بسم الله الرحمن الرحيم
بسم الله الرحمن الرحيم
Series of Questions Addressed to Scholar Sheikh Ata Bin Khalil Abu Al-Rashtah,
Ameer of Hizb ut Tahrir through his Fiqhi Facebook Page
Answer to the Question
Judging Between Non-Muslims in the Islamic State
To Abu Husam
Assalaam Alaikum Wa Rahmatullah Wa Barakaatuhu,
Can you please explain why the Prophet (saw) gave exception to the Arab Polytheists from the Kuffar of Yemen to remain in their religion? Can we consider this exception regarding the Arab Polytheists a restriction to what is general as what is mentioned in the book, The Islamic State, (Arabic version, 7th edition, page 144; English version, page 139): "These people will be left alone and there is no interference with their beliefs or their worship" the two categories are the people of the Book and the Polytheists? And also a restriction to what is mentioned in Introduction to the Constitution of the Islamic State, Article 27, Section B, or is this exception is specific to that generation only?
I would like to add another question related to what is stated in the book, The Islamic State (Arabic version, 7th edition page 144; English version p. 140): "The State will appoint a judge from their own people to settle their disputes based on their religion in courts belonging to the State." And in the same book, (Arabic version page 146 point (d) English version p. 140): "by appointing judges from themselves in courts set up by the State and not in private courts".
Please explain the nature of the role of these judges and their situation. Before I sent my question, I researched this in the Introduction to the Constitution but I did not find the answer, i.e. is it permitted for the State court to issue two different laws, Islamic and non-Islamic?
Kind regards, your brother Abu Bilal
Wa Alaikum us Salaam Wa Rahmatullah Wa Barakaatuhu
Both of your questions are related to the following text from the book, The Islamic State page 139 (English version), 146 (Arabic version)
"This is as far as the Muslims are concerned. As for the non-Muslims, these are the people who have embraced a creed other than the Islamic one, and they are classified under the following categories:
3) The Polytheists, among whom are the Majus (fire worshippers), Hindus, Buddhists and all those who are not People of the Book.
These people will be left alone and there is no interference with their beliefs or their worship. They will be allowed to adhere to their own laws in matters of marriage and divorce according to their religion. The State will appoint a judge from their own people to settle their disputes based on their religion in courts belonging to the State. As for their diet and adornment, they will be treated according to their own rules within the public order. People other than the People of the Book will be treated in the same way. The Messenger of Allah (saw) said concerning the Majus, «سنوا بهم سنة أهل الكتاب» Treat them in the same way you treat the People of the Book." As for transactions and penal code, they are implemented on Muslims and non-Muslims alike. Penal judgments will be passed on non-Muslims in the same way as on Muslims without any prejudice."
And in the same book page 140 (English version), (page 147, Arabic version):
"In conclusion, the Islamic State's domestic policy would be to implement the Islamic Shari'ah on all those who hold the State's citizenship, whether they were Muslims or non-Muslims. The laws would be implemented as follows:
4) Disputes related to marriage and divorce for non-Muslims would be dealt with by appointing judges from themselves in courts set up by the State and not in private courts; similar disputes between them and the Muslims would be dealt with according to Islamic law by Muslim judges.) End of quote.
Also what is stated in article 7, part (b):
"Article 7- The state implements the Islamic Shariah upon all those who hold the Islamic citzeship, with no difference between Muslims and non-Muslims as follows:
b- The non-Muslims will be allowed to follow their beliefs and worships within the scope of the general system." End of quote.
The answer to your first question:
The Polytheists discussed here are not the Arab Polytheists, but they are the non-Arab idol worshipers like the African tribes; they will not be forced to leave they religions. The state will treat them as the people of the Book except that their food is not lawful and it is prohibited to marry their women. As for Shariah rule regarding the Arab Polytheists, the idol worshipers, is to make them choose between converting to Islam or death. None of them exist today, they perished at the time of the Sahaba may Allah be pleased with them; the ones who did not convert by then to Islam were killed by the Muslims. We eluded the rules concerning them in the book The Islamic Personality Volume 2 as follows:
"As for the Arab Polytheists, peace and Zhimma contract is not accepted from them, but they are invited to Islam; If they embrace Islam they will be left alone, otherwise they will be fought. Allah (swt) said:
((سَتُدْعَوْنَ إِلَى قَوْمٍ أُولِي بَأْسٍ شَدِيدٍ تُقَاتِلُونَهُمْ أَوْ يُسْلِمُونَ))
"You will be called to [face] a people of great military might; you may fight them, or they will submit" [Al-Fath: 16]
Which means until they embrace Islam, the verse is concerning those whom were fought by the Prophet (saw) which were Arab idol worshipers, which is the evidence that they should be fought if they do not convert to Islam.
It was also narrate from Al Hassan that he said:
«أمر رسول الله أن يقاتل العرب على الإسلام، ولا يقبل منهم غيره، وأمر أن يقاتل أهل الكتاب حتى يعطوا الجزية عن يد وهم صاغرون»
"The Prophet (saw) ordered that the Arabs should be fought to become Muslims, and nothing is accepted from them, and He (saw) ordered that the people of the Book should be fought until the give the Jiziyah willingly while they are humbled"
Abu Ubaid said: We understand from this that Al Hassan meant by the Arabs here the the idol worshipers, and not the people of the Book. The Prophet (saw) has accepted the Jiziyah from the people of the Book, which is clear in the Ahadeeth. It was not proven by any one that the Prophet (saw) accepted the Jiziyah from the Arab idol worshipers. And He (saw) did not accept anything from them after the revelation of the verse of Al-Fath and Surat At-Tawba except Islam or War.
But what was transmitted that He (saw) accepted the Jiziyah from the Arabs like the people of Yemen and Najran, it is because they were people of the Book, Jews and Christians, but He (saw) did not accept it from the Arab idol worshipers." End of quote.
As for your second question:
What is stated in the above text: "The State will appoint a judge from their own people to settle their disputes based on their religion in courts belonging to the State" and the quote: "Disputes related to marriage and divorce for non-Muslims would be dealt with by appointing judges from themselves in courts set up by the State and not in private courts"
What is intended here is not that Muslim Judges will judge between them according to their laws, but what is meant is that the judge who will settle their disputes will be from them, i.e. a non-Muslim, but these judges will not be given private courts, instead they will be provided with court rooms inside the state courts buildings; administratively they will be part of the state courts.
They will not be have the role of appointing the judges, it will be arranged by the state, the state is the one that appoints from them judges to settle the dispute between regarding marriage, divorce and all matters related to them. This does not mean that the state court judges with two different laws: one Islamic and the other non-Islamic. The state courts only rules by Islam, but inside the courts there will be rooms linked to administratively whereby a non-Muslim judges who judges in disputes between non-Muslims in the matters of marriage, divorce, and related issues according to their religions and beliefs as decreed by the Islamic Shariah
Ata Bin Khalil Abu Al-Rashtah
The link to the answer from the Ameer's Facebook page.