What were the Relationship between Executive and Legislature under Islamic law?

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Coming to the relationship between the Executive and the Legislature, it is to be observed that the amir or the Head of an Islamic State cannot merely be an ordinary member of the Majlis.

But must be its leader, duty-bound to guide its activities and to preside either personally or through a delegate over its delibera­tions.

Actually, in an Islamic State, there can be no radical separa­tion of the legislative and the executive branches of government.

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Although Islam is as uncompromisingly opposed to autocracy as any of the Western democratic polity, but in this matter, as in so many other matters, Islam follows a “middle way”, avoiding the disad­vantages of either of these systems and securing to the Muslim community the advantages of both.

By integrating the executive and the legislative branches of government through the instrumen­tality of the Amir (whose function as president of the legislative assembly has been made a necessary corollary of his executive func­tion as Head of State).

It is possible to overcome that duality of power which in Europe and America so often places the executive and the legislature in opposition to one another, and at times makes parliamentary government unwieldy or even ineffectual.

But this gain in efficiency (normally so characteristic of “totalitarian” autocratic governments) is, in an Islamic State, not achieved at the cost of relinquishing the principle of popular control over the activities of the government.

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Indeed, any possible tendency toward autocracy on the part of the executive is checked at the outset by the stipulation, amruhum shura baynahum, which means that the transaction of all governmental activities, executive as well as legis­lative, must be an outcome of consultation among the accredited representative of the community.

Pursuant to this principle of interdependence the logical con­clusion is that the decisions arrived at by the majlis al-shura through a majority vote are not merely of an advisory character to be accepted or rejected by the holders of executive power in their discretion but are legally binding on them.

At the same time although the Amir is bound by the legislation enacted by the majlis al-shura and by its decision on major ques­tions of policy.

The manner in which he executes those decisions and translates them in terms of day-to-day administration is left to the executive branch, over which he presides.

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The majlis, while empowered to frame the laws on the basis of which the country will be governed and to decide the major policies which are to be pursued and to supervise in a general way over the activi­ties of the Government, is not entitled to interfere with the day to-day working of the executive. From this, it follows that the Amir must possess executive powers within the fullest meaning of these words.

If there be a disagreement between the Assembly and the Head of the State, this is to be settled by reference to the Quranic Injunction:

“Obey God and obey the Apostle and those in authority from Among you”. (4:59)

But this quotation gives only the first part of the Verse. Its second part runs thus:-

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“Then, if you disagree in anything refer it to God and the Apostle”. (4: 59)

Evidently, therefore, when there is a fundamental difference between the majlis al-shura and “those in authority from among you” (i.e., the Amir).

The point in dispute should be referred by either of the two sides to the arbitration of Qur’an and Sunnah or, in practical terms, to a body of arbitrators who, after an impar­tial study of the problem, would decide which of the two conflicting views is closer to the spirit of Qur’an and Sunnah.

Hence, the necessity of having impartial machinery for arbitration a kind of supreme tribunal concerned with constitutional issues.

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This tribunal should have the right and the duty (a) to arbitrate in all instances of disagreement between the Amir and the majlis al- shura referred to the tribunal by either of the two sides, and (b) to veto, on its own accord, any legislative act passed by the majlis or any administrative act on the part of the Amir which.

In the tribunal’s considered opinion offends against a nass ordinance of Qur’an or Sunnah. In effect, this tribunal shall be the guardian of the Constitution.

Citizens and the Government

We may now turn to the relations of the citizens and the Government.

After the Amir has been duly elected, he may be considered to have received a pledge of allegiance (bay’ah) from the whole community, that is, not only from the majority that had voted for him but also from the minority whose votes had been cast against him: for, in all communal decisions not involving a breach of any Shar’i law, the will of the majority is binding on every member of the community. Thus, the Prophet (S.A.W.) said:

“The hand of God is upon the community (al-jama’ah);

And he who sets himself apart from it will be set apart in Hellfire.”

(/ami’ al-Tirmidhi, on the authority of ‘Abdullah bin ‘Umar)

Islam and the State

Consequently, if the government fulfils the requirements impo­sed by the Shari’ah, its claim to the allegiance of the citizens is absolute. They are bound.

“To hear and to obey, in hardship and in case in cricumstan- cues pleasant and unpleasant”

(Sahih al Bukhari and Sahih Muslim, on the authority of ‘Ubadah b. al-Samit)

If follows, therefore, that a government ruling in the name of God and His Prophet and in obedience to the Law of Islam has the right to call upon all the resources of the citizens including their personal possession and even their lives whenever the interests of the community and the security of the State demand such an effort.

Limits of Obedience

So long as the State conforms in its principles and methods to the demands of the Shari’ah, a Muslim citizen’s duty of obedience to the government is a religious obligation. In the words of the Prophet:

“He who withdraws his hand from obedience (to the Amir) will have nothing in his favour when he meets God on the Day of Resurrection; and he who dies without having considered himself bound by a pledge of allegiance [literally, “while there is no pledge of allegiance on his neck”] has died the death of the Time of Ignorance (i.e., as an unbeliever).”

(Sahih Muslim on the authority of Ibn ‘Umar)

In accordance with the principle of Muslim unity so strongly emphasized in Qur’an and Sunnah, any attempt to disrupt that unity must be regarded as a crime of the highest order in fact, as high treason and must be punished severely.

However, a Muslim’s duty of allegiance to the government, represented by the person of the Amir, is not unconditional. As has been laid down by the highest authority the Prophet himself it is due as long as he acts in accordance with the commands of Allah, the Prophet has said:

“No obedience is due in sinful matters: behold, obedience is due only in the way of righteousness (fi’l-m’aruf).” (Sahih al-Bukhari and Sahih Muslim, on the authority of’Ali)

In other versions of this Tradition, the Prophet is reported to have used the expressions:

“No obedience is due to him who does not obey God.” (Musnad Ahmad Ibn Hanbal, on the authority of Mu’adh Ibn Jabal)

“No obedience is due to him who rebels against God” (Musnad Ahmad Ibn Hanbal, on the authority of Ubadah ibn al-Samit)

Abu Bakr on election as the Caliph said: “O, people; I have been made the Ruler amongst you, and I am not the best of you. So if I act rightly, help me, and if I am in error, correct me.

Truth is a (sacred) trust, and falsehood is breach of trust. The weak amongst you is strong in my eyes till I bring, with the help of God, to him what is his right. And the strongest amongst you is weak (in my eyes) till I take from him, with the help of God, what is due.

O, people, never did a people give up the efforts in the path of Allah but Allah made them subject to disgrace and never did obscenity become public in any people but Allah put them into tribulations.

Obey me when I obey Allah and his Prophet (S.A.W.) and when I disobey Allah or his Prophet then I has no right to obedience from you.”

(Al-Muttaqi Kanz-al-Ummal)

From the above, it is evident that the citizens’ right and duty to watch over the activities of the government and to criticise its administrative and legislative policy whenever there is reason to suppose that matters are wrongly handled, is accepted in Islam.

In fact, there are many verses in the Qur’an and many sayings of the Prophet to the effect that to raise one’s voice against manifest wrong is one of the foremost duties of a Muslim, and particularly so, when the wrongdoer is the established authority. Thus, the Apostle of God said:

“The highest kind of jihad is to speak up for truth in the face of a government (sultan) that deviates from the right path.” (Sunan Abu Da’ud, Jami’ al Tirmidhi, and Sunan Ibn Majah, on the authority of Abu Sa’id al-Khudri)

But do the words of the Prophet imply that the citizen has a right to rise in rebellion against the Government whenever it con­travenes any of the Shar’i laws? This is a logical question, but this course was not favoured by the Apostle of God:

“He who has pledged allegiance to a leader (Imam), giving him his hand and the fruit of his heart, shall obey him if (or: “as long as”) he can.”

(Sahih Muslim, on the authority of Abu Sa’id al-Khudri)

Thus, the citizens’ duty to watch over the activities of the government, and their right to criticize it and, in the last resort, to depose it, should on no account be confused with a right to rebellion by an individual or a group of individuals.

It is only by an open verdict of the majority within the community that an established Muslim government may be removed from power, as far as possible, only by peaceful means.

Freedom of Opinion

However, it is not only on the question of whether a government is to be deposed (a question which probably would arise only on rare occasions) that a Muslim citizen is obliged to exert his critical faculties and to summon his moral courage to stand up for right and justice: for, according to the Quran, he is duty-bound to combat evil wherever he encounters it, and to strive for justice whenever people disregard it. The Prophet said:

“By Him in whose hand I repose! You must enjoin right and forbid wrong, or else God will certainly send down chastisement upon you; then you will call to Him, but He will not respond to you.”

{Jami al-Tirmidhi, on the authority of Hudhayfah)

It is the duty of every thinking Muslim to subject his social environment to continuous, searching criticism for the common good The Apostle of God (S.A.W.) said:

“Only two (kinds of men) may rightly be envied: a man whom God has given wealth and thereupon endowed him with the strength to give it away in the cause of justice; and a man whom God has given wisdom and who acts in its spirit and imparts it (to others).”

(Sahih al-Bukhari and Sahih Muslim, on the authority of ibn Mas’ud)

Thus, the duty of criticism and advice so essential for a healthy growth of civic consciousness in the Islamic sense does not exhaust all the ideological obligations of the individual citizen towards the community.

A truly Islamic life pre-supposes and demands unceas­ing ijtihad in all matters not laid down in the incontrovertible, nass ordinances of Qur’an and Sunnah.

In other words, the intel­lectual leaders of the community are morally bound to bring forward whatever new ideas they may have relating to communal progress, and to advocate such ideas in public.

And for this reason the right to a free expression of one’s opinions in speech and in writing is one of the fundamental rights of the citizen of an Islamic State.

It must, of course, be understood that such freedom of opinion and of its expression (which naturally includes the freedom of the press) must not be used for incitement against the Law of Islam or sedi­tion against the legally established government.

While a Muslim is bound to subordinate his personal interests to the interests of the Islamic State as a whole, it is also the duty of the Government to extend its protection to the life and property of the citizen.

The Prophet in his famous sermon at ‘Arafat, on the occasion of his Farewell Pilgrimage declared:

“Behold your lives and your possessions shall be as inviola­ble among you as the sacred inviolability of this very day (of Pilgrimage).”

(Sahih Muslim, on the authority of Jabir ibn ‘Abd Allah) And on another occasion he said:

“The blood, property and honour of a Muslim must be sacred to every (other) Muslim.”

(Sahih Muslim, on the authority of Abu Hurayrah)

This, taken together with many other similar injunctions in Qur’an and Sunnah, requires the incorporation of a clause in the Constitution of an Islamic State to the effect that the lives, persons, and possessions of the citizens are inviolable, and that none shall be deprived of his life, freedom, or property, except by due process of law.

All these Traditions, read in conjunction with the Quranic command:

“O, you who believe! Do not enter houses other than your own unless you have obtained permission and saluted their inmates.” (24: 27)

Call for a constitutional enactment which would guarantee the inviolability of a citizen’s home, private life, and honour, and would prohibit the government from indulging in activities that might run counter to this fundamental guarantee.

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