shariah bill of rights

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Sharī‘ah Bill of Rights for the New Millennium A Bill of Rights Based Upon the Sharī‘ah for Securing the Rights of the Poor People of Pakistan in Particular, and those of the Whole Ummah in General Imran Ahsan Khan Nyazee alsi Advanced Legal Studies Institute Islamabad 1st January 2011 Wrien for my son Saifullah Sarwar Khan Nyazee

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The Ummah is waking up. Revolutions will be successful only if they secure the rights of the poor; rights granted by the Shariah. The most important thing is distributive justice, that is, allocating the resources of the Muslim world according to Islamic justice. The rights of the poor must be secured across the Muslim world: from Turkey to Indonesia; from Morocco, Tunisia, Egypt, and the Middle East up to Pakistan and Bangladesh. The rights of the poor must be identified first. A document is attached that can serve as a good beginning.

TRANSCRIPT

Page 1: Shariah Bill of Rights

Sharī‘ah Bill of Rightsfor the New Millennium

A Bill of Rights Based Upon the Sharī‘ah for Securing the Rights of the PoorPeople of Pakistan in Particular, and those of the Whole Ummah in General

Imran Ahsan Khan Nyazee

alsiAdvanced Legal Studies Institute

Islamabad 1st January 2011

Wrien for my son Saifullah Sarwar Khan Nyazee

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Published in Pakistan in 2011by e Federal Law House,

Head Office:Mian Plaza, Chandni Chowk,Rawalpindi, Pakistan. Tel. No. (051) 4843011, 4571229

Branch: 7, Turner Road, Near High CourtLahore, Pakistan. Tel. No. 0322-4843011

©2011 by Imran Ahsan Khan NyazeeAll rights reserved.

All rights reserved. No part of this publication may be reproduced or transmied inany form or by any means, including photocopying and recording, without the wrienpermission of the copyright holder. Such permission must also be obtained before any

part of this publication is stored in a retrieval system of any nature.

ISBN

Printed in Pakistanby

Haji Hanif & Sons

Lahore, Pakistan.

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C

Preface 1

1 Sharī‘ah, Justice and Rights 31.1 e Rights of the Poor are in Reality the Rights of Allah . . . . . 51.2 e State Holds Everything in Trust on Behalf of the Ummah . . 6

2 e First Right: Share of the Poor in all Mineral Wealth 72.1 ings at Come out From Under the Soil . . . . . . . . . . . . 72.2 e Derived Right of the Poor . . . . . . . . . . . . . . . . . . . 12

3 e Second Right: Share of the Poor in the Produce of the Land 133.1 e Rules for ‘Ushr in the Ḥidāyah . . . . . . . . . . . . . . . . . 133.2 Right of the Poor to Enforce Revival of Barren Lands . . . . . . 143.3 Abū Ḥanīfah’s Opinion on Tenancy (Muzāra‘ah) Should be Im-

plemented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4 eird Right: Share of the Poor in all PasturingAnimals andCom-mericial Assets 174.1 Rules for Pasturing Animals in the Ḥidāyah . . . . . . . . . . . . 174.2 Rules for Trading Goods in the Ḥidāyah . . . . . . . . . . . . . . 184.3 Land for Pasture to be Set Aside Everywhere . . . . . . . . . . . 194.4 Returns Must be Filed for Zakāt Even When Paid Personally . . 194.5 Certain Issues Not Mentioned Here . . . . . . . . . . . . . . . . 19

5 e Fourth Right: No Commercial Loans, but all Loans of the Poorto be Repaid 215.1 Rights of Refugees . . . . . . . . . . . . . . . . . . . . . . . . . . 22

6 Securing the Rights of the Poor, Mismanagement and Corruption 23i

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ii CONTENTS

6.1 e Rights of Allah Must be Secured Before all Other Rights . . 236.2 Implementation of the System . . . . . . . . . . . . . . . . . . . 246.3 e Standard for Management . . . . . . . . . . . . . . . . . . . 246.4 Swi Distribution of Allowances . . . . . . . . . . . . . . . . . . 266.5 Pay Everyone Who Claims to be Poor . . . . . . . . . . . . . . . 266.6 Personal Accountability and the Beneficiaries toWatch the Corrupt 276.7 Wherever Possible Payment Should be in the Form of Goods and

not Paper Money . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

7 Conclusion 317.1 e Result Will be a riving Economy . . . . . . . . . . . . . . 317.2 e Politics of False Promises Will Come to an End . . . . . . . 327.3 Feudalism Can Come to an End . . . . . . . . . . . . . . . . . . . 327.4 e State Can Focus on Security and the Provision of Utilities . 327.5 Documentation of the Economy can be Rapidly Achieved . . . . 327.6 List of Rights of the Poor . . . . . . . . . . . . . . . . . . . . . . 327.7 Concepts for the System as a Whole . . . . . . . . . . . . . . . . 33

Bibliography 35

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PREFACE

Praise be to Allah, the Exalted and the Powerful, the Mighty and the Overpow-ering, the Merciful and the Forgiving, the Gracious and the Protecting, the Lordof manifest authority and unshakeable proofs, the Creator of all things, the Kingof all the dead and the living, who creates and then perfects, who cras andthen refines, who empowers and then forgives, who sees (violations) yet givesprotection, who is gracious and therefore acquits, and who rules yet extends hos-pitality. His bounty and favours extend to all creatures, His signs and proofs areperfect, and His command and authority manifest. Praise be to Him, how greatis His glory.1

And, prayers and blessings on the One sent as the giver of glad tidings anda warner, and as one inviting to God, with His permission—the bright and shin-ing lamp—who elaborated all arguments, drove away all ignorance, eradicatedindiscretion, and demolished idolatry: Muḥammad, the chief of all Messengersand the Imām of the righteous. Prayers and blessings also on his revered Familyand on his Companions, who were the chosen and the elect.2

T: e people of Pakistan are being offered cheap bread, incomesupport programmes, and all kinds of subsidies as part of politics, as if they werebeggars. ere are also those who talk about some new revolution when thebenefits of the revolution that was brought about fourteen centuries ago are be-ing brushed aside. Surprisingly, the religious parties too are silent on this issue.e rights given to all poor Muslims by Allah Almighty are being denied to thepoor of Pakistan when it is for these rights that they agreed to create a separatehomeland.

In these few pages, a claim is made for giving to the poor people of Pak-istan what is rightfully theirs, something that has been given to them by AllahAlmighty through the noble sharī‘ah: rights that no one can dare take away. isis a clarion call for establishing the Islamic system of distributive justice, whichhas been denied for too long now by those at the helm of affairs of this Ummah.

¹ese are the words of the learned Imām ‘Alā’ al-Dīn Abū Bakr al-Kāsānī (God bless him),which we have gratefully borrowed, aer translation. Abū Bakr Kāsānī, Kitāb al-Ṭahārah, in,vol. 1 of Badā’i‘ al-Ṣanā’i‘ ī Tartīb al-Sharā’i‘, ed. Muḥammad ‘Adnān ibn Yāsīn Darwīsh (Beirut:Dār Iḥyā’ al-Turāth al-‘Arabī, 2000), 1.

²Ibid. 1

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Imam al-Sarakhsī, one of the greatest jurists of theMuslimUmmah, who unjustlystayed in a prison cell for fieen long years for issuing a fatwā against the sulṭān,says, “Know that deciding on the basis of justice is one of the strongest of obliga-tions, aer belief in Allah (īmān billāhi), and is the noblest of all acts of worship.It is because of this that Allah, the Exalted, has called Adam a caliph (vicegerent).Allah, theMajestic, said, ‘I am going to appoint a vicegerent upon earth’ ”1 Justiceis judging and deciding on the basis of what Allah has taught us. Accordingly,aer quoting the verse, “Judge thou between them by what Allah hath revealed,and follow not their vain desires, but beware of them lest they beguile thee fromany of that (teaching) which Allah hath sent down to thee,”2 Imām al-Sarakhsīsays that the reason for its importance is that a judgment based on truth is indeedthe manifestation of justice, and it is through justice that “heavens and earth aremaintained,” because injustice is removed.3 He adds, “Justice calls out to the rea-son of every reasonable man: for the seeking of fairness (inṣāf ) for the victim ofinjustice from the oppressor; the securing of the right of one to whom the right be-longs; and for commanding of the good and condemnation of the reprehensible.It is for justice that He sent the Prophets and the Messengers (God’s peace and

¹Shams al-A’immah Sarakhsī, Kitāb Adab al-Qāḍī, in, vol. 5 of Kitāb al-Mabsūṭ, ed. Abū ‘AbdAllāh Ismā‘īl al Shāfi‘ī (Beirut: Dār al-Kutub al-‘Ilmiyyah, 2001), 67. e verse of the r’ānreferred to is 2 : 30.

²A 5 : 49.³Sarakhsī,Kitāb Adab al-Qāḍī , 67.e opening verses of Sūrah al-Raḥmān convey this mean-

ing in terms of the balance of justice: In the Name of Allah, Most Compassionate, Most Merciful.1. e Most Compassionate! 2. It is He Who has taught the rān. 3. He has created man: 4.He has taught him an intelligent speech. 5. e sun and the moon follow courses (exactly) com-puted; 6. And the herbs and the trees—both (alike) bow in adoration. 7. And the Firmament hasHe raised high, and He has set up the Balance (of Justice), 8. In order that ye may not transgress(due) balance.

3

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4 1. SHARĪ‘AH, JUSTICE AND RIGHTS

blessings be on them all), and it is with justice that the Khulaā’ Rāshidūn (Godbe pleased with them) were occupied.”4

Philosophers, since Socrates and Plato and even earlier, have grappled withthe meaning of justice, but have not agreed upon a definition. Justice is con-sidered an elusive concept; it has been called a will-o’-the-wisp, a protean-facedconcept.5 Not only does it change shape from time to time, it is difficult for twopeople to agree about its meaning at a given point in time. Nevertheless, Aristo-tle provided a working definition, a framework that still guides our thinking.

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DISTRIBUTIVE JUSTICE

Aristotle’s master mind could see two types of justice: distributive and cor-rective justice.6 Distributive justice dealswith how resources are allocatedwithinthe community. is form of justice is tied up with the concept of rights. It isrights that determine what is due to us, and it is rights that assign duties on thosewho have to secure rights. When rights are disturbed or are denied, it is the otherform of justice that is activated, and this form is called corrective justice. Cor-rective justice is also called “justice through law,” for which an indpendent andimpartial judiciary is essential. Both forms are essential, but it is distributivejustice that comes first, because rights cannot be secured unless they are firstidentified and recognized by the system.

In the Islamic system rights are granted by the sharī‘ah, and the sharī‘ah hasle no doubt in our minds about the meaning of justice, whether distributiveor corrective. Both systems revolve around rights gied by the noble sharī‘ah.ese rights cannot be suspended, altered or waived by human beings, withoutfalling into sin and disgrace.7 Sayyadnā ‘Umar ibn al-Khaṭṭāb (God be pleased

⁴Sarakhsī, Kitāb Adab al-Qāḍī , 67.⁵Edgar Bodenheimer, Jurisprudence:e Philosophy andMethod of the Law (Harvard: Harvard

University Press, 1974), 196.⁶ese two forms of justice are like the “warp” and “woo” of a cloth, the tānā bānā of the

system.⁷It is for this reason that the Cairo Declaration issued by the OIC says: “Believing that fun-

damental rights and universal freedoms in Islam are an integral part of the Islamic religion andthat no one as a maer of principle has the right to suspend them in whole or in part or violateor ignore them in as much as they are binding divine commandments, which are contained in

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with him) identified this in his famous leer on justice, called kitāb siyāsat al-qaḍā wa-tadbīr, which translates into the Leer of Judicial Policy and Admin-istration. He said, “[D]o not torment the public,…by denying them the sources oftheir rights through whi Allāh, the Exalted, gives rise to rewards and arrangesprovisions. Verily, he who purifies his intention about a right in his relationshipwith Allāh, the Exalted, even when such intention goes against his own person,Allāh will be sufficient for him in his relationship with the people. If a personadopts misrepresentation (deception) before the people when Allāh knows that thetruth is contrary to it, then Allāh, the Mighty and Majestic, will give him disgrace.”8

Indeed, it is through rights that Allah, “gives rise to rewards and arrangesprovisions,” especially the provisions of poor Muslims. He also brings “disgrace”to those who stand in the way of the rights that Allah has granted, whethersuch person is an individual, a group or the entire Ummah. is point cannot beemphasised further for the signs of this disgrace are visible all around us.

1.1 e Rights of the Poor are in Reality the Rights of Allah

In the Islamic system, there are three kinds of rights: the rights of Allah; therights of the individual; and the rights of the Ummah collectively pertaining toworldly maers. e rights of Allah are claimed by Allah, the Majestic, not onlyfrom the indiviudal, but also from the Ummah as a whole. us, a person owesreligious duties, like prayer and other forms of worship, to the Almighty. Heis answerable to Allah for these duties and this is the realm of the Hereaer.But Allah also claims this as a right from the whole Ummah insofar as seingup facilities for the performance of these duties is concerned.9 e Ummah asa whole (call it the state if you will) owes certain rights directly to Allah. Anexample of this is the imposition of the ḥudūd of Allah, which have been imposedas the right of Allah.10 Zakāt, and all other rights pertaining to the rights of thepoor, are also claimed as rights of Allah, and they have a dual nature. First, they

the Revealed Books of God and were sent through the last of His Prophets to complete the pre-ceding divine messages thereby making their observance and act of worship and their neglect orviolation an abominable sin, and accordingly every person is individually responsible—and theUmmah collectively responsible—for their safeguard.” Issued by the Nineteenth Islamic Conferenceof Foreign Ministers (Cairo, 14 Muharram, 1411A.H. / 5 August, 1990 A.D.). e rights of Allah arethe most fundamental of the rights.

⁸Abū Bakr Kāsānī, Kitāb Adab al-Qāḍī, in, vol. 5 of Badā’i‘ al-Ṣanā’i‘ ī Tartīb al-Sharā’i‘, ed.Muḥammad ‘Adnān ibn Yāsīn Darwīsh (Beirut: Dār Iḥyā’ al-Turāth al-‘Arabī, 2000), 445.

⁹Defrauding the pilgrims (ḥujjāj) is, therefore, a violation of the right of Allah.¹⁰is is not the same has the right of the state, as some people mistakenly believe. e right

of the state, or the Ummah, as a whole may pertain to taxation, or traffic laws, for example, oreven to punishments awarded as ta‘zīr, but the ḥudūd are the right of Allah, claimed directlyfrom the Ummah as a whole.

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6 1. SHARĪ‘AH, JUSTICE AND RIGHTS

are the right of Allah claimed for the sake of the beneficiaries, who are poor.Second, these rights impose a duty on the individual in the form of a financialburden, but a duty is also placed upon the entire Ummah for securing these rights,just as a duty is imposed for implementing the ḥudūd. A community that callsitself Islamic and does not secure these rights of Allah, established for the poor,is obviously not moving in the right direction.

1.2 e State Holds Everything in Trust on Behalf of theUmmah

e concept of “state” with separate “legal personality” recognised under inter-national law may appear, on the face of it, to clash with the rules of Islamic law(as will be visible on some occasions in what follows). e reason is that themodern state, with its concept conceived in the West, owns everything that fallswithin the territory over which it has jurisdiction, just as a corporation owns allits assets to the exclusion of the shareholders. It also has jurisdiction over thecitizens, who are its subjects. If Bentham is to be believed, it is this state thatgives rights to its subjects, and it is this state that takes them away, or suspendsthese rights in times of emergency.11

e concept of state conceived in the West by human minds cannot stand inthe face of the sharī‘ah, which has its own system. e state is not over and abovethe Ummah, but is merely an agent of the Muslim Ummah, an adminstrativedevice created by the Ummah, and holds everything in trust for the Ummah. Itholds and administers everything on behalf of the Ummah: all territory that itholds is for the Ummah; all property that it holds in the name of the President orthe Governor is for the Ummah; and all laws that it implements are for the sake,and in the interest, of the Ummah. e rights granted by God Almighty throughthe sharī‘ah can never be suspended, restricted, abrogated or set aside by thestate, as already stated. e state has to enforce the rights of Allah first and thenmove on to worldly maers, otherwise disgrace is the lot of the Muslims whoare at the helm of affairs as well as of those who are at the mercy of such a state.

Consequently, the rights mentioned in what follows have to be implementedby the Islamic Republic of Pakistan, as these are the rights of Allah Almighty. eprimary duty of this agent of the Muslim Ummah, that is, the state, is to enforcethese rights so that Muslims can be safe both here and in the hereaer.

¹¹is is the idea that prevailed in England and consequently in the dominions. e UnitedStates followed the ideas of John Locke and others, who believed in natural rights fromwhich theidea of human rights came up. Today, the world is moving towards the position adopted by theUnited States, because the United Nations, toeing the line of the United States, advocates theseideas. e sharī‘ah, however, has its own system.

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2

T F R: S P M W

Minerals like gold, silver, iron, copper and so on, things that can be melted downand given shape are considered as war booty, and a fih out of these is allocatedto the poor, just like booty. e reason for treating them as war booty is thatoriginally all land was in the control of the unbelievers (kuār) and was takenfrom them by the Muslims. e rule is based upon the following verse:

ولذي وللرسول خمسه لله فان شيء من غنمتم انما واعلموابالله امنتم كنتم ان بيل الس وابن كين والمس واليتمى القربى

And know that out of all the booty that ye may acquire, a fih share is as-signed to Allah,—and to the Messenger, and to near relatives, orphans, the needy,and the wayfarer,—if ye do believe in Allah.1

e details are given in books of fiqh, therefore, we will confine ourselves to themere basics.

2.1 ings at Come out From Under the Soil

e things that come out from under the earth are divided into two types. efirst is called kanz (treasure), which is something that is buried by human beingsunder the soil. e second is called ma‘din (mineral), which is wealth that was“created by Allah the day He created the earth.” e term rikāz applies to both,although in its original application it means minerals, but is used figuratively

¹r’ān 8 : 417

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for treasure too. e Prophet (p.b.u.h.) was aked about (the charge on) kanz(treasure), and he said, “In it (treasure) and in rikāz is a fih.”2 e tradition notonly shows that a fih is imposed, but also that treasure is different from rikāz.us, its original application is for minerals.

Ḥanaī Sool

e Ḥanaī jurists first classify all that is extracted from under the earth, accord-ing to the outer form, into solids and liquids and then according to their nature.e classification and their rules are as follows:

1. Solids: Solids are first classified into metals and non-metals:

a) Metals: ese are described as things that melt down3 on heating andcan be given a shape. ese include gold, silver, iron, copper and allbase metals. Khums (also called khumus) or fih is charged on allthese metals. It is to be noted that gold and silver in this form areto be subjected to a fih and not the one-fortieth that is charged aszakāt. e condition of ḥawl or passage of one year is not imposed.Further, the fih is charged only once and not every year. e reasonfor imposing a fih, as mentioned above, is that these minerals aretreated as booty. e avenues of expenditure are not fixed like zakātand they can be given to the needy.4 is fih belongs to the poor,and the Ummah or the state if you will, or whoever is mining the ore,has no right to this fih.

b) Solids other than base metals: ese are like, gypsum, coal, lime and allother forms of clays. e jurists did not impose any charge on these,because they considered them part of the soil and there is no arge onsoil. Perhaps, the true commercial value of these things had not beenrealised in their times. ese are things that cannot be melted downand given shape like metals.Precious stones—like rubies, diamonds, emeralds and so on—werealso part of those solids that were not subjected to any charge. ereason assigned was that these are stones and there is no arge onstones.

²It is recorded by Abū ‘Ubayd, Imām al-Shāfi‘ī and others. It is also found in the Ṣaḥīḥ ofImām al-Bukhārī.

³Smelting is a form of extractive metallurgy; its main use is to produce a metal from its ore.⁴e details can be gleaned from any book of fiqh.

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2. Liquids: Liquids were like coaltar or pitch and naphta (oil). ere was noarge on these as they were like water and there is no arge on water. Lit-tle did they know that wars would be waged for oil, threatening the verysurvival of the Muslim world, and that oil would be called “black gold.”

ere was a discussion about mercury whether it should be classified withmetals or treated like liquids and water. e predominant view was that itwas a metal.

e Rules in the Hidāyah

eHidayah, one of the most authentic and reliable sources of Islamic law, whichis used all over the world and in allmadāris, even those of other schools, recordsthe rules about minerals as follows:

• When a mineral like gold, silver, iron, lead or copper is found in kharājland or ‘ushr land,5 then there is a fih (khums) in it.6

• We rely on the words of the Prophet (God bless him and grant him peace),“In rikāz there is a fih (khums).”7 is means buried treasure and in itsunqualified sense it includes minerals.

• It was in the hands of the unbelievers and it was transferred to our handsthrough domination, therefore, it is equivalent to spoils (ghanīmah), and afih is imposed on the spoils.8

• It is distinguished from the hunted animal that was in no one’s possession.9

• If, however, rikāz, that is, treasure is found in it (one’s house), it is liablefor khums.10

• ere is no khums on turquoise found in the mountains11 due to thewords of the Prophet (God bless him and grant him peace), “ere is nokhums on stones.”12

⁵Not owned by the finder.⁶Burhan al-Dīn Abū BakrMarghīnānī, al-Hidāyah:e Guidance, trans. Imran Ahsan Nyazee,

4 vols. (Bristol: Amal Press, 2006), vol. 1, p. 279⁷It is recorded by all the six sound compilations. Al-Zayla‘ī, vol. 2, 380.⁸Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 279⁹ibid.¹⁰ibid., vol. 1, p. 280¹¹ibid., vol. 1, p. 281¹²It is gharīb. Al-Zayla‘ī, vol. 2, 382.

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• ere is khums on mercury (quisilver), according to the last opinion ofAbū Ḥanīfah and it is the opinion of Muḥammad (God bless him) as wellwith Abū Yūsuf (God bless him) disagreeing.13

• ere is no khums on pearls and ambergris according to Abū Ḥanīfahand Muḥammad (God bless them). Abū Yūsuf (God bless him) said thatthere is khums on both as well as on all jewellery recovered from the sea,because ‘Umar (God be pleased with him) took a fih from ambergris.14

e two jurists maintain that the depth of the sea cannot be vanquished(subjected to control), therefore, what is taken from it does not amountto spoils even when this is gold or silver. e report from ‘Umar (God bepleased with him) is applicable to what the sea has cast out on the shoreand that is the view we uphold.15

• He said: e imām divides the spoils and (first) takes out a fih fromit.16

• As for the fih (set aside at the beginning), it is divided into three shares:a share for the orphans, a share for the needy, and a share for the way-farer. e poor among the near relatives are included in these types,and are to be given precedence over them, but nothing is to be given tothe ri near relatives.17

e statement of the above rules should be sufficient. Further details can begleaned from any earlier book of fiqh (Islamic law).

Other Sunni Sools

e other Sunni schools disagree with the Ḥanaīs to the extent that they do notimpose a fih, however, they all impose zakāt on the minerals extracted. edetails are being avoided here, however, a few arguments are recorded below.

Imām al-Shāfi‘ī, the founder of the Shāfi‘ī school, argued that the Prophet(p.b.u.h.) granted an estate to Hazrat Bilāl (R) and later on minerals were ex-tracted from it that were subjected to zakāt. He argued that it was somethingderived from the land, therefore, one-tenth or ‘ushr should have been imposed,but as there is an excessive effort in extraction, it is reasonable to impose one-fortieth. ese arguments were doubted by some other jurists and Abū ‘Ubayd,

¹³Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 281.¹⁴It is gharīb as far as ‘Umar ibn al-Khaṭṭāb (God be pleased with him) is concerned. It is

reported from ‘Umar ibn ‘Abd al-‘Azīz (God bless him). Al-Zayla‘ī, vol. 2, 383.¹⁵Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 281.¹⁶ibid., vol. 2, p. 322¹⁷ibid., vol. 2, p. 325

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the author of Kitāb al-Amwāl, an independent jurist, aer considering the argu-ments of both sides had the following to say:

In my view this is also the case rationally that it bears a greater resemblanceto spoils as compared to agricultural produce. e reason is that it involvesexpenditure and physical risk in the same way as is faced while fightingagainst the enemy. In fact, jihād imposes a more severe and greater dan-ger. Even in such a risky venture, God has imposed a fih upon the spoils.e least that should be imposed upon minerals should be the same that isimposed on what is acquired from the enemy. At the same time, the rulefor gold and silver is different from the rule for agriculture, which is subjectto a single imposition of zakāt at the time of harvest. Aer that nothingmore is charged on it, even if it is stored by the owner for years. As com-pared to this there is no zakāt upon the increase in gold and silver until ayear has passed over them, and the imposition of this zakāt continues eachyear. We therefore hold that their ḥukm is different not only in the originalconception, but also in the details.

More evident than this is that in which they differ. e obligation for agri-cultural produce by way of zakāt is a tenth or one-half of the tenth (one-twentieth), while the obligation in gold and silver by way of zakāt is one-fourth of the tenth (one-fortieth). is is a manifest difference. How thencan the two be similar, especially when they are considered in the light ofthe report from ‘Abd Allāh ibn ‘Amr from the Prophet (p.b.u.h.), which wehave recorded, as well as the tradition from ‘Alī (God be pleased with him)and the verdict issued by Ibn Shihāb in his report?

As for the tradition of Rabī‘a about Qabliyya, it does not have proper isnād,along with the fact that he did not mention in it that the Prophet (p.b.u.h.)commanded this. On the contrary he said that from these ṣadaqa is chargedtill this day. Had this been established from the Prophet (p.b.u.h.), it wouldhave become persuasive proof that could not be denied.18

e Ḥanbalī jurists relying upon the verse, “O ye who believe! Give of thegood things which ye have (honourably) earned, and of the fruits of the earthwhich We have produced for you,”19 impose zakāt on all that comes out of theearth. It may be argued, however, that this verse applies to charity other thanzakāt.

¹⁸Abū ‘Ubayd ibn Sallām, e Book of Revenue: Kitāb al-Amwāl, trans. Imran Ahsan KhanNyazee (Reading: Garnet Publishing, 2002), 327–28.

¹⁹r’ān 2 : 267.

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2.2 e Derived Right of the Poor

It can be seen from the above discussion that all the schools impose something onminerals, and some impose zakāt on everything that comes out of the earth, thatis, they treat them like trading goods that are subject to zakāt. e Ḥanaīs im-pose a fih onmetals. is would mean that one-fih of all Reko Diq in Baluchis-tan belongs to the poor. e same, it may be argued, can be said of all themineralsextracted in the Punjab, Sindh and Khyber Pakhtunkhwa. As the majority of thepeople in Pakistan are Ḥanaīs, it is the opinion of the Ḥanafi school that mustbe applied. e most important point to be noticed is that khums (fih) is notrestricted to the five avenues of expenditures, as in the case of zakāt, therefore,modes of payment to the poor can be more flexible.

Nevertheless, things like precious stones, different forms of clay and so oncannot be exempted, because the arguments based upon analogy to exempt them,that is, being like water or soil or stones, are weak and are not substantiated byscientific knowledge that we now have. us, no one today, in his right mind,would say that oil is like water. is means that all these things should also bebrought under the poor-due. ese things can be treated like trading goods andbe subjected to zakāt. is would mean that zakāt should be paid on oil, gas, coaland perhaps even electricity. e reason why we insist that these things shouldbe brought under a charge is due to a tradition of the Prophet (p.b.u.h.): “reethings are free: water, vegetation, and fire.” If no charge is imposed on thingslike oil (treated as water), gas (like air), electricity (like fire), then all these thingshave to be provided “free” to the whole Ummah. In reality, the jurist consideredthese items to be free things for anyone to take by gathering them like firewoodor a hunted bird or animal. is is why in the rules quoted above, the Hidāyah isdistinguishing metals from the hunted animal when it says: “It is distinguishedfrom the hunted animal that was in no one’s possession.”20 If these things areconsidered things of value today, and are not treated like water, air or fire, thena charge has to be imposed.

e main point to be made here is that even if the least charge is levied onaccount of the poor it comes to two and one-half percent on all that is extractedfrom under the earth. Further, this is to be paid upon the gross production andnot aer expenses and losses have been adjusted.21 What the amount will beannually is beyond our reckoning, but one thing is clear: the poor Muslims ofPakistan have an established right in all these things.

²⁰Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 279 For example, the Hidāyah says: “Hesaid: ere is no arge on a spring of tar and oil in ‘ushr land. e basis is that it is notsomething that is a yield of the land; it is a spring with a fountain like a spring of water.” ibid.,vol. 1, p. 288

²¹For this, see rules about the imposition of ‘ushr below.

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T S R: S P P L

e terms ‘ushr (tenth) and niṣf ‘ushr (fih) on the agricultural produce of theland is well known. e former for rain-fed crops and the laer for manuallyirrigated crops. e books of fiqh are full of the details and we do not have toreproduce them here. What is important is that there is talk about imposing atax on agricultural income. No tax can be imposed, unless the right of Allah meantfor the poor is first allocated and set aside for the poor. We may recall that this isnot only the right of Allah, but a fundamental right of the Muslims according tothe sharī‘ah.

3.1 e Rules for ‘Ushr in the Ḥidāyah

A few rules about ‘ushr are stated below. ese rules are well known.

• All land that has been surrendered by its residents, or has been con-quered by the mobilisation of the armies, and is distributed among thoseentitled to the spoils is ‘ushr land.e reason is that there is a primaryneed to distribute it among Muslims, and imposition of ‘ushr is suitablefor it insofar as it carries within it the meaning of worship. Further, it islighter as it pertains to the produce itself.1

• Abū Ḥanīfah (God bless him) said that what the earth makes to grow,whether less or more, is subject to ‘ushr (tenth) irrespective of its beingirrigated by flowing water or water from the sky, except for firewood,cane and grass. e two jurists said that ‘ushr is not obligatory except

¹ibid., vol. 2, p. 34613

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14 3. SHARE OF THE POOR IN THE PRODUCE OF THE LAND

on those (crops and fruit trees) that leave behind (storable) yield whosequantity reaes the level of five awsuq. Onewasaq is equal to sixty ṣā‘sby the standard of the Prophet’s (God bless him and grant him peace)wasaq. ere is no ‘ushr, according to both of them,2 on vegetables.3

• On land that is irrigated with large buets, watering wheel or the waterscoop, there is one-half of the tenth on the basis of both views.4 ereason is that the burden is excessive5

• In things that are produced by the earth and are subjected to ‘ushr, thewages of the workers and expenditure incurred on cattle are not to betaken into account …thus, calculating these expenses has no meaning.6

3.2 Right of the Poor to Enforce Revival of Barren Lands

Revival of barren lands (Iḥyā’ al-mawāt) is a basic method for securing the rightof the poor. Islamic law says that whoever revives barren land, that is, makesit fit for cultivation comes to own it. If he does not do so for a period of threeyears (according to some), the land will be taken back and given to one who willdevelop and cultivate it. e right of the poor is directly linked to this method ofrevival as it ensures that enough food is available for the needs of the poor.

Today, land is given out by way of rewards or by way of political grants totenants. ere are methods of doing so in Islamic law, but the primary methodof ownership has to be on the condition of revival and cultivation. In fact, it isbelieved by many that all land belongs to Allah Almighty and is held in trust byhuman beings; it can be taken back if it lies undeveloped, because in this waythe right of the poor is being violated and the distributive system frustrated.

3.3 Abū Ḥanīfah’s Opinion on Tenancy (Muzāra‘ah) Should beImplemented

e foundation of the feudal system is the institution of muzāra‘ah (tenancy).People are raising slogans against the feudals and the feudal system, as theyhave been doing for long, and political parties are again calling for land reforms.Unfortunately, the majority views in Islamic law pertaining to this issue have

²at is, Abū Yūsuf and Muḥammad (God bless them).³Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 283⁴ibid., vol. 1, p. 284⁵e charge is reduced due to the excessive burden in this case.⁶In case where half of ‘ushr is charged these expenses are already accommodated.

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not been implemented and were turned down by the earlier jurists for reasonsof “necessity” and “practice,” for it was a system that was prevalent all over. Hadthe majority view of the earlier jurists been implemented, feudalism would havedisappeared on its own.

According to Imām Abū Ḥanīfah, muzār‘ah or tenancy is not lawful. A sim-ilar view is also held by Imāms Mālik and al-Shāfi‘ī, with very slight variation.e reason advanced by Imām Abū Ḥanīfah was that “land is not a basis for en-titlement to profit.” e Islamic system believes in “risk sharing” and there is norisk for the owner of the land when he hands it over to the tenants: there canbe no loss in land as it always stays there. All that the owner of the land can dois rent it out or cultivate it himself (in person).7 Renting out agricultural land islooked down upon by most jurists, as this converts it into a business asset, whichis subject to a different charge. If the person renting it uses it for cultivation, itwill lead to a dual charge, that is, ‘ushr too will be charged. Further, it maybe noted that land is not like other rented property as land cannot be destroyed,while other rented property can be destroyed. It is ImāmMālik alone who allowsrenting of agricultural land.

e Ḥanaī school adopted the views of Imāms Abū Yūsuf and Muḥammad,the two disciples of Abū Ḥanīfah, preferring their opinion over that of theirteacher. Today, it is time for the opinion of the teacher and of the founders ofthe other Sunnī schools to be given preference. is can give way to “corporatefarming” and “cooperative methods,” methods that will increase the productionthus increasing share of the poor.

⁷Imran Ahsan Khan Nyazee, Partnership in Islam (Islamabad: Federal Law House, 2007), 358.

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T T R: Zakāt P A O

C A

Zakāt in freely pasturing animals is considered the most important form of poor-due by Islamic law. It is mandatory to deposit it with officials, unlike other formsof zakāt that may be paid personally by the person liable. is is the form ofzakāt for which the first Caliph (God be pleased with him) waged war as soon ashe came into office. e books of fiqh are full of details about this form of zakāt.

4.1 Rules for Pasturing Animals in the Ḥidāyah

e rules are well known. We will mention just a few to indicate that smallholdings of animals are exempted from this charge.

• ere is no zakāt on camels that are less than five in number.1

• ere is no zakāt on less than thirty pasturing cows.2

• Buffaloes and cows are the same for this purpose.• ere is no ṣadaqah on less than forty pasturing ghanam. When thenumber reaes forty pasturing ghanam and a year passes over them,then the arge is one goat up to one hundred and twenty.3

• Da’n (sheep) and ma‘z (goat) are the same for this purpose.4

¹Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 255²ibid., vol. 1, p. 257³ibid., vol. 1, p. 258⁴ibid.

17

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18 4. SHARE OF THE POOR IN ALL ANIMALS AND ASSETS

4.2 Rules for Trading Goods in the Ḥidāyah

Zakāt on all personal wealth is to be paid as laid down by Islamic law, like goldand silver. It is also charged on all commercial assets, irrespective of who ownsthem. e corporate form and its accompanying legal personality should notstand in the way of this claim.5 ere is a law in place in Pakistan, albeit inade-quate; it needs to be brought in line through a comprehensive system that coversall the rights mentioned here. Some of the rules, in the Hidāyah, are as follows:

• Zakāt is obligatory on goods of trade, whatever their nature, as long astheir value reaes the niṣāb valued in silver or gold.6

• He (the collector) is to valuate them in a manner that is most beneficialfor the needy (masākīn).7

• If the niṣāb is complete at the two ends of the ḥawl (year), then a defi-ciency in between these two will not extinguish the claim of zakāt.8

• e value of the goods is to be added to the gold and silver (dīnārs anddirhams) so as to complete the niṣāb.9

In short, everything on which we pay wealth tax, and in some cases income-tax, is subject to zakāt. As already stated, zakāt is to be paid before any statetaxes are computed and paid.

Out of all this, however, trading goods will perhaps be the largest sourceof zakāt. Today, it will include all things from which an income is derived; itdoes not merely mean sale and purchase. Accordingly, all “capital employed”by corporations, partnerships, associations of persons, and sole proprietorshipswill be subject to two and one-half percent zakāt. e simple rule is expectedto be “total capital employed minus debts.”10 Further, all property being used forrental purposes, including plazas, houses given on rent, or any property usedfor commercial purposes, other than agricultural land will be included in themeaning of “trade.” Income from all such property is not lawful, unless the rightof Allah meant for the poor is secured.

⁵For a detailed analysis of the concept see Imran Ahsan Khan Nyazee, Corporations in Islam(Islamabad: Federal Law House, 2007).

⁶Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 269⁷ibid., vol. 1, p. 270⁸ibid.⁹In other words, the personal niṣāb cannot be worked out separately from one’s business

niṣāb.¹⁰But see the rule for loans below.

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4.3 Land for Pasture to be Set Aside Everywhere

As the claim of the poor in animals is a primary right in this category, it mustbe supported with facilities. Today, the whole country is being turned into plotsfor commercial purposes. Pasture lands must be set aside near every townshipwhere the animals can graze. is will be good for the right of the poor and alsofor the environment. Zakāt may be collected when herds pass by the toll.

4.4 Returns Must be Filed for Zakāt Even When PaidPersonally

epeople of Pakistan are religious people andmany of them do pay zakāt; manypay it on their own, while in the case of bank accounts it is deducted at sourceunless waiver is claimed. ere are many, however, who do not pay zakāt. ereis no option in this and the payment of zakāt is obligatory; it is not enough tosay ہیں مسلمان بھی ہم (we too are Muslims) and then skip zakāt. Accordingly, aseparate department should be set up where all wealth owning citizens, who areunder an obligation to pay zakāt must file returns, even when they are claimingthat they have paid zakāt on their own. is will ensure that the claim of Allahfor the sake of the poor is being satisfied and nothing is le over.

4.5 Certain Issues Not Mentioned Here

In such a short document, it is not possible to mention all the details pertainingto the issue of zakāt. ere are numerous details that can only be mentioned in astudy of some size. By way of illustration we mention certain things that mightcome into the mind of the reader.

Business Assets are Assessed on the Basis of Valuation

Valuation is undertaken in terms of currency (gold and silver) that is most bene-ficial for the right of the poor. According to some, payment can be made in kindas well where possible.

Certain Goods Are Exempted From Business Assets

e determination of business assets depends on the intention to employ assetsfor business, except for cash that does not need any intention. Besides this, thereare exemtpions for some assets, like assets used for professional purposes and soon.

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20 4. SHARE OF THE POOR IN ALL ANIMALS AND ASSETS

Custom Duties Not Mentioned Here

ese duties generally go under the name of ‘ushūr (ten percent levy). ere aredetails here too, but the general statement to be made is that duties levied ongoods coming into the country and on some goods leaving the country (when nozakāt has been paid) are subject to duties.

Unclaimed Estates Reverting to the State

When certain estates revert to the Imām, because there are no claims on them,due to the absence of heirs or other reasons, they are also taken into account.

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T F R: NC L, D

P R

e only form of loan that Islamic law recognises is called qarz (qarḍ), whichis an interest-free loan without a fixed period of repayment. It is this loan thatpeople have started calling qarz ḥasan.

Islamic banks, and Muslim scholars who work for these banks, are not will-ing to acknowledge that no other form of loan is allowed, because the prohibi-tion strikes at the very heart of banking, credit and even the creation of moneythrough central banks.1 In the Islamic system every means of making a profit orearning money is based upon “risk sharing” and not on credit. us, the loansraised within the Islamic system are those raised by the needy for their personalneeds.2

An avenue of expenditure for the zakāt collected is, therefore, repaymentof loans of those under debt. Repaying of loans in a country where the levelsof ethics and morality are exceedingly low may create problems in the imple-mentation of the system. Accordingly, a system can be devised that will pay themedical and education costs of the poor and their children, because most debtsof the poor are likely to be incurred on this account. e payments can be madedirectly to the service providing instiutions. Debts can also arise through thepurchase of food each year. A system of stamps can be started through whichpoor people can collect food. One of the most important reasons for debts forthe poor are the marriages of their children, especially females. Debt paymentsshould take care of this avenue too, where such loans have been raised.

¹For the details see Imran Ahsan Khan Nyazee,e Prohibition of Ribā Elaborated (Islamabad:Federal Law House, 2009).

²Ibid. 21

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22 5. NO COMMERCIAL LOANS: REPAY LOANS OF THE POOR

5.1 Rights of Refugees

Refugees stranded in our territory too have rights on the wealth of the commu-nity, just like the poor. is is the category of the ibn sabīl or the destitute alienstranded in our territory. e refugees must be paid to make their way safelyback home and to survive till they reach home.

is rule may also apply to internally displaced persons, that is, those whobecome refugees as a result of natural calamities, like earthquakes and floods.Had a system been in place for securing the rights of Allah, there would havebeen enough for dealing with the problem arising from the recent floods. erewould have been no need to beg from non-Muslims. is shows that the wordsin the r’ān, like ibn sabīl, can acquire new meanings with the occurrence ofnew incidents.

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S R P,M C

6.1 e Rights of Allah Must be Secured Before all OtherRights

Wealth must be purified before it can be used. is is the meaning of zakāt. erights of Allah, which are meant for the poor, must be satisfied before any wealthcan be lawfully consumed or used.

In any case, the rights of the poor have to be enforced. Here is a report fromthe the Noble ‘Alī ibn Abī Ṭālib (God be pleased with him).

(1909) He (Abū ‘Ubayd) said: Aḥmad ibn Yūnus related to me fromAbū Shihāb al-Ḥannāṭ from Abū ‘Abd Allāh al-aqaī, who said: Iheard Abū Ja‘far Muḥammad ibn ‘Alī relating it from ‘Alī, who said,“God, the Exalted and Glorious, has deemed obligatory in the wealthof the rich what is sufficient for the poor. If they go hungry, or naked,or are toiling in abject poverty,1 it is because the wealthy have pre-vented their rights from being enforced. e right then devolvesupon God, the Exalted, to take them to task and to punish them”.2

e report states that punishment is at hand if these rights are not enforced.It also shows that no one will remain poor if the rights granted by Allah areenforced, because what Allah has granted is “sufficient” for the poor.

¹e word is jahd, which means poverty and hardship.²Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 541.

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24 6. SECURING THE RIGHTS OF THE POOR

6.2 Implementation of the System

e first question that will arise is: who will implement the system in thesetimes of mass corruption and immorality? e response is that Muslims canwork wonders when they set their hearts to a task. If they can make the atomicbomb and missiles, if they can deal with catastrophes of gigantic proportionslike earthquakes, they can surely implement a system that is demanded by AllahAlmighty. Give them the task and it will bring out the best in our people.

6.3 e Standard for Management

Only those with a reputation for honesty and efficient management must be ap-pointed to manage the affairs of the poor. e standards were set by none otherthan the Noble ‘Umar ibn al-Khaṭṭāb (God be pleased with him). e follow-ing tradition in both versions, from Abū ‘Ubayd, is recorded for assessing thestandard and the practice:

(1919) He (Abū ‘Ubayd) said: Sa‘īd ibnAbīMaryam related to us from‘Abd Allāh ibn Lahī‘a from Abū al-Aswad Muḥammad ibn ‘Abd al-Raḥmān that he heard ‘Umayr ibn Salama al-Duwalī mention thathe went out with ‘Umar ibn al-Khaṭṭāb—or ‘Umayr was informedby someone who went out with ‘Umar—although ‘Umayr himselfwas a very old man. He said, “When ‘Umar was sleeping during theaernoon under the shade of a tree, a woman from a village cameand was trying to recognize people3 until she came to him and said,‘I am a poor woman. I have children. e Amīr al-Mu’minīn ‘Umaribn al-Khaṭṭāb has sent Muḥammad ibn Maslama as a collector forus, but he did not give us anything. Perhaps you, may God blessyou, could recommend our case to him’ ”. He said, “He called outto Yarfa’ saying, ‘Go, fetch Muḥammad ibn Maslama for me’. Shesaid, ‘It would be beer for the solution of my problem that youaccompany me to him’. He said, ‘God willing, he will solve yourproblem’. Yarfa’ came to him and said, ‘Respond to his call’. He cameand said, ‘Peace be on you, O Amīr al-Mu’minīn’. At this the womanwas embarrassed. ‘Umar said, ‘By God, it is my earnest endeavourto choose the best of you.4 What will you say when God, the Exaltedand Mighty, asks you about this affair?’ At this tears welled up inMuḥammad’s eyes. ‘Umar then said, ‘God sent His Prophet (p.b.u.h.)

³at is, she was gazing at their faces with concentration.⁴at is, I am not negligent or inefficient in doing so.

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to us. We testified to his truthfulness and followed him. He acted asGod commanded him to. He gave the ṣadaqa to the deserving needypersons, and continued doing so till God took him away. God thenmade Abū Bakr succeed him, and he acted on his sunna till God tookhim away. He then made me succeed him and I strive to select thebest of you for the purpose. If I appoint you again, you must givethis woman the ṣadaqa for the current year and that for the previousyear, however, it is possible that I may not appoint you again’. Hethen called for a camel for her and gave her flour and oil. He said,‘Hold on to these till youmeet upwith us at Khaybar, as we are goingthere’. She went up to Khaybar and he ordered two more camel-loads for her and said, ‘Take this. It will suffice you till Muḥammadibn Maslama comes over to you, for I have ordered him to give youyour rightful share for this year as well as for the previous year’ ”.5

(1920) He (Abū ‘Ubayd) said: ‘Abd Allāh ibn Ṣāliḥ related to us fromal-Layth ibn Sa‘d from Yaḥyā ibn Sa‘īd a similar tradition, or oneclose to it, except that he said, “e woman looked at a man asleepunder the tree. She touched his toe and hewoke up. He said, ‘What isit you want?’ At this she narrated the problem she had withMuḥam-mad ibn Maslama. He said to her, ‘Go to him and tell him that thisman is calling you’. She said to him, ‘is is not how a recommenderis to speak’. He said, ‘Go call him as I have asked you to, he willcome’. She passed through the people till she came up to him andsaid as she had been asked to say. He jumped up and she followedhim till he stood in front of ‘Umar”. He then narrated the rest of thetradition.6

us, only the best and the God-fearing are to be appointed for this task. eofficials must have a spotless career. is does not mean that the ulama are tobe appointed just because it is a religious maer; many of them have politicalaims and stand disqualified for such a task anyway. Political parties must notbe permied to appoint their nominees for this task. It is suggested that thisgigantic task should be assigned to educated, dedicated, young persons ratherthan people of our generation. e reason is that the young were born free,while we still suffer from the hangover of colonial slavery.

⁵e editor of the text says at this point: Tell me by your Lord, O reader, as to what are youremotions when you read these stories about the acts of the Companions, God be pleased withthem? What do you think about a society in which you find people like ‘Umar and Muḥammadibn Maslama? Will a poor person ever feel insecure or threatened?

⁶Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 544-45.

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6.4 Swi Distribution of Allowances

e right of the poor must reach them as soon as possible. ere are traditionsfrom the Prophet (p.b.u.h.) and from his Companions (God be pleased with them)that they used to distribute the amounts received as soon as they could. Here isone tradition recorded by Abū ‘Ubayd:

(617) He said: Ḥajjāj related to me from Ibn Jurayj, who said: ‘Umaribn Dīnār reported to me from al-Ḥasan ibn Muḥammad “that theMessenger of Allah (p.b.u.h.) did not receive wealth himself7 nor didhe let the night pass over it”.

Abū ‘Ubayd said: at is, if it arrived during the forenoon he dis-tributed it by aernoon, and if it arrived during the evening hewoulddistribute it before nightfall.8

All this means that red tape should not delay the immediate and efficienttransfer of the benefits to the poor.

6.5 Pay Everyone Who Claims to be Poor

e rights of the poor claimed by Almighty Allah are not to be secured in a man-ner that is demeaning or degrading for the poor. e formation of commiees,or the adoption of other methods, to investigate whether a person is really pooris not to be adopted, prior to the distribution. Any person who claims that he ispoor should be enlisted and granted the benefits meant for the poor. is is inline with principle No. 6 recorded by the leading jurist Abū al-Ḥusayn al-Karkhī(d. 340 A.H./951 C.E.). e principle is:

Principle 6: e affairs of the Muslims are to be construed asupright and proper, unless the contrary is established.

e principle implies that whatever a Muslim claims is taken to be true. isis particularly so in the case of poor people for whom it is very difficult to partwith their self-respect and to fall upon the benefits meant for the poor. If a personis claiming to be poor, he must really be poor. If, however, it is discovered thathe was lying or was trying to indulge in fraud, he must be severely punished, asunderming the right of the poor is a serious offence.

⁷ere may be a problem with these words when they are tallied with the text that followsin the book, that is the words “did not receive wealth himself.”

⁸Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 247.

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6.6 Personal Accountability and the Beneficiaries to Wat theCorrupt

When honest (young) people are appointed, they will set standards of personalaccountability. Nevertheless, they will be watched and supervised by their supe-riors and even by those beneficiaries (the poor), whose rights they might usurp.Here is the standard for loan write-offs:

(664) He said: Sa‘īd ibn Abī Maryam related to me from Yaḥyā ibnAyyūb from ‘Ubayd Allāh ibn Zaḥr from al-A‘mash from Zayd ibnWahb—Abū ‘Ubayd said: Another chain has a person different fromYaḥyā ibnAyyūb, but from al-A‘mash from Ibrāhīm—who said: “ ‘Umarsent for a loan of four hundred dirhams9 from ‘Abd al-Raḥmān ibn‘Awf. ‘Abd al-Raḥmān said, ‘You ask me for a loan when you havethe treasury? Why do you not borrow from it and then return it’?‘Umar said, ‘I am afraid that the time fixed for my death will overtakeme,10 and you and your companions will say, “Let us write off thisamount for the Amīr al-Mu’minīn”. is will then weigh against mein my balance on the day of judgment. I, therefore, seek to borrowfrom you, for I am aware of your love for wealth. When I die, youwill come and recover it from the inheritance (estate) I leave’ ”.11

Here is a standard for supervision and holding officials accountable:

(665) He said: ‘Abd Allāh ibn Ṣāliḥ from al-Layth ibn Sa‘d fromHishām ibn Sa‘d from Zayd ibn Aslam from his father, who said:‘Umar said to us one day, “I stand between you and your means ofearning. Whosoever among you has wealth is now under our super-vision. Let none of you consider a saddle-pack, a rope, or a hump-pack as worthless. All these things belong to the Muslims and thereis no one who does not have a share in them. When these things be-long to an individual they are considered things of value, but whenthese belong to the Muslim community they are deemed worthlessand it is said, ‘It is God’s wealth’ ”.12

(666) He said: ‘Abd Allāh ibn Ṣāliḥ related to us from al-Layth ibnSa‘d from Yaḥyā ibn Sa‘īd that when ‘Amr ibn al-Ṣa‘iq saw that the

⁹at is, he demanded this as a qarḍ.¹⁰at is, death will take me away.¹¹Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 265.¹²Ibid.

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28 6. SECURING THE RIGHTS OF THE POOR

wealth of the collectors was on the increase he considered this ob-jectionable and conveyed this to ‘Umar in the form of verse. esehave been recorded by ‘Abd Allāh ibn Ṣāliḥ in his tradition. He said:‘Umar sent for his collectors, among whom were Sa‘d and Abū Hu-rayra, and took away half their wealth”.13

(667) He said: Mu‘ādh related to us from Ibn ‘Awn from Ibn Sīrīn,who said: “When Abū Hurayra returned from Bahrain ‘Umar saidto him, ‘O enemy of God and of His Book, you have stolen God’swealth’. He replied, ‘I am neither the enemy of God nor of His Book.In fact, I am the enemy of those who oppose them. I have not stolenGod’s wealth’. He said, ‘How then have you accumulated ten thou-sand dirhams’. He said, ‘My horses were breeding, my stipends werereaching me, and so were my shares’. ‘Umar, however, took all thisaway.14 Abū Hurayra said, “When I offered the morning prayer, Iprayed for the forgiveness of the Amīr al-Mu’minīn”.15

(668) He said: Ya‘qūb ibn Isḥāq related to us from Yazīd ibn Ibrāhīmal-Tustarī from Ibn Sīrīn from ‘Umar and fromAbūHurayra a similartradition, however, he added: He said: Abū Hurayra said, “Aer this‘Umar said to me, ‘Will you not accept an office’? I said, ‘No’. Hesaid, ‘ose beer than you have accepted offices: Joseph (p.b.u.h.)’.I said, ‘Joseph was the son of a prophet who was the son of a prophet,while I am the son of Umayma. I am, therefore, apprehensive of threeand two things’. He said, ‘Why did you not say five at once’. I said, ‘Iam afraid that I would say something without knowledge and decidewithout understanding—or he said, ‘I would say something withoutunderstanding and decide without knowledge’ and this doubt comesfrom Ibn Sīrīn—and I am afraid that I will get a beating on my back,my reputation would be soiled andmywealth will be confiscated’ ”.16

If Hazrat Abū Hurayra (God be pleased with him), the devoted servant of theProphet (p.b.u.h.), and the bearer of so many traditions, could be questioned then

¹³e editor of the text says: He took away one-half of their wealth. ‘Umar (God be pleasedwith him) applied a very strict standard of accountability for his officials. Abū ‘Ubayd ibn Sallām,Kitāb al-Amwāl, 265.

¹⁴e editor of the text says: Notice that he did not affirm the veracity of Abū Hurayra evenaer he had claimed that this was wealth that had grown over time in his possession. He con-sidered injustice being done to Abū Hurayra beer than the violation of a right of the Muslimscollectively.

¹⁵Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 265-66.¹⁶Ibid., 266.

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who else is there who has the right to claim immunity of any kind? e conclu-sion is that the wealth of the officials before their appointment must be recordedand their assets during their tenure and when they leave must be assessed fornormal growth. Whatever is in excess must be confiscated and added to the ac-count of the poor.

Of course, there are certain standards that cannot be imitated by ordinaryhuman beings, and are only meant for the chosen ones, who are dear to Allah:

(671) He (Abū ‘Ubayd) said: ‘Abbād ibn al-‘Awwām related to usfrom Hārūn ibn ‘Antara from his father, who said: “I visited ‘Alī atKhawrnaq and at that time he had upon him an old sheet17 in whichhe was trembling with cold. I said, ‘O Commander of the Faithful,God, the Praiseworthy and Exalted, has granted you and the mem-bers of your family a share out of this treasury and you treat yourselfthis way’. He said, ‘By God, I do not wish to cause problems for you.And this too is my sheet that I brought from home—or he said fromMadina’ ”.18

He was worried about the other person and conveyed to him that he was notseing a standard for him or creating a problem for him, implying that what hewas doing was between him and his Creator.

6.7 Wherever Possible Payment Should be in the Form ofGoods and not Paper Money

It is easy for the government to print notes and give them to the poor. e prac-tice, as is visible in some of the reports recorded here, is to give the people goodsand commodities as far as possible so that their share is not reduced in value.

In reality, zakāt is to be paid in dīnārs and dirhams, but as these are not legaltender for the present, it is preferable to pay in kind rather than cash, whereverpossible. For example, gas and electricity can be provided directly from theirshare. ere can be different ways of assessing what is to be paid in the form ofgoods and food, and here is one method followed by ‘Umar (God be pleased withhim):

(612) He said: Aḥmad ibn Yūnus related to me from Zuhayr ibnMu‘āwiya, who said: Abū Isḥāq related to us from Ḥāritha ibn al-Muḍrib that ‘Umar ordered one jarīb19 of flour to be kneaded into

¹⁷Editor: e word samal means a type of cloth.¹⁸Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 266–67.¹⁹A jarīb is a measure equivalent to four cafiz, where a cafiz is equal to 8 makākīk where a

makkūk is a measure that is equal to one or one-half ṣā‘.

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30 6. SECURING THE RIGHTS OF THE POOR

dough. He then had breads baked from it and sopped in oil.20 He,then, invited thirty men who ate them to their fill as their aer-noon meal. He did the same for the evening meal. He said, “eyield of two jarībs is sufficient for a man for one month”. us, hefixed the quantity of two jarībs for each individual—male, female,and slave—per month.21

²⁰at is, broken and dipped in oil.²¹Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 246.

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گی جاۓ ہو پا سیماب كی رات ظلمت اور پوش ائینہ سے نور كے سحر گا ہو اسماں

گی جاۓ ہو اشنا درد كلی ہر كی چمن اس ساز و سوز گی كرے پیدا مری افشانی شبنم

گی جاے ہو اشنا سے حرم خاك جبین پھر سجود پیغام گا جاۓ ا یاد كو دلوں پھر

گی جاۓ ہو كیا سے كیا دنیا كہ ہوں حیرت محو نہیں سكتا ا پہ لب ہے دیكھتی كچھ جو انكھ

Shama‘ aur Shā‘ir شاعر) اور Allāma—(شمع Iqbal

7.1 e Result Will be a riving Economy

e system of distributive justice will ensure that the meaning of the followingverse is realised:

What Allah has bestowed on His Messenger (and taken away) fromthe people of the townships,—belongs to Allah,—to His Messengerand to kindred and orphans, the needy and the wayfarer; in orderthat it (wealth) may not (merely) make a circuit between the wealthyamong you. So take what the Messenger gives you, and refrain fromwhat he prohibits you. And fear Allah: for Allah is strict in Punish-ment.

Expenditure by the poor and the circulation of real wealth among the peoplewill result in the revitalization of businesses that work to meet their needs. Suchan economy can never face recession. Economists can describe beer the healthy

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32 7. CONCLUSION

effect on the economy. Further, it will raise the standard of living of the poor,which in turn will result in a higher literacy rate, thus, affecting the awarenesslevel of the public. ere will be countless other benefits.

7.2 e Politics of False Promises Will Come to an End

Poltics revolves around the making of (mostly false) promises to the poor formeeting their basic needs of food and clothing. Once the basic needs of thepeople are served through the system of distributive justice, such promises willlose araction for the masses, and politicians will have to focus on real issuesfacing society. Politics will, therefore, move in the right direction and becomefocused.

7.3 Feudalism Can Come to an End

As stated earlier, feudal power will be considerably reduced through the instiu-tion of ‘ushr itself. In addition to this, if the views of the majority of the Mus-lim jurists regarding share-cropping and tenancy are enforced, feudalism will bewiped out from the system anyway. Further, the institution of “revival of barrenlands” can considerably increase the agricultural potential of the country.

7.4 e State Can Focus on Security and the Provision ofUtilities

Once the needs of the poor are met with the Islamic system of distributive justice,the resources of the state can be directed towards the maintenance of law andorder, security and the provision of basic utilities: electricy, gas, water and so on.

7.5 Documentation of the Economy can be Rapidly Aieved

Asking the people to declare their assets for purposes of zakāt will lead to theautomatic documentation of the economy. is will have a healthy impact onother avenues of revenue generation.

7.6 List of Rights of the Poor

e rights of the poor granted by the sharī‘ah are listed in the following table.We do not have the information to assess what the total impact will be. osewho have such information can do a beer job. All that we have to say in the

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end is to repeat that these are the rights of Allah exercised on behalf of the poormembers of the Muslim Ummah. e right of Allah purifies wealth and makes itlawful for use. e sources of wealth mentioned below can become lawful oncethe share of the poor is set aside and is delivered to them.

Sr.# Type of Wealth subject to Zakat,Ushr or Khums

Rate Total Wealthin Country

Amount Due

1. Minerals: metals like gold, copper,etc.

20% ⁇? ⁇?

2. Mineral wealth other than metalslike oil, coal, gypsum, etc.

2.5% or 20% ⁇? ⁇?

3. Agricultural produce: Rain-fed 10% ⁇? ⁇?4. Agricultural produce: Irrigated 5% ⁇? ⁇?5. All trading goods, that is, capital

employed by corporations and busi-nesses as well as plazas, houses andother property used for business.

2.5% ⁇? ⁇?

6. All pasturing animals kept forbreeding and growth, like camels,cows, buffaloes, goats and sheep,even horses.

Varies: to bepaid in ani-mals

⁇? ⁇?

7. All personal wealth subject to zakatlike jewellry, cash, etc.

2.5% ⁇? ⁇?

7.7 Concepts for the System as a Whole

A reading of what has preceded must have revealed to the reader that there arecertain fundamental concepts involved that do not affect the collection and dis-bursement of khums and zakāt, but they do have implications for the Islamicsystem as a whole. Here we will briefly recall these concepts.

e State is an Agent of the Ummah; the Ummah is not the Agent of the State

is concept has deep constitutional implications. e state with a legal person-ality of its own is not over and above the Ummah. It holds everything in trustfor the Ummah, and the Ummah holds everything in trust for Almighty Allah.us all property and wealth held by the state belongs to the Ummah, and is tobe managed in accordance with Islamic law.

ose in power are, therefore, the agents of the Ummah in reality and whenthey assume power, they are entering into a contract of agency with the Ummah.ey are all accountable to the Ummah. In short, there is a higher law to whicheveryone is answerable, and this is the law of Almighty Allah.

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34 7. CONCLUSION

Corporate (Legal Entities) are the Agents of the Shareholders; the Shareholders(Directors) are not the Agents of the Corporate Entity

e same paern as that of the state exists for corporations whether public orprivate. e corporation provides cover to the shareholders and affords themlimited liability. A corporation must be treated as the agent of the shareholders.is too will have a deep impact on all corporate law. For example, all those whohide behind the corporate veil and have huge loanswrien offwill be accountablefor all these loans through their personal assets.

e Majority Opinion of the Sools Must be Implemented and the MuzayrahSystem Prevalent in Pakistan Must be Abolished

e later jurists of the Ḥanaī school preferred the views of Imāms Abū Yūsuf andMuḥammad (God bless them) over those of Abū Ḥanīfah, Mālik and al-Shāfi‘ī(God bless them all). Today, the situation has changed and it is imperative thatthe views that hold the tenancy system, or the muzayrah system, to be unlawfulbe preferred, especially when these are the majority views considereding all theschools as a whole. ere is no other way to end feudalism.

Payment of Zakāt is not a Maer of Choice; Returns Must be Filed by All oseWho Are Liable for Payment of Zakāt

Many people are under the impression that payment of zakāt is a personalmaer,like charity, therefore, they have a choice with respect to payment. Nothingcould be farther from the truth. Zakāt is claimed by Allah Almighty and is tobe taken by force if people do not pay it voluntarily. e reason is that the right(ḥaqq) of the poor is aached to it, and those who do not pay are depriving thepoor of their rightful entitlement. Accordingly, a systemmust be set up for filing“zakat retrurns” just like returns are filed for taxes claimed by the state.

Land Belongs to Allah Almighty and is Held on the Condition of Cultivation

عباده من يشاء من يورثها لله الارض ان (e earth is Allah’s, to give as a heritage tosuch of His servants as He pleaseth.)1 is may be the most difficult concept forpeople to accept. e least that can be done is to implement the philosopy behindthe doctrine of “revival of barren lands.” Land held by the state on behalf of theUmmah must be handed over to private persons only on the condition of revivalwithin a specified time. ose who do not revive it within such time, and let itlie idle, must return it so that it can be given to those who will revive it.

¹r’ān 7 : 128.

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Abū ‘Ubayd ibn Sallām.eBook of Revenue: Kitāb al-Amwāl. Translated by ImranAhsan Khan Nyazee. Reading: Garnet Publishing, 2002.

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Kāsānī, Abū Bakr. Kitāb Adab al-Qāḍī. In. Vol. 5 of Badā’i‘ al-Ṣanā’i‘ ī Tartīb al-Sharā’i‘, edited by Muḥammad ‘Adnān ibn Yāsīn Darwīsh, 438–461. Beirut:Dār Iḥyā’ al-Turāth al-‘Arabī, 2000.

———. Kitāb al-Ṭahārah. In. Vol. 1 of Badā’i‘ al-Ṣanā’i‘ ī Tartīb al-Sharā’i‘, editedby Muḥammad ‘Adnān ibn Yāsīn Darwīsh, 65–251. Beirut: Dār Iḥyā’ al-Turāth al-‘Arabī, 2000.

Marghīnānī, Burhan al-Dīn Abū Bakr. al-Hidāyah: e Guidance. Translated byImran Ahsan Nyazee. 4 vols. Bristol: Amal Press, 2006.

Nyazee, Imran Ahsan Khan. Corporations in Islam. Islamabad: Federal LawHouse, 2007.

———. Partnership in Islam. Islamabad: Federal Law House, 2007.

———. e Prohibition of Ribā Elaborated. Islamabad: Federal Law House, 2009.

Sarakhsī, Shams al-A’immah. Kitāb Adab al-Qāḍī. In. Vol. 5 of Kitāb al-Mabsūṭ,edited by Abū ‘Abd Allāh Ismā‘īl al Shāfi‘ī, 438–461. Beirut: Dār al-Kutubal-‘Ilmiyyah, 2001.

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