Статья 36: Халиф олицетворяет собой государство, таким образом он обладает всеми полномочиями власти, а именно:
- 1. Принимая законы шариата, выводимые путем правильного иждтихада из книги Аллаха и сунны Его посланника, халиф делает их исполняемыми. Таким образом, подчинение этим законам становится обязательным и их нельзя нарушать.
- 2. Халиф несет ответственность за внутреннюю и внешнюю политику государства. Он является главнокомандующим армии, имеет право объявлять войну, заключать мир, перемирие и другие договора.
- 3. Именно халиф имеет право принимать и отклонять иностранных послов, а также назначать и отзывать послов Халифата.
- 4. Халиф назначает и снимает с должностей помощников (муавинов), а также губернаторов (валиев). При этом все они подотчетны халифу и маджлису-ль-умма.
- 5. Халиф назначает и смещает главного судью, начальников ведомств), командующих вооружен ными силами. Все они подотчетны только халифу и не подотчетны маджлису-ль-умма.
- 6. Халиф принимает законы шариата, на основе которых строится бюджет государства. Он определяет статьи бюджета и размеры сумм необходимые для каждой сферы государства, независимо от того, каса ется ли это доходов или расходов.
Article 36: The Caliph (Khalifah) possesses the following powers:
- He is the one who adopts the Shari’ah rules derived by a correct Ijtihadfrom the Book of Allah (swt) and the Sunnah of his Messengernecessary for managing the affairs of the Ummah so that they become laws (Qawanin) which are obligatory to obey, and it is not permitted to oppose them.
- He is responsible for governing the domestic and foreign affairs of the State, and he takes command of the Army; he has the right to announce war, to sign peace treaties, truces and all other types of agreements.
- He is the one who can accept or reject foreign ambassadors and appoint and remove the Muslim ambassadors.
- He is the one who appoints and removes the assistants and governors. They are all responsible to him as they are responsible to the Shura council.
- He is the one who appoints and removes the head judge and judges with the exception of the Madhalim judge in the event of his looking into a case regarding the Caliph (Khalifah), his assistants or his head judge. He also has the power to appoint and remove the department managers, the commanders of the army, and its generals. All of these are responsible to him and not to the Shura council.
- He is the one who adopts the Shari’ah laws according to which the budget of the State is decided, beside the sections of the budget and the amounts allocated to each aspect, irrespective to whether it was related to revenue or expenditure.
With respect to the detailed evidences for the six paragraphs mentioned in the article:
The evidence for paragraph “a” is the Ijma’ of the companions, since the law (Qanun) is a technical term which means: The command which is issued by the authority in order to govern the people according to it; and it is also known as “the collection of rules which the authority imposes upon people to follow in their relations”, in other words, if the authority orders specific rules, these rules are laws which the people are bound by, and if the authority did not order them then they are not considered laws and the people are not bound by them. The Muslims act according to the rules of the Shari’ah and ,therefore, they act according to the orders and prohibitions of Allah (swt) and not the orders and prohibitions of the authority. So they act according to the rules of the Shari’ah and not the orders of the authority. But, these Shari’ah rules were differed over by the companions, so some of them understood something from the Shari’ah texts whereas others understood something different from them, and each of them proceeded according to what they had understood, and their understanding would be the rule of Allah (swt) for them.
However, there are Shari’ah rules that the Muslims would all have to proceed according to one opinion in order to facilitate the management of the affairs of the Ummah, as opposed to each one following their own Ijtihad. This actually happened; Abu Bakr (ra) thought that the wealth should be distributed amongst the Muslims equally, since it was their right collectively. As for Umar (ra), he thought that it was not correct to give the one who had previously fought against the Messenger of Allah the same as the ones who had fought alongside him, or to give the poor the same as the rich. However, Abu Bakr (ra) was the Caliph (Khalifah) and so ordered the implementation of his opinion, in other words, the adoption of the equal distribution of the wealth. The Muslims followed his opinion and the judges and governors acted according to it, and Umar (ra) submitted to the opinion of Abu Bakr (ra) and he acted according to it and implemented it. When Umar (ra) then became the Caliph (Khalifah), he adopted an opinion which contradicted the opinion of Abu Bakr (ra); in other words, he ordered his opinion which was to distribute the wealth according to preference rather than equally. Therefore, he distributed the wealth according to those who embraced Islam earlier and according to need and the Muslims followed his opinion and the judges and governors acted according to it. So, there was an Ijma’ of the companions that the Imam could adopt specific rules and order their enactment, and that it was upon the Muslims to obey that even if it went against their own Ijtihad, and they had to leave acting according to their own opinions and Ijtihad. These adopted rules are the laws. Consequently, the passing of laws is for the Caliph (Khalifah) alone and no one else possesses that right at all.
As for paragraph “b”, its proof is the action of the Messenger of Allahsince he was the one who used to appoint the governors and the judges and account them, and he was the one who used to monitor the buying and selling, and prohibit cheating, and distribute the wealth amongst the people. He was also the one who used to help the one who was unemployed to find work and used to undertake all the domestic affairs of the State. In the same way, he used to address the Kings, meet the messengers and the delegations, and used to undertake all the foreign affairs of the State. Additionally, he used to practically undertake the leadership of the Army and so in the battles he would personally take leadership of the fighting. Hewas the one who sent the expeditions out and appointed their leaders. This was to the extent that he appointed Usama Bin Zaid as a leader over an expedition in order to send it to the land of As-Sham, even though the companions disapproved due to his young age, but the Messengerforced them to accept his leadership. This indicates that the Caliph (Khalifah) is the practical leader of the Army, and not merely the Commander in Chief alone. Additionally, it was the Messengerwho declared the wars against the Quraysh, Bani Quraythah, Bani Al-Nadir, Bani Qaynuqa’, Khaybar and the Romans. Every war which occurred was declared by the Messenger, which indicates that the declaration of war is only for the Caliph (Khalifah). He also contracted treaties with the Jews, and with Bani Mudlij and their allies from Bani Damrah, and he was the one who concluded the treaties with Yuhannatu b. Ruba, the companion of Ayla. He concluded the treaty of Hudaybiyah even though the Muslims were angry with it, but he did not refer to them and rejected their opinions and signed the treaty. All of which indicates that the Caliph (Khalifah) alone is the one who concludes the treaties, irrespective of whether it was a peace treaty or any other kind of agreement.
As for paragraph “c”, its evidence is that the Prophet met the messengers of Musailama, and met Abu Raafi’ as a messenger from the Quraysh; hewas the one who sent messengers to Heracules, Caesar, Al-Maqawqis (of Egypt), Al-Harith Al-Ghassani the king of Al-Hira, Al-Harith Al-Himiari the king of Yemen and to Najashi of the Abyssinians. He sent ‘Uthman Bin ‘Affan (ra) at Hudaybiyah as a messenger to the Quraysh. All of this indicates that the Caliph (Khalifah) is the one who accepts or rejects to meet the ambassadors and is the one who appoints them.
With respect to paragraph “d”, the Messenger used to appoint the governors; he appointed Mu’adh as a governor over Yemen. Hewas the one who used to remove the governors; he removed Al-‘Alaa Bin Al-Hadrami from Bahrain. Also, the reason why he removed Al-‘Alaa was due to the complaints of the people about him, which indicates that the governors are held responsible in front of the people they are governing in the same way they are held responsible in front of the Caliph (Khalifah) and in front of the Shura council since it represents all of the provinces. This is with respect to the governors. As for assistants, the Prophet used to have two assistants, Abu Bakr (ra) and Umar (ra), and he did not remove them nor appoint anyone other than them throughout his life. So he was the one who appointed them and did not remove them. However, since the assistant only takes his authority from the Caliph (Khalifah), and he is his representative, then the Caliph (Khalifah) would have the right to remove him, proven by analogy to the one given proxy, since the one who gave proxy to someone has the right to remove it, unless there is a narrated text which prohibits removing him in special circumstances.
The proof for paragraph “e” is that the Messenger made Ali (ra) the judge for Yemen and in Al-Isti’ab that the Messenger appointed Mu’ath Bin Jabal as judge over Al-Janad, a province in Yeman.
Umar (ra) used to appoint and remove the judges; he appointed Shuraih as a judge over Kufa and Abu Musa as a judge over Basra, while he removed Sharahbeel Bin Hasana from his governorship over As-Sham, and appointed Mu’awiyah. So Sharahbeel said to him “Did you remove me due to cowardice, or treachery?” He replied “Neither of them, but I avoided embarrassment to appoint you while there is a man who is more powerful than you” as it was reported in the Musannaf of Abdul Razzaq. ‘Ali (ra) appointed Abu Aswad and then removed him, and so he asked “Why did you remove me and I did not betray you nor committed a crime”, so ‘Ali replied “I saw that you would disregard those who dispute in front of you”. Both Umar (ra) and ‘Ali (ra) did this within the sight and hearing of the companions, and none of them rebuked them over this. This is therefore, all evidence that the Caliph (Khalifah) has the right to appoint judges generally, and in the same way to appoint someone else to appoint the judges, analogous to appointing a proxy, since he is able to deputise all his mandatory powers to anyone in the same way that he is permitted to appoint anyone as a proxy for him in everything that he is permitted to carry out.
As for making an exception for the removal of the Madhalim judge while investigating a case raised against the Caliph (Khalifah) or his assistant or his head judge, this is due to the Shari’a rule “the means to something forbidden is also forbidden”, since giving the power to the Caliph (Khalifah) to remove him in this situation means that there would be an influence on the verdict of the judge, and additionally it would prevent an Islamic ruling, which is Haram. Placing the power to remove the Madhalim judge in the hands of the Caliph (Khalifah) is a means to this Haram, and especially since this rule relies upon most probably doubt and not certainty. For that reason the power to remove the Madhalim judge in this instance is left with the Madhalim court, and in other circumstances the rule remains on its origin which is that the right to appoint and remove belongs to the Caliph (Khalifah).
With respect to the appointment of the department managers, the Messengerused to appoint registrars to administer the affairs, and they were equivalent to department managers. Al-Harith b. ‘Awf was appointed in charge of his seal; Mu’ayqib b. Abi Fatimah was appointed as registrar of the war booty; Huthaifa Bin Al-Yemaan used to register the yield of the crops in the Hijaz; Al-Zubayr b. Al-‘Awwam used to register the Zakat; and Al-Mugheera Bin Shu’ba used to register the debts and transactions, and so on.
As for the commanders of the Army, and the standard bearers, the Messenger appointed Hamza Bin Abdul Muttalib (ra) as a commander over thirty men in order to impede the Quraysh along the sea shore. ‘Ubaydah Ibn Al-Harith (ra) was appointed over sixty men and was sent to the Raabigh valley to face the Quraysh. Sa’ad Bin Abi Waqqas (ra) was appointed over twenty men and was then sent in the direction of Makkah. In the same manner he used to appoint the commander of the Army, all of which indicates that the Caliph (Khalifah) is the one who appoints the commanders and standard bearers.
All of these were responsible to the Messenger, and were not responsible to anyone else, thus indicating that the judges, department managers, commanders of the Army and the rest of the civil servants are not responsible except to the Caliph (Khalifah), and they are not responsible to the Shura council. No one is responsible to the Shura council except for the assistants and governors, and in the same way the administrators, since they are all types of rulers. Other than these, no one else is responsible in front of the Shura council; rather they are all responsible in front of the Caliph (Khalifah).
As for paragraph “f”, the various sections of revenues and expenditure of the budget of the State are limited by the Shari’ah rules, so no one is given a single Dinar unless it is due to them from a Shari’ah rule, and not a single Dinar is spent except according to the Shari’ah rule. However, the details of the expenditures, or what is known as the sections of the budget, are decided according to the opinion and Ijtihad of the Caliph (Khalifah), and the same applies to the revenues. For example, he would decide that the tax from the Kharajiyyah land would be x amount, and that the Jizya to be taken should be y amount, and similar to these are the sections of the revenues. He is the one who would decide that x amount should be spent upon the roads, and y amount upon the hospitals, and so on across all the sections of the budget. Therefore, it is referred to the opinion of the Caliph (Khalifah), and the Caliph (Khalifah) is the one to decide according to his opinion and Ijtihad. This is since the Messenger was the one who took the revenues from the administrators, and would take charge of how it was spent; some of the governors were given the permission to collect the revenues such as when Mu’adh b. Jabal was appointed governor over Yemen. After that, each of the righteously guided Khulafaa’ individually in their capacity as the Caliph (Khalifah) used to take the revenues and spend them according to their opinion and Ijtihad, and no one rebuked them over this. There was no one other than the Caliph (Khalifah) who would act independently with respect to collecting a single Dinar and no one would spend it unless he had permission from the Caliph (Khalifah) to do so, as what happened in Umar’s (ra) appointment of Mu’awiyah who was given a general governorship and so could collect and spend the revenues. All of this indicates that the sections of the budget of the State are drafted by the Caliph (Khalifah) alone, or by someone deputised by him.
These are the detailed evidences regarding the powers of the Caliph (Khalifah). And all of them are collected together in what was reported by Al-Bukhari from ‘Abd Allah Bin Umar that he heard the Messenger say
«... الإِمَامُ رَاعٍ وَمَسْـئُولٌ عَنْ رَعِيَّتِهِ»
“...The Imam (ruler) is a guardian and responsible (will be questioned) of his subjects”, and in the narration of Ahmad and Al-Bayhaqi and Abu Awanah from ‘Abd Allah Bin Umar
«الْإِمَامُ رَاعٍ وَهُوَ مَسْئُولٌ عَنْ رَعِيَّتِهِ»
“The Imam is a guardian and is responsible of his subjects”, in other words, everything that is connected to managing the affairs of the subjects from all issues is only for the Caliph (Khalifah) and restricted to him alone, and he can delegate whom he wants, to what he wants, as he wants, by proof that it is analogous to proxy.