THE RIGHTS OF INDIVIDUALS IN THE HOUSE OF ISLAM

(Huquq Alafrad Fi Dar Al'iislam)

A paper written by the Sheikh in the sixties of the last century, printed in a separate pamphlet, and also published with a book research group under the name "Jurisprudence Research Group"

1)   Introduction

The personality of the individual in the abode of Islam - the Islamic state - is prominent and does not perish, but rather is based on it, helps it and works for its survival and goodness, just as it works to maintain the personality and goodness of the individual, because the survival and goodness of each of them is necessary for the other, so there is no contradiction between the two and no conflict, and there is no interest for either of them in Quarreling with the other and opposing it to pure quarrel and opposition. Rather, something of this may happen when one of them deviates from the approach of Islam to which the two are subject .. For all of this, the individual in the Islamic State enjoys all of his rights that Islam has recognized for him, because what Islam has sanctioned is recognized by the state of Islam ... Then the individual's enjoyment of his rights is considered The greatest guarantee that the Islamic State remains intact and able to achieve its goals. Hence, the state is keen for individuals to enjoy their rights, their keenness on these rights .. The state has absolutely no interest in robbing these rights because it was established to enable individuals to live Islamic life, and one of the most important reasons for this empowerment is their enjoyment of their rights and even pushing them to use these rights. ..

2)   Research methodology

For the convenience of research, the rights that individuals enjoy in the state are divided into two parts: political rights and public rights, and we will talk about each of them in a separate chapter:

Chapter 1

Political rights of individuals

3)   What is meant by political rights:

Political rights, according to the jurists, are the rights that a person acquires as a member of a political body, such as the right to vote, run for office, and hold public office in the state. Or they are the rights through which the individual contributes to the administration or governance of the affairs of the state.

And we, in this topic, will talk about political rights in Islamic law in the sense that we showed it to the jurists in order to show us the extent of what the Sharia has recognized in terms of these rights for individuals.

First - The right to vote

4)  Election of the Head of State

Individuals have the right to elect the head of state, so whoever chooses him for this position is the legitimate head of state, and this is what the jurists declared. Among their frank statements on this issue is their saying: "If the Muslims agree to lead and sell him, his imamate is proven, and his help is obligatory." They also say: “The imamate - meaning the presidency of the state - is confirmed by pledging allegiance to the people - that is, to the head of state - not to the previous era.

5) The   basis for this right

And if individuals have the right to elect the head of state, then what is the basis of this right?

What we see is that this right is based on the principle of shura, which was established by Sharia and the principle of the group’s responsibility to implement the provisions of the Sharia and manage its affairs in accordance with these provisions.

4)   First - the principle of shura

This principle was uttered by the Noble Qur’an. The Almighty said: “And their affairs are by a consultation between them.” This text is clear that Muslims' affairs, especially important ones, are managed by way of consultation. There is no doubt that the position of the head of state is one of the serious matters in which the consultation must take place. Because it is a matter that concerns them all and relates to their general affairs, so they must have a say in who is in charge of them. Consultation requires that everyone express his opinion on whoever is to be elected as the President of the State.

7)   Second - the group's responsibility for implementing the provisions of the Sharia

The community is responsible for implementing the provisions of the Sharia and managing its affairs in accordance with these rulings. This responsibility benefits from the entirety of the Qur’anic texts, and is supported by proven historical precedents. Fajtabat street in the Holy Quran addressed to the Muslim community, such as saying the Almighty: (O ye who believe! Be steadfast witnesses for justice, as witnesses to God, even against yourselves or your parents and relatives), (O ye who believe! Be steadfast witnesses for justice, as witnesses to God, even against yourselves or your parents and relatives) and (O ye who believe! fear Allah) and (followed what was revealed to you from your Lord) (adulterer and the adulteress, scourge each one of them with a hundred lashes) (robber and thief Vaqtawa hands).

These texts and their proverbs clearly indicate the responsibility of the Muslim community for implementing the provisions of Sharia, including those related to all their affairs.

8)   This huge responsibility entrusted to the group requires  that the authority be the right of the group  itself to seek its help to implement what it is responsible for, which is the implementation of the provisions of the Sharia and the management of its affairs in accordance with these provisions.

9)   But the exercise of this authority by the group cannot be carried out in its collective capacity, because this is not possible in action, and for this reason the  theory of prosecution  appearedin the exercise of the group’s authority, so the group chooses whoever represents it in exercising its authority to implement what it is legally entrusted with. This mandate is one of its purest rights, because the owner has the right to delegate to someone else what he owns, and the nation - the Muslim community - has the authority, so it has the power of attorney for it .. it alone chooses the head of state.

10)  The legal status of the head of state

Based on what we have presented, the legal position of the head of state is clearly evident, as it is the position of the representative and the representative, the representative of the nation, for it is the one who elected him as its representative to run its affairs according to the methods of Islamic law and to implement all of its provisions, and this is what the jurists have stated. Among their sayings, what was mentioned by the famous Mawardi jurist when he talks about the effect of the death of the caliph or the minister on the authority of the Emir, “If the emir’s imitation by the caliph was not isolated - that is, the prince - with the death of the caliph, and if it was by the minister, he was isolated with the death of the minister, because the caliph’s imitation is on behalf On behalf of Muslims and imitating the minister on his own behalf.

11) The   nation is the source of powers

And if the position of the head of state is the position of the agent, then it goes without saying that he derives his powers from his client, that is, from the nation. The nation is the source of powers, as we say in modern legal convention, and he exercises these powers in the name of the nation with this consideration.

It is noticeable here that the nation, although it is the source of authority, but its authority is limited and not absolute, limited by the absolute authority of God and his will represented by the provisions that he has legislated for individuals and a system for the group. Hence, the nation’s authority is the power to implement this system and not the power of creation and creation for it .. It follows from this nature of its authority that it does not have the power to change this system nor to use its authority in what contradicts it or leads to changing it. And if the nation does not have the power to change the law of God or to use its authority in what contradicts it, then the head of the state - who is its representative - also does not have this matter because the agent does not have what he entrusts with more than what the principal has ...

It follows from what we have said, that if the ummah legalizes what contradicts the law of God or implements what contradicts the law of God, or the head of the state - who is its representative - does something of that, this action is either from them or from one of them without a legal basis for exceeding the limits of its authority, then it is void. Because the ummah’s authority is, as I said, a power of execution, who implements an existing divine law and not with a constructive power to create and implement a new law.

12)   Direct and indirect elections

And if the nation has the right to elect the head of state, as we have mentioned, then how can this right actually be exercised? Do the members of the nation directly implement it, or do a group of them do this right with the authority of the nation? The reality is that we do not find in the Shari'a an explicitly defined system for how the ummah implements its right to elect the head of state, which indicates that its organization is left to the nation’s discretion according to temporal circumstances. It can be through direct or indirect election. Islamic Law. Direct election finds support in the Almighty saying:  Their command is a consultation between them. ”This text, on its face, requires that members of the ummah consult in their affairs, including the election of the head of state, so that they all exercise this right except for those who are exempted from them by legal evidence, such as the young, the crazy and non-Muslims. Imam Al-Razi, interpreting this verse, said: “If an incident occurred, meet and consult, and God commends them. That is, they are not alone with an opinion. Rather, if they do not agree on it, they do not resolve it. "

As for the indirect election, it finds its support in the established historical precedents in the era of the Rightly Guided Caliphs, and it is the best of the ages for their understanding of Islam and its application. Country. And not all Muslims elected them in all Islamic cities, and no objection to this method was conveyed to us, either from the Rightly Guided Caliphs themselves or from others, so this would be unanimous among them on the correctness of the indirect election method in electing the head of state. We also find a basis for indirect election in the nation’s right to choose its president. So long as she has this right, she may directly or through an intermediary, by delegating someone to exercise this right on her behalf, as it is not necessary for the person who has the right to handle it by himself, but rather he has the right to delegate to it someone else.The jurists approved indirect election, because they stated that the head of state is elected by the people of the solution and the contract, so there is no need for the participation of all the ummah in choosing him. To the choice of the people of the contract and the solution, they must set it up, and the creation must obey it. ”Al-Mawardi says:“ The imamate - meaning the presidency of the Islamic state - is held in two ways: one by choosing the people of the contract and the solution, and the second with the reign of the imam before him. ”

13)  People of the solution and the contract

And if the election of the head of state through indirect election is a common method in Islamic law, and those who pursue it are those who are called by the jurists of the people of the contract and the solution, then who are the people of the contract and the solution? What is their relationship to the nation? How do they attain this status?

As for the first question. The jurists mention general descriptions of the people of the contract and the solution. For example, Mawardi gives them three descriptions: “One of them is justice that is inclusive of its conditions, and the second is the knowledge by which it reaches knowledge of who deserves the imamate according to the conditions considered in it. Some modern jurists go to a clearer definition in the descriptions of the people of the solution and the contract, so Rashid Rida, the author of the interpretation of Al-Manar, says: So it is understood from this saying and what the jurists mentioned that the people of the solution and the contract are the followers in the ummah who trust them and are satisfied with their opinion because of what they know of sincerity, integrity, piety, justice, according to opinion, knowledge of matters, and concern for the interests of the ummah.

As for the second question, i.e. their relationship with the nation, it is the relationship of the deputy and the agent, as they proceed to elect the head of state on behalf of the nation. They are their agents in exercising this right to vote, and therefore their choice of the head of state is considered the choice of the nation itself.

As for the third question, i.e., how do they attain the status of a solution and a contract in the affairs of the ummah, what comes to mind is that the ummah is the one that raises them to this position by choosing them. However, we do not find in the old historical precedents any indications that the ummah gathered together and elected a group of them and gave it the status of people of solution and contract.Nevertheless, the absence of historical precedents from what we mentioned does not indicate that those who were called the people of the solution and the contract did not represent the nation and were not considered its agents, because the agency - as it is known - takes place explicitly or implicitly, and the agency of the people of the solution and the contract was for the ummah in the first era of Islam - The Age of the Rightly Guided Caliphs - implicit agency, because they are known for their competence, sincerity, fairness, and precedence in Islam, and then they possessed the nation’s approval and confidence, so there was no need to openly elect them, and even if they did this election, only those who won and no dispute appeared to them to dispute them in Being the people of the solution and the contract, and then their election was the head of the state, with the tacit authorization of the nation and its consent.

14)   Knowing the people of the solution and the contract at the present time

And if we take, at the present time, the indirect election of the head of state, in accordance with the provisions of Sharia law, it is inevitable for the ummah to elect its representatives, and to act on its behalf in conducting this election. Those whom the nation elects for this task can be described as the people of the solution and the contract for the ummah to associate with them and follow them up and accept their representation. And the state must put in place the necessary system for conducting this election and ensure its integrity, and to specify in this system the conditions that must be met - in light of what the jurists have mentioned - for whom the nation elects to form the group of the people of the solution and the contract, and such election is necessary and necessary to find the people of the solution and the contract, and to prove their authority for the ummah By explicit power of attorney, because the implicit power of attorney cannot be obtained at the present time for many members of the ummah, and because permitting such an implicit power of attorney opens a dangerous door for the ummah and foreshadows chaos and immense evil, as every unemployed person can fulfill the conditions of the people of the solution and the contract to make himself among them and establish himself as a representative of the nation under the pretext She is implicitly satisfied with his representation.This is not permissible in the law and is not acceptable to the mind

15) The   mandate of the Covenant

Some may object to what we have said that the nation chooses the head of state, that the jurists said that assuming the presidency of the state takes place with a mandate from the previous caliph to the next caliph. Mawardi, for example, says: “The imamate - the presidency of the state - is held in two ways: one of them is chosen by the people of the contract, and the second solution is the era of the imam before him.” The answer to this objection is that the legal adaptation of the mandate of the covenant is that it is a nomination by the former caliph of the one who holds the presidency of the state and not an appointment, as evidenced by that the people of the solution and the contract pledge allegiance to the candidate. Nomination is when the candidate becomes the head of state, and this is what some jurists have stated.

Second - the right to consultation

16) The   second right of individuals is the  right of consultation  , and in fact, it is an extension of the nation's right to elect the head of state, as long as it is the one it chooses and is its agent in managing its affairs, it is its right for him to consult them with what he wants to implement regarding its affairs.

17)  Objection and payment

And he may object to us that as long as the ummah is the one she has chosen and he is trustworthy, there is no sense in compelling him to consult her. The answer to this objection is from two sides:

   The first aspect: that the head of the state, even if he is trusted by the nation, and she is the one who chose him, then he may do things that harm the nation, intentionally or unintentionally, and there is no way to fix this damage after its occurrence.

   The second aspect: the agency of the Head of State for the nation is restricted. One of its restrictions is to consult the ummah, because consultation is mentioned in the legal text, and it does not have the right to waive it, because its authority, as we said, is limited by the limits of the Sharia, so it cannot delegate to its agent - the head of state - to use its authority except with this restriction - under consultation - whether she declared this when he was elected Or not. As for the legal text contained in the consultation, it is the Almighty’s saying: (Forgive them, ask forgiveness for them, and consult them on the matter, so if you resolve, then trust in God). This text is explicit in the necessity of consulting with the supreme head of state, because it appears that the matter is obligatory unless there is a presumption for it. And if the speech in the noble verse - and the command to consult - is directed at the Holy Messenger of His majesty and greatness, then the necessity of consulting with other rulers of the Islamic State is obligatory and obligatory. And based on what we have said, the sayings of the jurists and commentators indicate, including what was stated in the Sharia policy of Ibn Taymiyyah:Consultation is indispensable for the guardian, because God Almighty commanded it by his Prophet. ”And in the interpretation of al-Tabari in the interpretation of this verse:“ Rather, God commanded his prophet to consult his companions, which he commanded to consult with them in order to define his ummah to follow him in that when the events that descend upon them so that they consult among themselves. ” And in Al-Razi's interpretation: “Al-Hassan and Sufyan bin Ayynah said that he commanded that - meaning the Prophet ﷺcommanded the consultation - so that someone else would follow him in the consultation and become Sunnah in his ummah.”

18)   From the Sunnah of the Messenger his consultation with the ummah

It affirms the right of consultation to the nation on its rulers, that the Prophet   ﷺ  on a great amount of support and stature , and inspired by the sky. He was a lot of consultation with his companions, he consulted them on the day of full moon to go out to fight, and he consulted with them about whether to stay in the city or go out to the enemy. Al-Habbab bin Al-Mundhir advised him on the day of Badr to go down on the water, and he accepted it.

He pointed out the monkey - Saad bin Maaz, Saad bin worship on the trench to leave the reconciliation of the enemy on some of the fruits of the city are going to leave before them , and so was the Messenger of Allah   ﷺ  much consultation to his companions even mentioned scientists that: no one was more consultation to his companions of the Messenger of Allah   ﷺ . "

19)   Leaving the consultation is a requirement to remove the head of state

In view of the proven right of the nation to consult and its imperative for the head of state, the jurists have stated that abandoning this right by the head of state is a necessity for his removal, as it came in the interpretation of al-Qurtubi, “Ibn Attiyah said,” and the shura is one of the rules of Sharia and the determination of rulings. There will be no survival of a despotic ruler in a state founded on the basis of Islam.

20)   Anything Shura takes place

Consultation with the ummah takes place in the various affairs of the state, and in matters of legal jurisprudence in which there is no text, meaning that the head of the state consults in matters of religion and the world as expressed by the jurists. ... "  ⁾ Consultation in worldly matters is only in important matters, such as the general policy of the state, the conduct of armies, the declaration of war, the conclusion of treaties and the like, and the consultation is not in everything even in the small and partial matters, because this is neither possible nor reasonable There is no need for it, no benefit in it, or evidence for it ...

21)   People of the Shura

But how does the consultation take place? Should the president of the state consult with the whole nation, sect, or individuals thereof? What is learned from the actions of the Prophet and his guidance in the Shura Council is that he used to consult the Muslim community on matters that directly concern them, as happened in the issue of going out to fight the polytheists in Uhud, so he consulted their audience in Medina, and he used to tell them: "Refer to me." Likewise, regarding the issue of Hawazen spoils, the Prophet was keen to know the opinions of all Muslims participating in the Hozan war regarding the issue of the spoils that had become to them. He said: So pass your sergeants to raise them to us so that we know ... So Zayd bin Thabit used to ask them if they were peace and satisfied. They told him that they were peace and content and not one man left them ... "This incident indicates that the people of the Shura were all the Muslims with whom he was related. The subject of the consultation.And sometimes all Muslims who are related to the subject of the consultation. Sometimes he consulted some of his companions, but not all of them, as happened in the case of the Badr prisoners, so he consulted some of his friends. The two Saadians consulted: Saad bin Muadh and Saad bin Ubada on the issue of reconciling Ghatfan on one-third of the city’s fruits, provided that they refrain from fighting the Muslims in the Battle of the Trench, and they said: No. If this is a matter from heaven, then proceed to it, and if it is a matter in which you are not commanded and you have a passion, then listen and obey, and if it is only opinion, what they have with us but the sword, then the Messenger took their opinion and left the topic of reconciliation with Gaftan.If this is a matter from heaven, then proceed to it, and if it is a matter in which you are not commanded and you have a passion, then listen and obey, and if it is only opinion, what they have with us but the sword, then the Messenger took their opinion and left the topic of reconciliation with Gaftan.If this is a matter from heaven, then proceed to it, and if it is a matter in which you are not commanded and you have a passion, then listen and obey, and if it is only opinion, what they have with us but the sword, then the Messenger took their opinion and left the topic of reconciliation with Gaftan.

With these fixed precedents in the Sunnah of the Messenger, they indicate that the people of the Shura sometimes constitute the majority of the nation, as in the Prophet’s consultation for Muslims regarding the issue of going out to anyone. And sometimes the people of the Shura are all the Muslims present at the time of the consultation and their topic concerns them as a matter of Hawazen’s spoils, and sometimes the people of the Shura are the people who are followed in their people, as in the issue of Ghatfan. Saad bin Ubadah and Saad bin Muadh are among the masters of the Ansar who are among them, and other times the people of the Shura are some Muslims as in the issue Badr Prisoners. In light of these precedents, we can say that those whom the head of state consults with differs according to the subject of the consultation, and if it is an important general matter that concerns everyone, then he must consult the entire nation if possible, or consult the people of the solution and the contract followed by the nation. If it is one of the issues that need a kind of knowledge and good opinion, then he consults the specialists, and this is what Al-Qurtubi referred to in his interpretation, and he said:It is the duty of the governors to consult scholars with regard to what they do not know and in matters of religion, and the faces of the army with regard to war, the faces of people with regard to interests, and the faces of writers, ministers and workers regarding the interests and architecture of the country ... until he said: The scholars said the status of advisor if he is The rulings are to be a scholar and religion, and the attribute of the counselor if in worldly matters is to be of a reasonable and experienced person.

22)   Organization of Shura at the present time

In the previous paragraph we explained the fixed prophetic precedents on the subject of shura, and their entirety indicates that Islamic law has not established a specific system for consultation, and this is one of its advantages and precaution for the future, because the fulfillment of shura is an act that differs according to time and place. . Based on this, we see that what corresponds to the conditions of the times is for the ummah to elect the people of the shura, whom the head of state consults with in public matters, and who are also empowered to elect the head of state if his position becomes vacant. Provided that the head of state shall have the right to consult with specialists in the matter of their competence, whether they are from the elected people of the shura or not. He should have a nation’s referendum on serious matters, and set up a system for all these and other issues related to the subject of the Shura Council, such as how the Shura Council is elected and its powers in light of the general rules of Sharia.

In order to ensure the integrity of the election of the Shura Council, and the election of competent and loyal to its membership, it is not sufficient to set a system for this election, rather it is necessary to spread Islamic concepts, raise the moral level in the ummah, and educate individuals in the fear and piety of God so that they only elect the best, and so that whoever is elected by the ummah should fulfill his duty as Islam orders .

23) The  dispute between the head of state and the Shura Council

Head of State has disagreed with the Shura Council, what is the solution in this case is referred to the verse: (O ye who believe! Obey Allah and obey the Messenger and those of you if you differ in anything amongst yourselves, refer it to Allah and His Messenger, if you believe in Allah and the Last Day, so good And the best interpretation). Then he returns the disputed book to the Book of God and the Sunnah of his Prophet Thus the commentators said. If the ruling is found explicitly in the book or in the Sunnah, it must be followed, and no one should obey anyone otherwise. And if there is no explicit ruling, then what opinions are more like the Book of God and the Sunnah of His Messenger he acted upon?

But what to do if the opinion that resembles the Book of God and the Sunnah of His Messenger does not appear? There are three solutions:

   The first solution - the arbitration method

This requires choosing a special body of jurisprudence, good opinion and knowledge of state affairs, and gives adequate guarantees for its independence in work and not to influence it, and these are the ones that decide on the matter of disagreement between the head of state and the Shura Council, and its opinion is binding. He may become aware of this solution with what was narrated on the authority of Imam Umar ibn al-Khattab, that he went to the Levant and informed on the road that an epidemic had occurred in the Levant, so he consulted with those of the immigrants with him about the matter of returning or going on the road, and they disagreed, so he consulted the supporters who were with him and they disagreed, so he called the one who was present from the Quraish Sheikhdom from The first immigrants and consulted with them referred to return, so he took their opinion and returned with those with him. In another narration about this incident, one of the Muslims who were with him told him a hadith from the Prophet فيهin which he did not descend into a land where the plague had descended. And this news may be after consulting Omar, may God be pleased with him.

   The second solution - taking the opinion of the majority

This solution requires that the head of state take the opinion of the majority even if he disagrees with his opinion. This opinion is supported by the fact that the Prophet took the opinion of the majority regarding the issue of going out to fight the polytheists in the Battle of Uhud. His tendency was not to go out. Moreover, abundance is a mineral of quality and the assumption of correctness, although it is not conclusive evidence of correctness. May be wrong on their side and right on the side of the few.

   The third solution - absolutely taking the opinion of the head of state

According to this solution, the president of the state, after consulting with the people of the Shura, takes what he sees without being bound by the opinion of the majority or the few. And it is comprehensible for this solution what some said in the interpretation of the Almighty saying: (And consult them on the matter - then if you resolve, then he entrusted to God) Qatada said: “God commanded His Prophet, peace be upon him, if he decides on a matter to go ahead and trust them in God, and not trust them. The state is responsible and accountable for his work, so it requires that he be given the freedom to act as he deems as long as a matter of judgment that does not contradict a definitive text of the Shari’a texts clarifying that the fact that a person is responsible for his work is that he does it by choice and his opinion is not that he does it in implementation of the opinion of others and the opinion of others is binding on him. The opinion of others, and he is held accountable for this opinion.

24) The  _PRINTER