nusr-khilafah-en

Constitution of the Caliphate State for Android

Constitution of the Caliphate State / Judiciary

Article 78: The conditions of judges

The Constitution of the Caliphate StateArticle 78: Whoever undertakes the responsibility of judgement must be a Muslim, free, adult, sane, just, a Faqih (person who knows jurisprudence/Fiqh), and aware of how to apply the rules to the events. And the person who undertakes the judiciary of injustices (Madhalim)in addition to the conditions mentioned, must also be male and a Mujtahid (capable of deriving his own Fiqh/conducting Ijtihad).

Its evidence is what was mentioned previously for the evidence for the Supreme judge, except that it is not a condition in the judge who settles the disputes and the judge of Hisbah to be male, rather it is permitted for the judge to be a woman, since it is not a position of ruling but rather a judge, in other words, they convey the Shari’ah rule while they are not the one who implements it. Accordingly, the narration

«لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً»

“Never will succeed such a nation that makes a woman their ruler.reported by Al-Bukhari, does not apply, since it is regarding governorship which is ruling. And the reason for the narration was when the people of Persia were ruled by a woman; it is narrated from Abu Bakrah who said “When the Messenger of Allah صلى الله عليه وآله وسلم was notified that the people of Persia were ruled by the daughter of Kisra, he said:

«لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً»

Never will succeed such a nation that makes a woman their ruler’” (reported by Al-Bukhari). So the reason for the words of the narration was a specific subject which was mentioned explicitly in the text of the narration, which is ruling, in other words, authority, and the judiciary is not an authority. Accordingly the narration is specific to ruling and does not encompass the judiciary, and that is for two reasons:

Firstly, the text which is related in a specific subject is like the text which is an answer to a question, and so it is necessary to make it specific to the issue of the question or event, and it is not correct for it to be general in all issues, because the question is reflected in the answer, and because the words are in a specific subject it is necessary to limit them to that subject, since the word of the Messenger صلى الله عليه وآله وسلم is connected to the question or event, and so the rule is connected to that. This is different than if the Messenger صلى الله عليه وآله وسلم had said that initially (not in response to an event) in which case it would be general and connected to the generality. As for if his صلى الله عليه وآله وسلم word is a comment upon a specific event, or an answer to a specific question, then the situation is different. If the text, in other words, the words of Allah (swt) or the words of the Messenger صلى الله عليه وآله وسلم, were definitely connected to a question or event, then the rule is connected to that without any doubt. This is with respect to the subject that either came from a question or event. And it is not with respect to the questioner or whom the event occurred upon, since the consideration in both of them is given to the generality of the words and not to the specific cause. And this is why there is a difference made between the cause and the subject, so the consideration is to the generality of the words and not to the specific cause, since the words are not connected to the cause, and so they remain upon their generality. This is different to the event or question, in other words, different to the subject which was included by the event, or the subject which was included by the question, since the words are definitely connected to it, and there is no doubt in that, since the narration was only for its sake, or due to it, and due to this it is specific to the subject, and not general. Accordingly the narration

«لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمُ امْرَأَةً»

Never will succeed such a nation that makes a woman their ruler is specific to ruling, and does not encompass the judiciary.

This is the first reason. As for the second reason, the words “makes a woman their ruler” are from governorship, and this is the governorship of the command, and the judge is not a governor, and is not a governor for the command. Accordingly the judge does not come under this narration, so the narration does not encompass the judiciary.

This is from the angle of the indication of the narration and as for the angle of the permission for a judge to be a woman, the judge is an employee like the rest of the civil servants. And it is permitted for an employee to be male or female;

((فَإِنْ أَرْضَعْنَ لَكُمْ فَآَتُوهُنَّ أُجُورَهُنَّ))

And if they breastfeed for you, then give them their payment.” (TMQ 65:6). The judge is appointed to undertake an action according to the Shari’ah, or in other words, to inform the two disputing parties of the Shari’ah rule which would be binding upon them, and he is not appointed in order to implement the Shari’ah. Due to this the definition of the employee would apply to him, since it is a contract upon a service for compensation, which is opposite to the ruler since the definition would not apply to him, since he is not contracted over a specific service, rather he is given the command to execute the Shari’ah, and for this reason it is not permitted for a ruler to be a woman because he is a governor of a command (Wali Al-Amr). It is permitted for the judge to be a woman, since the judge is an employee and not a ruler.

With regards to the rest of the conditions for the judge, their proofs were discussed in the section about the conditions of the Khalifah. Similarly the evidence for the condition that they be a faqih (to know jurisprudence) is the narration

"القضاة ثلاثة"

“The judges are of three kinds” until he صلى الله عليه وآله وسلم said

«وَرَجُلٌ قَضَى لِلنَّاسِ عَلَى جَهْلٍ فَهُوَ فِي النَّارِ»

“and a man who passess judgement on the people in ignorance will be in hellfire” (reported in the Sunan and authenticated by Al-Hakim from Buraydah).

This is for the judiciary of Hisbah and the judiciary that resolves the disputes between the people, where it is permitted for the judge to be a woman. As for the judge of the Court of Injustices (Madhalim), it is a condition that he is male, like the Supreme Judge, because his work is both ruling and judging, since he rules upon the ruler, and implements the Shari’ah upon him, and for that reason it is a condition that he is male along with the rest of the conditions of the judge, of which being a Faqih is one. However, in addition to that, it is a condition that he should be a Mujtahid, because as part of the injustices (Madhalim) he may be required to look into whether the ruler has ruled by other than that which Allah (swt) has revealed, or in other words, has ruled by a law that has no Shari'ah evidence, or to look into whether the evidence he used does not apply to the event. This type of injustice (Madhlamah)can only be dealt with by a Mujtahid, since if he were not a Mujtahid, he would be judging on something he knows little about or has no knowledge about at all, and that is forbidden and not permitted. Therefore, inaddition to the conditions of the ruler and those of the judge, he should also be a Mujtahid.

Some articles of the Constitution

The Constitution of the Caliphate State,

Article 191: Participation in organizations

Article 191: The State is forbidden to belong to any organisation which is based on anything other than Islam or which applies non-Islamic rules. This includes international organisations like the United Nations, the International Court of Justice, the International Monetary Fund and the World Bank, and regional organisations like the Arab League. more
The Constitution of the Caliphate State,

Article 139: The private property is protected

Article 139: The State is not permitted to transfer private property into public property, since public property is confirmed by the nature and characteristic of wealth and not by the opinion of the State. more
The Constitution of the Caliphate State,

Article 41: The Decision about change and removal the Caliph

Article 41: The court of the Madhalim (injustices) is the only authority that can decide whether the change in the situation of the Caliph (Khalifah) removes him from the leadership or not, and it is the only authority that has the power to remove or warn him. more
The Constitution of the Caliphate State,

Article 30: Required for the allegiance of the Caliphate

Article 30: The only conditions for the one who is given the pledge to be the leader of the State is that he fulfils the contracting conditions of the contract, even if he does not fulfil the preference conditions, since what matters are the contracting conditions of the contract. more
The Constitution of the Caliphate State,

Article 141: Protection of public property for public interest

Article 141: The State is allowed to protect some of the dead land and any part of public property for any public interest. more
The Constitution of the Caliphate State

Article 78: The conditions of judges

Article 78: Whoever undertakes the responsibility of judgement must be a Muslim, free, adult, sane, just, a Faqih (person who knows jurisprudence/Fiqh), and aware of how to apply the rules to the events. And the person who undertakes the judiciary of injustices (Madhalim)in addition to the conditions mentioned, must also be male and a Mujtahid (capable of deriving his own Fiqh/conducting Ijtihad). more
The Constitution of the Caliphate State,

Article 56: Powers of provincial assembly

Article 56: Every province has an assembly elected from its people and championed by the governor. The assembly has the authority to participate in expressing opinions on administrative matters and not on ruling; and this would be for two objectives: Firstly - providing the necessary information about the situation of the governorate and its needs to the governor and to express their opinion… more

Regarding Declaration of ISIS the Establishment of the Caliphate (Khilafah)

To all the brothers and sisters who sent inquiries about the declaration of the organization's ISIS establishment of the Caliphate State... The matter of the Islamic Caliphate is great and its matter…

Method of Establishing the Caliphate and the Dominant Sultan

There are some comments that state: " the method of seeking the Nussrah (material support) to establish the Khilafah is not the only legitimate way, there is another method, which is "the method of…