The shari'ah and the rule of law – Islamic governance for the 21st century

The year 2011 ended with an irreversibly changed Middle East where the hegemony of several dictators collapsed at the hands of their oppressed populations. The Syrian and Yemeni peoples' immense sacrifice and desire for change continue into 2012. There is little doubt that the world will further witness the collapse of other dictatorial regimes in the region.

Whilst the Muslims of the Middle East continue to sacrifice their sweat and blood for liberation from the shackles of dictatorship, the debate about the aftermath continues. In Egypt, for example, although the Ancien Régime remains largely intact, parliamentary elections were conducted at the end of November 2011 and the presidential election is expected to be held in July 2012. Nevertheless, the question of the form and character of the system of governance is far from settled. Although the role of Islam in the state will be inevitable, its extent of influence remains far from clear.

The Anglo-French-American triple alliance has added to the mist of confusion, as they painstakingly attempt to hijack the spirit of the protesters in order to install a new generation of rulers who would ensure the security and furtherance of Western interests in the region.

In such cataclysmic circumstances, the subject of whether Islam can deliver the rule of law under the shari'ah is in the minds of millions of Muslims. After all, nobody wants to return to the repressive days of Mubarak, Ben Ali and Gaddafi. People want an accountable, transparent, fair and just authority.

This article explores how the Islamic shari'ah can realise the hopes and aspirations of the millions of protesters in the Arab spring by ensuring that the rule of law is established. This article surveys the illustrious Islamic history and highlights how Islamic rule guaranteed the rule of law many centuries before the Europeans even dreamt of such standards. It is argued that the rule of law in the Muslim world can only be instituted under Islamic rule.

Definition of the "rule of law"

Prior to launching into defining the rule of law, it is important that certain misconceptions are dispelled. One such fallacy is the argument by many Western politicians that the rule of law is the monopoly of Western secular democracy. [1] For example, Thomas Bingham, the former lord chief justice of the English courts said, "There has been much debate whether the rule of law can exist without democracy. Some have argued that it can". [2] Bingham's assumption is premised on an erroneous notion that good governance can only be the result of democracy.

The West has hitherto paraded democracy as the only system available to mankind but failed to convince the Muslim world that democracy is the panacea for all its ills. As Mark Welton quite aptly recognises, "Democracy... is a high-value term loaded with positive connotations for Americans and Europeans. But the same term, used so indiscriminately by Western politicians, is also widely perceived in the Arab Middle East as a codeword, a "guise for Western efforts to re-conquer Arab territories and plunder their natural resources". [3]

The Islamic legal and historical sources strongly rebut the suggestion that the rule of law is the sole possession of the West. As Welton elucidates, "...the concept embodied in the term "rule of law" is in fact a legal and political value shared by both the West and Islam, and if properly refined, can provide a useful framework for more effective discourse and understanding between these two traditions".

So what do we commonly understand by the principle of the rule of law? Let us look at Bingham's definition. Bingham asserts that under the rule of law "all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts". [4] Islam in principle has no objection to this definition insofar as this definition can manifest within the Islamic legal and political framework. [5]

The rule of law necessitates that law is accessible and clear so that citizens of a state are aware of the boundaries of the law, which they must obey. The rule of law also applies to government and guarantees certain basic rights such as presumption of innocence until proven guilty, not to be arbitrarily detained without due process and right to fair trial in an independent court. All the executive and judicial organs of a state must uphold the rule of law because nobody is above the law. [6]

Brief analysis of the system of governance in Islam

It is well known that the system of governance in Islam is the Khilafah (caliphate). This system is well rooted both in the Islamic shari'ah and the history of Islam. It is a system that is quite unlike the Western democratic paradigm. The Prophet Muhammad صلى الله عليه وسلم said, "The Prophets ruled over the children of Israel; whenever a prophet died, another prophet succeeded him, but there will be no more prophet after me. There will soon be khulafah and they will number many. Fulfil the bayah [i.e. pledge of allegiance] to them one after another and give them their dues for Allah will verily account them about what He سبحانه وتعالى entrusted them with". [7]

The Khalifah is the guardian of the people and his task is to ensure that the shari'ah is implemented so that justice prevails. Allah says,

وَإِنْ حَكَمْتَ فَاحْكُمْ بَيْنَهُمْ بِالْقِسْطِ ۚ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ

"And if you judge, judge with justice between them. Verily, Allah loves those who act justly". [8]

Under the Khilafah, there is no separate legislature because the power of legislation lay not in man but in the Creator of man. Allah says,

فَاحْكُمْ بَيْنَهُمْ بِمَا أَنْزَلَ اللَّهُ

"So judge between them by what Allah has revealed..." [9]

Allah also says,

إِنِ الْحُكْمُ إِلَّا لِلَّهِ

"The command (or the judgement) is for none but Allah". [10]

Sovereignty belongs to the laws of Allah, the shari'ah, not the people. It is the Khalifah who implements the shari'ah in the lands of Islam. As imam Abu'l Hasan al-Mawardi (died 450 AH) states, "Imamate is prescribed to succeed prophethood as a means of protecting the deen [Islam] and of managing the affairs of this world". [11]

The rule of law is therefore established on the basis of the shari'ah. As Welton states, "The Islamic world, too, has a devotion to the rule of law that has prevailed through much of its history and, while severely impaired in the nineteenth and twentieth centuries by Western colonialism and its aftermath, has resurfaced as a desired virtue, fully compatible with Islamic law and tradition". [12]

How the shari'ah guarantees the rule of law

This section of the article seeks to illustrate what role the people, the Khalifah and the judiciary play in establishing the rule of law under shari'ah.

a) The people

Allah سبحانه وتعالى says,

يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الْأَمْرِ مِنْكُمْ ۖ فَإِنْ تَنَازَعْتُمْ فِي شَيْءٍ فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ

"O you who believe! Obey Allah and obey the Messenger (Muhammad), and those of you (Muslims) who are in authority. (And) if you differ in anything amongst yourselves, refer it to Allah and His Messenger". [13]

Allah has thus obliged Muslims to obey the ruler who rules by the shari'ah.

Moreover, the Prophet Muhammad صلى الله عليه وسلم said, "A Muslim is obliged to hear and obey whether he likes it or not, except when he is required to do something that is sinful, in which case, there is no obligation to hear or to obey". [14] Unlike democracies where obedience to the law of the land requires coercion by the state, Muslims historically lived by and obeyed the laws of Islam by and large without the need for coercion. This is because respect for and obedience to the laws of Islam is a matter of doctrinal and creedal obligation upon Muslims, which was the reason behind the success of the Khilafah. Thus, when Allah ordains upon Muslims to obey their rightful ruler, there is no option but to observe this command. This principle is well established in Islam from numerous ayat and ahadith.

b) The Khalifah

It is beyond the scope of this paper to elucidate the process of electing the Khalifah; however, it suffices to say that the majority of the classical scholars of Islam are unified on the view that the Khalifah assumes authority by approval and authority of the people. As imam al-Mawardi asserts, "...it is necessary for the electors to agree to his Imamate and that once agreed, it comes into effect because Imamate is a contractual agreement and it is not brought into being except by the contracting partner". [15] The post-colonial despotic rulers of the Muslim world are therefore an anomaly in the history of Muslims.

The first Khalifah of Islam, Abu Bakr (RA), in his inaugural address said, "O People, I have been appointed over you, though I am not the best among you. If I do well, then help me. And if I act wrongly, then correct me... If I disobey Allah and His Messenger, then I have no right to your obedience".

The second Khalifah of Islam, 'Umar bin al-Khattab (RA) enunciated the attributes required of a Khalifah, "By Allah, O Ibn 'Abbas, only the strong person without violence, the one who is gentle without being weak, the one who is economical but without being miserly, and the one who is generous without being wasteful is worthy of this affair". [16]

The above abundantly illustrate that the Khalifah (and thus his executive subordinates) is required to be mindful of his obligations to the people and the shari'ah. He cannot be above the law but rather is subject to the law like everyone else.

The Khalifah fulfils, amongst the myriad of other obligations, the following as part of his responsibilities. The Khalifah must:

1. guard and protect Islam and its way of life against external influences and ensure that innovations do not creep into the pure message of Islam;

2. establish justice where disputes arise between litigants so that the strong does not oppress the weak;

3. implement the Islamic hadd punishment (i.e. criminal laws) so that the prohibitions of Islam are not violated;

4. possess the appropriate defence capabilities in order to defend the territories of the Islamic state and its citizens against external attacks;

5. manage the fiscal affairs of the state and collect the taxes prescribed by the shari'ah e.g. kharaj, zakah, jizya and ushur etc;

6. manage the funds of the treasury (Bait-ul-Mal), invest in public projects he considers necessary without being wasteful and pay the public sector employees' salaries from the treasury; and

7. assume personal responsibility over the affairs of the people and execute the policies of the ummah without overreliance on delegation of authority.

Provided that the Khalifah conducts himself in accordance with the shari'ah as abovementioned, he would be deemed to have discharged his obligation to Allah and the people.

c) The judges

The Khilafah also has a strong judiciary which implements the laws of Islam, dispenses justice and keeps the executive accountable. Everybody under the shari'ah is equal before the law and judgment is pronounced without fear or favour. Principally, there are three types of judges in Islam: [17]

1. the Qadi settles disputes between people in private law matters and implements the penal codes;

2. the Muhtasib is responsible for dealing with communitywide issues that affect the public and wider society, e.g. unscrupulous traders who harm the wider public; and

3. the Mazaalim is responsible for investigating and settling the disputes between the ruler and the ruled. Essentially, this judge keeps the executive accountable and in checks.

When the Prophet صلى الله عليه وسلم was the head of the Islamic state in Medina, he was petitioned to intercede for a noble lady who had committed theft, but the Prophet صلى الله عليه وسلم said, "The nations before [us] were destroyed because if a noble person committed theft, they used to leave him, but if a weak person amongst them committed theft, they used to inflict the legal punishment on him. By Allah, if Fatima, the daughter of Muhammad, committed theft, Muhammad would cut off her hand!" [18]

This hadith illustrates that even if the Prophet's daughter had committed a crime, notwithstanding his position as the head of the Islamic state, he would have implemented the same criminal punishment upon his daughter without favour. Such approach is inimical to the rulers that litter the Muslim world today whereby the rulers, their families and their entourage enjoy unbridled favour and effectively operate above the law. This is a direct result of the absence of the shari'ah in the Muslim world.

There are detailed rules in Islam pertaining to the appointment of judges, the discussion of which is beyond the scope of this paper. However, let us again invoke the words of the second Khalifah of Islam, 'Umar bin al-Khattab (RA) when he outlined the attributes a judge requires in an Islamic court. He said, "The task of the judiciary is an undisputed obligation and a sunnah to be followed. Seek to comprehend when people have recourse to you, for it is no use to speak of a right if it is not put into effect. See that your face, your justice and your sitting are the same between people, such that the lord does not hope for your partiality, nor the weak despair of your justice..." [19]

These words of wisdom essentially outline the justice one can expect to see under Islam. The Khalifah or the judiciary have no room to depart from this boundary and will be accounted by the people if any departure from the rule of law is apparent to the citizens. The Umayyad Khalifah 'Umar bin Abdul Aziz (RA) once said "Rulers usually appoint people to watch over their subjects. I appoint you as a watcher over me and my behaviour. If you find me at fault in word or action guide me and stop me from doing it".

The judiciary is principally responsible for accounting state officials, including the Khalifah and his governors, in cases of wrongdoings. [20] The remit of such judges is wide enough to serve the purpose. Imam al-Mawardi maintains that such persons have the authority to investigate abuse of power by rulers against the ruled, and to hold them to account for the injustice they may have inflicted. Such powers may be invoked by the judges irrespective of whether or not the citizens complain against the official concerned. [21]

During the early Umayyad era, there were some incidence of official misconduct whereby the citizens were deprived of the rights they were entitled to. However, these were not tolerable in Islam and thus Khalifah 'Umar bin Abdul Aziz (RA) instituted formal procedures to investigate wrongdoings by officials, to the extent that he returned the goods that were seized by members of his tribe to their rightful owners. In the sight of 'Umar members of his tribe were no different from the citizens of the Islamic state whose rights were violated. As imam al-Mawardi recorded in his treatise, "he would reject all such wrong doing and would maintain respect for just and fair practices or re-establish such practices if necessary". [22] This practice of accounting state officials for abuse of power was carried out, in varying degrees, during the Abbasid era, for example, under al-Mahdi, al-Hadi, ar-Rashid, al-Ma'mun and al-Muhtadi.

The history of Islam contains abundant examples where abuse of power by state officials were investigated and remedied by judges. Such a judge may, amongst other matters, deal with:

1. abuse by tax officials, e.g., if they miscalculate the tax due from individuals and overtax. In such cases, the judge would order the return of the amount due back to the individual who overpaid;

2. allegations of deficiency, delay or negligence towards the payment of salaries of state employees who receive their salaries from the treasury. In such circumstances, the judge concerned would investigate and rectify any errors and ensure that their salaries are paid in a timely manner;

3. the restitution of private property seized unlawfully by state officials, even if he was a governor. The judge is obliged to investigate such allegations of seizure of property and effect restitution after conducting his investigation; and

4. unlawful seizure of property by one powerful individual from another due to his weakness. Upon investigating such complaints, restitution will be effected in accordance with the judge's findings.

The rule of law deficit in the West

The West has over the past few decades lectured countries around the world to institutionalise democracy, the rule of law, justice and equality. However, the USA and the UK have been exposed in recent years for not practising what they preach. For example, both the USA and the UK have been systematically involved in practices such as "extraordinary rendition", torture of terror suspects, indefinite detention without charge, unjust treatment of foreign nationals and intrusive spying on Muslims. As one American academic commented,

"Virtually every significant government security initiative implicating civil liberties – including penalizing speech, ethnic profiling, guilt by association, the use of administrative measures to avoid the safeguards of the criminal process, and preventive detention – has originated in a measure targeted at noncitizens". [23]

Yet, this deficit of the rule of law is not just limited to the above. In June 2007, it emerged that Tony Blair had pulled the plug off a major fraud investigation by the Serious Fraud Office against the British arms manufacturer BAE Systems. It was reported that BAE secretly paid £1 billion to Prince Bandar of Saudi Arabia as "secret commission", thus effectively bribing the Saudis to place the largest defence contract worth £43 billion, known as the al-Yamamah deal. [24] It was allegedly in Britain's "national interest" to terminate this SFO investigation, thus sacrificing the rule of law under the pretext of Britain's oft-quoted "national interest".

Similarly, on the eve of Bill Clinton's departure from office, he pardoned 140 convicted criminals/fugitives. Those pardoned included US billionaire Marc Rich, who was at living abroad to avoid prosecution by US authorities. It was alleged that Marc Rich made handsome donations to the Democrats to secure the pardon. [25] This "cash for pardon deal" scandal raised many doubts over America's hollow claims that the US upholds rule of law. Needless to say, examples of abuse of power are quite common in the 21st century Wild West.

Conclusion

The above discourse evidently illustrates that the shari'ah has put in place all the ingredients necessary for establishing the rule of law, which is much needed in today's turbulent Muslim world. History is testament to the fact that Islam had established an enviable civilisation under its rule. There is no reason why this cannot return. On the other hand, the tired and baseless suggestion that only democracy is the way forward for Muslims is hardly foolproof. Western politicians must wake up to the slogan in Tahrir Square, ash-shab yurid isqat an-nizam (the people want to bring down the regime).

Wakil Abu Mujahid 

References

[1] Lord Goldsmith QC, "Government and the Rule of Law in the Modern Age", lecture given on 22 February 2006 (former British Attorney-General)
[2] Thomas Bingham, the Sixth Sir David Williams Lecture (lecture given in 2006), p-35
[3] Mark David Welton, Islam, the West, and the Rule of Law, 19 Pace Int'l L. Rev. 169 (2007), p-172
[4] Bingham, p-5
[5] By deploying a common definition in this discourse vis-à-vis the rule of law, this paper is not intended to be an appeasement to the critics of Islam. To the contrary, Muslims advocating the shari'ah believe that Islam is inherently superior to any man-made systems because Islam originated from the Creator and not from the minds of weak men.
[6] This article excludes any discussion of a legislature because such a body is incompatible with the Islamic political and legal philosophy.
[7] Imam al-Nawawi, Riyad us Salihin (National Hijra Council, 1992), hadith no-657
[8] Qur'an: 5-42
[9] Qur'an: 5-48
[10] Qur'an: 12-40
[11] Abu'l Hasan al Mawardi, Al-Ahkam As-Sultaniyyah (Ta-Ha Publications, London, 2005 reprint), p-10
[12] Welton, p-173
[13] Qur'an: 4-59
[14] Imam al-Nawawi, hadith no-664 (reported in Bukhari and Muslim)
[15] al-Mawardi, p-15-16
[16] ibid, p-21-22
[17] Taqiuddin an-Nabhani, the Ruling System in Islam (Nidham ul Hukm fil Islam) (Khilafah Publications, London), p-205
[18] Narrated in Bukhari and Muslim
[19] al-Mawardi, p-108
[20] This is comparable to the public law remedies that Western citizens often invoke against public authorities.
[21] al-Mawardi, p-121
[22] ibid, p-118
[23] Bingham, p-15
[24] The Guardian, 7 Jun 2007
[25] BBC News, 22 Feb 2001

Yousaf Gilani in Court: Unlike democracy there is no immunity from prosecution in the Caliphate

Pakistan’s supreme court called Prime Minister Yousaf Gilani before it on contempt of court proceedings after the government persistently ignored court orders to write to Swiss authorities and ask for a dormant money laundering case to be reopened against President Asif Ali Zardari.

In response Gilani told the court, "He (Zardari) has complete immunity inside and outside the country...In the constitution, there is complete immunity for the president. There is no doubt about it."

A feature of the democratic Republican system is the concept of immunity from prosecution where the head of state is effectively above the law. This is not unique to Pakistan where Zardari a well-known criminal nicknamed Mr 10% can escape justice while he is President, but exists in other democracies notably Italy where Berlusconi enjoyed immunity for years.

Islam firmly believes in the rule of law which is the sharia. No one in the Caliphate including the Caliph is above the law or has immunity from prosecution. Unlike man-made law sharia cannot be manipulated and changed to suit the personal interests of the Caliph or his entourage or for benefit and harm.

The Prophet Muhammad صلى الله عليه وسلم firmly established this principle of rule of law in the following hadith.

Narrated ‘Aisha: The people of Quraish worried about the lady from Bani Makhzum who had committed theft. They asked, “Who will intercede for her with Allah's Messenger?”

Some said, “No one dare to do so except Usama bin Zaid the beloved one to Allah's Messenger.”

When Usama spoke about that to Allah’s Messenger he said: “Do you try to intercede for somebody in a case connected with Allah’s Prescribed Punishments?”

Then he got up and delivered a sermon saying, “What destroyed the nations preceding you, was that if a noble amongst them stole, they would forgive him, and if a poor person amongst them stole, they would inflict Allah's Legal punishment on him. By Allah, if Fatima, the daughter of Muhammad stole, I would cut off her hand.” [Sahih Bukhari, Volume 4, Book 56, Number 681]

If Fatima رضي الله عنها the daughter of the Prophet صلى الله عليه وسلم and leader of the women in jannah is not above the law, then how can Zardari the criminal have immunity?

 

Source

We cannot compromise Islam to protect the tourist industry

With 'Islamic' parties taking power in Egypt and Tunisia concerns have been raised over the future of the tourist industry which brings in billions of dollars in revenue each year. Western tourists, for example flock to the sandy beaches of Sharm al-Sheikh where alcohol and free mixing between men and bikini clad women takes place.

Saad al-Husseini, a member of Egypt's Freedom and Justice Party executive bureau said in a recent interview, that Tourism is very important for Egypt and stressed that drinking and selling alcohol are forbidden in Islam. However, he then added, "Yet Islamic laws also prohibit spying on private places and this applies to beaches as well...I wish 50 million tourists would travel to Egypt even if they come nude."

There are two points to consider when addressing the Islamic viewpoint towards tourism.

Firstly, as Muslims we must submit to all the laws of Allah سبحانه وتعالى. The sharia has not remained silent on ruling and economy. It contains detailed rules on what government revenues are permitted in an Islamic State including the imposing of temporary taxes if there was a budget shortfall. We must not try and circumvent these rules to achieve some material benefit. Our position is “we hear and we obey” not “we hear and we disobey”.

The Messenger of Allah صلى الله عليه وسلم said:

لَا تَرْتَكِبوُا مَا ارْتَكَبَتِ الْيَهُودُ فَتَسْتَحِلُّوا مَحَارِمَ اللهِ بِأَدْنَى الْحِيَل

“Do not repeat what the yahud committed, and violate Allah's prohibitions using deceitful tricks.” [Tafsir ibn Kathir]

The Qur’an contains many stories of the previous generations that we may take a lesson and reminder from. One such story is the fisherman of Bani Israel who circumvented the ruling on the Sabbath for material benefit and suffered a severe punishment.

وَاسْأَلْهُمْ عَنِ الْقَرْيَةِ الَّتِي كَانَتْ حَاضِرَةَ الْبَحْرِ إِذْ يَعْدُونَ فِي السَّبْتِ إِذْ تَأْتِيهِمْ حِيتَانُهُمْ يَوْمَ سَبْتِهِمْ شُرَّعًا وَيَوْمَ لَا يَسْبِتُونَ ۙ لَا تَأْتِيهِمْ ۚ كَذَٰلِكَ نَبْلُوهُمْ بِمَا كَانُوا يَفْسُقُونَ

وَإِذْ قَالَتْ أُمَّةٌ مِنْهُمْ لِمَ تَعِظُونَ قَوْمًا ۙ اللَّهُ مُهْلِكُهُمْ أَوْ مُعَذِّبُهُمْ عَذَابًا شَدِيدًا ۖ قَالُوا مَعْذِرَةً إِلَىٰ رَبِّكُمْ وَلَعَلَّهُمْ يَتَّقُونَ

فَلَمَّا نَسُوا مَا ذُكِّرُوا بِهِ أَنْجَيْنَا الَّذِينَ يَنْهَوْنَ عَنِ السُّوءِ وَأَخَذْنَا الَّذِينَ ظَلَمُوا بِعَذَابٍ بَئِيسٍ بِمَا كَانُوا يَفْسُقُونَ

فَلَمَّا عَتَوْا عَنْ مَا نُهُوا عَنْهُ قُلْنَا لَهُمْ كُونُوا قِرَدَةً خَاسِئِينَ

Ask them about the town which was by the sea when they broke the Sabbath – when their fish came to them near the surface on their Sabbath day but did not come on the days which were not their Sabbath. In this way We put them to the test because they were deviators. When a group of them said, ‘Why do you rebuke a people whom Allah is going to destroy or severely punish?’ they said, ‘So that we have an excuse to present to your Lord, and so that hopefully they will gain taqwa.’ Then when they forgot what they had been reminded of, We rescued those who had forbidden the evil and seized those who did wrong with a harsh punishment because they were deviators. When they were insolent about what they had been forbidden to do, We said to them, ‘Be apes, despised, cast out!’ [Al-Araaf, 7:163-166]

Secondly, we do not change Islam to fit the reality, rather we change the reality to fit Islam. The economies of Egypt, Tunisia and most Muslim countries are suffering under decades of mismanagement, and corruption with policies aimed at benefiting western colonialists. The tourist industry and the resulting munkar it brings is just one aspect of an interest-based economy, with severe poverty and no manufacturing base. When faced with such a reality Islam obliges us to radically transform such an economy to an Islamic economy which will bring prosperity for the entire Muslim Ummah and not simply the corrupt rulers and their western backers.

Will there be tourism in the Khilafah?

Tourists visiting the Khilafah is permitted but is controlled by the sharia rules related to foreign policy.

Article 183 of Hizb ut-Tahrir’s draft constitution states:

“Conveying the Islamic da’wah is the core around which the foreign policy revolves, and upon which relations between the State and other states are built.”

Tourism would be in line with this objective where people entering the Khilafah would see the practical implementation of Islam, and this is a dawah for them.

The citizens of other nations who wish to enter the state fall under various categories as outlined in Article 184 of the draft constitution.

Article 184

The state's relations with other states are built upon four considerations. These are:

1. States in the current Islamic world are considered to belong to one state and, therefore, they are not included within the sphere of foreign affairs. Relations with these countries are not considered to be in the realm of foreign policy and every effort should be expended to unify all these countries into one state.

2. States who have economic, commercial, friendly or cultural treaties with our State are to be treated according to the terms of the treaties. If the treaty states so, their subjects have the right to enter the State with an identity card without the need for a passport provided our subjects are treated in a like manner. The economic and commercial relations with such states must be restricted to specific items and specific characters which are deemed necessary and which, at the same time, do not lead to the strengthening of these states.

3. States with whom we do not have treaties, the actual imperialist states, like Britain, America and France and those states that have designs on the State, like Russia are considered to be potentially belligerent states. All precautions must be taken towards them and it would be wrong to establish diplomatic relations with them. Their subjects may enter the Islamic State only with a passport and a visa specific to every individual and for every visit, unless it became a real belligerent country

4. With states that are actually belligerent states, like Israel, a state of war must be taken as the basis for all dispositions with them. They must be dealt with as if a real war existed between us - whether an armistice exists or not - and all their subjects are prevented from entering the State.

Non-Muslims legitimately entering the Islamic State are called Mu’ahid (covenanted person) who are protected by the state and no harm can be done to them.

The Messenger of Allah صلى الله عليه وسلم said: "The one who kills a covenanted person during the period of his covenant he will not smell the fragrance of jannah, though its fragrance can be smelled from a distance of five hundred years march." [Reported by Ibn Hibbaan in his Sahih]

Muslims travelling outside the Khilafah will also be subjected to the sharia rules related to foreign policy. Although their journey maybe for a variety of reasons, primarily they are dawah carriers who are ambassadors for Islam wherever they travel. Historically, Muslim traders travelled throughout the world and many people accepted Islam from them.

Unlike non-Muslims the objective in life for Muslims is to worship Allah سبحانه وتعالى which means sacrificing many material pleasures for the ultimate, everlasting pleasure in jannah. Therefore, Muslims in the Khilafah who want to travel and see the world will do so by joining the armed forces and opening new lands to Islam, rather than spending two weeks by the pool in a 5 star hotel.

The Messenger of Allah صلى الله عليه وسلم said: “The siyaahah (tourism) of my ummah is jihad for the sake of Allah.” [Abu Dawood]

Source

Taqleed is not the basis

The following is a draft translation of a section of the book ‘Teyseer al wusool Ila al-Usul’ (To make understanding Usul easy) by Sheikh Ata ibn Khalil Abu al-Rishta (May Allah protect him). Please refer to the original Arabic for accurate meanings. 


Islam has forbidden us from following any path other than the path of ‘Ilm (knowledge):  ‘And follow not that of which you have no knowledge. Verily! The hearing, and the sight, and the heart, of each of those you will be questioned (by Allah).’ [17:36]

From this it becomes clear that the basis in every matter of the Sharee’ah, whether we are ordered to do something or forbidden from a matter, is that we should arrive at knowledge of its hukm through one of the paths of knowledge. If the mukallaf (legally responsible) is unable to do that, then he is obliged to study the matter to arrive at a preponderant view in an issue.

Taqleed does not bring us to any definite knowledge or preponderant view; and that is why many scholars did not allow it, except for the weak and compelled. He is the layman who does not have the tools of ijtihaad. This is what they obliged and permitted him to ask for a fatwa and imitate that.
As for the rest, the basis is they should exert the effort to deduce the Hukm, this is better to do, though it is allowed for them to make taqleed as we have clarified previously.

Those who do not have the ability for ijtihaad are of two types:

1. The follower (muttabi’). He is the one who has knowledge of the some of the recognized disciplines in the Sharee’ah but it is not enough for him to make ijtihaad. That is why it is allowed for him to make taqleed, but with knowledge of the daleel used by the Mujtahid he follows.

2. The layman who does not have even some of the recognized disciplines in legislation, for him the fatwah of an Imam is sufficient. He can ask him for hukm and get an answer as to either it is halal or haram…

The question which arises is: If the Muqallid makes taqleed in a specific matter; is it allowed for him to make taqleed to someone else in the same matter?

The answer is that the Hukm of the Sharee’ah in respect to the muqallid is the hukm shar’i that has been deduced by the mujtahid he is making taqleed to. This means the issue is as follows:

1. When the action of the muqallid is linked to the issue (mas’alah) he has imitated, then it is not allowed for him to follow another rule, because  he has bound himself to a Sharee’ah rule and acted upon it.

2-  If, however, his action is not linked to that issue, then he can follow someone else.

Definition of mas`alah (issue): what is meant by mas`alah is every action or actions, which have no more other (actions) that depend for their correctness on it (mas’alah).

As for a part of the issue, it is any action, which is necessary for the correctness of the issue, such as the shuroot (conditions) and arkaan (pillars).

Examples:

Wudu: It is actions, upon which the correctness of other than it depends.  . This is because the correctness of Salah depends on wudu; and therefore wudu is not a mas`alah according to the definition, but considered a part of the salah, for it is necessary to insure the salah is correct.

Salah: It is actions upon which other things do not depend. Thus, it is a mas`alah. Anything that is necessary for the correctness of the salah is considered part of the salah, such as the pillars (arkan) and the conditions (shurut) of siHHat (correctness), like purity (tahaarah) and facing the Qiblah.

The niyyah (intention) of fasting: It is an action on which the correctness of something else depends. The correctness of the fast depends on the intention. That is why the intention (niyyah) is not a mas`alah but part of another mas`alah.

The fast (al-sawm): It is an action on which nothing else depends for its correctness. It is a mas`alah. Anything that is necessary for its correctness is considered a part of it, such as the intention (niyyah) and abstinence from food. So, if a person followed a mujtahid in salah, then he should follow all of its parts, such as wudu (ablution), bath from major impurity, Tayammum (dry ablution), facing the Qiblah and the arkaan of the Salah. If he has followed a mujtahid in fasting, then he must make taqleed in all its parts, such as the intention (niyyah) and the obligation of making it fort every day or for the whole  month, is it correct to make the niyyah during the day or should it be made during the night, muftiraat (what breaks the fast) and the dispensations for breaking the fast (rukhsas). However, it is allowed to follow a mujtahid in another matter.

All of this applies as long as the person is a muqallid (a follower); but if he acquires the ability to judge the evidences and to outweigh them, in this case, it is allowed for him to leave the mujtahid he made taqleed to and follow the stronger daleel.  

Arabic Source

Q&A: Imran Khan's dramatic rise in popularity

بسم الله الرحمن الرحيم

Q&A: Imran Khan's dramatic rise in popularity

 Question:

Recently, Imran Khan held one of the largest political rallies in Karachi, following a large rally that he held in Lahore. He has called for early elections and many people are now speculating that he will be the next leader of the country. He has also started to make statements about the Khilafah system. In the light of this, please can you elaborate, whether there is a foreign hand behind Imran Khan's dramatic rise in popularity and why is he supporting the concept of the Khilafah state.

To answer this question it is important to consider the following points:

1. It is well known that the real political power brokers in Pakistani politics are not the politicians, but the army. The Chief of Army Staff (COAS) works in collaboration with America to rig elections, establish and dismiss civilian governments and also to decide the fate of any politician wishing to assume civilian leadership of the country. On the latter point, it was Musharraf, in collusion with America that brokered a deal with Benazir's British handlers and allowed her to return in May 2007, after a period in exile, to contest Pakistan's general elections in 2008. However, she overstepped her mark and was assassinated by the military establishment acting under American auspices.

In the last decade, Musharraf discharged the role of a power broker very well for America. He was eventually removed from power, as America struggled to contain the intense opposition against his rule. Now the responsibility to manage Pakistan's political system resides with Kayani and his entourage (which includes the ISI Chief, Ahmad Shuja Pasha, amongst other advisors). Imran Khan fully acknowledges this point. On the 14th of November 2011, the Pakistani English newspaper, The Daily Times, reported that Imran Khan said, "The ISI is calling the shots...The government lacks the moral courage, which has been giving the space to ISI to assert its powers in various affairs of the country." Hence, Imran Khan is aware that for him to possess any chance of assuming leadership of the country, he must work with the army, behind the scenes to forge a deal, that is acceptable to America.

2. The present government of Pakistan consists of the Pakistan's Peoples Party (PPP) and her coalition allies. The PPP under the leadership of Asif Ali Zardari is a government dedicated to serving American interests in Pakistan and in the wider region. Zardari was brought under US influence by Khalilzad, who provided Zardari with regular political advice, and he was eventually made President in 2008.

3. Zardari understands the power of the army in controlling the country and he is aware of the strong relationship of Kayani and his entourage with America. He tries his best to provide services to America to reassure them, to avoid his removal by the army. Therefore he is doing his best to be closer to the United States in order that they support him. Therefore, both men vie with each other to please America. Previously, the two roles were performed by Musharraf which provided America with a degree of stability in shaping and executing policy.

4. Zardari is a weak personality often relying on his wife's political personality to gain credibility and confidence amongst his peers and the Pakistani people. Even to this day, Zardari is unable to exert his presidential leadership and credentials. He spends most of his time in his fortified presidential palace, unable or unwilling to venture out and build rapport with the people. His slow response to the Pakistani flood crisis in August 2010, in contrast to Kayani's quick action to help those beleaguered, further weakened him and his government. Additionally, the revelations by Wikileaks about Zardari government's support for America's war against Islam, and the debacle of the Raymond Davis affair has caused his popularity to plummet to an all-time low, and rendered his government powerless.

5. The Zardari-led PPP government is totally discredited in the eyes of the people of Pakistan. The government is both inept and corrupt to the core. Hence, with the general elections approaching in 2013, America is looking to establish a new political setup that can provide legitimacy to any new government to continue with the pro-American policies and also provide cushion against the anti-Americanism that widely pervades Pakistani life. Nearly, all of the existing politicians have been tarnished for being too weak in their opposition to America's domination of Pakistani politics. This means that America is looking for someone who has a strong personality, yet is overtly anti-American to work with her and the Pakistani military to forge a new civilian government.

6. It must be remembered that Imran Khan's party Pakistan Tehreek-e-Insaf (PTI) is not really a political party in the sense that it has strong roots in the society. Moreover, it does not possess any heavy weight political personalities of any repute, and is regarded as a one man show. Since 1996, the PTI has only one seat in the Pakistani parliament and that is occupied by Imran Khan. This means that Imran Khan will have to reach out to other politicians and ask them to join him to strengthen PTI, and thereby give the party a strong chance of performing well in the elections. Already several notable politicians and technocrats from the Musharraf era, as well as infamous politicians from PPP and PML-N have joined PTI. About 30 politicians from PML-Q (Musharraf's former party) including Awais Leghari, Jamal Leghari, Ghulam Sarwar Khan and Sikandar Hayyat Khan Bosan have joined PTI. The English daily "The News" has produced a report stating: "Names of the establishment's Q-Leaguers who joined the PTI in last few months have already been published in national press show that more than 90 percent of the new entrants in Lahore, Chakwal and all other major cities of Punjab are known Musharraf's men, having close and continuous connections with the establishment. Among those who have joined or are joining the PTI and who have been close to the establishment include, General (r) Anis Bajwa, who was number 2 in the ISI under General Ehsan. General (r) Shahid Aziz, former army general who was a diehard Musharraf loyalist. General (r) Javed Hassan who was also considered close to the establishment and was and has a 'Kargil fame'. Masood Sharif is ex-IB chief and is considered close to the establishment. Former Police Inspector General Iftikhar Rashid is also known for these links. Brig Ejaz Minhas has recently retired from the ISI, and he is secretary election cell of PTI, Punjab." Former foreign minister, Shah Mehmood Qureshi, has been made Vice-chairman of PTI. Makhdoom Javed Hashmi, the PML-N, stalwart joined PTI. "Makhdoom sahib's new alignment is a huge development and definitely boosts our party's political weight," remarked PTI's Central Spokesman Zahid Hussain Kazmi while talking to The News from Germany. The inclusion of such people is a clear indication that the economic and foreign policy will remain unchanged.

7. Thus, exaggerating Imran Khan's stature has been performed by America's men and the military. It is against this background that Imran Khan is being extended all forms of support by the military establishment. The rallies in Karachi and Lahore, and the domestic and international media exposure are just some of the tools being used to promote Imran Khan. America and the Pakistani military establishment will continue to work with Imran, as long as he does not oppose their interests.

8. Regarding Imran Khan's statements about the Khilafah, they are statements that do not go beyond the tip of the tongue, which agree with the military and the regime, to the prevalent public opinion amongst the Pakistani people, without any real implementation, or serious work for Khilafah. Therefore the state did not interfere by preventing such gatherings or arrest Imran Khan because of that statement. Whereas if there is any statement by Hizb ut-Tahrir about Khilafah in a gathering, even if it did not exceed tens of people, the state powers, its security and intelligence, mobilize to prevent it and persecute the shebaab to the extent of kidnapping. Imran Khan is not alone in supporting the Khilafah. Other important public personalities also support the idea such as Senator Mushahid Ullah, and Oriya Maqbool Jan. Recently, former Minister Shaikh Rashid said, "Islam is spreading rapidly and the Muslim ummah is now seriously considering adopting the Khilafat system." All of this indicates that the concept of Khilafah is now wide spread amongst the masses and the Pakistani political medium has no choice but to reflect these sentiments, in order not to become isolated from the people.

9. In conclusion, the Khilafah system is a complete way of life that is revealed by Allah, the Lord of the Worlds. It is not empty words. Rather it is a system that should be put into actual implementation in the government, economy, education, social system, domestic and foreign policy and in all the affairs of life. That there is no law except that from the book of Allah and the Sunnah of His Messenger and what leads to them. It is a rule for implementation, not rhetorical statements.

The Muslims in Pakistan must acquire a degree of awareness to differentiate the good from the bad, the wheat from the chaff. The system of Khilafah system is not an unknown system that Imran and others can manipulate by the use of words! Allah (SWT) warns us about such people,

وَمِنَ النَّاسِ مَنْ يُعْجِبُكَ قَوْلُهُ فِي الْحَيَاةِ الدُّنْيَا وَيُشْهِدُ اللَّهَ عَلَى مَا فِي قَلْبِهِ وَهُوَ أَلَدُّ الْخِصَامِ * وَإِذَا تَوَلَّى سَعَى فِي الْأَرْضِ لِيُفْسِدَ فِيهَا وَيُهْلِكَ الْحَرْثَ وَالنَّسْلَ وَاللَّهُ لَا يُحِبُّ الْفَسَادَ

"There is the type of man whose speech about this world's life may dazzle you, and he calls Allah to witness about what is in his heart; yet he is the most contentious of enemies." [al-Baqara, 2:204]

The Khilafah system is known, and the honest workers of the Khilafah are also known, as are the pro-American hypocrites. Their predecessors have tried this hypocrisy and deception before and they failed.

6 Safar 1433 H

31/12/2011