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Fatawaa


Subject : Islamic Ruling on Adherence to the Constitution of the State

Fatwa Number : 3798

Date : 31-08-2023

Classified : Current Issues

Fatwa Type : Search Fatawaa


Question :

What is the ruling on adherence to the state`s constitution and does this contradict with abiding by the provisions of Sharia?



The Answer :

All perfect praise be to Allah the Lord of the Worlds. May His peace and blessings be upon our Prophet Mohammad and upon all his family and companions.

The constitution constitutes the fundamental principles and rules that define the structure of the state, the system of governance, and the form of the government. It also regulates the public authorities in terms of their composition, jurisdiction, relationships, and boundaries. Additionally, it establishes the basic rights and duties of individuals and groups, while providing safeguards against abuses of power. All laws derive their validity from the constitution, which holds a foundational position in the legislative pyramid.

The purpose of a constitution is to serve as the legal reference point for a state, ensuring the preservation of rights and duties between the state and individuals as well as organizing the functioning of the different authorities within the state. This was exemplified by the Prophet Muhammad (peace be upon him) when he arrived in Medina. He established a covenant between the Muslim migrants (Muhajireen) and the local supporters (Ansar) as well as the non-Muslim Arab residents and Jewish tribes. This covenant, known as the "Constitution of Medina" or the "Prophetic Covenant," was aimed at regulating relations between the various Muslim and non-Muslim groups in Medina, promoting social harmony and cooperation. This covenant can be considered an early form of what is now known as a constitution.

Constitutions encompass general principles that shape a state's identity and define its various relationships and administrative arrangements. These relationships and administrative arrangements, overall, often fall under the purview of the principles established by Islamic law (Sharia) as a matter of public interest. They are part of what can be considered "Masalih Mursala" or "unspecified public interests" that fall under the realm of legislative discretion. In other words, these matters are within the domain of governmental policy that does not have specific and detailed injunctions in Sharia. Instead, those in positions of authority make decisions in accordance with the welfare of the subjects, guided by the jurisprudential principle: "Actions taken on behalf of the subjects must be based on their best interests."

Therefore, adhering to the provisions of the constitution and the legal statutes is a form of obedience to the governing authority, which has endorsed their implementation. Obeying the ruling authority is obligatory as long as it does not entail disobedience to Allah's commands. This obedience is essential for maintaining unity, preventing discord, preserving the stability of the state's system, and preventing disorder. There are many evidences to support this, including:

The saying of our Prophet Mohammad (peace be upon him): "Listen and obey, even if an Abyssinian slave with a head like a raisin is made governor over you." (Transmitted by Bukhari).

And his saying (peace be upon him): "He who throws off obedience will meet Allah on the day of resurrection without possessing any plea." (Transmitted by Muslim).

And his saying (peace be upon him): " One who has a governor appointed over him and he finds that the governor indulges in an act of disobedience to Allah, he should condemn the governor's act, in disobedience to Allah, but should not withdraw himself from his obedience." (Transmitted by Muslim).

And his saying (peace be upon him): " It is obligatory for one to listen to and obey (the ruler's orders) unless these orders involve one disobedience (to Allah); but if an act of disobedience (to Allah) is imposed, he should not listen to or obey it." (Transmitted by Bukhari).

Sheikh al-Islam Imam Nawawi, may Allah have mercy upon him, said: "Obedience to the ruler is obligatory in matters of his command and prohibition as long as it does not contradict a ruling of the Sharia, that is, he does not command something forbidden (haram), whether he is just or unjust." [Al-Rawdah, Vol. 10, Page 47]. Therefore, obedience to the ruler is obligatory if he commands something recommended or permissible, and it involves a general benefit. If there is no general benefit in it, then it becomes obligatory to comply openly, as a means of preventing discord or harm. For more details, kindly check [Hashiyat Al-Ubadi Ala Tohfat Al-Mohtaj, Vol.3, Page 70].

What the ruler prohibits follows the same principles as what he commands. Imam Ibn Qasim al-'Ibadi, may Allah have mercy upon him, said: "It appears that what he prohibits is similar to what he commands, meaning that it becomes impermissible to commit it, even if it is something permissible." [Hashiyah al-'Ibadi 'ala Tohfat al-Muhtaj, Vol. 3, Page 70].

Therefore, obeying the ruler is obligatory, both outwardly and inwardly, when he commands something that is obligatory and its obligation is established, or when he commands something recommended or permissible and it serves a public interest. However, if he commands something forbidden or permissible without a public interest, obedience to him is not obligatory. This is because obedience is not required in sinful matters, and it is not permissible in matters that are impermissible. Nevertheless, the command to commit a sin is not a justification for rebellion against the ruler. Instead, such matters are addressed through enjoining good and forbidding evil, and offering sincere advice.

The Prophet Muhammad, peace be upon him, said: "The deen (religion) is naseehah (advice, sincerity).” We said, “To whom?” He (PBUH) said, “To Allah, His Book, His Messenger, and to the leaders of the Muslims and their common folk." [Transmitted by Muslim].

Imam Nawawi, may Allah have mercy upon him, explained the concept of advice to the leaders of the Muslims: "Advice to them includes supporting them in what is right and obeying them in it, enjoining what is good, and gently reminding them. It also involves informing them about matters they may have overlooked regarding the rights of Muslims, refraining from revolting against them, and fostering the hearts of the people for their obedience. Al-Khattabi, may Allah have mercy upon him, said: 'Part of advising them is to pray behind them, engage in jihad with them, give charity to them, refrain from taking up arms against them if evident evil or wrongdoing emerges from them, not being deceived by false praise of them, and supplicating for their righteousness.' All of this is based on the understanding that 'leaders of the Muslims' refer to the caliphs and others who are in authority over the affairs of the Muslims." [Sharh Nawawi 'ala Muslim, Vol.2, Page 38].

 

Narrated by Ubada bin As-Samit, may Allah be pleased with him: "We gave the Pledge of Allegiance to the Prophet, pledging to listen and obey in times of ease and difficulty, in hardship and ease, and not to dispute the authority of those in power unless we see clear disbelief for which we have proof from Allah." [Transmitted by Bukhari and Muslim].

Imam Nawawi, may Allah have mercy upon him, explained the meaning of this hadith in his commentary: "The meaning of the hadith is not to dispute the leaders of authority in their governance and not to oppose them, except when you witness from them a clear and well-established violation that you know is against the principles of Islam. In that case, you should reject it and speak the truth wherever you are. However, rebelling against them and fighting them is prohibited by consensus of the Muslims, even if they are sinful oppressors. The hadiths have consistently indicated this understanding, and the people of the Sunnah have unanimously agreed that a ruler is not to be removed due to sin. …………………Scholars have stated that the reason for not removing a ruler and the prohibition of rebelling against them is due to the resulting chaos, shedding of blood, and the corruption it brings to society. Therefore, the harm caused by removing the ruler is greater than leaving them in power." [Sharh Nawawi 'ala Muslim, Vol. 12, Page 229].

Similarly, obedience to those appointed by the ruler is obligatory, as it is tied to obeying the ruler. This is in accordance with the saying of the Prophet Muhammad, peace be upon him: "Whoever obeys me, he indeed obeys Allah, and whoever disobeys me, he indeed disobeys Allah, and whoever obeys the Amir (ruler), he indeed obeys me, and whoever disobeys the Amir, he indeed disobeys me." [Transmitted by Bukhari and  Muslim].

Indeed, the provisions of the constitution or the laws that emphasize obligations, command what is recommended or permissible for the sake of public welfare – and this is the case in many Islamic countries' constitutions – are religiously obligatory to be followed. Whoever goes against them is committing a sin. However, if those provisions or laws command what is forbidden, then obedience in sinful matters is not binding, and does not necessitate rebellion or fighting. Instead, such matters should be addressed through advising, enjoining good, and forbidding evil, all while preserving unity and solidarity. And Allah the Almighty knows best.

 

 






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