Article 91
The Court of Injustice Acts (Madhalim) has the authority to
investigate any case of injustice (Madhlamah), irrespective of whether it is related to officials of the
State, the Head of State’s deviation from the Shari’ah rules,
interpretation of the legislative texts in the constitution, law (qanun)
and other Shari’ah rules within the framework adopted by the Head of
State, or the imposition of a tax, or anything else.
Its evidence is that the Messenger
considered that
price-fixing by the ruler was an injustice (Madhlamah), and saw that the
arrangements of the State in setting the order of people to irrigate their land
from the public water was an issue that could lead to an injustice (Madhlamah).
This indicates that the action of the ruler which contradicts the Truth or the Shari’ah
rules is an injustice (Madhlamah) if it was connected to the Khalifah
(Head of State), because the Messenger
was the Head of State. And if it
was connected to officials of the state it would also be an injustice (Madhlamah),
because they are the delegates of the Head of State, and so it would also be
connected to the Khalifah because it is connected to the action which
they were delegated to and not to themselves as individuals. Accordingly, the
narration regarding price fixing is evidence that the violation of the Head of
State is an injustice (Madhlamah), and the Court of Injustices (Madhalim)
is the entity which has the power to look into the injustices (Madhalim),
which is the evidence for the first part of the article.
As for the second part, which is the investigation into a text for the
constitution or canons, it is because the constitution is the basic law, and
the law is the order of the authority, and so investigating it is investigating
the order of the authority. Therefore it comes under the narration regarding
price fixing since it is an investigation of the actions of the Khalifah.
Above and beyond that, Allah (swt) said, “and if you differ in anything
amongst yourselves then refer it to Allah and His Messenger” (TMQ 4:59), or in other words, if you
and those in authority differed over something. Differing over an article of
the constitution or law is a difference between the subjects and the people of
authority regarding a Shari’ah rule, and so it is referred to Allah (swt)
and His Messenger
– referring to Allah (swt) and His
Messenger
is referring it to the Court of
Injustices (Madhalim), in other words, to the judgement of Allah (swt)
and His Messenger
.
With regards to the third part of the article, the Messenger
said, “Whoever
I took wealth from, then here is my wealth he should take from it,” reported
by Abu Ya’la from al-Fadl Bin Abbas, and he
said, “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 from Anas), and so the taking of wealth from the
subjects by the Khalifah without right is considered an injustice (Madhlamah),
and to take the wealth which the Shari’ah did not obligate upon the
subjects is an injustice (Madhlamah), and due to this the Court of
Injustices (Madhalim) can investigate the taxes since they are
wealth taken from the subjects. Its investigation into the taxes is only to see
whether that tax is lawfully obliged by Shari’ah upon the Muslims, such
as the money taken to feed the needy, which would not be an injustice (Madhlamah),
or whether that tax is not obliged by the Shari’ah, such as money taken
to build a dam that is not considered essential, which would therefore be an
injustice (Madhlamah) that has to be removed. This is why the Court of
Injustices (Madhalim) has the power to examine taxes.
Article 92
The judiciary of the Injustice Acts (Madhalim) is not restricted
by a court session or the request of the defendant or the presence of the
plaintiff. It has the authority to look into any case of injustice even if
there is no plaintiff.
Its proof is the evidence which confirms the conditions for the correct
session to look into a case does not apply to the Court of Injustices (Madhalim)
due to the absence of a plaintiff, since there is no requirement for the
presence of a plaintiff, as it will look into the injustice (Madhlamah)
even if no one was a plaintiff. Also, the lack of necessity for the defendant
to be present, because the court looks into the case without requiring the
defendant to be present since it is looking closely at the injustice (Madhlamah)
and the defendant. Therefore the evidence which makes the court session a
condition - which is the words of the Messenger
“that the two disputers should
sit between the hands of the ruler” reported
by Ahmad and Abu Dawud from ‘Abd Allah Bin al-Zubayr, and
“if the two disputing parties sat before you” reported by Ahmad from
Ali (ra) - does not apply. Based upon that, the Court of Injustices (Madhalim)
can look into the injustice (Madhlamah) simply due to it arising,
without any restraint at all, neither due to location, time, nor court session,
or anything else.
However, due to the position of this court, from the angle of its powers,
it used to be surrounded by what gave it an imposing and great image. In the
time of the Sultans in Egypt and ash-Sham the sitting of the Sultan
during which the injustices (Madhalim) were looked into was called “The
House of Justice”, and one of his delegates would undertake the session
with judges and jurists present. Al-Maqrizi mentioned in his book entitled “Al-Suluk
Ila Ma’rifat Duwal al-Muluk” (The Way to Know the States of the Kings),
that the Sultan al-Malik al-Salih Ayyub appointed deputies to act on his behalf
in the House of Justice. They used to sit there to remove the injustices (Madhalim),
and there would be witnesses, judges and jurists all present. There is no harm in making the Court of
Injustices (Madhalim) a splendid building, for this would be from the
permitted issues, especially if this reflected the might of justice.
Article 93
Every person has the right to appoint whomsoever he wishes as a proxy (wakeel)
for oneself in the disputes and defence, irrespective of whether he is Muslim
or not, male or female. There is no
distinction in this matter between the commissioner and the proxy. The proxy is
permitted to be appointed for a fee according to the terms agreed upon with the
commissioner.
This article explains the permission of proxy in disputes, and its
evidence is the evidence for the granting of proxy, since it is general and
encompasses every type of proxy. Proxy is confirmed by the Sunnah; it is
narrated by Abu Dawud with its chain of narration that Jaber Bin Abdullah said:
“I wanted to go out to Khaybar, so I went to the Messenger of Allah
and said to him ‘I want to go out
to Khaybar’, so he said ‘Go to my proxy, and take fifteen loads, and if he
wanted anything from you then place your hand upon his collarbone,” (authenticated by al-Hafiz in
al-talkhis), and it is
narrated from him
that he
gave proxy to Abu Rafi’ regarding
the acceptance of marriage to Maymunah; Ahmad reported in al-Musnad from
Abu Rafi’: “The Messenger of Allah married Maymuna, and I was the
messenger between them”. So anything that the person’s free conduct in
is considered valid, and can be deputised, can be given as a proxy, whether
male or female, Muslim or disbeliever. Also, the issue of proxy in disputes is
itself confirmed by the Ijma’ of the companions, since Ali (ra) gave a
proxy to Uqayl before Abu Bakr (ra) and said “Whatever is decided for him
is for me, and whatever is decided upon him is upon me”, and he
appointed Abdullah Bin Jafar as a proxy to ‘Uthman (ra) and said “Truly
the disputes are quhm and the devil attends them, and I hate to attend”.
This was mentioned by Ibn Qudamah in al-Mughni and he said “these
stories have spread since they are famous and no one mentioned anyone who
rejected them”. The meaning of quhm is destructive. Based upon this, proxy
is permitted when requesting and establishing rights, whether the commissioner
is present or absent at the judgement, healthy or sick, and the agreement of
the disputing party is not required since it is a right in which deputising is
permitted without any restrictions irrespective of whether the disputing party
agreed or not.
It is permitted for the proxy to be appointed for a fee, since it is a
permitted type of employment, as employment is general and encompasses every
issue including deputising. Because the definition of employment is a contract
upon an exchange of a service for compensation and this applies to the service
of proxy and so the definition applies to it. So if the appointment of proxy is
done for a fee, then the proxy is entitled to the fee from the commissioner
according to the terms that they are both content with. However, it is
imperative that a contract of employment is put into effect and that both of
them agree upon it in order for him to be entitled to the fee, because the appointment
of proxy itself is a contract which does not necessitate any fee, but an agreed
fee upon the contract is what would necessitate it. Accordingly, it is
imperative that there is a contract of employment upon the proxy along with the
contract of appointing the proxy. Both appointment of proxy and taking fee are
permitted without restriction, irrespective of whether the person takes it as a
profession with which he makes his living out of or not, and due to this the
work of what is known today as lawyers and barristers is considered valid in
terms of being valid to take a fee for it, but their seeking judgement from Kufr
laws to confirm the truth from the falsehood is what is not permitted. Rather
the truth is what Islam confirmed as the truth, and the falsehood is what it
made false, and there is no value for what is different from that even if the
rules of Kufr confirmed it.
Article 94
It is permitted for the one who has been vested with a specific
responsibility, like a custodian or guardian, or general responsibility such as
the Khalifah, ruler, civil servant, muhtasib, or judge of the
Court of Injustice Acts (Madhalim), to appoint a person to his position
as a proxy - within the bounds of his authority – in disputes and defence
alone, and there is no difference whether they were the plaintiff or defendant.
Its evidence is the evidence for the giving of proxy, since as it is
valid for a person to deputise another person to act on their behalf in the
issue they have control over such as buying, selling, and disputes, in the same
manner it is valid to deputise another person to act on their behalf in the
issues they are acting on, on behalf of someone else. So the proxy, if given
the right to deputise in the issue that they were given the proxy in, can deputise
someone for themselves in that which they have control over as a result of
being given the proxy. Accordingly, the guardian can deputise someone else to
act on their behalf with the wealth of the one they are guardian over, and in
the same manner the custodian of the waqf is permitted to deputise
whomever they please in all the affairs that he has the power of control over
from the leasing of the waqf and so on. Similar to them is the ruler,
who is permitted to deputise whomever he pleases in any of the issues he has
control over. Unless the ruler is the Khalifah, in which case it is
permitted for him to deputise whomever he pleases because he possesses control
over every matter, and so he is like the one who deputises on his own behalf,
whereas anyone other than the Khalifah, from those who are his delegates
such as the assistants, governors, and department managers, do not have the
power to deputise on their behalf in that which they have been deputised
control over unless the Khalifah gave them the right to do so. This is
because they are the delegates of the Khalifah, and so they are similar
to the deputies, and the deputy has no right to deputise his duty unless he was
given that right. So if his deputation gave him that power, then he would have the
right of deputation irrespective of whether he was a plaintiff or defendant,
since the right to deputise is general and encompasses every issue that he acts
in. Based upon that, what is known today as the attorney general (lawyer of the
government), and the public prosecutor and prosecution, or anything else
similar, then from the angle of the rules of proxy the work is valid according
to the Shari’ah, since the Shari’ah permitted this type of
deputation.
Article 95
The contracts, transactions, and verdicts which were ratified and whose
implementation was completed before the establishment of the Khilafah
are not nullified by the judges of the Khilafah and nor do they review
them, unless a case:
a.
Has a continued effect which contradicts Islam, so it
is obligatory to review it.
b.
Or if it was connected with harm to Islam and the
Muslims which was brought about by the previous rulers and their followers, and
so it is permitted for the Khalifah to review such cases.
c.
Or if it was connected to wealth which had been
misappropriated and still remains in the hands of the one who had taken it.
Considering the contracts, transactions, and cases which were ratified
and whose implementation was completed before the establishment of the Khilafah,
they are considered valid between their parties when their implementation was
completed before the Khilafah, and the judges of the Khilafah do
not nullify them nor restart them and would not entertain any discussions
around them after the establishment of the Khilafah.
There are three exceptional circumstances:
1.
If the case which had been
ratified and whose implementation had ended, has a continued effect against
Islam.
2.
If the case was connected to
harming Islam and the Muslims.
3.
If the case was connected to
the misappropriation of wealth which remains in the hand of the one who had
misappropriated it.
With respect to not voiding the contracts, transactions and cases which
were ratified and whose execution was completed before the establishment of the
Khilafah state, this is because the Messenger
did not void the transactions,
treaties, and verdicts of the time of jahiliyyah when their abode became
the abode of Islam (Dar Al-Islam). The Messenger
after the conquest of Makkah did not return to
the house which he had emigrated from, when Uqayl b. Abi Talib had inherited –
in accordance with the laws of the Quraysh – the houses of his clan who had
accepted Islam and emigrated, and had dealt with them and sold them, amongst
them the house of the Messenger
. At that time it
was said to the Messenger
: "Which house will you take?", and
so he
said “Did Uqayl leave us a residence?” and
in a narration “Did Uqayl leave a house for us?”, and he had sold
the houses of the Messenger of Allah
and he
did not void those transactions. And the
narration as reported by al-Bukhari from Usamah Bin Zayd “He said at the
time of the conquest: O Messenger of Allah where will you stay tomorrow”? The
Prophet
said “And did Uqayl leave a house for
us?”. In the same vein it is reported that when Abu ’l-‘Aas b. al-Rabi’
became Muslim and emigrated to Madinah – and his wife Zaynab, the daughter of
the Messenger of Allah
, had become Muslim
and emigrated after Badr while he remained on his Shirk in Makkah – the
Messenger
returned his wife Zaynab to him without
renewing his marriage contract with her, confirming the contract they had in
the period of jahilliyah. Ibn Maja reported from Ibn Abbad “The
Messenger of Allah
returned his daughter to Abu al-‘As b. al-Rabi’
after two years, upon their first marriage contract” and in the report in Ahmad “Yazid
said to us that Muhammad Bin Ishaq informed us from Dawud Bin Husain from
Akrama from Ibn ‘Abbas that the Messenger of Allah returned his daughter to Abu
al-Aas, her husband, upon the first marriage contract after two years and did
not take a new dowry”. This took place after Abu al-‘As had embraced
Islam.
With regards to
dealing with the cases that have a continuous effect that contradicts Islam,
the Messenger of Allah
voided the interest that remained upon the
people after they became part of the Islamic State, and allowed them to keep
their capital. In other words, once Dar Al-Islam was established
whatever was left to them in terms of interest was voided. Abu Dawud reported
through Sulayman b. ‘Amr from his father: I heard the Messenger of Allah
say in his farewell pilgramage: “All of the interest
from the time of jahilliyah is voided. Your capital is yours to keep; you will
neither inflict nor suffer oppression”.
In the same manner, those who had married more than four in accordance
with the laws of jahilliyah, after they were part of the Dar Al-Islam
they were compelled to keep just four. Al-Tirmidhi reported from Abdullah Bin
Umar that Ghaylan Bin Salamah al-Thaqafi embraced Islam, and he had ten wives
in jahiliyyah who embraced Islam with him, “so the Prophet
ordered him to select four from
amongst them”.
Based upon this, the contracts which have a continuous effect that
contradicts Islam are to have the effect removed after the establishment of the
Khilafah, and this removal is obligatory.
For example, if a woman embraced Islam and she was married to a Christian
before Islam, after the Khilafah this contract would be voided in
accordance with the Shari’a rules.
As for dealing with the cases that inflict hurt upon Islam and the
Muslims, this is because the Messenger
ordered the killing of a few men who had
caused harm to Islam and the Muslims during the time of jahiliyyah after
the conquest of Makkah, and so they were killed even if they tied themselves to
the curtains of the Ka’bah, in knowledge that the Messenger of Allah
said “Islam wipes away what was before
it” (reported by Ahmad
and al-Tabarani from ‘Amru b. al-‘As); in other words, whoever harms Islam and
the Muslims is an exception to this narration.
Since the Messenger
gave amnesty to some of them, such as ‘Ikrimah b. Abi Jahl, it is
permitted for the Khalifah to apply the case upon them or give them
amnesty. This is applied upon those who torture the Muslims due to their saying
the word of truth, or those who defame Islam, and so the narration “Islam
wipes away what was before it” does not apply to them, rather they are
an exception to it, and the application of the case upon them is in accordance
with whatever the Khalifah decides.
As for dealing with
cases to do with misappropriated wealth that remains with the one who
misappropriated it, Muslim reported from Wa’il Bin Hujr who said “I was
with the Messenger of Allah
when
two men disputing over a piece of land came to him. One of them said:
Messenger of Allah, this man appropriated my land without
justification in jahiliyyah (the days of ignorance). The (claimant) was Imru’
al-Qays Bin ‘Abis al-Kindi and his opponent was Rabi’a b. ‘Ibdan. He
said (to the claimant): Have you
evidence (to substantiate your claim)? He replied: I have no evidence. Upon
this he
remarked: Then his (that is of
the defendant) is the oath. He (the claimant) said: In this case he (the
defendant) would appropriate this (the property). He
said: There is then no other way
left for you but this. He (the narrator) said: When he (the defendant) stood up
to take oath, the Messenger of Allah
said: Whoever appropriated
the land wrongfully would meet Allah in a state that He would be
angry with him”.
The Messenger accepted to listening to the claim of the man regarding
land misappropriated with knowledge that this occurred in jahilliyah.
Accordingly, whoever took a piece of land, or misappropriated a pasture
of an individual’s wealth, or took some wealth from the public or state
property, and it was misappropriated, the claim regarding it would be accepted.
As for anything other than these three situations, the contracts,
transactions, and cases before the Khilafah are not voided nor
restarted, so long as they had been concluded and executed before the
establishment of the Khilafah.
For example if a man had been given a two year jail sentence for the
charge of breaking school doors, and he had completed the two years before the
establishment of the Khilafah and had left prison, and then after the
establishment of the Khilafah he wanted to make a claim against his
imprisonment since he thought he did not deserve prison, this claim is not
accepted, since the case occurred and was ruled upon and executed before the
establishment of the Khilafah, and so his account is with Allah (swt).
If a man was sentenced to ten years of which two years had passed and
then the Khilafah was established, then in this case the Khalifah
can look into it, and can remove the punishment in its entirety, so the man
leaves prison innocent of what he was accused of, or suffices with what was
spent, in other words the sentence given to him is considered to be two years
and he leaves the prison or the remaining sentence is looked at and the shari’a
laws are complied with in respect to what has a relation to what is correct for
the citizens, and especially the cases connected to the individuals’ rights,
and what is correct between people.
The Administrative System
Article 96
Management of the government’s and people’s affairs is carried out by
offices, departments, and administrations, whose task is to ensure the
management of the State’s business and the carrying out of the people’s
interests.
The Messenger of
Allah
used to run and carry out the affairs and
appoint secretaries for their administration. Thus, the Messenger
used to carry out the affairs of the people in
Madinah, solve their problems, organise their relations, secure their needs,
and direct them to that which suited them. All of these matters are of the
administration issues that eased their life from problems or complications:
In matters of
education, the Messenger of Allah
made the ransom of the disbelieving prisoners
of war the teaching of ten Muslims, where the ransom (the teaching of ten
Muslims) was in return for spoils (education), which became property of the
Muslims. Thus, securing education was one of the Muslims’ affairs.
In healthcare, the
Messenger of Allah
was given a doctor as a gift, but he assigned
him to the Muslims. The fact that the Messenger of Allah
received a gift and he
did not use it, nor take it, but rather
assigned it to the Muslims is evidence that healthcare is one of the interests
of the Muslims.
In regards to
employment, the Messenger of Allah
directed a man to buy a rope and then an axe
and collect firewood and sell to the people instead of begging from them, where
somebody might give him while another would resist. Thus, solving the problems
of work was also one of the Muslims’ interests. Abu Dawud and Ibn Maja narrate:
“A man from the Ansar came to the Prophet
and asked from him (Sadaqah). The
Messenger
said ‘Don't you have anything in your
house?’ He said, ‘Yes.’ The Prophet
said, ‘Bring them to me.’ He brought
them to him. The Messenger of Allah
took them in his hand, and said, ‘Who
would buy these two?’ A man said, ‘I would take them for two dirhams.’ He gave
them to him and took the two dirhams. He gave them to the Ansari and said, ‘Buy
with one of them and give it to your family and buy with the other an axe and
bring it to me.’ He brought it to him. Then he tied with his hand a rod to it
and said, ‘Go and collect firewood and sell, and do not let me see you for
fifteen days.’ He did that, and came back having ten dirhams”.
Al-Bukhari reported
from Abu Hurayrah that the Messenger of Allah
said: “It
is better for any one of you to take a rope and bring a bundle of firewood on
his back, and sell it, than to beg the people, who might give him or reject”.
On the issue of
roads, the Messenger of Allah
organised the roads at his time by making the
road of seven cubits in case of
dispute. Al-Bukhari narrated from Abu Hurayrah “The Prophet
decided in case there was a dispute the road
would be of seven cubits”. The narration by Muslim says: “If
you had disputes over the road make its width seven cubits”. Ahmad
reported from Ibn ‘Abbas “The Messenger of Allah said: The space between
the road is seven cubits” and in another report by Ahmad from ‘Ubada b.
al-Samit “In a case regarding the public space of a pathway that the
people wanted to build in he judged that seven cubits should be left for the
path”.
This was from the
administrative organisation of that time, and if there is need for wider than
that it is allowed according to the opinion of the school of al-Shafi'i.
The Messenger of
Allah
has also prevented transgression against the road.
Tabarani reported in Al-Sagheer: “Whoever took a handspan of the
road of Muslims Allah would encircle him from seven earths on the Day of
Judgement.”
In matters of
agriculture, Al-Zubayr disputed with a man from the Ansar regarding irrigating
from a stream of water flowing in their lands. The Messenger of Allah
said: “O Zubayr! Irrigate and then send
the water to your neighbour” (agreed upon with the wording from Muslim).
Thus, the Messenger
of Allah
used to run the affairs of the Muslims and solve
their problems easily and simply, without complication. He
used to seek the help of some of the
companions in conducting that, thus making the affairs of the people an
organisation entrusted to the Khalifah, or he appointed a competent
manager over it that took charge of it. This is what is adopted here so as to
reduce the burden of the Khalifah, particularly since the affairs of the
people have increased and branched out. Accordingly, there would be an organisation
for the people’s affairs entrusted to a competent manager, and run by styles
and means that assist the citizens living there, that provides for them the
necessary services without complication and rather provides ease and
simplicity.
This system
consists of administrations, departments, and directorates. The administration
is the overall management of any government affair, such as citizenship,
transportations, money coinage, education, health, agriculture, employment,
roads and others. This administration would undertake the management of its own
affairs and all the departments and directorates under its control. The
department would also run its own affairs and those of the directorates under
its control. The directorate would also run its own affairs and the affairs of
all the sections and divisions under its control.
The purpose of establishing these administrations, departments, and
directorates, is to manage the State’s affairs and to carry out the peoples’
interests.
The administrative apparatus is a style from the styles of undertaking an
action, and is an instrument from the various means, and so it does not require
a specific evidence; it is sufficient to provide a general evidence that
indicates its origin, and it cannot be argued that these instruments are the
actions of the worshipper and therefore it is not correct for them to proceed
except in accordance with the Shari’ah rules. The reason this cannot be
argued is because these actions are based upon a general evidence for their
origin, and so it encompasses everything that branches off it in terms of
actions, unless a specific Shari’ah evidence for the action which is a
branch of the origin is found in which case the specific evidence is followed.
For example, Allah (swt) says “And give Zakat” (TMQ 73:20), which is a general
evidence, and there are evidences for the actions which branch out from it, for
the calculation of the nisab (amount after which Zakat is due
upon the wealth), the collectors, and the categories which are eligible to
receive the Zakat; these are all actions which branch out from “and
give Zakat”. There are no evidences regarding how the collectors should
collect it, whether they should be riding or walking, should they employ some
people to help them with it or not, should it be recorded in a booklet, are
they assigned a place where they gather, should they have a storage in order to
place in it whatever is gathered, should the storage be underground or built
like the grain warehouses and should the Zakat which is monetary be
collected in bags or boxes. These and similar issues are actions which branch
out from “and give Zakat”, and they are encompassed by the
general evidence since there is no specific evidence regarding them. This is
the same for all the styles. Accordingly, the style is the action that is a
branch of an action that has general evidence. Consequently, there is no need
for it to have evidence, since the general evidence of its origin is an
evidence for it.
For that reason the administrative styles can be taken from any system,
if they were suitable to make the work of the administrative apparatus easier
and fulfil the needs of the people, since the administrative styles are not a
rule that requires Shari’ah evidence. Due to this, Umar (ra) took the
style of the diwan (register) for recording the names of the soldiers
and citizens, in order to distribute the wealth to them from the public or
state wealth such as benefits or salaries.
‘Abid Ibn Yahya
reported on the authority of al-Harith b. Nufayl that Umar (ra) consulted the
Muslims about the recording of Dawawin, and ‘Ali b. Abi Talib (ra)
suggested, “Divide all the funds you collect each year and do not keep any of
it.” ‘Uthman b. ‘Affan (ra) said, "I see that there are a lot of funds
being distributed amongst people, and if they are not counted in order to know
who has taken and who has not, I fear that the matter could get out of hand.”
Upon this al-Walid b. Hisham b. al-Mughira said, “I was in al-Sham and I
noticed that its kings had introduced a Diwan and recruited soldiers, so
why don’t you do the same?” Umar (ra) took his advice and summoned ‘Aqil b. Abi
Talib and Makhramah b. Nufayl and Jubayr Ibn Mat‘am, who were young men from
Quraysh, and said, "Record the people according to where they live."
When Islam reached
Iraq, the diwan of payments and fund collection continued as before. The
diwan of al-sham was in Latin for it had been part of the Roman
Empires, and the diwan of Iraq was in Persian for it had been part of
the Persian Empire. At the time of Abdul Malik Ibn Marwan the diwan of al-sham
was translated to Arabic (in the year 81 AH). Several dawawin were then
set up according to necessity and depending on the need for them in running the
people’s interests. Dawawin for the armed forces were introduced for
registration and grant purposes, and others were introduced to record the fees
and claims of all transactions. Another diwan was introduced for the ‘Amils
and Walis to record each appointment and each removal and other dawawin
were used in the treasury (Bayt al-Mal) to record revenues and
expenses and so on. The introduction of a diwan was depending on the
need for it and its style varied over the years due to the difference in styles
and means.
A chief was
appointed for each diwan along with other employees, and in some cases
the chief was allowed to appoint the employees himself, and they were sometimes
appointed to him.
A diwan would
thus be set up according to need, along with the styles and means that would
help in carrying out that need. It is permitted to have different styles and
means in every era, and in every province, and in every country.
Article 97
The policy of the administration of services is based on simplicity of
the system, speed in processing tasks and competence of the administrators.
This is taken from
the nature of processing the services, for the person who requires a
service needs to have it quickly and efficiently processed. The Messenger of
Allah
said “Verily Allah has
enjoined the perfection to everything; so when you kill, do so in a good way
and when you slaughter, slaughter in a good way” (narrated by Muslim from Shaddad b. Aws). Therefore, the perfection in
executing actions is ordered by the Shari’ah. To achieve this, the
administration should observe three qualities. Firstly: the simplicity of the system that would lead to the ease of processing,
whereas complication would lead to hardship. Secondly: the speed in processing the transactions that would spare people of
unnecessary delay. Thirdly: the ability and competence of the employees. This is required to
perfect the performance and result of the task.
The reported evidences regarding these three include:
Simplicity
-
The agreed upon narration
from Abu Musa with the wording from al-Bukhari: from Sa‘id b. Abi Burdah from
his father from his grandfather: When the Messenger
sent Mu’ath Bin Jabal he said: “Make
things easy, and do not make them difficult, and give glad tidings, and do not let them have
aversion (to good deeds – such as by being difficult or heavy upon them) and
you both should work in cooperation and mutual understanding.”
-
The narration of ‘Amru b.
Murra found with al-Hakim who authenticated it and al-Dhahabi confirmed it, he
said: I heard the Messenger of Allah
say “Whoever closes the door to those
who have a need, those with nothing, and the poor, Allah will close the door of
the sky to him in his poverty and neediness.”
-
The narration of Abu Maryam
al-Azdi with al-Hakim who authenticated it and al-Dhahabi confirmed it: I heard
the Messenger of Allah
“Whoever is in charge of anything of the
Muslims’ affairs, and withdraws himself without solving their needs, poverty,
and wants, Allah withdraws Himself on the Day of Judgement from his needs,
wants and poverty”. Al-Hakim said in al-Mustadrak ‘ala al-Sahihayn: This
narration has an authentic chain, Bukhari and Muslim did not report it, and its
chain is an authentic shami one.
-
The narration of
Mu’adh with Ahmad and authenticated by al-Zain: The Messenger of Allah
said: “Whoever takes charge of anything
of the peoples’ affairs, and withdraws himself from those who are weak and
needy, Allah Withdraws from him on the Day of Judgement”
Speed in completion
-
Al-Tabarani with a chain
whose men are all trustworthy except for Baqiya, who is disagreed upon, from
Abu Hurayra who said: The Messenger of Allah
said “I warn you from
‘iqrad." They asked: O Messenger of Allah what is ‘iqrad’? He said: For
one of you to be an Amir or an ‘amil, and so the widowed and weak come to him
and it is said to him: Wait until we consider your need, and so they are left
waiting, their need is not dealt with nor are they told what to do and so they
leave, and a rich noble man comes and so they sit by his side and then say:
What is your need? And so he replies such and such. And so he said: Take care
of his need, and be quick about it”.
-
Ibn Shibbah in his Ta’rikh
reports from Ibn Shuthab who said: Umar (ra) said “O people, do not delay
today’s work until tomorrow, since if you did that the work would catch up with
you such that you would not know to start what you left.”
-
Al-Shafi’i said in al-Umm:
More than one person of the people of knowledge informed us that when Umar Bin
al-Khattab (ra) came to see what they had gained from Iraq, the treasurer said
to him: I will put it in the treasury (Bayt al-Mal). He said: No by the
Lord of the Ka’ba, it will not be placed under the roof of a house until I have
divided it.
-
Ahmad in al-Zuhd and
Ibn ‘Abd alBirr in al-Isti‘ab and Ibn Abi ‘Asim in al-Zuhd, from
a number of people – that Ali (ra) used to order for the treasury to be swept
and washed, then he would pray in it hoping that he would see the Day of
Judgement and there was nothing being held in the treasury from the Muslims’
wealth.
Capability
-
Ahmad from Huthaythah, with
a Hasan chain, that the Messenger of Allah
said “A people who were weak and poor
fought against a people who were strong and plentiful, and so Allah gave the
victory to the weak amongst them, and so they took revenge upon their enemy by
dominating them, and so Allah became angry with them until the day they would
meet Him”
-
Muslim from Abu Musa who
said that the Messenger of Allah
said “I swear by Allah I would not
appoint over this work anyone who asked for it nor anyone who covets it.”
-
Al-Bayhaqi in Al-Shub from
Umar (ra) who said “The only one who should judge between people is the one
with sound judgement, skillful, does not look for shameful acts, is not hateful
of his people, and is not afraid of the blame of the blamers.”
-
Al-Hakim in al-Mustadrak
mentioned a narration from Zayd b. Aslam, from his father, from Umar (ra),
which he authenticated and al-Dhahabi confirmed that: Umar (ra) said to his
companions: Wish for something. Some of them said: I wish that this house was
full of gold, which I could spend in the cause of Allah and give charity. A man
said: I wish it was full of crystals and jewellery so I could spend it in the
cause of Allah and give charity. Then Umar (ra) said: Wish for something, and
so they said: We don’t know O Leader of the Believers. And so Umar (ra) said: I
wish that this house was full of men like Abu Ubaydah b. al-Jarrah and Mu‘adh
b. Jabal and Salim the servant of Abu Huthayfah Huthaifah b. al-Yaman.”
Article 98
Anyone who carries citizenship, and is competent, whether male or
female, Muslim or non-Muslim, can be appointed as a manager for an administration,
a department, or a division, and to be a civil servant in it.
This has been taken from the rules regarding employment, since it is
permitted to employ any employee, irrespective of being Muslim or non-Muslim,
due to the generality of the evidences of employment; Allah (swt) said “Then
if they give suck to the children for you, give them their due payment” (TMQ 65:6) which is
general, and it is reported in al-Bukhari from Abu Hurayrah that the Messenger
said “Allah said: Three who
I am against on the Day of Judgement…A man who hires a worker who completes his
work and then does not give him his wage” which is general and not
specific to the wage of Muslims. The Messenger
employed a man from Bani
al-Dayl who was upon the religion of his people, which indicates the
permissibility of employing a non-Muslim in the same way as a Muslim. And in
the same manner it is permitted to employ a woman in the same way that it is
permitted to employ a man due to the generality of the evidences as well.
Accordingly, it is permitted for a woman to be the manager of a department in a
state department, and to be a civil servant in them, and it is permitted for a
non-Muslim to be a manager of a department from the state departments as well
as to be a civil servant, since they are employees, and the evidences for
employment are general.
Article 99
A general manager has to be appointed for each office; and every
department and administration has a manager who is responsible for its
management, and is directly responsible for it; and they are accountable in
terms of their work to whoever is in charge of the highest post of their
offices, departments or administrations; and they are accountable in terms of
their adherence to the general rules and systems by the governor and ‘Amil.
In order for the offices, departments, and administration to work they
must have managers. Therefore every office has a general manager who is
directly in charge of managing the office affairs, and is responsible over all
of the departments and administration that come under it. Each department and
administration has an appointed manager who is directly responsible for it, and
for all that comes under it in terms of branches and sections.
This is with respect to establishing the administration of offices, or
establishing the diwan, however, with respect to the responsibility of
these civil servants, they are employees, and at the same time they are
citizens, and so from one angle they are employees, in other words from the
angle of undertaking their work, they are accountable to their department head,
or manager. And from the angle that they are citizens, they are accountable to
the rulers from the governors and assistants, and in front of the Khalifah,
and they are restricted by the Shari’ah rules, and the administrative
systems.
Article 100
The managers in all departments, administrations, and divisions are not
dismissed except for reasons connected with the administrative systems, but it
is permitted to transfer them between posts or to suspend them from working.
Their appointment, transfer, suspension, discipline, and removal are all done
by whoever is in charge of the highest post of their office, department, or
administration.
This is taken from the rules of employment, since if the employee is
employed for a period it is not correct to remove him from what he has been
employed to do, but it is possible to vacate him from the work, which is called
suspension. However in this situation he deserves his pay, since employment is
from the binding contracts and not the permitted contracts, so if the
employment contract is contracted then the contract is binding upon both
parties. As for the adherence to the administrative systems, this is like the
conditions of employment, and so it is necessary to fulfil them; the Messenger
said “The Muslims are bound
by their conditions” reported by Abu Dawud from Abu Hurayra, and in the
report by al-Hakim and al-Daraqutni from Aaisha (ra): “The Muslims are
bound by their conditions”. As for transferring the person between
posts, this is according to the contract of employment, so the one who is
employed to dig a ditch is not transferred to building houses, and the state
departments are the same manner. If someone is given a general appointment for
a specific work, then it is permitted to transfer him from place to place in
that work, and if he was given a general appointment, then it is permitted to
transfer him without any restrictions; in other words his transfer is carried
out according to the contract of appointment.
Article 101
The civil servants other than the managers are appointed, transferred,
suspended, disciplined, and removed by the one who is in charge of the
departments, administrations or divisions.
The civil servants in the state are all employees, in accordance with the
rules of employment. Their appointment and removal, transfer and discipline,
are done by the one responsible for the highest administration of their
offices, departments or administration.
This is based on the rules regarding employment, since it is obligatory
to adhere to whatever is necessitated by their contract, just as it is
obligatory upon him to adhere to what he was contracted for, since the contract
is binding upon both parties upon what they agreed, so if the employee is
employed for a period, it is not valid to remove him from what he was employed
to do for the defined period.
As for the adherence to the administrative systems, this is considered
from the conditions of employment that must be adhered to. He
said, “The Muslims are bound by their
conditions” (reported by Abu Dawud from Abu Hurayrah). With respect to
transferring the civil servants from one task to another, this falls under the
employment contract and so it is treated according to the contract when
appointed.
The one responsible
to appoint, discipline and remove them is the one who is in charge of the
highest administration of their offices, departments, and administrations,
since he is the one who is responsible for the office they work in, and is the
one who has the power that is necessitated by the responsibility he has been
assigned to.
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