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Topics Dr. Apart from occasional decrees by the head of state which addressed issues of constitutional law, constitutional matters were often regulated by reference to custom.
Customary rules were naturally slow to develop. W e also note. The founder of the Umayyad dynasty. Mu'awiyah, for example, was the first t o appoint an heir apparent walial-'ahd and thereby validate hereditary succession. Notwithstanding initial protest and resistance t o this innovation. It thus appears that the basic validity of the earlier custom remainded questionable as it departed from the normative precedent of the Rightly- guided Caliphs.
In response to a question whether constitution-making was at all acceptable to Islam. Rashid Rida issued a fatwci in which he answered the question in the affirmative stating that since the cardinal duty of government in lslam was t o implement the laws of Shari'ah, the idea of a limited govern- ment whose powers were defined by the constitution, and a consultative government which was committed to the basic rights of people was acceptable to Islam.
If enacting a formal constitution operated as a check on despotism and contributed to the ideals of equality and justice. If however the constitution contains rules which may be repugnant to the teachings of Islam, then it may be said to be ultra vires with regard t o its controversial elements only.
T o substantiate this point. Rids further observed that in the history of Islamic jurisprudence one finds numerous instances where the jurists have made errors in their ijrihad and in the books they have authored. W e ought only to reject the views that are erroneous but not the whole of their endeavour. The error must be corrected at an early opportunity so that the community is protected against deviation.
The Blessed Prophet chose simplicity and preferred to be treated as one among equals. In doing so he only exemplified the teachings of the Qur'Bn. There is no recognition in the holy Book of any grounds of superiority of individuals or nations to one another except for moral rectitute and taqwa.
He is on record to have stated, for example: "I am neither a king nor it tyrant. This also included a request by the Prophet that no one should stand in ceremony for him upon arrival.
Further to this effect we read in a hadith, reported by A b l Dii'ld, a warning with punishment in the hereafter for "those who love to be glorified by other men".
Al-Ghaziili elaborates that the Blessed Prophet used to sit with the Companions like one among them. Then the Companions requested if the Prophet would make himself prominent for purposes of recognition.
On one of his inspection tours to Syria, 'Umar noted signs of pomp and ceremony on the part of his governor, Mu'iiwiyah, whereupon the caliph said: "Is this an empire you are building akisrawiyyah ya Mu'awiyah? I may not take anything if I am not in need. Islam proposes a welfare state and this is known from the overall emphasis in the Qur'an and the Sunnah on helping the helpless.
The Qur'an thus speaks unequivocally of a basic right when it stipulates: "And in their wealth there is a right for the one who asks and the destitute li'l-Sa'il wa'l-Mahram " Those who solicit help, and those who are in need but may feel restrained from asking are thus equally entitled to assistance.
Similarly, the Qur'an here speaks of the needy and destitute in general, irrespective of whether they are Muslims or not. The general import of this text is supported in another passage which praises with distinction those who "feed for the love of Allah the indigent. But zakah is a special tax on the rich to be distributed among the poor in order to narrow the gap between them to a tolerable level.
It is reported that the Prophet's daughter, who was married to 'AIi, asked her father if she could be provided with a servant for home help. The Prophet declined the request stating: By Allah, I shall not grant this while the Ah1 al-Suffah a group of indigent Emigrants Muhajirun who needed to sleep in the mosque for lack of shelter suffer from hunger and I do not find enough to feed them. The caliph told the Keeper of bayt al-mal, "By God it is unfair that we ate from the fruit of his youth and then we let him down in his old age.
Islam's emphasis on distributive justice has found a vivid expression in the views advocated by Abu Dharr al-Ghiffsri, prominent Companion, who thought that Islam did not permit a Muslim t o accumulate wealth beyond his needs, and thaf the surplus wealth should be expended on community welfare and on assisting the poor. Be that as it may, despite their consesus on the welfare commitment of the state, M a l i m jurists have also held that acquisition of wealth through lawful means is not against the teachings of slam.
The Qur'an thus de- nounces those who refuse t o grant a small kindness when they can easily afford it: "Woe to those worshippers who neglect their prayer, who make a show, yet refuse a small kindness" Similarly if they nccd clothes to keep warm. This is the ruling of the Hanbali school but there is a difference of opinion among the madhahib as to whether the owner may or may not charge a fair price for these provisions.
He is the central figure in the state who is entrusted by the community with general authority wiluyuh by virtue of the contract of representation wakalah upon his election.
The Imam then delegates his power to other officers of state. They all exer- cised their authority directly or delegated it to others at their discretion and convenience. The theory of khilufah gave the head of state a wide range of executive powers including an indefiniteterm of office, unlimited power in fiscal matters and appointment of officials.
He was the supreme executive and administrative ruler of the land and yet he was never absolute ruler. Thc hcad of state was not only subject to the overriding authority of the rrttmruh and Shariah but also depended on support from the 'ulamri' and individual members of community who could act, in their capacity as bearers of divine trust.
Under the doctrine of khilifuh, government officials exercised delegated authority in the capacity either of leading officers of state who partook in political authority, or hukm, or in the capacity of assistants. The leading officers were in turn assisted by deputies and assistants who acted as administrative officers but did not partake in hukm.
The prerogative of unrestricted political and executive authority thus belonged exclusively to the head of state, who was vested with it by virtue of the community's pledge of allegiance bay'ah. In sum. To this effect, al-Sanhuri wrote that unity wahdah of government in the territorial domain of the historical khilafah was reflected in a unified central authority sul!
The matter thus remains open to considerations of public interest mqlahah and consultation shLra. It is through these methods that necessary adaptation and adjustment in the administrative structure of the state could be devised and implemented.
Politically, this rules out all forms of absolutism, and legally, it paves the way for development of constitutional norms and standards by which it limits the state power. The Islamic state is also a consultative state. For it is bound, as already noted, by the requirement of consultation and due regard for the wishes of the community and the general consensus of 'ulama'. The powers of the head of state are also limited by reference to khilafah which means that he acts in the capacity of the trustee of both God Most High and the community of which he is an employee and representative.
The community is entitled in turn to depose the head of state in the event of a serious breach of trust, flagrant deviation from the Shariah, or loss of capacity to discharge his duties. Furthermore, the individual in an Islamic state enjoys considerable autonomy as many aspects of his life in the community remain outside the domain of law and qovernment. Only the latter are enforceable through formal objective sanctions, but most of the religious aspects of the individual's life in society are private and non-justicible.
Even some of the religious duties like salah, fasting, the hajj and much of what is classified as recommendable mandcb and rep- rehensible makruh are not legally enforceable, With reference to the pri- vate rights of the individual, there is no authority in the government to waive or grant discretionary changes in these rights, which are generally known as haqq al-'abd.
Islamic Studies, l 33 The head of state and judge do. We note further that government officials, including the head of state, are subject to the rule of law in precisely the same way as other members of the community. All are subject to the same law and the general jurisdiction of the Shari'ah court.
And lastly, the Shari'ah sets limit to the authority of government regarding taxation in at least five ways. It is a government of the Shadah. But in a substantial sense, it is a popular government since the Shadah approves and validates the will and consensus of the people.
Bay'ah is. Hereditary succession, which was developed under the Umayyads, is anomalous and contrary to the precedent of the Rightly-guided Caliphs. The head of state is only one among the entire community of equals and he rules by virtue of the trust the community has reposed in him. Separation of powers which is a pillar of Western democracy is also upheld in the Islamic state. The head of state and the judge are both under the same duty in this regard and the judge needs no authorisation from any superior a a o r i t y in the implementation of Shariah.
The office of the head of state is basically executive in character which is designed basically to regulate and to administer rather than legislate and originate.
Although, the people remain the main sources of authority in an Islamic polity, the basic structure of values in Muslim society is determined by reference to divine revelation. But within that framework, the community is the locus of considerable authority. It is the ummah, as stated earlier, whose authority the government represents.
The government is accountable to it and the ummah is entitled to depose a leader who is in serious violation of the terms of his office. Despite allegations that Islam does not recognise majority rule in the way it is recognised in the West, there is evidence t o show the weakness of such a claim. The majority ruling, often referred to as the jumhur, has ubiquitous recognition in the works of Muslim jurists, who often refer to the rules of fiqh as being the ruling of the jumhlr.
We alsd note here al-Miiwardi's illustration of the application of majority rule in the selection of the ImcSm in ;alih where he states: "It is the right of the congregation ah1 al-masjid to elect the imam.
But if they disagree among themselves the choice of the majority prevails. In the absence of unanimity, however the majority ruling still constitutes a proof wa'l-kathrah hujjah next to ijmri'.
It is even suggested that most of what we know in the name of ijma' consists in fact of majority opinion. Furthermore, the Sunnah of the Prophet is replete with emphasis on adherence to the jamri'ah lit. In this sense, the Shariah as a whole, as well as the juris corpus offiqh, may rightly be characterised as pro-majority, pro-ummuh and pro-jami'ah.
The govern- ment and the 'ulamti' are under duty to act in pursuit of the public interest. In the event of a conflict arising between private and public interests, the latter would normally prevail. And, lastly, the constitutional theory of khilafah is clear on the point that the head of state is elected on the basis of majority vote. In the event of more then one candidate for leadership, the candidate who has been given bay'ah by the majority becomes the Imam. The evidence we have reviewed, however, suggests that Islam does not advocate theocracy.
If theocracy is understand to mean government by religious lead- ers who command holiness and spiritual authority, such as that of the Pope in the Midle Ages, then this is definitely not the case in Islam. In a theocracy, the leaders claim to represent God's authority and will, including such powers as the pardoning of sins. Islam does not propose such a government, nor does it vest any particular group of people, be it the 'ulama' or religious leaders, with monopoly over power.
The Islamic government acquires its authority from the people and it is bound by their mandate. H e represents and exercises the authority of the people and has no claim to holiness.
The ummuh is also entitled to depose the head of state when the circumstances so require. The head of state has no authority to issue a verdict, or fafwi, in religious matters. This is the prerogative of the learned, namely the mujtahidh. Unless the head of state is a mujtahid, which he ought to be, he has no authority to issue fafwi by virtue only of being head of state.
An historical incident that can be cited in this context is when the Caliph Ma'mtin exceeded the limits of his authority by imposing the theological view of the Mu'tazilah on the people, he was met with resistance from Imam Ibn Hanbal and many others. Hence the claim that Islam is a theocracy is substantially unjus- tified.
The form that the state might take. The Shariah permits new legislation through ijrihud. The Sharrah also contains. Islam does not have either a church or a clerical order in the way that is found in other major religions. Islamic political leadership is civilian by all of its attributes. The essence of tawhid as a working idea, according to Muhammad Iqbal is equality, solidarity and freedom. The state, from the Islamic standpoint, is an endeavour to transform these ideals into reality.
It is in this sense alone that Islam is a theocracy, not in the sense that it is headed by a representative of God on earth. The state according to Islam is only an effort to realise the spiritual in a human organisation. Match case. Cashback will be credited as Amazon Pay balance within 10 days.
This collection of traditional ghazals was followed by a collection of nazms ; translations of foreign poetry; and by many works in free verse. There is no aspect of culture that the book has left untouched. Author Description Kishwar Naheed is one of the best- known feminist poets of Pakistan. Pakistan ki Tehzeeb o Saqafat. Would you like to tell us about a lower price? Her daily columns in Jang were also collected and published in Kishwar Naheed is one of the best- known feminist poets of Pakistan.
See our Returns Policy. Delivery and Returns see our delivery rates and policies thinking of returning an item? To get the free app, enter mobile phone number. There is of course a personal touch in her treatment of her subject. Get to Know Us. As could be expected from a writer of her stature, in places it is critical of the suppression of cultural activities during the Martial Law of General Zia ul Haq.
Visit our Help Pages. Share your thoughts with other customers. She held the position of Director General of the Pakistan National Council of Arts before her retirement, edited a prestigious literary magazine called Mah-i- Trhzeeband founded an organization named Hawwa Eve whose goal is to help women without independent incomes to become financially independent through cottage industries and selling handicrafts.
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