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Islamic Democratic and Political System
Fatw Issued For Virtual Sharah Court
Imran A. Nyazee Version 1.0
nyazee@icloud.com February 19, 2013
Cite as: VSCF-5 (2012) |
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.x. ct.ixs are made by jurists and scholars that Islam has its own form of democ-
racy and political system; but when it comes to practical implementation there is
very little to rely on. It is also claimed that Islam has its own system of distributive
and social justice. In the light of such claims, what formwill the Islamic democratic
systemhave in the present times, and what political structures will be implemented?
A ruling is required within the context of the current democratic and political system prevailing in
Pakistan.
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1. It is impossible to issue a fatw that covers the entire democratic and political system to be
implemented in a country. All that can be done is to identify a few basic and vital principles. Once
these principles are identied, proposals can be made as to how these principles are to be converted
into actionable plans. These plans can then be debated, altered, improved and nalized. Accordingly,
the issues listed below are to be seen as those dealing with some basic principles and those providing
a basis for formulating proposals. In all these issues and proposals, Pakistan will be used as the target
model.
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2. The issues with respect to principles are as follows:
Whether the principle of one man one vote has an Islamic basis.
If the principle of one person one vote is not acknowledged as Islamic, what other principle
can be identied that will govern voting.
Whether the principles identied above can be linked to the Islamic form of distributive and
social justice.
3. The issues pertaining to proposals are listed below:
In the light of the political principles settled (above), how will the people vote?
What structures are contemplated for the dierent organs of the state?
What will be the Islamic guiding principles for all levels of government?
What provisions are to be made for those found guilty of corruption?
We will consider the issues dealing with principles together in the next section and thereafter follow
it up with proposals in the remaining sections.
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4. The authority to cast a vote is not a right, but a political power. It is the power to eect change.
A person who has the greatest number of votes behind him has the greatest power in a country. It
is customary to use the word right to mean a number of things. This has been demonstrated so
ably by legal philosophers and jurists, with the nishing touches given by Wesley N. Hohfeld. He
elaborated that the word right actually means four things: claim, power, liberty and immunity. The
true sense of right as we understand it is conveyed by the word claim. This shows that a right is
something claimed from another. Thus, I am at liberty to go out for a walk or to wear a hat or to
smoke, but it will not make sense to say it is a right, because I am not claiming it from another. The
word power, with which we are really concerned here, is also not a right in the sense of a claim. At
a minimum, it is the authority to alter the status of another. Thus, I have the right to appoint another
person as my agent (wakl). This alters his status and he acquires certain rights and duties due to the
power that I have exercised. Casting a vote is a similar exercise of power. In fact, it amounts to the
appointment of an agent, a representative, to whom you delegate your authority as a citizen to bring
about change or to manage aairs.
5. In Islamic law, this is exactly the sense in which such power or authority is exercised. It is
reected in the contract of bayah by means of which a Muslim authorizes another to manage, on
his behalf, the aairs of a country or land. Muslim jurists have declared the contract of bayah to be
the contract of agency.
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6. Throughout Islamic history, Muslim jurists have recognized this power of appointing the ruler
and bringing about change. It has sometimes been expressed under the principle of tribal solidarity
(aabiyyah) by Ibn Khaldn, as the power of the ahl al-all wa-al-aqd, and then openly as the
principle of shawkah (power). Even Ibn Taymiyyah did not give up this principle. Here is what we
wrote about him in our book called Theories of Islamic Law:
He retained the principle of shawkah (coercive power) as it had been developed by al-
Ghazl, along with the concept of mubyaah.
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Al-Ghazl had explained that the
purpose of shawkah was to gauge public opinion as a large number of divergent opinions
were gathered in one person possessing shawkah by virtue of his following. He says in
his al-Iqtid: The purpose is that a large number of divergent opinions be gathered
in one person commanding obedience, and the imm comes to command obedience
through the mubyaah of this person.
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Ibn Taymiyyah turned down the idea of
the imm being from the tribe of Quraysh, considering it as valid only for the period
immediately following the death of the Prophet (pbuh).
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As for the relationship that
exists between the ruler and the subjects, it is not only that of principal and agent (wakl),
but the imm is also the wal (guardian) and shark (partner) of his subjects.
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The ruler then is appointed through power or shawkah whose purpose is gather diverging opinions
and make them focus on the appointment of the ruler. The legal form through which this power is
exercised is the contract of agency called bayah. Thus, it is a power and not a claim or right.
7. There is no equality in power. People possess power in dierent ways and are unequal in this
respect. The Noble Qurn says: Allah sets forth the Parable (of two men: one) a slave under the
dominion of another; He has no power of any sort; and (the other) a man on whomWe have bestowed
goodly favors from Ourselves, and he spends thereof (freely), privately and publicly: are the two
equal? (By no means;) praise be to Allah. But most of them know not.
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The verse tells us that in
terms of power, people are not equal. In this particular case, the basis of power is wealth. Power
was once associated with military power or coercive power, but even then the basis for such power
was wealth; whoever had wealth could gather military power around him. Today, power has come to
be associated with the possession of wealth. Whoever denies this is denying a fundamental reality,
which the Muslim jurists were truthful enough to recognize. In the current democratic systems this
fundamental truth is denied by giving one man one vote. The result is that those with wealth start
playing havoc with the system through lobbying or other well known means, and the whole system
often appears to be a farce.
8. Allah Almighty has not considered the mere possession of power to be enough. The Qurn
says: Not equal are those believers who sit, except those who are disabled, and those who strive and
ght in the cause of Allah with their goods and their persons. Allah hath granted a grade higher to
those who strive and ght with their goods and persons than to those who sit (at home). Unto all (in
faith) Hath Allah promised good: But those who strive and ght Hath He distinguished above those
1. See Ibn Taymiyyah Minhj al-Sunnah al-Nabawyah f Naq Kalm al-Shah wa al-Qdaryah, 4 vols. (Cairo, 1321
A.H.) iv, 237.
2. Al-Ghazl, al-Iqtid, 238.
3. Qamaruddin Khan, Political Thought, 144-45.
4. Lambton, 149.
5. Qurn 16:75.
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who sit (at home) by a great reward.
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And again, Those who believe, and emigrate and strive with
might and main, in Allahs Cause, with their goods and their persons, have the highest rank in the
sight of Allah. they are the people who will achieve (salvation).
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9. The condition then is that power is not to be exercised in a ruthless manner, rather it is to be
exercised through ones goods and persons. In other words, wealth is to be used in the cause of Allah
for it is a power that Allah has bestowed on some. Not many people will use their goods and wealth
for the cause of Allah. The Qurn says: Allah has bestowed His gifts of sustenance more freely on
some of you than on others: those more favored are not going to throwback their gifts to those whom
their right hands possess, so as to be equal in that respect. Will they then deny the favors of Allah?
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The people with wealth, and consequent power, must, therefore, be provided with incentives that
encourage them to use their wealth for the greater good.
10. The incentives to be provided to those with wealth must have as their goal the securing of
the distributive and social justice system of Islam. In addition to this, the system must nd ways
to accord greater respect to such persons provided they are contributing their wealth to the system
or are striving in the cause of Allah with their wealth. In the early days of the British Empire, the
power of casting votes was linked to landed property. It was also linked to certain honours like being
appointed a member of the jury.
11. The power to cast votes on the basis of wealth contributed does in no way mean a superior
right to be elected or appointed to oce. The right to oce is a right and not a power, therefore,
everyone is equal in this respect whether he is very poor or very rich. The Qurn indicates this too:
Their Prophet said to them: Allah hath appointed Talut as king over you. They said: How can he
exercise authority over us when we are better tted than he to exercise authority, and he is not even
gifted with wealth in abundance? He said: Allah hath chosen him above you, and hath gifted him
abundantly with knowledge and bodily prowess: Allah Granteth His authority to whom He pleaseth.
Allah is All-Embracing, and He knoweth all things.
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12. The principles have been settled above and what follows in the remaining sections are propos-
als. There are two main goals of these proposals: (1) To set up an ecient political system; and (2)
To build the Islamic system of distributive justice into the political system.
13. Votes are to be allocated on a scale of 1 to 50, as follows:
The rst slab is that of persons who pay zakt. A person who has paid the highest amount
of zakt will be entitled to 50 votes. A person who has paid the minimum amount of zakt
will be entitled to 31 votes. The calculation of zakt will be based on the average amount of
the ve years prior to elections. As zakt returns will be included within the tax returns to be
led, the calculation of the number of votes to which a payee is entitled will just be a matter
of programming the software.
6. Qurn 4:95.
7. Qurn 9:20.
8. Qurn 16:71.
9. Qurn 2:247.
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The second slab will be those of taxpayers. A person who has paid the highest amount of
taxes will be entitled to 30 votes. A person who has paid the minimum amount of taxes will
be entitled to 11 votes. The calculation of taxes, again, will be based on the average amount
of the ve years prior to elections. Entitlements will be programmed into the software to be
used by the Federal Board of Revenue.
The third slab will be based on education. Aperson with the highest educational qualications
will be entitled to 10 votes, that is, if he is not paying any zakt or taxes. One with the lowest
qualifcations will be entitled to 2 votes.
The person who is illiterate, and does not pay any zakt or taxes, will be entitled to one vote.
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14. The British Parliamentary model or the American Presidential model will not be followed.
The following will be elected at the Federal level.
President: To be elected in a general direct nationwide election. President will have the
power to overrule or approve all decisions of the Ministers/Secretaries, but in practice he will
overrule or approve major projects and contracts. He will be the head of state and the head
of the executive. He will appoint the commander of the armed forces, the heads of automo-
mous institutions and the heads of government companies and corporations. He will have the
complete authority to terminate the services of all those he can appoint.
Ministers/Secretaries: Ministers, who will also be the secretaries and principal accounting
ocers of their respective ministries, will be elected along with the President. They will have
the complete authority to hire and re people in their ministries. The rest of the ocials of
the ministries will be professional ocers.
Lawmakers: Each district will elect one member of the legislative assembly to be called the
Majlis. The Majlis will make all laws, approve and sanction the budget as well as new taxes,
and will be able to question the ministries and other institutions to ensure that funds are being
utlized eciently. It will also give advice to the President in its Shura jurisdiction, when
asked by the President to do so. If there are 143 districts, the strength of the Majlis will be
143, but additional seats may be provided for women and minorities. The lawmakers will not
be allocated any funds for their districts nor will they have anything to do with the management
of the district; all they can do is voice the concerns of their district in the Majlis. There will
be only one House.
Judges of the Supreme Court: Ten judges of the Supreme court will be elected through a
nationwide election, along with the President. The Supreme Court will take up questions of
law alone, and will also have the power of judicial review of laws and administrative actions.
The procedure at the Supreme Court will be adversarial, to be implemented with lawyers
representing parties.
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15. Provinces to be abolished; the District will be an autonomous administrative unit. All sales
taxes will be levied at the level of the district alone. The district may also levy duties on goods
imported or exported by the district. The following persons will be elected.
The lawmaker of each district as described above.
The Mayor: He will be responsible for the administration and management of his district.
The district police will be under his control. He will have the full authority to hire and re
ocials in his district, other than the judges/qs.
Bench of District Judges: Two, or maximum three, judges will be elected by the district.
They will hear all cases as a bench with the powers of the current High Courts, which will
be abolished along with the provinces. The bench will hear appeals arising from the Tehsil
or Ilaqa Q. Appeals arising from the benches, involving points of law, will be heard by
the Federal Supreme Court. All other matters will be deemed nally settled at the level of the
district. The Tehsil or Ilaqa Q will hear appeals arising from the court of the local or Union
Council Q. The procedure at the Union Council will be inquisitorial to be implemented by
the Q with the help of a police station or sub-police station housed adjacent to the court.
This means no lawyers will be involved at this level. This q will record plaints/complaints
in his own hand and initiate the process if required, issuing swift judgments. The two higher
levels of courts will adopt the adversarial system with the help of lawyers. The judges of the
Ilaqa and local level will belong to the regular judicial service implemented by the Federation.
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16. All judges, members of the legislature and executive, as well as professionals employed by
the autonomous bodies will be guided in general terms by the maqid al-Sharah. See our module
No. 4 on the Secrets of Ul dealing with the subject.
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17. The death penalty must be provided for corruption exceeding a certain limit. The punishment
is to be scaled down for lesser amounts. This will be done under the siysah jurisdiction of the Imam.
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Allah knows best.
Imran Ahsan Khan Nyazee
Rabi al-Awwal 25, 1434
February 6, 2013