Undang-Undang Dasar Negara Khilafah

UUD / Khalifah §24-41

Pasal 37: Syarat dan ketentuan pengadopsian aturan syara’

Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian: Pasal 37: Dalam melegislasi hukum, Khalifah terikat dengan hukum-huklum syara’. Diharamkan atasnya melegislasi hukum yang tidak diambil melalui proses ijtihad yang benar dari dalil-dalil syara’. Khalifah terikat dengan hukum yang dilegislasinya, dan terikat dengan metode ijtihad yang dijadikannya sebagai pedoman dalam pengambilan suatu hukum. Khalifah tidak dibenarkan melegislasi hukum berdasarkan metode ijtihad yang bertentangan dengan apa yang telah diadopsinya, dan tidak diperkenankan mengeluarkan perintah yang bertentangan dengan hukum-hukum yang telah dilegislasinya.

 

 

Article 37: The Caliph (Khalifah)’s adoption is restricted by the Shari’ah rules; he is prohibited to adopt any rule which is not derived according to a legitimate deduction from the Shari’ah evidences, and he is restricted with what he adopted of the rules, and by what he bound himself to with respect to the method of derivation. So he is not permitted to adopt a rule which has been derived according to a methodology which contradicts the methodology he adopted, and he cannot give an order which contradicts the rules that he had adopted.

There are two issues in this article: the first being that the Caliph (Khalifah) is restricted in the adoption of rules to adopting from the Shari’ah rules; in other words, he is restricted by the Islamic Shari’ah in legislation and enacting laws. Therefore, it is not permitted for him to adopt anything which contradicts that since they would be the rules of Kufr (disbelief); if he adopted rules from other than the Islamic rules, and he knew that what he had adopted was something other than the Islamic Shari’ah, then the words of Allah (swt)

{وَمَنْ لَمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَئِكَ هُمُ الْكَافِرُونَ (44)}

And whoever does not judge by what Allah has revealed - then it is those who are the disbelievers.(TMQ 5:44)apply to him, so if he believed in the rule that he had adopted, then he would commit disbelief and apostatise from Islam. If he did not believe in it, but he took it upon the basis that it did not contradict Islam, in the same manner that the Ottoman Khulafaa’ acted during their final days, then it would be forbidden for him but he wouldn’t commit disbelief. If he had a semblance of an evidence, such as the one who legislates a rule which has no evidence, due to a benefit that he thinks is there, and relies upon the rule of Al-Masalih Al-Mursalah, or the “preventing the means” or “the means of the actions” or anything similar, then if he thought that these rules were Shari’ah rules and evidences, it wouldn’t be forbidden for him and nor would he commit disbelief. However, he is mistaken, and what he has derived is considered a Shari’ah rule by all of the Muslims, and it is obligatory to obey it if the Caliph (Khalifah) adopts it, since it is a Shari’ah rule, and it would have a semblance of an evidence even if he was mistaken in the evidence, since he is like the one who is mistaken in the deduction from the evidences. In any case, it is obligatory for the Caliph (Khalifah) to restrict his adoption to the Islamic Shari’ah, and to restrict himself to adoption of Shari’ah rules derived by a correct deduction from the Shari’ah evidences. The evidence for this:

Firstly : What Allah (swt) obligated upon every Muslim, whether they were the Caliph (Khalifah) or not, to conduct all of their actions according to the Shari’ah rules; Allah (swt) says

{فَلَا وَرَبِّكَ لَا يُؤْمِنُونَ حَتَّى يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ}

But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge concerning that over which they dispute among themselves.” (TMQ 4:65). Conducting the actions according to the Shari’ah rules necessitates the adoption of a specific rule when there are a number of understandings of the address of the Legislator; in other words, when the Shari’ah rule is numerous. So adoption of a specific rule in those issues where there are a number of opinions is obligatory upon the Muslim when he wants to undertake the action, in other words, when he wants to apply the rule, and so it is obligatory upon the Caliph (Khalifah) when he wants to carry out his action and that is the rule.

Secondly : The text of the pledge of allegiance which the Caliph (Khalifah) is contracted upon, obliges him to adhere to the Islamic Shari’ah, since it is a pledge upon the Book and the Sunnah, and so it is not permitted for him to leave these two - rather whoever intentionally goes outside these two commits disbelief and if it was unintentional then he would be sinful.

Thirdly : The Caliph (Khalifah) is appointed in order to implement the Shari’ah, and so it is not permitted for him to implement anything from outside the Shari’ah upon the Muslims, since the Shari’ah prohibits such an action in a decisive manner which reaches the level whereby the one who implements other than Islam has their Iman negated, which is an indication for it being decisively prohibited. This means that the Caliph (Khalifah) is restricted in his adoption of the rules, in other words, in his drafting of the laws according to the Shari’ah rules alone, and if he drafts any laws based upon anything else, then he will commit disbelief if he believes in it, and will be sinful if he doesn’t.

These three evidences are the proof for the first issue in this article. As for the second issue of the article which is that the Caliph (Khalifah) is restricted by what he has adopted and by what he adheres to in terms of a method of deduction, the proof for this is that the Shari’ah rule which the Caliph (Khalifah) implements is the Shari’ah rule for him, and not for others; in other words, the Shari’ah rule which he adopted in order for his actions to proceed in accordance with and not any Shari’ah rule. So if the Caliph (Khalifah) deduced a rule, or followed someone else in it, that Shari’ah rule would be the rule of Allah (swt) for him, and he would be restricted by this Shari’ah rule in his adoption of it for the Muslims. It would not be permitted for him to adopt anything different to it, since it would not be considered to be the rule of Allah (swt) for him, because it would not be a Shari’ah rule with respect to him, and accordingly it would not be a Shari’ah rule with respect to the Muslims. Therefore, his orders that he issued for the sake of the subjects would be restricted according to this Shari’ah rule which he had adopted, and it is not permitted for him to issue orders which contradict whatever he had adopted from the rules. This is because that order which he issued would not be considered the rule of Allah (swt) for him, and so would not be considered a Shari’ah rule with respect to him, and then it would not be a Shari’ah rule in respect to the Muslims, in which case, it would be as though he had issued an order which was not based upon the Shari’ah rule. Due to this, it is not permitted for him to issue any order which contradicts what he adopted from the rules.

Also, the method of deduction causes a change in the understanding of the Shari’ah rule, so if the Caliph (Khalifah) considered the Illah to be a Shari’ah Illah if it is derived from a Shari’ah text, and he does not think that Maslahah is a Shari’ah Illah, and he does not consider Al-Masalih Al-Mursalah to be a Shari’ah evidence, then it means that he has specified a method of deduction for himself. In which case, it would be obligatory for him to be restricted by it, and it would not be correct for him to adopt a rule whose evidence was based upon Al-Masalih Al-Mursalah, or to take an analogy based upon an Illah which was not derived from a Shari’ah text, since that rule would not be considered a Shari’ah rule for him as he does not recognise its evidence as a Shari’ah evidence, in which case in his view, it would not be a Shari’ah rule. As long as it is not considered to be a Shari’ah rule for the Caliph (Khalifah), then it would not be a Shari’ah rule for the Muslims and so it would be as if he adopted a rule from other than the Shari’ah rules, which is prohibited for him. If the Caliph (Khalifah) was a Muqallid (someone who follows another person’s Ijtihad), or a Mujtahid in an issue and not a Mujtahid Mutlaq or Mujtahid Madhhab, and he did not have a specific method of deduction, then he would be permitted to adopt any Shari’ah rule as long as it has an evidence, as long as that evidence is a semblance of an evidence; he would not be restricted by anything in his adoption of the rules but rather he would only be restricted by what he issued in terms of orders such that they should not be issued except according to what he had adopted from the rules.

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