Constitution of the Caliphate State / Judiciary
- Category: Judiciary §75-95
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:
- Has a continued effect which contradicts Islam, so it is obligatory to review it.
- 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.
- 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:
- If the case which had been ratified and whose implementation had ended, has a continued effect against Islam.
- If the case was connected to harming Islam and the Muslims.
- 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 :
(في أي دورك تنزل؟) فقال : «وَهَلْ تَرَكَ لَنَا عَقِيلٌ مِنْ رِبَاعٍ»
"Which house will you take?", and so he said “Did Aqil leave us any land ?” and in a narration
«وَهَلْ تَرَكَ لَنَا عَقِيلٌ مِنْ مَنْـزِلٍ»
“Did Aqil leave us any house?”,
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
(أَنَّهُ قَالَ زَمَنَ الْفَتْحِ يَا رَسُولَ اللَّهِ أَيْنَ تَنْزِلُ غَدًا؟ قَالَ النَّبِيُّ : «وَهَلْ تَرَكَ لَنَا عَقِيلٌ مِنْ مَنْزِلٍ؟!»)
“He said at the time of the conquest: O Messenger of Allah where will you stay tomorrow”? The Prophet said “And did Aqil leave us any house?”
. 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
«أَنَّ رَسُولَ اللَّهِ رَدَّ ابْنَتَهُ عَلَى أَبِي الْعَاصِ بْنِ الرَّبِيعِ بَعْدَ سَنَتَيْنِ بِنِكَاحِهَا الأَوَّلِ» وفي رواية أحمد: «حَدَّثَنَا يَزِيدُ قَالَ أَخْبَرَنَا مُحَمَّدُ بْنُ إِسْحَاقَ عَنْ دَاوُدَ بْنِ حُصَـيْنٍ عَنْ عِكْرِمَةَ عَنِ ابْنِ عَبَّاسٍ أَنَّ رَسُولَ اللَّهِ رَدَّ ابْنَتَهُ زَيْـنَبَ عَلَى أَبِي الْعَاصِ زَوْجِهَا بِنِكَاحِهَا الأَوَّلِ بَعْدَ سَنَتَيْنِ وَلَمْ يُحْدِثْ صَدَاقًا»
“The Messenger of Allah returned his daughter to Abu Al-‘As b. Al-Rabi’ after two years, on the basis of the 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, on the basis of 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:
«أَلا إِنَّ كُلَّ رِبًا مِنْ رِبَا الْجَاهِلِيَّةِ مَوْضُوعٌ، لَكُمْ رُءُوسُ أَمْوَالِكُمْ لا تَظْلِمُونَ وَلا تُظْلَمُونَ»
“All claims to usury (interest) of the pre-Islamic perion have been abolished. You shall have your capital sums, deal not unjustly, and you shall not be dealt with unjustly.” 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,
«فَأَمَرَهُ النَّبِيُّ أَنْ يَتَخَيَّرَ أَرْبَعًا مِنْهُنَّ»
“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
«إِنَّ الإِسْلامَ يَجُبُّ مَا كَانَ قَـبْلَهُ»
“Islam wipes away what was before it” (reported by Ahmad and Al-Tabarani from Amr 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
«إِنَّ الإِسْلامَ يَجُبُّ مَا كَانَ قَـبْلَهُ»
“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
«كُنْتُ عِنْدَ رَسُولُ اللَّهِ فَأَتَاهُ رَجُلاَنِ يَخْتَصِمَانِ فِي أَرْضٍ فَقَالَ أَحَدُهُمَا إِنَّ هَذَا انْـتَزَى عَلَى أَرْضِي يَا رَسُولَ اللَّهِ فِي الْجَاهِلِيَّةِ وَهُوَ امْرُؤُ الْقَيْسِ بْنُ عَابِسٍ الْكِنْدِيُّ وَخَصْمُهُ رَبِيعَةُ بْنُ عِبْدَانَ قَالَ: بَيِّنَتُكَ، قَالَ: لَيْسَ لِي بَيِّنَةٌ، قَالَ: يَمِينُهُ، قَالَ إِذَنْ يَذْهَبُ بِهَا، قَالَ: لَيْسَ لَكَ إِلاَّ ذَاكَ، قَالَ: فَلَمَّا قَامَ لِيَحْلِفَ قَالَ رَسُولُ اللَّهِ مَنِ اقْتَطَعَ أَرْضًا ظَالِمًا لَقِيَ اللَّهَ وَهُوَ عَلَيْهِ غَضْـبَانُ»
“I was with the Messenger of Allah and two men came there disputing over a piece of land. One of them said: Messenger of Allah, this man appropriated my land without justification in the days of ignorance. The (claimant) was Imru'l-Qais b. 'Abis Al-Kindi and his opponent was Rabi'a b. 'Iban. The Prophet said (to the claimant): Have you evidence (to substantiate your claim)? He replied: I have no evidence. Upon this the Messenger of Allah 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 than 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: He who 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.