Undang-Undang Dasar Negara Khilafah

UUD / Khalifah §24-41

Pasal 38: Powers dan Ketentuan untuk perawatan untuk umat

 Undang-Undang Dasar Negara Khilafah, berdasarkan metode kenabian: Pasal 38: Khalifah memiliki hak mutlak untuk mengatur urusan-urusan rakyat sesuai dengan pendapat dan ijtihadnya. Khalifah berhak melegislasi hal-hal mubah yang diperlukan untuk memudahkan pengaturan negara dan pengaturan urusan rakyat. Khalifah tidak boleh menyalahi hukum syara’ dengan alasan maslahat. Khalifah tidak boleh melarang sebuah keluarga untuk memiliki lebih dari seorang anak dengan alasan minimnya bahan makanan, misalnya. Khalifah tidak boleh menetapkan harga kepada rakyat dengan dalih mencegah eksploitasi. Khalifah tidak boleh mengangkat orang kafir atau seorang perempuan sebagai Wali dengan alasan (memudahkan) pengaturan urusan rakyat atau terdapat kemaslahatan, atau tindakan-tindakan lain yang bertentangan dengan hukum syara’. Khalifah tidak boleh mengharamkan sesuatu yang mubah atau membolehkan sesuatu yang haram.

 

Article 38: The Caliph (Khalifah) has the complete right to govern the affairs of the subjects according to his opinion and Ijtihad. He can adopt anything of the permitted issues that he needs to run the affairs of the State and to manage the peoples’ affairs and he is not permitted to contradict any Shari’ah rule for the sake of benefit. For example, he cannot prohibit the single family from having more than one child on the pretext of shortageof foodstuffs, or fix prices on the pretext of preventing exploitation, or appoint a non-Muslim or a woman as a governor on the pretext of looking after the affairs or benefit, nor anything else which contradicts the Shari’ah rules. It is not permitted for him to prohibit a permitted matter and nor to allow a prohibitedmatter.

The Caliph (Khalifah) has the complete right to govern the affairs of the subjects according to his opinion and Ijtihad, but he is not permitted to contradict any Shari’ah rule using benefit as the proof – so he cannot prevent the subjects from importing goods for the sake of protecting the State’s industry, unless it would damage the State’s economy, or fix prices for the sake of preventing exploitation, or force the owner to rent his property for the sake of easing housing, unless there was a pressing emergency for that, nor anything else which contradicts the Shari’ah rules. It is not permitted for him to prohibit something permitted and to make something prohibited permitted.

The proof for this is the words of the Prophet صلى الله عليه وآله وسلم

«الإِمَامُ رَاعٍ وَمَسْـئُولٌ عَنْ رَعِيَّتِهِ»

The Imam (ruler) is a guardian and responsible (will be questioned) of his subjects” reported by Al-Bukhari through ’Abd Allah Bin Umar, and also that the rules which the Shari’ah gives to the Caliph (Khalifah) such as his independence of action according to his opinion and Ijtihadin the wealth of the commissioned Bayt Al-Mal (state treasury), and such as the coercion of the people to follow a specific opinion in the single issue, and whatever else is similar. This narration gives the Caliph (Khalifah) the complete right in governing the affairs of the subjects without any restriction, and the rules of the Bayt Al-Mal, adoption, preparation of the Army, appointing the governors, and whatever else which has been given to the Caliph (Khalifah) was given to him in an absolute manner without any restriction, which is proof that he can carry out the governing of the affairs according to how he views without any restriction, and to obey him is obligatory while disobeying him is a sin. However, the undertaking of this governing must be done according to the rules of the Shari’ah; in other words, according to the Shari’ah texts. So the mandatory power, even if it has been given to him absolutely, is restricted by the Shari’ah; in other words, according to the rules of the Shari’ah. For example, he has been granted the power to appoint the governors as he pleases, but it is not correct to appoint the disbeliever, or child, or woman as a governor, since it has been prohibited by the Shari’ah. Another example is that he may permit the opening of embassies of the disbelieving countries in the lands which are under his authority, andhe is allowed to do that without any restriction, howeverit is not correct to permit the opening of embassies for a disbelieving country that wants to use the embassy as a tool for control over the Islamic lands, since the Shari’ah prohibited that. Likewise, he may draft the sections of the budget, and the necessary amounts for each section, but he may not draft a section in the budget for building a dam whose cost is beyond the revenues of the Bayt Al-Mal on the basis that he will collect taxes to pay for it. This is because it is not permitted from the Shari’ah to raise taxes for the sake of something which is not vital such as this dam. In this manner, though he has absolute power in governing the affairs which have been given to him by the Shari’ah, but this absoluteness can only operate according to the rules of the Shari’ah. Additionally, what is meant by the absolute right in the governing of the affairs is not that he can draft laws which he sees as necessary for the governing of the affairs of the lands, but rather the meaning is that he has been given the independence of action to act according to his opinion of how the affairs should be carried out in those issues that have been permitted to him, at which point he drafts the laws in those issues which he has been permitted to undertake according to his opinions, and then it becomes obligatory for the people to obey him since the Shari’ah gave him the independence of action to apply his opinion in those issues and ordered us to obey him. So he may make this opinion into a law which people are obliged by. For example, he has been given the right to manage the affairs of the Bayt Al-Mal according to his opinion and Ijtihad, and order the people to obey him accordingly, so he can draft financial laws for the Bayt Al-Mal at which point it becomes obligatory to obey these laws. Likewise, he has been given the leadership of the Army and the management of its affairs according to his opinion and Ijtihad, and the people are ordered to obey him accordingly. So he may draft laws regarding the leadership of the Army and for its administration at which point it becomes obligatory to obey those laws. Likewise, he has been given the right to manage the interests of the subjects according to his opinion and Ijtihad, and to appoint people to manage the interests and work with them according to his opinion and Ijtihad, and the people have been ordered to obey him accordingly. So he may draft laws for the Administration of the Affairs, and he may draft laws regarding the civil servants at which point it becomes obligatory to obey those laws. He may draft laws for every issue that has been left to the opinion and Ijtihadof the Caliph (Khalifah) in the issues which he has the mandatory powers, and it would be obligatory to obey those laws.

It cannot be argued that these laws are styles, and that the styles are from the permitted issues, and so they are permitted for all the Muslims in which case it is not permitted for the Caliph (Khalifah) to specify specific styles and make them obligatory, since it is making it obligatory to act upon something permitted, and to obligate an act upon something permitted is making the Mubah (permitted) Fard (obligatory), and making the Mubah (permitted) Haram (prohibited) by prohibiting anything other than these styles, and this is not allowed. This cannot be argued, since the permitted are styles from the angle that they are styles, as for the styles of administrating the Bayt Al-Mal, they are permitted for the Caliph (Khalifah) and not every person, and the styles of the leadership of the Army are permitted for the Caliph (Khalifah) and not every person, and the styles of the management of the interests of the subjects are permitted for the Caliph (Khalifah) and not all the people. Therefore, the obligation of acting according to this permitted issue which the Caliph (Khalifah) decided upon, does not make that Mubah (permitted) into a Fard (obligation), rather it only makes obeying the Caliph (Khalifah) obligatory according to what the Shari’ah gave to him from the right to act independently according to his opinion and Ijtihad or in other words, in what he decided from opinion and Ijtihadin order to govern the issues. Since although it was originally permitted, the Caliph (Khalifah) made it mandatory and prohibited anything else, but it is permitted for the Caliph (Khalifah) to govern according to it, since the governing is his issue, and it is not permitted for any other person since this governing is not their issue. Therefore, it is not obligatory to adhere to what the Caliph (Khalifah) adopted from the permitted actions in order to govern the affairs; in other words, what the Shari’ah gave to the Caliph (Khalifah) to act independently in according to his opinion and Ijtihad, from the angle that the Caliph (Khalifah) made something Mubah (permitted) into Fard (obligatory), and made the Mubah into Haram (prohibited), but rather from the angle that the obedience to the Caliph (Khalifah) is obligatory in whatever the Shari’ah gave to the Caliph (Khalifah) to act independently in according to his opinion and Ijtihad. So, every Mubah (permitted issue) that the Caliph (Khalifah) made binding in order to facilitate the governing of the issues becomes obligatory upon every individual from the subjects to adhere to. Based upon this, Umar bin Al-Khattab (ra) registered the departments, and based upon this, the Khulafaalaid down specific arrangements for their administrators and for the subjects, and obliged them to work according to these arrangements and prohibited them to work in any other way. Based upon this, it is permitted to draft administrative laws and the remaining laws which are from this type, and obedience to them is obligatory in the same manner as obedience to the rest of the laws, since the obedience is to the Caliph (Khalifah) according to what he orders, from what the Shari’ah has given him in terms of rights and independence to act.

However, this is only in the permitted issues which are for the governing of the affairs, in other words, what has been given to the Caliph (Khalifah) to act independently in according to his opinion and Ijtihad, such as the organisation of the administrations, arranging the soldiers and similar, and not in all the permitted issues but rather only what is permitted for the Caliph (Khalifah) in his capacity as a Caliph (Khalifah). As for the rest of the rules from theFard (obligation), Mandub (recommended), Makruh (disliked), Haram (prohibited) and the Mubah (permitted) for all the people, then the Caliph (Khalifah) is restricted in those according to the Shari’ah rule. He is not permitted to stray outside of these at all, due to the words of the Prophet صلى الله عليه وآله وسلم

«مَنْ أَحْدَثَ فِي أَمْرِنَا هَذَا مَا لَيْسَ مِنْهُ فَهُوَ رَدٌّ»

“If anyone introduces in our matter something which does not belong to it, will be rejected”, which is general encompassing both the Caliph (Khalifah) and anyone else.

With regards to that which has not been given to the Caliph (Khalifah) to run according to his opinion and Ijtihad but instead was permitted for all of the people – it is not permitted for him to legislate laws which force people upon it; for example, the techniques of leading the Army are run according to his opinion and Ijtihad, but the people are permitted to wear the clothes that they like according to the appearance they like and so it is not permitted to draft laws which would limit the appearance of their clothes. And they are permitted to build their houses according to any architectural style they like, and so it is not permitted for the Caliph (Khalifah) to draft laws which would limit the styles for their houses, since this is a Mubah (permitted) issue for all the people, so any forcing of the people upon a specific thing in this type of Mubah (permitted) issue at the expense of others, is equivalent to obligating and prohibiting the Mubah, and this is not permitted for the Caliph (Khalifah). If he did it, obedience to him would not be obligatory and the issue would be raised to the court of the Madhalim (injustices). Rather, his adoption is limited to a single area, which is that in which he has been given the independence to act according to his opinion and Ijtihad. It is permitted for him to make the people adhere to a specific opinion and Ijtihad, and obedience to him is obligatory; in other words, it is permitted for him to draft laws in these issues, in other words, those issues which are permitted for the Caliph (Khalifah) and not for the general people such as the styles of leading the Army and so on. In such issues, he can obligate people to follow his specific opinion and Ijtihad, and it would be obligatory upon them to obey him, in other words, it is permitted for him to draft laws in such issue, while it is not permitted for him to do so at all in anything other than these issues.

Accordingly, it is not permitted for the Caliph (Khalifah) to make prohibited what has been permitted or to make permitted what has been prohibited with the justification that it is for the governing of the affairs. So it is not permitted for him to say that it is not permitted to sell wool to outside of these lands with the justification that it is for the sake of governing the affairs; this is since trade is Mubah (permitted). It is not permitted to make it Haram (prohibited) or to prevent it. But, if selling wool or weapons or anything from amongst the Mubah (permitted) things is confirmed to cause a harm, then selling that thing alone becomes Haram (prohibited) because it leads to a harm, while the object itself remains Mubah (permitted); this is according to the principle taken from when the Prophet

صلى الله عليه وآله وسلم prohibited the Army from drinking from the wells of Thamud.

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