Artikel 140: Jedes Individuum der Umma hat das Recht zur Nutzung dessen, was zum öffentlichen Eigentum zählt. Es ist dem Staat nicht gestattet, einer Einzelperson unter Ausschluss der restlichen Staatsbürger die Erlaubnis zu erteilen, öffentliches Eigentum in Besitz zu nehmen oder zu nutzen.
Article 140: Every individual from the Ummah has the right to utilise anything from public property, and it is not allowed for the State to permit someone to individually possess or utilise it.
Ummah in this article is the citizens in Dar Al-Islam, or in other words, all those who carry the citizenship of the State, irrespective of whether they were Muslim or Dhimmi (non-Muslims), and the State is compelled to take care of them all the time, which includes providing the basic needs for them. This is in accordance with the Shari’ah rules they are subject to. Amongst them is that every individual from the subjects has the right to utilise anything from the public property, and the Dhimmiand Muslim have the same rights to utilise the public facilities.
It cannot be said that the narration:
«الْمُسْلِمُونَ شُرَكَاءُ فِي ثَلاَثٍ»
“Muslims have common share in three” means that the public property is for the Muslims alone, rather this narration and similarly the narration:
“People have common share (partners)” are specified by the narration of Muslim through Buraydah which mentions:
«ثُمَّ ادْعُهُمْ إِلَى التَّحَوُّلِ مِنْ دَارِهِمْ إِلَى دَارِ الْمُهَاجِرِينَ وَأَخْبِرْهُمْ أَنَّهُمْ إِنْ فَعَلُوا ذَلِكَ فَلَهُمْ مَا لِلْمُهَاجِرِينَ وَعَلَيْهِمْ مَا عَلَى الْمُهَاجِرِينَ»
“Then summon them to leave their territory and transfer to the abode of the Emigrants ( Al-Muhajireen) and tell them that if they do so, they will have the same rights and responsibilities as the Emigrants (Al-Muhajireen).” and the Dar Al-Muhajireen is the Dar Al-Islam, and so this text limits the rights of citizenship to those who migrate to the Dar Al-Islam, or in other words, they carry the citizenship of Dar Al-Islam.Therefore, this does not encompass all the Muslims in the world but rather only those in Dar Al-Islam, and in the same way, non-Muslims who live in Dar Al-Islam and carry citizenship are not exempted, because the narration of Buraydah makes enjoyment of the right of citizenship conditional to migration to Dar Al-Islam. Accordingly, the Muslim in Dar Al-Islam, and the Dhimmiwho lives in Dar Al-Islam and carries its citizenship fall under the application of this article.
This is for the citizens in Dar Al-Islam; they can utilise from the public property, and none of them should be prevented from doing so irrespective of whether they were Muslims or Dhimmis.
The issue of the Muslim subjects utilising the public property is clear.
As for the Dhimmi, there are several texts and incidents from the time of the Messenger and the righteous Khulafaa’ which all indicate this.
- They used to walk in the markets, buying and selling, and the markets are public property. Ahmad reported from Ka’b Bin Malik:
«... فَبَيْنَا أَنَا أَطُوفُ السُّوقَ إِذَا رَجُلٌ نَصْرَانِيٌّ جَاءَ بِطَعَامٍ يَبِيعُهُ يَقُولُ: مَنْ يَدُلُّ عَلَى كَعْبِ بْنِ مَالِكٍ؟...»
- “While I was roaming through the market, a Christian came with some food to sell, saying: who will direct me to Ka’b Bin Malik?” and this indicates that the Muslims and Dhimmis used to visit the markets for their needs in the same manner.
- They used to utilise the water, fire and pastures. Ibn Maja reported from Abu Hurayrah that the Prophet said:
«ثَلاثٌ لا يُمْنَعْنَ: الْمَاءُ وَالْكَلأُ وَالنَّارُ»
- “Three can not be denied (to anyone): water, fire and pastures”.The companions agreed that the Christians of Al-Sham could drink from the rivers with the Muslims, and similarly the same applied to those who remained Magians in Iraq and Bahrain, and similarly the Coptics in Egypt used to drink and irrigate from the Nile. They would all cut wood from the forests, irrigate their crops from the public rivers and shepherd their flocks in the public pastures. Today they would utilise petrol and its derivatives and electricity, since they are both from the: “fire” mentioned in the narration.
- They have the right to revive dead land, due to what is reported by Ahmad and Al-Tirmidhi with an authentic chain from Jabir who said that the Messenger of Allah said:
«مَنْ أَحْيَا أَرْضًا مَيِّتَةً فَهِيَ لَهُ»
- “whoever revives a dead land, it belongs to him” and what was reported by Al-Bukhari from Aisha(ra) that the Prophet said:
«مَنْ أَعْمَرَ أَرْضًا لَيْسَتْ لأَحَدٍ فَهُوَ أَحَقُّ»
- “He who cultivates land that does not belong to anybody is more rightful (to own it).”. And what is reported by Abu Dawud At-Tayalisi from Aisha(ra) who said that the Messenger of Allah said:
«العِبَادُ عِبَادُ اللهِ، وَالْبِلادُ بِلادُ اللهِ، فَمَنْ أَحْيَا مِنْ مَوَاتِ الأَرْضِ شَيْئاً فَهُوَ لَهُ، وَلَيْسَ لِعِرْقٍ ظَالِمٍ حَقٌّ»
“The slave is the slave of Allah, and the land is the land of Allah, and whoever revives any part of dead land, it belongs to him, and the oppressor has no right of possession”.
All of these evidences are general and encompass all citizens, irrespective of whether they were Muslims or not.
- Also, all of citizens whether Muslim or Dhimmican use the methods of transportation from land, sea and air. As for the land, the Dhimmis used to use it at the time of the Messenger of Allah . Al-Tirmidhi reported from Aisha(ra) who said:
« كَانَ عَلَى رَسُولِ اللَّهِ ثَوْبَانِ قِطْرِيَّانِ غَلِيظَانِ، فَكَانَ إِذَا قَعَدَ فَعَرِقَ ثَقُلاَ عَلَيْهِ، فَقَدِمَ بَزٌّ مِنْ الشَّامِ لِفُلاَنٍ الْيَهُودِيِّ، فَقُلْتُ: لَوْ بَعَثْتَ إِلَيْهِ فَاشْتَرَيْتَ مِنْهُ ثَوْبَيْنِ إِلَى الْمَيْسَرَةِ... »
- “The Messenger of Allah (saw) was wearing two thick Qitri garments on. When he would sit, he would sweat since they were so heavy for him. Some clothes arrived from Ash-Sham for so-and-so, the Jew. I said: 'Perhaps you could dispatch a request to him to buy some garments (on credit) from him until it is easy (to pay).” As for the sea, they used to use it in the same manner as the Muslims at the time of the companions, and today that is analogous to the use of the airways.
- They can also use the general paths and the public communications as they are analogous to the public transportation.
This is the evidence for the first part of the article that all of the individual subjects have the right to utilise the public property.
As for the second part , which is that it is not allowed for the State to permit someone to individually possess or utilise it – its evidence is the narration of Abyad Bin Hammal when the Prophet granted him some land which was salt laden, and when he was informed that what he had given him was similar to non-depleted water he took it back from him. Al-Tirmidhi reported from Abyad Bin Hammal that: “He came to the Prophetand asked him to assign him asaltladen land as a fief, and he granted it to him. And when he left, one person with the Prophet said: “Do you know what you have granted him? You granted him the non-depleted water”. He then took it away from him”. The other evidence is that which Al-Tirmidhi reported from Aisha(ra) and he said it is Hasan Sahih, and Ibn Khuzaymah reported in his Sahih, that the Messenger said:
«مِنًى مُنَاخُ مَنْ سَبَقَ»
“Mina is a resting place for whoever arrives there first”, and also the narration of Al-Sa’ab b. Jathamah with Al-Bukhari:
«لا حِمَى إِلاَّ للهِ وَلِرَسُولِهِ»
“There is no Hima (for grazing the animals of Zakah) except for Allah and His Messenger”.
It is clear that most of the capitalist monopolies and rich companies and individuals who have imaginary wealth, have managed to do so because of the special privileges they get to exploit the different types of public property, such as gas, petrol and the other mineral resources, and the communications, transport, water and other things.