Concept Of Islamic State

CONCEPT OF ISLAMIC STATE CONCEPT OF ISLAMIC STATE By Mr. Justice Sh. Aftab Hussain, Chief Justice, Federal Shariat Court (Retd.) It is well‑recognised that the idea of an Islamic State originated and grew with the Holy Prophet's Hijrah or emigration from Makkah to Madinah. The genesis of such a State lay in (1) the unification by the Prophet into fraternal relationship of the two big tribes of Madinah, namely, Aws and Khazraj who for a long time had been sworn enemies of one another and each of whom had been prepared on' the slightest provocation to turn the city and its suburbs into battlefield; (2) the absorption of the emigrants into Madinese society by enunciation of the principle of Mawakhat (brotherhood) which was voluntarily and fervently implemented by the members of the two Muslim bribes; and (3) the attempt to knit the Muslims and Jews into Millatun Wahida (one nation) by the famous treaty of Madinah. The establishment of a State must raise a question about the sovereign. In the autocrat and monarch ridden world, the rule in all the civilised States which were conscious of this condition, was that sovereignty vested in the rulers who, one and all, exercised full authority over the subjects and their property. The Qur'an shattered this concept and demolished the entire political structure of the seventh century A.D. by declaring inal hukmo ilia lillah (the Hukm or Authority to decide and judge belongs to none except Allah) (see Verses Q 6:57 and 62; Q 12.40 and 67, and that the Hukm or Authority and Mulk (part of sovereignty) is bestowed by Allah on his messengers and Prophets who had the right to express and to carry into effect the Divine Will (Q 4:105, Q 5.42 Q 6:89). After the Prophet (p.b.u.h.) passed away, the Ummah succeeded to the power to rule which vested in the collective membership of the Ummah or the people (see for the analogy, Q 6:54, Q 45:16). The Ummah thus is the trustee of the divine authority to rule and not any individual. This conclusion is further supported by Verses Q 24:55 and Q 22:41 which clearly indicate that the rule and succession to the right to rule are for the people. This was an absolute negation of monarchy or one‑man rule or even rule by coterie or oligarchy It is no doubt true that the people have to choose their leader to exercise whatever authority they are delegated or vested with since it is not possible for the Ummah to collectively exercise their authority to rule in any other convenient mode. Such a person is called Khalifa. But he can neither be a monarch, nor autocrat or a tyrant. Exercise of authority by him is subject to various checks and balances some of which are enumerated below. (1) His appointment, selection or election is subject to the will of the people to be exercised freely and voluntarily and without any fraud or coercion as is exemplified by the Caliphs. Mawardi (died 450 A.H.) wrote that it is obligatory to appoint an Imam from the Ummah with, the consensus of the Ummah (Ahkam‑al‑Sultaniya translation by Mufti Intizam Ullah Shahabi, p.38). Obviously, such an appointee can be a leader of the people whose main qualification was emphasised by the Holy Prophet (p.b.u.h.) in the tradition that `the best of your leaders are those whom you love and who love you, who pray for you and you pray for them; and your worst leaders are those whom you hate and who hate you, whom you curse and who curse you (Muslim). The Muslim jurists have considered this point. Taftazam (died 729 A.H./1389 A.D.) wrote in Sharh al Maqasid that arnung their leaders the necessary qualification is that they should have such a position that all the people follow them. Shah Wali Ullah (died 1762 A.D.) elaborates this in relation to Khalifa: "The most important consideration in the matter of Khalifa is the pleasure of the masses with the person concerned, their unity under him, their respect for him and that he enforces Hudood, defends the Millat and implements the divine commandments (Hujjat Ullah ul Baligha, Volume II, p.111) (2) The right to appoint carries with it the right to hold the appointee accountable, to correct and set him right and also to dismiss him. The position of the Khalifa being that of agent of the people, they enjoy the right to dismiss him, no doubt for a cause, as arbitrariness is neither allowed to an individual nor to Ummah. The Khalifah remains accountable for all his actions to the people during his tenure. The obligations of the Khaffa vis‑a‑vis the Ummah have been considered by the Muslim political thinkers and jurists. Qadi Abu Bakr‑al Baqilani (died 403 A.H.) wrote: "All authority exercised by the Imam (Khalifah) is exercised as an agent of the Ummah and as its repesentative. The Ummah is always behind the Imam to correct him, to keep him right, to remind him, to warn and admonish him, to take the right from him when it becomes due on him and to dismiss him and to replace him when he commits an act which necessitates his dismissal:" Kasani also deals similarly with the position of the Imam as an agent (Bada'i al Sana'i, Vol. VII, p. 16). Thinkers like Taftazani and Imam Razi consider the Ummah to be the holder of al Riyasat ul `Ammah (general authority or limited sovereignty) (see Sharh al Maqasid, Vol. II, p. 272; Sharh al Mawaqif, Vol. VIII, p. 355). Qurtubi recognises the right of Imam to resign on account of his being an agent (Al‑Jamili Ahkam‑al‑Ouran, Vol. I, p. 272). "" (3) Verse Q 4:58 provides: "Lo! Allah commandeth you to restore Amanaat (trust) to those whom they belong." The succeeding Verse deals with other trusts, i.e. obey, Allah obey. His Apostle and those among you who have the authority of Government. The above Verse has been interpreted as enjoning the performance of all one's duties and obligations whether to Allah or an individual or the society and Government in the manner that a trust is discharged to the satisfaction of the truster. The Holy Prophet said "Whoever made someone ruler and entrusted him with the affairs of Muslims despite the fact that there is a better person who is more suited for the office, committed breach of trust of Allah and His Prophet". In another tradition of the Holy Prophet it is stated Whoever appoints a commanding officer of Asabah (a part of the army like Division, Brigade, etc.) when there is a person in that Asabah who is more fit for the post, commits breach of trust entrusted by Allah, His Prophet and the Momins," (related by Hakam in his Saheh). Imam Ibn Taimiya applies the above Verse to the appointment or election of a ruler by the people and appointment by him of his ministers, bureaucrats, officers or officials and in support refers to the opinions of the learned that the Verse was revealed for inter alia the guidance of the above categories of persons that they should discharge their trusts and judge justly between mankind as during the discharge of their duties they may have to judge (Siyasat i Shar'iya, Daar al Da'awat al Islamiya, p. 7). Imam ibn Taimiya writes that Amanaat (trusts) are of two kinds and one of them concerns Governments (Ibid, p. 11). The word Amanaat thus includes political, administrative and judicial functions, appointments, elections and the discharge of their duties by all including those appointed or elected by the people. It would follow that the relations between the Khalifa and the Creator or between the Khalifa and the Ummah are those of the truster and the trustee and the trusters and beneficiaries are the people or the Ummah. (4) The injunction to all Muslims about doing good and preventing inequity is also applicable to the correction of the inequities of a Khalifa. Verse 4:59 commands the people to obey Allah the Holy Prophet and those delegated and entrusted with the authority of Government. But while the command admits of no exception in respect of obedience to Allah and the Prophet, it is not absolute regarding the obedience to the ruler. It is subject to the order of the ruler not being repugnant to the Qur'an and the Sunnah of the Holy Prophet. As an instance may be quoted the Quranic injunction in Verse Q 26:51 not to obey a prodigal. Similarly, no obedience lies to a tyrant. Hadhrat Abu Bakr reported that the Prophet of Allah said "When the people see a tryrant and a transgressor and do not prevent him from that Allah may extend his wrath and chastisement unto all of them. It is a well‑known tradition that the Prophet said that the greatest Jihad is to tell in the presence of a ruler who is tyrant what is true and just (Trimidhi). Imam al Haramain said that tyranny and fraud of a ruler may be deterred and prevented even by recourse to armed insurrection and use of force. The Holy Prophet said that Allah would be pleased with three things and the third thing pointed out by him was: You advise those whom Allah assigns the authority in your affairs" (Muslim). Imam Ibn Taimiya cites a tradition in Siyasat i Shar'iya (ibid) p.170): "The Prophet said: Deen (religion) is advice and he repeated this thrice. .The companions asked him "adivce to whom?" He said: to the persons in authority among the Muslims and all the Muslims in respect of (what is enjoined by) Allah, His Book and His Messenger." Imam ibn Taimiya calls this a continuous process. The freedom of expression is thus recognised not only as a human right but as a religious duty. (5) It is the duty of all vested with authority to consult the people before acting either in administrative capacity or in legislative. The sanctity and sanction for this injunction lies in Verses Q 3:159 and Q 42:38 which are explainable by virtue of the precedents of the Holy Prophet and the Rightful Caliphs. It is not necessary to deal with the point in much detail since the institution of Shoora had always been in existence though in an absolutely degenerated form after the end of the rightful Caliphate. The first four Caliphs sought counsel with all the eminent Companions of the Prophet (p.b.u.h.) and no Muslim could be debarred from giving advice. The succeeding monarch Caliphs established the institution of Arbab i‑Hail‑o‑Wal `Aqd and the members of that institution were selected by the Caliph himself and, naturally, such appointees used to be his favourites and sycophants and not those entitled to represent the people. The advice or the counsel was not considered binding which made the institution a farce. It may be clarified that the Verses about consultation have been interpreted in two diverse manners. One interpretation which obviously suited the monarchy was that the Khalifa had full authority to veto the advice. Another interpretation advanced the theory of the advice being of a binding nature. This view was held by a large number of scholars including some Maliki jurists, Imam Razi Rafi'i, Nawawi, Sharbini, Hadwiya, Ibn Khuwaiz, Mandad Sa'albi, Sheikh Muhammad Abduhu, Abdul Wahab Khallaf, Abdul Qadir `Audah, Dr. Muhammad Bablile, Sheikh Razaq‑al‑Zalbani (Maulana Maudoodi, Shoora Bainal Nazariyatti wal Tatbiq (pp. 47 to 55). Though in a rather different context, Abu Bakr Jassas said that if the consultant knows that his advice will not be acted upon and will be ineffective he can neither feel pleased nor consider his consultancy an honour. The interpretation conferring power of veto upon the Khalifa can suit only monarchs and autocrats. The Holy Prophet and his Companions never turned down the opinion of the majority or the consensus of those rendering advice. There are two instances which are cited as authoritative of veto. One is of Hadhrat Abu Bakr deciding to fight those who refused to pay Zakat and the other is of Hadhrat `Umar refusing to divide the land of conquered territories as booty. But they cannot support the contention since after argument by the Khalifa in each case, those arguing in favour of the contrary view were quietened and thus consensus developed on the opinion given by the Khalifa. (6) The promotion by Islam of complete equality and fraternity between the members of the Ummah, the emphasis on the dignity of human being and the fear of Allah being the only criterion for preferring one person over the other abolished all distinctions between the ruler and the ruled. The ideal of equality and equal treatment before the law has been unparalleled in Islam since no distinction can be made between whites and blacks, the free and the slaves, the rich and the poor, men and women. Similarly other human rights conferred by the Quran and Sunnah of the Prophet leave no scope for totalitarianism, dictatorship and autocracy. Reference may now be made to the policy statement of Hadhrat Abu Bakr made on the occasion of his first sermon given after his election as Khalifa. He made four points. He said that even after his election to that office, he was no better than others, people should follow him so long as he followed Allah and His Prophet and that if he committed any wrong, people should set him right. He also said that the weak among the people were strong in his eyes, and the strong were weak for so long as the right of the weak was not wrenched from the strong. Hadhrat Umar's first sermon was almost on the same lines. He also exhorted the people to set him right if he committed any indiscretion or wrong. This in short is the concept of a truly Islamic State. It contemplates a truly representative Government based on the doctrines of liberty of the individual and the Ummah and equality and fraternity in which the Khalifa should be chosen with the consensus of the Ummah. The Khalifa, if not preferable as a man for the quality of Taqwa (piety) cannot be superior to the members of the Ummah. His accountability to the Ummah is a permanent feature. And the Ummah has not only the right to elect him but also to keep a constant vigil on his activities and policies, to correct him and set him right and, in case of misconduct, to impeach and dismiss him. It is the duty of the Khalifa to do justice and arrange for justice being done between man and man, to defend the Ummah and keep law and order, follow and arrange for the obedience by the Ummah of the injunctions of the Qur'an and Sunnah of the Holy Prophet, and discharge his executive and legislative duties in the light of the decision of the consultative body. No precise method of election, accountability and impeachment or that of appointment and election of a consultative body is provided. The Ummah has been left free to devise methods, frame necessary rules and elaborate these principles according to the requirements of each age, no doubt, keeping in view the existing norms of the ever‑changing and ever‑developing society. In the absence of any binding rule to the contrary, there is no harm in seeking guidance from the experience of the west in the method of elections, in choosing between the parliamentary system and the presidential or any other form of democratic Government in fixing the tenure of incumbents of elected offices, in accepting the party system as necessary for the proper functioning of democratic polity, or in providing for the impeachment or dismissal of the head of State. On the same analogy rigidity and stringency appear to have been avoided in the laws of the Qur'an and the Sunnah. Dermite laws are few. The reason is not far to seek. The Holy Book was revealed for all times to come, and laws, if definite and un-amendable, could have been incongruous to the requirements of the society in future. The possibility of such incongruity has been avoided by Islam by generally laying down ethical principles of legislation common to all revealed religions, as well as other principles like Dafe Haraj (removal of difficulty), Dafe `Usr (removal of trouble or torment), Dafe Muzarrah (amelioration or removal of damage), Dafe fitnah (removal of mischief or what is evil, deleterious or detrimental for the Ummah) and maslaha (promulgation of what is beneficial and useful for the Ummah). Even a definite Quranic law may be overridden by Maslaha, for example, in case of Muamilat which may be subject to change (Dr. Hamid Hussain Hassan, Nazaryat al Masalaha fit figh il Islami, p.36). Islam recognises customs and usages as a source of law which would imply that laws based on. Arab customs would not bind non‑Arabs. Each country may have its own customs, and there is no harm in giving them force of law, provided that the same be not repugnant to Shariah. Ijtehad is a continuous process. There are various other rules. The object of these rules of legislation is to avert conservatism in the field of legislation and to enable the Ummah to modernise their, legislation whenever required. Taqlid (considering the laws framed by scholars of a particular school of thought upto the third century as binding for ever) has no place in the Qur'an and the Sunnah of the Holy Prophet and is repugnant to the injunctions about Ijtehad. Islam being forever, it has to remain modern for each modern age. That is one reason why it is not necessary for a Muslim to break away from religion in politics or legislation. The principles on which an Islamic state is based may now be compared with the principles which form the basis of democracy and representative Government in the modern age. The theory of Amanah (trust) in the Qur'an as explained in the traditions of the Prophet (p.b.u.h.) and elaborated by political thinkers of Islam, is the cornerstone of the theory of Locke, the father of modern democracy who wrbte at the end of the seventeenth century A.D. I may quote here from State as Defendant by Leon Horwitz, p.7: "Locke's contract was ‑a trust arrangement, and the sovereign existed only to carry out the will of the people. The sovereign had to perform what the people decided, and if he refused to abide by the population's mandate, the people could remove him from office ...This trust arrangement is organised similar to any modern fiduciary trust agreement with a truster, a trustee and a beneficiary. "According to Locke, the truster is the people, the trustee is the Government and sovereign, and the beneficiary is also the people. The sovereign as trustee is created by the people‑truster through the contract, and the sovereign must sign the agreement containing all clauses and stipulations. "Moreover, the people and not the sovereign determine what the people's best interests are. The people as truster create the contract, decide upon the terms and content, decide how the resources are to be used, and then they hire the sovereign‑trustee to do the everyday and mundane work of administering the agreement and pursue the best interests of the people or he fired .... W. Von Leyden considers three aspects of Locke's theory of trust in his book Hobbes and Locke, pp. 128‑9: "There are three aspects to be considered. First, one party, A, can put its trust in. another, B, only if it is free (and, as Locke says, freely consents) to accept B as trustworthy. B can accept this position of trust only if it is also free and ready to act according to the stipulations laid upon it, for, only under these conditions can it be held to fulfil its task .... Secondly, since being trusted comprises certain duties, trust is in this sense coextensive with another aspect of responsibility, that of constraint, i.e. of having to act in accordance with the wishes or expectations of the trusting party. For A commits to B a charge; it entrusts B with its own safety, liberty and security‑‑‑in short, with the protection of all its original rights. In this capacity B is invested with a power of control without which it would not be able to carry out these obligations. "Thirdly, duties may be neglected. Locke's point in introducing his concept of trust is that the trusted party should at all times be open to scrutiny, and the trusting party free to revoke its trust, if it thinks this essential to its security or the survival of its liberties." Equality and other human rights are also a characteristic feature of justice and of a representative Government. They have never been allowed to prosper and even tolerated in a despotic or totalitarian state or in monarchy. John C. Rees said: "That both equality and right enter into the notion of justice is a common assumption among recent writers on the subject" (John Stuart Mill On Liberty, p.156.). In his book The Political Forms of Modern Society, Claude Lefort considered the question in the chapter on politics and human rights. He posed a question: "Do human rights belong to the sphere of the political?" He then said at p.260 that "these rights are one of the generative principles of democracy ....Their effectiveness stems from the allegiance that is given them ....In short, rights cannot be disassociated from the awareness of rights ....Thus, the awareness of the right and its institutionalisation are ambiguously related". He then answered the question at p.272: "A politics of human rights and a democratic politics are thus the ways of responding to the same need, to exploit the resources of freedom and creativity which are drawn upon by an experience that accommodates the effect of division, to resist: the temptation to exchange the present for the future, to make an effort on the contrary, to discern in the present the signs of possible change, which are suggested by the defence of required rights and demand for new rights while learning to distinguish them from what is merely the satisfaction of interests". Democracy is thus tied up with freedom and human "totalitarianism is built on the ruins of the rights of man". The Quranic theory of trust as interpreted and expounded by the Holy Prophet and the political thinkers of Islam and made applicable to the Khalifa, his appointment by the consensus of Ummah, his being permanently under the scrutiny of the Ummah, his accountability and his authority being subject to revocation for cause, i.e., his neglect 'or failure to perform his duties as required of him, is not different in these vital characteristics from the theory developed by Locke in the West several centuries later. The Quranic theory was in itself a guarantee for the establishment of representative government and of liberty of the members of the Ummah. Recognition by the Qur'an of human dignity, and conferment of the various human rights, including that of fraternal equality on each member of the human race, should make, in the words of Professor David Raphel, "Justice and liberty" as "the central aspects of social and political thought" (Justice and Liberty, p. v). But in the Qur'an, justice, liberty, equality and fraternity‑‑‑each in its own turn‑‑‑are essential to an Islamic society. All these are the prerequisites to Islamic democracy. An Islamic state and a modern secular democratic state differ mainly on the question of sovereignty. In an Islamic State, the Sovereign is Allah, and the people are delegatees of that sovereignty to the extent recognised by the Holy Book, while secular States have thrown away the yoke. of religion and the people in those States are considered vested with absolute and unrestricted sovereignty. The legislative authority of the Parliament in an Islamic State is subject to the principles laid down in Sharia, i.e., the Qur'an and Sunnah of the Holy Prophet, and no law can be made which is repugnant to Sharia, and Sharia, of course, vouchsafes to preserve human rights. In a secular State, the right to legislate is not fettered save to the extent of contravention of human rights. But differences may arise in the working of the human rights. The right of privacy is guaranteed in Islam and so is a precious right in a secular State. But in Islam, unlike the modern concept of civilisation, the latitude given to `individuals to decide in their way how they should live' does not extend to the contravention of the laws of sexual morality or norms which affect the behaviour of the society. Consent of two adults for indulgence in sex in private can in no case be held in Islam as permissive or a part of civilisation or culture as it is treated in the West. The reason is clear that Islam considers such liberty as a debasement and corruption of the society as a whole. Similarly, no licence can be given for drinking liquor or' gambling in private: The laws about such morality are uniform and their, contravention whether in public or private cannot be permitted. No confusion in this respect can ever arise in an Islamic State. But confusion does arise on the question as to where the limits should be prescribed, as for example, between licence in sexual relationship and promiscuity or perversion; or between licence and the impact of AIDS and venereal diseases. And yet, such licence which cannot in practice be subject to control, is considered an attribute of modern civilisation (See Mark Bell, The Polity, Chapter 39). The wide scope of development of legislative process has already been dealt with. The distinction between the sovereignty in one polity, or the other does not much curtail the power of legislation in an Islamic State and in the unoccupied field any law may be made according to the requirements of each modern age. The authority to legislate in a modern Secular State is also not unfettered but is subject to the will of the people. If the people in such a State are free to will that no law made by their representatives would be allowed to encroach upon their fundamental rights, the Muslims in an Islamic State can equally will in addition that no law repugnant to the Sharia would be made by their representatives. It may be recalled that prior to World War II, laws in the West were generally modelled on the teachings of the Christianity and Christian morality and ethics. The Jewish State in Palestine provides an example of a religious State which enjoys full support from the `civilised world'. In view of the present day division of the Islamic World into numerous States with restrictions on the right of citizenship, domicile and visa, it is not possible to disengage or disassociate oneself from the idea of nation‑States. The possibility of such a State in Islam cannot be ruled out in view of the language of the Treaty of Madinah according to which the Muslims and the G Jews were considered Millatun Wahidn (one people). Nor is it possible to continue for ever the division between Dar al Islam and Dar al Harb when all the Muslim States have treaty relations with non‑Muslim States. The minorities are as good citizens of many Muslims States including Pakistan as Muslims are, with equal Constitutional rights. No Jazia can be imposed on such minorities as they are no more conquered people, nor the Muslim majority has exclusive right to defend them. But in Pakistan, since the beginning of the last martial law regime, we are heading overtly and consciously towards a Mullaite theocracy which is a negation of recognised Islamic values. This is contrary to the ideological teachings of Iqbal and advice of Quaid‑i‑Azam. The Mullahs have no place in Islam which is free of priesthood. And yet, encouraged by General Ziaul Haq for reasons of his own, they are creating confusion by making fresh' demands for `Islamisation of the Constitution and the laws; and for establishment of the so‑called Islami nizam or Islamic order': The Ulema of the earlier period were satisfied with the impact of the Objectives Resolution and thereafter by the provision in the Constitution of 1956 guaranteeing enforceability of laws not repugnant to Sharia. Similar provisions have been there in all succeeding Constitutions. But the present day Mulla is not satisfied with what was agreed upon by his predecessors who were admittedly much more knowledgeable. It is time that the public is educated on these matters so that the machinery of the State of Pakistan works smoothly.