This is an extract from the book ‘The Islamic Khilafah: A Manifesto for Change’ by Hizb ut-Tahrir Britain.
PART III: POLITICS – Accountable governance, representation and justice
AN EFFECTIVE VISIONARY EXECUTIVE
The Shari’ah puts extensive executive powers in the hands of the Khaleefah thus empowering him to make radical and far‐reaching decisions in the long term interests of the people. There is a contract (bayah) between the people and the Khaleefah, where the people pledge obedience and the Khaleefah pledges to rule by Islam.
The Khaleefah is appointed by election in all but one exceptional emergency circumstance. The present day constitutes such a circumstance ‐ a total absence of Islamic rule. Today the first person who fulfils the Shari’ah conditions and acquires power in a Muslim country, where there is popular support for an Islamic State, will automatically be appointed by the power brokers in the country. Whist the situation for the first Khaleefah is less than the normal electoral ideal required by the Shari’ah, it is the Shari’ah itself that mandates this exception.
Notwithstanding this exception, the mandate of the first Khaleefah will be based on the desire of the people for Islam and his ability and political will to fulfil this. Should he fail to live up to this, the Madhalim Court will remove him and fresh elections will be held.
He is appointed to a life term subject to maintaining certain conditions such as competence and adherence to the Shari’ah. He is consequently protected from corporate lobbying and the manipulation of international powers.
Since the Shari’ah has specified the solutions that the Khaleefah needs to apply, then in that respect his job is more straightforward than that of rulers that use a fluctuating, ever changing set of solutions to govern the country. The Khaleefah’s responsibilities are detailed exhaustively within multiple Shari’ah evidences and the delivery of all the Shari’ah solutions in an optimal and effective way is ultimately the responsibility of the Khaleefah.
He will appoint governors to run each province, the head of the judiciary, the head of the armed forces and the head of the civil service.
MULTIPLE MEANS OF ACCOUNTING THE EXECUTIVE
With such a strong executive the Shari’ah puts strong constraints on him so that the benefit of a strong, visionary leader can be maintained, whilst protecting against the ever present possibility of the abuse of power and corruption.
Removing an incompetent ruler is straightforward.
A broad set of checks and balances will be set up to provide a strong counter‐balance to executive abuse:
- SHARI’AH – The Shari’ah itself must be adhered to by the Khaleefah in his ruling. He cannot make something prohibited legal and remain in power e.g. he cannot allow torture or run an interest based economy and remain in power.
- UMMAH ‐ RESPONSIBILITIES OF CITIZENSHIP – The Shari’ah requires that the people are educated as to the responsibilities of citizenship in that they should support the leader, account him harshly if he strays from Islam and confront him if he openly abandons Islamic ruling. The citizens are the first and last line of defence to protect the Islamic State and its solutions and they should see themselves in this light.
- MADHALIM COURT (COURT FOR THE INVESTIGATION OF UNJUST/INCOMPETENT RULING) – the Madhalim judges have both extensive resources and powers to proactively scrutinise and remove either the Khaleefah or his governors should wrongdoing be proved or to investigate any public harm that has occurred as a result of decisions made by the ruling apparatus. The Khaleefah is not permitted by the Shari’ah to interfere in the Madhalim process when the Khaleefah himself is the subject of the investigation.
- SCHOLARS/ULEMAH – Independent scholars provide Islamic rulings and their discussion is not under the jurisdiction of the Khaleefah. The Ulemah are fundamentally charged to scrutinise and correct the Khaleefah on his understanding and adoption of the Shari’ah rules.
- THE COUNCIL OF THE UMMAH – The Shari’ah mandates that the Khaleefah seeks consultation from the people. The Council of the Ummah constrains the Khaleefah in his decision making on a wide variety of issues including his selection of staff such as governors, civil servants and assistants. This provides a strong check and balance against a trend to tyranny, corruption or incompetence.
- POLITICAL PARTIES – an unrestricted number of political parties, that support the principle of the Islamic system, are encouraged to form and to acquire seats in the Council of the Ummah in order to account the Khaleefah and offer consultation.
- INDEPENDENT MEDIA ‐ Media organisations should view scrutiny and accountability of government as one of their central roles.
SHARI’AH IMPARTIALITY, JUDICIAL INDEPENDENCE AND LEGISLATIVE STABILITY
The ruler cannot take rules that are not from the Shari’ah. He cannot modify the Shari’ah. He has to take all his solutions from Islam and show that he has done so or face censure and potential dismissal.
The Shari’ah itself has a rich structure and is able to accommodate and provide solutions by analogy to any and every new potential issue.
This provides a considerable amount of stability to legislation in the political, economic and social sphere. Indeed the pillars of Islamic solutions such as a non‐usury based economy or a fully backed currency, or the rights of minority citizens are not up for discussion by either the ruler or the people. They cannot therefore be tampered with for political expedience.
Crime categories, punishment categories, taxation laws, election laws, international trading laws to mention but a few are built upon consistent Shari’ah principles.
This stability prevents the executive from making fundamental errors in economic, political or social areas and focuses it on effective and practical implementation.
The judiciary abides by the Khaleefah’s adoption of Shari’ah rules regarding Islamic solutions in the state as opposed to the Khaleefah’s arbitrary decision. The Shari’ah essentially limits the excesses of state and rulers.
RULE OF LAW
A head judge will be appointed by the Khaleefah to whom the Khaleefah could delegate the power to appoint the remaining judges in the judiciary.
a. SPECIALISED JUDICIARY
The head judge will then appoint the following 3 categories of judges ‐ retraining existing judges as appropriate:
- Judges (Qadi) ‐ dealing with everyday crimes and disputes in contrast to the specialist judges.
- Public interest judges (Hisba) ‐ dealing with trading standards, commerce and other public interests such as the safety of traded goods or working conditions.
- Ruling impropriety judges (Madhalim) – investigating, accounting and prosecuting members of the executive and the civil service as well as investigating decisions made by them.
The Shari’ah defines the classes of transgression. It also determines the categories of punishment for each class. It determines the range of judicial discretion in fixing the nature of the punishment. It also determines the court process itself. There is little scope to subvert due process.
The Shari’ah mandates swift justice with a presiding judge with as many advisors as he deems sufficient. The Shari’ah precludes the idea of a jury: the arbitrary and potential prejudiced views of random members of the public have no role in determining the guilt or otherwise of the individual; furthermore the Shari’ah has a vast range of mechanisms to prevent both executive and judicial injustice. Judges will be kept under scrutiny by a specific set of officials working for the Madhalim (ruling impropriety) department. Incompetence or corruption can result in summary dismissal. Miscarriages of justice will be referred to the Madhalim judges and will be speedily addressed. Plaintiff and defendant will be assisted by legal professionals in presenting their arguments, however the culture of exploitation of loopholes in legal interpretation and process will be eradicated. The politicisation and commercialisation of justice will be stopped and rolled back.
b. DEDICATED COURTS FOR IMPROPRIETY IN RULING
The Khaleefah, all governors and indeed all officials in a ruling position and all ruling decisions will be subject to scrutiny by the Madhalim court ‐a body setup to scrutinise injustice in ruling.
This court will proactively monitor and account ALL personnel in executive positions and their decisions, in addition to responding to citizens’ complaints.
It has extensive powers of dismissal up to and including the Khaleefah himself. The Khaleefah appoints the head of the court but cannot dismiss the judge if he is presiding over a trial where the Khaleefah himself is accused.
The Madhalim court body will be empowered with sufficient personnel and resources to effectively carry out this crucial job. This includes access to executive records, an investigative staff and all other resources necessary to make it extremely difficult for the executive to abuse its power.
c. NO PUNISHMENT WITHOUT A JUDGES DECISION
There is no punishment without a judge assessing the situation and making a decision. This applies to all 3 categories of judges. No citizen is permitted to dispense justice arbitrarily.
d. NO ONE IS ABOVE THE LAW
There is no immunity from prosecution for any citizen of the State, whether civilian or military. The executive, including the Khaleefah, enjoys absolutely no immunity from prosecution. There is no concept of pardon by the executive.
e. NO TORTURE/ARBITRARY DETENTION
Torture and arbitrary detention are absolutely forbidden by the Shari’ah. The executive, the army, the police or the intelligence services are not permitted under any circumstances to employ these means and no executive decision can circumvent these restrictions.
POLITICAL PARTICIPATION & REPRESENTATION – THE COUNCIL OF THE UMMAH
a. THE EXTENSIVE POWERS OF THE COUNCIL
The Shari’ah obliges the creation of a Council of the Ummah with the following powers and limitations (the Council of the Ummah will be setup by election in order to truly represent the people).
1- The Khaleefah is obliged to consult the Council on all issues related to domestic policy such as ruling, education, health, economy, trading, industry, farming and domestic defence. The Khaleefah is bound by the majority verdict of the Council in these areas. Decisions requiring specialist technical knowledge are excluded from this consultation process.
2- Issues requiring specialist technical knowledge may be referred to the Council as the Khaleefah sees fit in the interests of transparency and security, however the view of the Council is not binding here.
3- The Council has the right to raise any issue accounting the Khaleefah on decisions made and its decision is binding, excepting those areas where technical expertise is required. A dispute over the legitimacy of an action between the council and Khaleefah is referred to the Madhalim court.
4- The Council may censure any member of the executive (governors, mayors etc) and their assistants and if they call for their dismissal then the decision is binding on the Khaleefah
5- The Council has the right to select the list of nominees for a Khaleefal election and their decision is binding.
6- Any member of the Council of the Ummah has the right to expression without impediment within the limits of behaviour defined by the Shari’ah
7- No opinion is sought from the Council regarding legislation. Legislation is extracted for contemporary issues using Shari’ah methodology from the Islamic texts by the Khaleefah and applied. If the Council feels that the Khaleefah is violating the Shari’ah or incorrectly extracting the law using the Shari’ah methodology, they can refer the matter to the Madhalim courts for a binding ruling.
b. REPRESENTATION & VOTING FOR THE COUNCIL AND KHALEEFAH
The citizens in a governorate will vote to elect members to a local Council. Each local Council will elect a number of delegates to be sent to the national Council.
Numbers of delegates sent will correspond to the population in each governorate so that each governorate’s weight in the Council is based on proportional representation.
The term for a delegate to either Council is 5 years.
Any citizen (Muslim or non‐Muslim, male or female) as long as they are mature and sane are eligible to be elected to the local or national Councils.
Non‐Muslims have their own mandatory representatives on both types of Councils.
ESTABLISHING COHESIVE CITIZENSHIP
The Shari’ah fosters the idea, as established by the first Prophetic constitution, that as long as citizens of any religion, creed or gender abide by the constitution, they are owed a duty of care by the State such that their life, honour, belief, mind & property is to be protected.
Sectarian strife whether based on madhab, tribe or ethnicity will be prevented by the State and the underlying un‐Islamic ideas that encourage such tensions will be actively educated against. It is hoped that the non‐Muslims will positively take up the rights and opportunities afforded by the State to all citizens.
PROTECTING NON MUSLIM CITIZENS
Non‐Muslim citizens are guaranteed inalienable rights by the Shari’ah. They will have the right to elect members to the local and national consultative councils. e.g. Egypt has a sizeable Coptic Christian community and the government of the Islamic State would be obliged to ensure that these citizens are treated in a just and dignified manner.
They will have the right to use their own laws for their family and religious matters. They will have equal status in the Shari’ah courts with regards to public matters, along with recourse to Hisba and Madhalim courts like any other citizen.
They will be exempt from military service.
PUBLIC SAFETY AND STANDARDS
The Shari’ah mandates that the Hisba judges are trained and equipped to monitor the public interest e.g. commerce and trading goods standards.
This includes quality of service, implications for safety, misleading the public etc. This department of judges can function without a court building and can issue on the spot punishments and fines where a breach of standards is identified e.g. defective or dangerous goods or environments.
STATE ADMINISTRATION FOR THE BENEFIT OF THE PEOPLE
The State bureaucracy will be required to facilitate citizens going about their life without hindrance. As such the State should not charge the citizens for services such as permits etc. Also the Madhalim court will keep the bureaucracy and civil service under constant proactive scrutiny as well as being available to escalate citizens’ complaints.
The State civil service will operate a strong public service ethic and will proactively seek to settle and mitigate complaints so as to satisfy citizens and avoid citizen dissatisfaction reaching a level where the Madhalim court has to get involved.
State civil servants should be the most qualified and competent people and public sector pay will reflect this requirement for competence.
THE POLICE AS PUBLIC SERVANTS
The police will maintain the security of the citizens of the state. Officers will be paid an appropriately high wage reflecting both the seriousness of the role and structured to access the best people. Good pay and attention to training in both practical policing matters and Islamic ethical standards will weed out corruption in the police forces, so that both the members of the force and the public themselves are proud of their police. Being a State institution the police force would come under the constant scrutiny of the Madhalim Court.
Women officers will constitute a necessary part of the police force.
The police are responsible for proactively maintaining a secure environment for travel and trade etc. The necessity of hiring private security will be deemed a failure of the police.
Surveillance can be carried out on suspects that are deemed to be a threat to the public interest only after permission has been obtained for a public interest judge i.e. a Hisba judge.
OBLIGATION OF OPEN EXPRESSION
All citizens enjoy the right to open expression and are indeed obliged to account openly, subject to not violating the Shari’ah such as calling for an overthrow of the Khaleefah. This open expression is critical in accounting the executive and ensuring it does not overstep Shari’ah defined limits.
The Shari’ah has obliged mechanisms such as the Council of the Ummah to ensure that these rights are not usurped.
There will be no censorship or arbitrary restriction of the media. No permission will be required to setup a media organisation.
Private media organisations are required to meet 2 conditions:
(a) the Shari’ah is not violated e.g. nudity, calling for haram, kufr etc ;
(b) strategic news related to military matters or international relations is presented in a responsible manner that does not lead to civilian panic or concern.
The media should assist in guarding the Shari’ah, accounting the Khaleefah and upholding the rights and interests of citizens.
A STRONG, FORWARD PRESENCE 21ST CENTURY MILITARY
The Khaleefah is the commander‐in‐chief of the military and can appoint and remove the army’s senior commanders or other generals as he sees fit.
The military will be equipped with the best available weaponry and training in order to fulfil its role in defending the borders of the Islamic State and facilitating the political strategies of the Khaleefah. All able bodied male Muslims aged 15 and above will be required to undertake some form of military training so as to function as a reserve to the standing professional military.
Military pay should reflect the high value that is placed in Islam on having a competent and professional military. The selection process for both officers and rank and file soldiers should ensure the selection of the best fit individuals for the task. Nepotism will not be allowed to weaken the armed forces of the Islamic State.
The military will not be involved in politics, business or any other aspect of the State administration that distracts it from fulfilling its roles.
FOREIGN POLICY: BECOMING A REGIONAL AND GLOBAL POWER
The Islamic State’s objective internationally will be to seek regional and then global power status.
It will not be constrained by any existing international treaty that violates the Shari’ah or seeks to override the sovereignty of the Islamic State in any way.
It will seek bilateral relationships in accordance with what the Khaleefah deems to be the best interest of the State.
The State will seek to set up a genuine international assembly for discussion, independent to the UN, which is compromised by the disproportionate power of the Security Council, whose charter violates the sovereignty of the Shari’ah and which has practically proven to be a tool of the neo‐colonial powers.
The Islamic State will make overtures to the citizens and influential people in other Muslim countries in order to prepare public opinion in these countries to demand unification with the Islamic State.
These overtures will be based on the Shari’ah principle that, after the establishment of the Khilafah, all Muslims, including former governments of all Muslim countries, are required by the Shari’ah to offer their allegiance to the Khaleefah and to place their collective administrations at his disposal.
Liberating occupied lands
Those Muslims suffering through occupation can only be liberated by a strong Khilafah. The Khaleefah will take the necessary steps to build and project this strength.