জাগো মুসলিম জাগো: The Draft Constitution 4 to 7

Furthermore, the commandment to abide by the foundation is in itself a commandment to abide by the branch, and the commandment to abide by the whole is a commandment to abide by the part; so, the obligation to pray entails the obligation of the prostration, the recitation, the standing and so on. The disbeliever is commissioned to abide by the foundation; thus, he is obligated to abide by the branch. As for the non-acceptance of some branches from the disbelievers, such as prayer and fasting, this is because the embracing of Islam is one of the conditions of acceptance; thus, they would not be accepted until the condition is fulfilled. However, this does not mean that it is not obligatory upon them. As for the fact that they are not commanded to perform certain branches that embracing Islam is not a condition for such as Jihad this is because Jihad is fighting the disbeliever for their disbelief, and the Dhimmi is a disbeliever. Thus, it is inconceivable for him to fight the disbelievers due to their disbelief; otherwise, it would be permitted for him to fight himself. Therefore, he is not obligated to perform Jihad. However, if he accepts to fight a disbeliever, it will be accepted of him. However, he will not be forced to perform Jihad and this does not mean that he is not commanded by Allah (swt) to perform it.

This is from the fact that they are obligated to abide by the rules of Islam. As for the fact that the ruler should implement all the rules of Islam upon them, this is reflected in Allah's (swt) saying with respect to the People of the Book “So judge between them by what Allah has revealed and do not follow their desires” (TMQ 5:48).

Allah (swt) also says with respect to them “And judge between them by what Allah has revealed and do not follow their desires” (TMQ 5:49).

Allah (swt) also says “We have revealed the Book to you with the Truth, so that you judge between people by what Allah has shown you” (TMQ 4:105).

This is a general address that includes Muslims and non-Muslims alike, because the word “people” in “so that you may judge between people…” is general. As for His (swt) saying “They are fond of listening to falsehood and devouring anything forbidden. If they do come to you, either judge between them or decline to interfere” (TMQ 5:42), this means that if one were to come to the Islamic State from abroad seeking the arbitration of the Muslims in a dispute with another disbeliever or other disbelievers, the Muslims in this case are given the choice of either judging between the disputing parties or declining to do so. This is since the verse was revealed concerning those whom the Messenger of Allah had made peace with and signed treaties with from among the Jews of Madinah who were living as tribes and they were considered as other states. They were not under the authority of Islam; rather, they were other states. Thus, he had signed treaties with them. However, if they were under the authority of Islam, such as the Dhimmi, or if they came as asylum seekers, it would be forbidden to judge between them by other than Islam. The one who refused to refer to the rule of Islam, would be forced to by the ruler and the ruler would punish him for it.

It is forbidden to conclude an indefinite Dhimmah oath with the disbeliever unless two conditions are fulfilled. Firstly, that Dhimmis adhere to paying the Jizya each year, and secondly that they abide by the rules of Islam i.e. the acceptance of what is enforced upon them in terms of executing orders and abstaining from prohibitions. This is due to the words of Allah (swt): “Until they pay the Jizya with willing submission and feel themselves subdued.” (TMQ 9:29), meaning until they submit to the rules of Islam. In addition, the Messenger of Allah used to implement the rules of Islam upon them. Al-Bukhari transmitted through Ibn Umar: “The Jews came to the Prophet with a man and woman from amongst them who had committed adultery and so he stoned them”, and Al-Bukhari reported through Anas: “The Prophet killed a Jew for the sake of a woman who was killed for her ornaments”. Those Jews were subjects of the Islamic State. Also, the Messenger of Allah wrote to the people of Najran who were Christians saying: “He who deals in usury from amongst you, shall be denied the Dhimmah” reported by Ibn Abu Shaybah through al-Shu’bah (Mursal narration). All this serves as evidence about the obligation to implement all the rules of Islam upon all of the subjects without any difference between Muslims and non-Muslims. It is on this basis that clause A of this article has been drafted.

As for clause B, the general order regarding the implementation of all the rules of Islam is mentioned in Allah’s (swt) saying “And Judge between them by what Allah has revealed” (TMQ 5:48). This general rule has been specified by Shari’ah; excluding the ‘Aqidah they embrace, the rules which are to them a matter of faith and the rules pertaining the actions which the Messenger of Allah has allowed them to perform. The‘Aqidah and all of these rules have been made an exception by Islam through a host of clear texts. Allah (swt) says: “There is no compulsion in the Deen” (TMQ 2:256), and the Messenger of Allah said: “He who has embraced Judaism and he who has embraced Christianity should not be coerced away from their faith, and he must pay Jizya” transmitted by Abu Ubaid in Al-Amwal through ‘Urwah. Hence, any action which is considered as a matter of faith to them should not be interfered with by us and we should allow them to practise what they believe, even if this were not part of ‘Aqidah matters in our Deen. Additionally, we should also not interfere with them in regard to any actions that the Messenger of Allah allowed them to perform, such as drinking alcohol and getting married, within the scope of the general system. In other words, it is permitted for them to drink alcohol in their private lives but not in the general affairs where they mix with the Muslims such as the general markets and the like.

As for Clause 'C' of this article, Islam has decreed a host of rules regarding the apostate, amongst them that the apostate should be killed he or she does not repent since the Messenger of Allah said: “Kill the one who changes his Deen” (transmitted by Al-Bukahri through Ibn Abbas). Anas reported: “I came to Umar who said: O Anas, what happened to the six from Bakr Ibnu Wa’il? So I said: O Amir of the believers, they were killed in the battle. Upon this Umar recited Allah’s (swt) saying: “To Allah we belong and to Him we will return”. So I said: “Could they have been dealt with by other than death? He said: “Yes, I would have invited them to Islam and had they refused, I would have thrown them in jail” as reported by Al-Bayhaqi. In other words, until they repent and if they did not, they would be killed. This is because the apostate would be invited to Islam and all the means of repentance would be exhausted, and if he still refused he would then be killed. An apostate should not be killed just for apostatising due to what is narrated from Jaber: “A woman, Umm Marwan, apostatized so Allah ordered that she should be presented Islam, and if she repented (it is accepted) and otherwise she is to be killed” reported by Al-Bayhaqi and Al-Daraqutni. This narration is used by masses of Fuqaha’; - Ibn Qudamah uses it as evidence in Al-Mugni, Al-Mawardi in Al-Hawi Al-Kabir and Al-Ahkam Al-Sultaniyyah, Abu Ishaq Al-Shirazi uses it in Al-Muhadhdhab, Al-Rafi’i in al-Sharh al-Kabir, al-Baghawi in al-Tadhhib and Ibn al-Jawzi in al-Tahqiq; so it is considered from the Hasan (acceptable authority) narrations and is acted upon – in other words he is asked to report before execution.

Rulings of Clause 'C' are all about the apostate himself; they are not about his children. However, if a Muslim apostatised from Islam and remained upon the faith to which he apostatised, for example he continued to be a Christian, a Jew or a polytheist, and he were then to have children who had the same faith, would his children be considered as apostates? And would they be treated as apostates? Or would they be considered as being of the faith they had at birth?

The answer is that the children of the apostate who are born before their father’s apostasy are considered as Muslims without any doubt. However, if they were to follow their father and apostatise as well, they would be treated as apostates. If they were born after he had apostatised from a disbelieving or an apostate wife, these children would be considered as disbelievers and not as apostates; thus, they would be treated just like the people of the faith they inherited at birth. Hence, every child born after his father’s apostasy from a disbelieving wife or an apostate wife, would be judged as a disbeliever since he or she would have been born from two disbelieving parents. Therefore, if the two parents became Jews or Christians i.e. from the People of the Book, he or she would be treated as the People of the Book would be treated, and if the two parents became polytheists, he or she would be treated as a polytheist. This is so because Ibn Mas’ud reported: “when the Messenger of Allah wanted to execute your father (Uqbah Ibn Abi Mu’it), the latter said: “What about the children?” He said: “Hell fire” (reported by Abu Dawud, Al-Hakim authenticated it, and Al-Dhahabi agreed with him). In the narration of Al-Daruqutni: “Hell fire for them and for their father”. It is also the case since in Sahih of Al-Bukhari in the section of the people of the abode, in the book of Jihad, “The Messenger of Allah passed al-abwa – or biwaddan – and was asked about the people of the household, the women and family of the polytheists who were killed with their fathers; he said: They are of them”. Therefore, every child born to two disbelieving parents is considered a disbeliever and the rule pertaining to the disbelievers applies to him.

Hence, those who apostatised from Islam and became non-Islamic sects, such as the Druze, the Bahai’, the Qadiani and the like, are not treated as apostates since they didn’t apostatise but their ancestors were the apostates and they were therefore born with two disbelieving parents. Thus, they are judged as disbelievers and they will be treated as such. Moreover, since they have not apostatised to a faith from among the People of the Book i.e. they have not apostatised to Christianity or to Judaism, they will be therefore treated as polytheists. Hence, their slaughtered meat will not be eaten and their women will not be wedded since the non-Muslims are either considered to be People of the Book or polytheists and there is no third category. This is why the Messenger of Allah said about the Magi of Hajar as narrated by Al-Hasan Bin Muhammad Bin Al-Hanafiyya: “Whoever embraces Islam then accept them, and whoever does not then impose Jizya upon them, but do not wed their women or eat their slaughtered food” (Al-Hafiz said in Al-Dirayah: “narrated by ‘Abd Al-Razzaq and Ibn Abi Shaybah, it is a Mursal narration with a good chain”). As for those who apostatised from Islam and became Christians - as in the case in Lebanon with the family of Shihab; this family’s forefathers were Muslims and they apostatised to Christianity and their children were born as Christians - these people and their like will be treated as People of the Book.

As for Clauses 'D' and 'E', their evidence is derived from the fact that the Messenger of Allah allowed the Jews and the Christians to drink alcohol and accepted their marriage and divorce proceedings; thus, his acceptance serves as a specification of the general rule. However, the approval of the Messenger of Allah with regard to the disbelievers’ marriage is given only when the two spouses are disbelievers, but if the husband were Muslim and if the wife were either Christian or Jew, the rules of the Shari’ah would then be applied upon both of them. It is not feasible for the wife to be Muslim and the husband to be disbeliever for this is unlawful. Allah (swt) says: “Then do not send them back to the disbelievers, they are not lawful wives for them nor are the disbelievers lawful husbands for them.” (TMQ 60:10). Therefore, it is forbidden for a Muslim woman to marry a non-Muslim, and if she did her marriage would be unlawful.

As for Clause 'F', the evidence with respect to the implementation of all the rules of Islam is derived from all what has just been mentioned that the disbeliever is obligated to abide by the foundations and the branches, thus, he is commanded to submit to all the rules of Islam. This is general, and it includes the Dhimmi and the non-Dhimmi from among those who live under the authority of Islam. Hence, all the disbelievers who enter Dar Al-Islam must be subjected to the rules of Islam except the ‘Aqidah matters, the rules related to ‘Aqidah matters and any action which the Messenger of Allah allowed them to do whether these disbelievers were Dhimmi, under covenant or asylum seekers. However, the ambassadors and their likes are excluded from this and the rules of Islam would not be implemented upon them for they would be given what is known as diplomatic immunity. This is so because Ahmed reported on the authority of Abu Wa’il who said: “Ibn Nawwaha and Ibn Uthal came to the Messenger of Allah as envoys of Musaylima - the liar - and the Messenger of Allah said to them “Do you bear witness that I am the Messenger of Allah?” They said “We bear witness that Musaylima is the Messenger of Allah.” Upon this the Messenger of Allah “I give you security by Allah and His Messenger. If I were to kill an envoy I would have killed the two of you” (reported by Ahmad and declared Hasan by Al-Haythami). So, this narration indicates that it is not permitted to kill the envoys of the disbelievers and nor to apply the punishments (uqubat) upon them. However, this is exclusively applicable upon those who have the capacity of an envoy such as the ambassador and the “Chargé d'affaires” and the like. As for those upon whom the capacity of an envoy does not apply such as the Consul and the Commercial Attaché and the like, they would not have any immunity for they do not have the capacity of an envoy. This matter should be referred to the international convention because it is a terminological expression whose reality should be understood by way of looking into the convention and it is part of establishing the Manat (reality); in other words establishing whether they are considered envoys or not.

বুধবার, ২ অক্টোবর, ২০১৩

The Draft Constitution 4 to 7

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