in addition to paying the Jizya over their persons. The reference of Umar (ra) and Abu Bakr (ra) before him to the companions for their opinion over the divine rules without an objection from the companions to this, indicates their Ijma’. This serves as evidence that the Khalifah has the right to do that.

With regard to reference to the Madhalim Court in case the Khalifah differed with the Ummah Council regarding the validity of the deduction of these canons, or regarding their evidences or terms of the adoption from the sources (usul) adopted by the State, in this case the authority of the Madhalim judge is to examine the law adopted by the Khalifah, to determine whether it has a Shari’ah evidence and whether the evidence applies to the incident. Therefore, if the Khalifah differed with the Council (in other words, with the majority of the Council) over the law which the Khalifah adopted in terms of being a valid Shari’ah law or not, then this dispute is settled by the Judge of Madhalim, because it is from his specialty and the opinion of Madhalim Court is binding.

Non-Muslim members of the Council have no right in examining the laws and cannons which the Khalifah wants to adopt. This is because they do not believe in Islam, and because their right is restricted to voicing their concerns regarding any oppression that might fall upon them from the rulers, rather than expressing their view regarding the Shari’ah laws and cannons.

With regards to the third point, its evidence is the general meaning of the texts related to bringing the rulers to task. Ahmad narrated from Ibn Umar, who said: “The Messenger of Allah Description: durood said: “There will be Amirs over you who order you of things they do not do. Whoever believed them in their lies and helped them in their injustice he would not belong to me nor I belong to him, and he will not join me on the hawd (basin)”.” Ahmad narrated from Abu Sa‘id al-Khudri, who said: “The Messenger of Allah Description: durood said: “…The best of Jihad is (to say) a word of truth before an oppressive ruler”. Al-Hakim narrated from Jabir from the Prophet Description: durood who said: “The master of martyrs is Hamza bin ‘Abd al-Muttalib and a man who stood to an oppressive ruler where he ordered him and forbade him so he (the ruler) killed him.” Muslim narrated from Umm Salama that the Messenger of Allah Description: durood said: “There will be Amirs, you recognise some of what they do and deny some. Whoever recognised he would be free of responsibility, and whoever denied he will be safe; but whoever accepted and followed (he will be not).” These texts are in general form and indicate holding to accounting the ruler in accordance with the rules of the Shari’ah. Furthermore accounting can be over any action. This holding to account by the Council of the Khalifah and other assistants, governors, and ‘amils would be over any action which has been actually executed whether this action disagreed with the Shari’ah rule, was wrong or harmful to Muslims, or was unjust or complacent toward the citizens in looking after their affairs. The Khalifah must respond to this accounting and the objections by showing his view and evidence regarding his words, actions, and tasks he undertook, so that the Council can be assured of a good performance, the sincerity, and honesty of the Khalifah. If, however, the Council does not accept the view of the Khalifah and rejects his argument, this must be examined. If this matter was of the issues over which the majority opinion is binding then the opinion of the Council is binding like the issues in (a), otherwise it would not be binding as in the issues in (b). If the accounting, for example, was regarding not providing the school in the previous example then the accounting is binding. If the accounting was regarding the design he chose for the school then his accounting is not binding.

If those who account differed with the rulers over any matter from the legal (Shari’ah) point of view, the matter is referred to the court of unjust acts (Madhalim) by a request from the Council, due to what Allah (swt) says: O you who believe obey Allah and obey the Messenger and those in authority from amongst you. If you disputed over a matter refer it to Allah and the Messenger. (TMQ 4:59)

This means that if the Muslims dispute with the people of authority over a matter, they should refer it to Allah (swt) and to the Messenger Description: durood, that is to arbitrate from the Shari’ah. This means to refer to the Judiciary, that is to the court of unjust acts, and its opinion is binding because it has the power in this case.

In regards to the fourth point, its evidence is that the Messenger of Allah Description: durood removed al-‘Ala’ b. al-Hadrami, his ‘amil over Bahrain, because the delegate of ‘Abd al-Qays complained about him to the Messenger Description: durood. Ibn Sa’d narrated on the authority of Muhammad Bin Umar: “That the Messenger of Allah wrote to al-Ala’ b. al-Hadrami to come to him with twenty men from ‘Abd al-Qays. He reached him with twenty men headed by ‘Abd Allah b. ‘Awf al-Ashajj, and appointed after him al-Mundhir Bin Sawa. The delegate complained of al-Ala’ b. Al-Hadrami so the Messenger of Allah Description: durood removed him and appointed Aban Bin Sa’id b. Al-‘Aas and said to him: Take care of ‘Abd al-Qays and respect their chiefs .” Also, Umar Bin al-Khattab (ra) removed Sa’d Bin Abi Waqqas (ra) from the governorship simply because of the complaint of the people against him, and he said: “I did not remove him because of deficiency or treason”. This indicates that the people of the province have the right to express their anger and discontent for their governors and amirs, and the Khalifah thus has to remove them. Likewise, the Ummah Council is allowed, as a representative of all Muslims in the State, to express its anger and discontent for the governors and ‘amils and the Khalifah has to remove them immediately if the complaint came from the majority of the Provincial Council or the majority of the Ummah Council. In the case of conflict between the views of these two councils, then the priority is given to the Provincial Council, for it is more aware and more acquainted than the Ummah Council of the condition of the governor.

With regards to the fifth point, this point has two issues: The first one is the short-listing of the nominees and the second is reducing the shortlist to six people and then to two.

As for the first issue, from following the manner of appointing the guided khulafaa’ it appears there was short-listing of nominees made by the representatives of the Muslims directly or through requesting the Khalifah to shortlist the nominees on their behalf.

In the hall of Bani Sa’idah, the nominees were Abu Bakr (ra), Umar (ra), Abu ‘Ubaydah (ra) and Sa‘id b. ‘Ubadah (ra). These were considered sufficient and the nominations were restricted to them. This took place before the people of the hall, and then by the consent of the companions later on, where they gave the Bay’a to Abu Bakr (ra).

Towards the end of Abu Bakr’s (ra) authority, he consulted with Muslims for about three months, discussing with them the post of Khilafah after him. After they discussed this with him they agreed to his nomination of Umar (ra); in other words, the nomination was restricted to one candidate.

Restricting of nominees was more clear and obvious after the stabbing of Umar (ra) for they requested him to nominate candidates for them so he confined it to six (nominees) at the expense of all others, and he emphasised that matter, as is well known.

At the time of nominating ‘Ali (ra), he was the only nominee, without having any one else with him and so there was no need for short-listing.

Short-listing of nominees used to take place before a gathering of Muslims; a matter which would have been opposed and not executed had it been not allowed, for this prevents the right of others in nomination. Therefore, short-listing the nominees for Khilafah post is allowed due to the consensus (Ijma’) of the companions. Thus, the Ummah, or in other words her representatives, are allowed to shortlist the nominees, whether this short-listing was conducted directly by the Ummah, or through authorising the outgoing Khalifah to do that on their behalf.

This is in regards to short-listing. In regards to evidence for the short-listing of the nominees to six people at first, this is taken from the action of Umar (ra); whilst shortening the list to two after that, is taken from the action of Abdul Rahman Ibn Auf (ra). Additionally, this verifies the meaning of the Bay’a by the majority of the Muslim electorate for if the nominees were more than two, then the winner amongst them might get for example thirty percent of the electorate, i.e. less than their majority. The winner would get the majority in the case that the nominees were not more than two.

In regards to short-listing of the six and two nominees by the Ummah Council, this must be by the Madhalim Court to ensure that the nominees fulfil the qualification conditions; this is because the short-listing conducted by the Ummah Council is for electing a Khalifah from amongst them. It means, in other words, that they must fulfil the qualification conditions. Therefore, the Madhalim Court would exclude from the nominees to the Khilafah anyone who does not fulfil the qualification conditions. After that the Ummah Council would make the shortlist from the nominees decided by the Madhalim Court to have fulfilled the qualification conditions.

This is where the fifth point is derived from.



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