Shura does not mean Democracy
It seems these days democracy has come to mean all things to all men. It has come to be seen as a term of approval for anything good. Consequently many Muslims have sought to equate the Islamic principle of shura, i.e., consultation, with democracy. The concepts are, however, quite different. These and other points are covered in this third pamphlet in a series covering aspects of the Ruling System in Islam prepared by Members of Hizb ut-Tahrir in Britain.
Defining Democracy
Abraham Lincoln in his Gettysburg Address described democracy as `government of the people by the people for the people'
Sovereignty
Lord Hailsham, in his book "The Dilemma of Democracy", says that the only proper use of the expression `democracy' is in respect of "political sovereignty and nothing else... Sovereignty can reside in an individual, a selected number of citizens or the whole adult population. Only the last named can be properly called a democracy". Popular sovereignty means that the people as a whole are the final source of government, authority and legitimacy. Democratic government is `of the people' in the sense that it is derived from and based on the people's will.
In Islam sovereignty is for Allah, expressed in the mastership of the shar'iyah (divine law) over the will of the people. "So judge bewteen them by that which Allah hath revealed, and follow not their desires, but beware of them least they seduce thee from just some part of that which Allah hath revealed unto thee". [Al Ma'idah:49]
"No guardian have they apart from Him, since He allots to no one a share in His rule!" [Al Khaf:26]
The Priniple of Shura (i.e. consultation)
Allah indicates in the Qur'an: "And those who answer the call of their Lord and establish prayer, and who conduct their affairs by mutual consultation, and who spend of what We have bestowed upon them". [As-Shura:38] and: "So pass over (Their Faults), and ask for (God's) forgiveness; and consult them in affairs (of the moment) then, when you have taken a decision, put thy trust in God". [Al-i-Imran:159]
Al-Tabari in his tafseer of this verse says that "Allah ordered His Prophet to consult his companions in certain matters so that the community knows about it, and follows this principle by consulting among themselves when they are faced with calamities". And in al Razi' interpretation of this verse it is reported that al-Hassan and Sufyan bin Uyaynah as saying "Allah ordered the prophet to consult his companions, so that others may follow him and thus it would become a tradition for the community".
Further evidences for the practice, and importance of Shura, can be gleaned from the life of the Prohpet (peace be upon him). He consulted with his companions on the eve of the battle of Badr, on the day of Badr, on the day of Uhud, and on the day of Khandaq (a fuller account of these events will be discussed further on). These evidences have made it clear that the Muslims have been commanded to undertake consultation, i.e, shura, and Allah has praised the Muslims for deciding their affairs by way of consultation.
In what matters should consultation apply?
Shura can include every matter, with no difference between legislative matters or worldly affairs like war, politics and the general interests of the people. This is because the two verses that have been revealed on the subject of shura are general in scope i.e., in the language of Islamic jurisprudence `Amm. 'Amm may be defined as as a word which applies to many things, not limited in number, and includes everything to which it is applicable. This is established by the linguistic patterns of words and the style of speech and grammar, in the particular case of shura the verses are general proclamations which are not specified or limited by other verses of the Qur'an.
The Community is the Source of Power
The Muslims are responsible for the implementation of the Islamic laws. "O ye who believe stand out firmly for justice..". [Al-Nisa:135]; "O ye who believe fulfill (all) obligations" [ Al-Maida:1];
"The believers, men and women, are protectors one of another: they enjoin what is just, and forbid what is evil" [al-Tauba:71]
and many other verses place the responsibility of upholding Islam on the shoulders of the nation, ie., the Muslims as a whole.
To discharge this responsibilty the nation, which possesses the power or authority, selects a leader to manage the affairs of the nation in accordance with the Islamic law. The Khalifah is only empowered to rule by the Muslims giving him bayah, i.e., a pledge of allegiance, through an offer and acceptance.
Sharia is Sovereign
Whilst the nation is the source of power, it has a limited authority. The nations authority is resticted by the unlimited powers of Allah. Thus in the question of shura, althougth the people have the right to be consulted in everything, their opinion will not necessarily be transferred into law. This is quite unlike democracy where in theory the people are sovereign and their will is transfered into law. The divine law, i.e., Allah's law is sovereign and consultation cannot overrule it. Simply put, for example, no matter how many people hold the opinion that the obligatory prayers should be reduced from five times a day to two times a day, the law will not be changed.
Shura carries no weight when in opposition to revelation, i.e., the Book and the Sunnah. Al-Imam Bukhari has narrated in his book that: "The imams after the Prophet (SAW) used to consult the reliable of knowledge in the permissable matters (al Mubah), in order to take the easiest of them. And if the matter was explained in the Book of Allah and the Sunnah they would not go further than that".
Shura can only Legislate in the Permissable (al Mubah) Matters
Mubah is defined as communication from the Lawgiver concerning the conduct of the individual which gives him the option to do or not to do something. As al-Ghazali explains, it is established in the express permission of the Almighty God which renders the commission or ommission of an act permissable either in religious terms or in respect of a possible benefit or harm that may accrue from it in this world.
Al Mubah is one of the five varieties of divine rules (hokm shar'i), the others being: the obligatory (wajib, fard), recommended (mandub), abominable, i.e., disliked (makruh), and the forbidden (haram).
Shura can not change the obligatory into a permissable act, for example shura cannot make the payment of zakat (alms) an optional act. Abu Bakr raised an army to fight those people who wished to do so, because it was, still, and will always be, an obligatory act. Likewise the community cannot make the forbidden permissable, such as making alcohol allowable; or turn the abominable into the recommended or the recommended into the abominable. The will of the nation as expressed through shura can be turned into legislation in the area of mubah, provided that when the community renders the commission or omission of an act it does so in accordance with the rule of Allah.
The Different Forms of Consultation
1. Consultation with the community
In issues which directly involve the community, i.e., the masses, the community is consulted directly. The Prophet Muhammad (SAW) consulted with the majority of the people of Madina in the question of leaving Madina to fight the enemies at Uhud. He said to the people of Madina "Give me your suggestions". He wanted to know from them whether they wanted to fight the enemy inside or outside the city of Madina. This consultation can be with the masses or representatives of the masses. The Prophet (SAW) consulted the two Sa'ads, Sa'ad bin Mu'az and Sa'ad bin Ubadah in connection with the compromise with the tribe of Ghatfan in return for one third of the fruit crops of Madina, on condition that they would retreat from fighting against the Muslims in the battle of the Ditch. The two said, "If it is an order from the heavens, please comply with it. If it is a matter in which you you are not ordered by Allah, and you wish it so, we obey you. But if it is an opinion, then they have nothing from us except the sword. The Prophet (SAW) accepted their opinion and abandoned the topic of compromise with Ghatfan. The two Sa'ad's were the leaders of their people, being the chiefs of the Ansar.
2. Consultation with the scholars, specialists and experts in their field.
Al-Qurtabi in his tafseer of the Qur'an comments: "It is the duty of the rulers to consult the scholars on matters not known to them and in religious matters not clear to them, to consult the leaders of the army in matters related to war, and leaders of the people in matters related to administration. The teachers, ministers and governors in matters related to the welfare of the country and its development".
During the preparation for the battle of Badr, the Prophet (pbuh) consulted with the military expert Habaab al Mundhir.
The Decision of the Khalifah
The Messenger of Allah (SAW) consulted his companions on several issues by practising shura effectively. However, consultation and decision making are two different matters, this is due to two reasons: Firstly, the type of opinion in which (shura) consultation is exercised, and secondly, the centrality of leadership in Islam. The first reason is based on the fact that the type of opinions are divided into four categories and no more, and these are the areas on which shura is applied.
The types of opinions are as follows:
1. Opinion on legislative matters
2. Opinion on intellectual matters
3. Opinion on arts matters
4. Opinion that offers guidelines to an action to be taken.
The opinon on legislative matters: It is known by necessity that legislation can only be according to the revelations of the Qur'an and Sunnah, for the supremacy in the Islamic life is to the shar'iyah and not to the people for Allah (SWT) has indicated: "The rule is none but Allah" [6:57]
If the supremacy were to the people, the opinion of the majority would be valid and binding on the head of state; this would lead to the halal becoming haram and vice-versa. Therefore, the shura in legislative matters is restricted to outweighing and favouring one opinion according to the strength of the evidence in the case of plurality of opinions and understandings. Despite the fact that the strength of evidence is what makes an opinion outweigh the others, the head of state is the sole body with the mandatory power to make that opinion binding and law on all Muslims. Evidence for this is extracted from what took place during the peace treaty of Hudaybia; Ibnu Ishaq and Ibnu Hisham mentioned in the book of Sira (The life of Muhammad (SAW)), as did Ibnu Kathir in his book of Tafseer Vol4, p196, on the treaty of Hudaybia, that when the Muslims objected to what Allah's Messenger (SAW) signed with Quraysh, he (SAW) followed the revelation and ignored the Muslim's opinion and objection. Therefore, if shura had any value in this instance, Allah's Messenger (SAW) would not have opposed all his companions.
Similarly, when the Khalifah Abu Bakr decided to fight the rebels, and Umar objected, Al-Imam Imnu Hajar Al-Asqalani wrote in his book Fathul-Bari Vol 17, p106: "Umar said: How could you fight when Allah's Messenger (SAW) said: "I was ordered to fight people until they profess that there is no god but Allah, Muhammad is His Messenger, if they did their blood and money would be spared except by right". Abu Bakr replied: By Allah I shall fight whoever divided between what Allah's messenger (SAW) has united. Umar then persisted but Abu Bakr did not listen, nor did he refer to consultation for he had the ruling and the verdict of Allah's Messenger (SAW): "Whoever changed his deen, kill him".
Outweighing an opinion over another on the strength of the evidence is down to the one seeking an opinion and not down to the people; that is the opinion of Al-Imam Shafi'i expressed in his book Al Risala, Al-Imam Qurafi is of the same opinion which he expressed in his book Al Ahkam p79: "If the ruler were a mujtahid (jurisprudent), he should rule only by the opinion which he believes outweighs others".
Abu Bakr and Umar, both had their respective evidences, but Abu Bakr's evidence was stronger for it fitted the reality of the rejectors (rebels) more than Umar's evidence did.
Abu Bakr looked upon the issue as being the rebellion of a group of subjects against the shar'iyah laws, whereas Umar translated it as a fight against a strong Muslim faction defying the state, where the state may not be capable of fighting it. Therefore, Abu Bakr legislated by what he deemed to be the stronger opinion of the two, and made it binding on Muslims to fight those who refuse to pay the zakat.
The head of state is therefore the exclusive body that has the mandatory power in decision making, and in enacting laws that are binding, for shar'iyah allows for the head of state to have the final say after consultation, and execute his opinion, and not that of the shura people.
Islam made the head of state the sole decision maker, where an opinion which he alone thinks outweighs other opinions, he would then make that opinion law and binding; if he adopts an opinion, it becomes law, and all Muslims should obey him. Two Shar'iyah opinions say: "The order of the Imam settles differences" and "The order of the Imam is law, openly and secretly".
Organizing Shura (consultation) Today
Although the practise of shura is well established by the Book of Allah and the traditions of the Prophet (SAW), Islam has not laid down a definitive mechanism for shura. With knowledge of the limits, functions and responsibilties of shura, we submit that shura should be formalised in a consultative forum, i.e., majlis as-shura, wherein the people, as represented by their elected representatives, can formulate their views for the Khalifah to consider.
Functions of the Majlis as-Shura (Consultative Assembly)
1. To formulate and exercise the assemblies view on all "mishwarah" matters, i.e., issues deemed to be the legitimate concern of the assembly. Mishwara matters would include matters of health, education, ruling and the economy. All within the area of permissiblity (mubah). Such as deciding whether to build hospitals instead of schools, or whether to provide street lighting in rural areas instead of building a new road, etc.
2. To question the government on all actions it carries out.
3. To express dissatisfaction in the governors and assistants to the Khalifah.
4. To express views on the rules the Khalifah intends to adopt for legislation.
5. To select a list of candidates to stand for the position of Khalifah.
Is the View of the Majlis as-Shura Binding on the Khalifah?
Almighty Allah has warned in the Qur'an: "And consult them in affairs (of moment). Then when you have taken a decision put thy trust in Allah". [Al-i-Imran:159] Al-Imam Qatadeh says: "Allah commands His Messenger that when he decides upon a matter, he should go ahead with it and trust in Allah". In the verse of Ali-i-Imran Allah indicates "When YOU have taken a decision", in Arabic the singular form of you is employed as opposed to the plural form of you. Thus when the ruler has formed a definite view, which may, or may not, represent the view of the majoirity, the ruler is to put his trust in Allah.
As Al-Imam Zamakhshari says in his book al-Kasharf "And when you art resolved and when your opinion has become resolved on a thing, following shura, then depend on Allah".
The opinion of the majority is therefore not binding on the Khalifah in certain areas. When the Khalifah is seeking the strongest opinion on a certain rule, the ruler is to be driven by the quest for the strongest shar'iyah opinion and not the view of the majority. In this regard greater weight is given to the strength of Islamic evidence rather than the will of the majority. Similarly, when the Khalifah considers the view of the experts and specialist he will take the view which convinces him, rather than the majority view. However, in the area where the majlis as-shura has been given the right to formulate its view on "mishwarah" matters, the majority view of the majlis is binding. This is supported by the action of the Prophet (pbuh) in the question of going out of Madina to confront the enemies at Uhud. Even though the Prophet's opinion was to stay inside Madina, he (SAW) accepted the view of the majority. To conclude, all issues that are the legitimate concern of the majlis as-shura, i.e., mishwarah matters, are to be decided on the basis of the majority opinion, irrespective of whether it is considered to be correct or not. In all other matters of shura the correct opinion is sought, whether it be a majority or minority held view.
Censuring the Ruler
It is the right of the nation to censure the head of the state and all the officers and governors. It is an important function of the shura to ensure that the ruler conforms to the Book of Allah.
"The deen is an advice... For the sake of Allah, His Book, His Prophet and for the leaders of the Muslims and the masses". The nation must remain conscious that it is Allah, the Almighty, who must be obeyed, and not the whims and fancies of man. The essential dictum being: "There is no loyalty unto the created which involves disloyalty unto the Creator". (Bukhari)
This is personified in the behaviour of the rightly guided Khulafaa'. Abu Bakr (may Allah be pleased with him) in his first speech as the Khalifah said: "If I behave well support me, if I falter straighten me".
Umar ibn al Khattab (may Allah be pleased with him), in his capacity as Khalifah, said, "Those of you who see in me crookedness must straighten it". One amongst the audience replied, "By God, if we see in you crookedness, we will straighten it with our swords". Umar said "Thank God, He has created someone in the community of Muhammad who can straighten Omar with his sword". The same man Umar later appointed to the court of the acts of injustice "mahkamat ul-madhalim" as a qadi (judge). Umar exemplified the behaviour of the God conscious ruler. Once, Umar declared that none should increase the dowry (mahr) more than 400 dirhams. He was concerned that the dowry was becoming excessive. On descending the pulpit an old lady said to him, O Umar, have you not heared Allah's injunction? Umar went back to the pulpit and said, the women is right and Umar is wrong. I was asking you not to give more than 400 dirhams as dowry. Whoever so wishes may give as much property as he likes.
Conflict between the Majlis as-shura and the Ruler
If the majlis as-shura disagrees with the ruler over an action from the view point of shar'iyah, the matter is to be decided by the court for the unjust acts (mahkamat ul-madhalim). The mahkamat ul-madhalim consists of a small band of jurists, who are qualified with the ability to make ijtihad, thus able to determine whether the ruler has acted in accordance with the divine law. This accords with the command of Allah: "O you who believe, obey Allah, and obey the Messenger and those charged with authority among you. If you differ in anything among yourselves refer it to Allah and His messenger if you do believe in Allah and the Last day: That is best, and most suitable for final determination". [an-Nisa:59]
Selecting candidates for the position of Khalifah
The Muslim members of the majlis as-shura check and determine the candidates to stand for election to the post of Khalifah. The majlis as-shura announces the candidates and the Muslims are asked to elect one of the candidates to office.
Membership of the Majlis as Shura
Every citizen of the Islamic state has the right to become a member of the majlis as-shura, provided, that is, he or she is both mature and sane. Non-muslims can be members of the majlis as-shura. Their presence in the assembly is confined to representing their community in respect of their grievences against the ruler and the misapplication of Islam upon them.
A Draft Constitution for the Khilafah
Majlis as-Shura [The Consultative Assembly]
The following articles, that deal with the formalising of shura in a future Islamic state, are taken from a draft constitution prepared by Hizb ut-Tahrir, the full version of the constititution is available in the books (Distoor) - in Arabic, and (The System of Islam) in English.
Article 101
The membership of the majlis as-shura consists of those people who represent the muslims in respect of expressing their views to the Khalifah when consulted. Non-muslims are allowed to be members of the majlis as-shura so that they can voice their complaints in respect of unjust acts performed by the rulers and/ or misapplication of the Islamic rules.
Article 102
The members of the majlis as-shura are elected by the people.
Article 103
Every citizen of the state has the right to become a member of the majlis as-shura, provided he or she is both mature and sane; this applies to muslim and non-muslim. However, membership to non-muslims is confined to their voicing of complaints in respect of unjust acts performed by the rulers and/or the misapplication of Islam upon them.
Article 104
Consultation (shura) constitutes the seeking of views, and the majlis as-shura seeks to arrive at the definitive view. Matters of legislation, definitions, expertise, science and technology are not to be considered by the majlis as-shura. It is the right of the majlis to express views on all other matters.
Article 105
All citizens, muslims or not, may express their views, but shura is a right for the muslims only.
Article 106
All issues that are the legitimate concern of the majlis are decided on the basis of the majority opinion, irrespective of whether it is considered to be correct or not. In all other matters of consultation the correct opinion is sought, whether it be a minority or majority held opinion.
Article 107
The majlis as-shura is charged with four duties, they are:
1a. To arrive at the definitive view of the assembly on matters that are considered to be legitimately the concern of the majlis, such as: affairs of ruling, education, health, and the economy. In all other matters, such as foreign policy, finance and the army - which are not the concern of the majlis - the opinion of the assembly is not necessarily sought.
b. To question the government on all actions it actually carried out, whether they be internal or external affairs, financial or military. In matters where the majority view decides, the majority view is binding. Where the majority view is not sought the viewpoint is not binding. In the event of the assembly and the rulers disagreeing on an action, from the viewpoint of the shar'iyah, the verdict of the Mahkamat ul-Madhalim (Court for Unjust Acts) is to decide.
2. To express dissatisfaction in the governors and assistants. In this matter the view of the assembly is binding. The Khalifah must discharge them at once.
3. To discuss and express opinion on the rules, the constitution and canons that the Khalifah intends to adopt and which he has presented to the assembly. The views of the assembly are not binding in this matter, but they have the right to express their views; non-muslims have no such right.
4. To select the list of candidates to stand for the position of Khalifah; no candidate excluded from this list may stand. The decision of the assembly is binding. Only muslim members of the assembly may participate in drawing up this list.
The Structure of the Khilafah Ruling System
The Khalifah - Head of State
Delegated Assistant to Khalifah
Executive Assistant to the Khalifah
The Amir of Jihad
The Governors of the Provinces
The Administrative System
Majlis as-Shura
The Judiciary
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