CHAPTER 8 : ISLAMIC CONSTITUTIONAL PRINCIPLE

Definition of the term UMMAH

 Ummah derived from Arabic terms “umm” mean mother and it is generally used to
reflect the meaning of community
 According to Western Scholars, community mean a relationship create among the
people living int the local area which ranged from small locality group within a society
to any area of common life, village, town or even wider area
 Concept of Ummah in Islam goes beyond mother-land in its geographical territorial limit
and this can be seen by referring to the term ummah al-islamiyyah which implies
element of faith where it encloses the entire collectively of Muslim living regardless of
their territorial boundaries.

Concept of UMMAH
 Concept of Ummah in Islam is related in the context of social, political and religious
settings and thus term “ummah” can be defined in several perspective :
i. Religious group - a group of individuals united by a religious leader that is the
Prophet on the basis of divine guidance
ii. A group of people - a socio-religious association of individuals gathered
around a common leader
iii. A nation - a sizeable group of people united by common bond of religion,
shared experiences and common aspirations with geographical and institutional
agreement
 Term ummah is given a broad meaning during the early day in Mecca which refer to the
religious, moral and ethical
AQ(10:47) : “Every community has its Messenger: when messenger comes, it is
judged between them with absolute justice and they are not wronged”
AQ(16:36) “ ….We have raised within every community a Messenger: worship God
alone and keep away from false deities and powers of evil”
AQ(21:92) : “Verily, this brotherhood of yours is a single brotherhood, and I am
your Lord and Cherisher: therefore serve me and no other”
 Upon migration to Madinah, Ummah mean of nation and it is used to refer to the
establishment of a nation and this can be seen when Prophet codified the term in 2 parts
of Charter of Madinah
i. Article 2 : “They(those who make agreement with prophet) shall
constitute a separate political unit (Ummat)
 Show a religious community of believers
ii. Article 25 : And the Jews of Banu ‘Awf is considered as one political
community (Ummat) along with the believers—for the Jews
their religion, and for the Muslims theirs
 Reflect a confederal community of a Madinah state
 Thus according to Quran, Islamic community(ummah) is salute as the best community
which differ from other as they are integrated and balanced community

AQ(2:143) : “…We made you an ummah justly balance and might be

witneesses over the nation…..We appoint Qiblah to which
you were used, only to test those who followed
Messenger…”
AQ(3:110) : “You are the best of people evolved for mankind, enjoining
good and forbidding evil and believing Allah”
 In general, term ummah is refer to nation which is strictly political concept it may define
as community of peoples possessing a given territory with their own government
 Citizenship involves giving allegiance/loyality to the state, independently of
person’s religious commitment(loyalty)
 however, in concept of Ummah al-Islamiyah ( Islamic community)citizenship
only involve the commitment of particular religion but it theoretically
comprises all Muslim throughout the world regardless of the national origin
 In technical sense, Ummah represent a universal world order ruled by Islamic
government system (caliphate) in accordance with divine law and was formed after
community founded by Prophet in Madinah which includes Jews and Christian living
within its territory as separate communities.

Characteristics of UMMAH
1. Enjoining Good and Forbidding evil and have Faith in Allah
AQ(3:110) : “You are the best of people evolved for mankind, enjoining good and
forbidding evil and believing Allah”
AQ(3:104) : “…There must be a party among you invite people to enjoin the good
and promoting what is right and forbidding and prevent evil”
AQ(22:41) : “Muslim are those who …… enjoin good and forbid evil”
 The phrase of these verse indicate that they(muslim) are adhering(stick) to true
religion which Prophet Muhammad was sent and obey the command of Allah which
distinguished them from others by carrying the banner of Da’wah towards Allah as
they enjoining good and forbid evil

2. Moderation(self-discipline)
 Ummah is based on moderation
AQ(2:143) : “…We made you an ummah justly balance and might be witneesses
over the nation…..We appoint Qiblah to which you were used,
only to test those who followed Messenger…”
Hadith : “The best of dealings are the ones done in moderation”

3. Single Community
  Islamic community is considered as one Ummah
AQ(21:92) : “Verily this brotherhood of yours is single community, and I am
your Lord so worship Me”
AQ(23:52) : “Verily this brotherhood of yours is single community, and I am
your Lord so hold Me alone in fear”
Hadith : “Muslims in their mutual affection and mercy should be single body, if
one member is affected other will suffer fever and sleeplessness”
4. Consultation
 It is the pillar in Islamic government thus it practice in all level of individuals and
social interaction and also plays an important role in political system of Ummah
which demonstrate their rights and duties in the affairs of State
AQ(42:38) : “…… whose affairs are by consultation among themselves”
AQ(3:159) : “…Consult them in conduct of affairs and when you taken
decision, put trust on Allah”
Hadith : “After the demise of Prophet, matters which is not expressly stated in
Quran or Sunnah, decision must be made thru consultation with
Allah followers”

5. Brotherhood
 Ummah is formed based on the concept of Brotherhood
AQ(49:10) : “The Believers are none but single Brotherhood, so make peace
and reconciliation between your two brothers and fear Allah
that you may receive Mercy”
Hadith : “ The faithful are like A single body: if his eye suffer then his
constitution will suffer and if he has A headache, his whole system
will suffer”

6. Taqwa(righteousness and god fearing)

 Ummah formed based on concept of Taqwa which mean the respect(fear) of the
almighty(supreme), the doing by what was reveal and accept what you receive and
prepare to depart from this world.
 It can also be define as self-discipline, self-control, self-restraint, self-evaluation and
self-education and this show that Allah demanded from Muslim who is member of
Islamic society to have Taqwa
AQ(3:102) : “….. Keep from disobedience to God in reverent piety, with all the
reverence that is sue to Him and see that you do not die sac as
Muslim”

7. International
 Ummah is consider as International one as Islam merged all nationalities alltogether
into on Ummah (Islam community)
  Allah reminded the Muslims that they are from different nationalities but Islam
acknowledge them regardless of the types of nationalities, language and ethnic
backgrounds in order to establish an International community committed to Islamic
faith and law
 This can be seen during the daily prayers, Friday prayers
AQ(49:13) : “….,We created you all from a male and a female, and made you
into tribes and families so that you may know one another…..”

8. Reciprocal Responsibility
 Individual and Ummah must have reciprocal responsibility as to aim to help and
protect the community whereas community is to take care of the welfare of the
individuals
 For instance, concept of zakat, charity (sadaqah) and interest free loan are the
financial reciprocal responsibilities of the community and individual towards
another
AQ(2:271) : “If you disclose the act of charity, it is well but if you conceal it
and pay it to the needy in secret,it is best for you and this will
remove your evil deed. … Allah is well aware with what you do”

9. Leadership
 Muslim are commanded to appoint a Head of State and order to obey him as long as
he follow and conduct according to the rule of Allah
AQ(4:59) : “… Obey Allah, Messenger and ulu ambri and if ther is dispute among
yourselves refer to God or Messenger…”

10. Concept of Jihad

 Jihad is for the sake of Allah that is to apply the rule and regulation of Allah and for
the pleasure of Allah and meant to defend the Islam and and Muslim themselves
AQ(2:190) : “Fight in the way of Allah against those who fight against you, but
not transgress(breach) the limit as Allah hates transgressors”
Hadith : “If any community leaves Jihad behind them, Allah is to prevail
punishment on them”
Concept of Citizenship In Islamic State
 In Islam, citizenship have no boundaries (illusionary) thus if stay outside this territory
then it will not consider as citizen, so, it is based on one permanently living within the
Land of Khilafah regardless of ethnicity or religion and need not require one must be
Muslim and adopt Islam value and this show that Islamic state is not an extra territorial
state
AQ(8:72) : “Those who have believed and emigrated and striven hard with their
wealth and persons in God’s cause, and those who give
refuge(protection) and help them are friends and protector of one
another, But those who believe but yet to emigrated, You have no duty
toward them unless migrate….” [even your are Muslim but reside in
non muslim state then Prophet have no duty to protect them]
Hadith : “I am not responsible for the protection of a Muslim who lives among the
mushrik”

 Thus, Muslim living outside of the Islamic State do not enjoy the right of citizenship and
guardianship unless they pay allegiances to the state but non-Muslim living permanently
within Islamic state enjoy the right.
Hadith : “ Call them to Islam and accept them if they agree and refrain from
fighting against them, and call them to move to land of
Muhajirun(emigrants) and if do so will entitle right which Muhajirun
enjoy and will have duties same as Muhajirun”

 Thus it is said that person must belong to Ummah even one is non-Muslim and when
Ummah is formed non-Muslim is granted for the Citizenship

 Art 2 and Art 35 of Sahifah Madinah where it reflect not only the specific
group that share same faith (religious group but also refer to a larger political
group ie citizen which include Jews and those who had submitted themselves to
the treaty or sahifah madinah
  Non-Muslim are consider as Dhimmi if they pay allegiance to the state by fulfilling
the duty and obligation thus, if fulfill, they are said to be belong to Ummah and
granted the citizenship and if not fulfill, they will be terminated from becoming
citizenship, however Non-Muslim
 However, Muslim can be terminated from its citizenship, if they take part in the war
against Islamic State, commit crime against the Ummah(community) such as
commit rebellion, cite non-Islamic state will consider as apostate thus they will
automatically considered as non-citizen

Categories of Citizenship
 Islamic state classified people living within its jurisdiction according to their belief or
disbelieve in ideology(Muslim and non-Muslim) which constitutes the basis of State

 Thus, citizenship can be viewed from Muslim and Non-Muslim perspective who live in
Islamic State

 Muslim jurist classified Non-Muslim citizen into some categories :

i. Dhimmis
 Non-Muslim who submit themselves to Muslim State and their
matters are to be decided with terms of treaty, enjoy all their human
rights which enshrined in Shariah due to covenant
 The word Dhimmi is derived from the root word “Dhimmah” mean
pledge, guarantee, safety
 This title are given to non-Muslim as they are not protected people
unless and until they made an agreement between them and Islamic
state but they are under the pledge of Allah, Messenger of Allah,
Muslim community thus they are under the protection(rulership/
government of Islam) of Islam whereas Muslim are technically mean
surrender
 Dhimmis are “the people of the abode of Islam” thus, they possess the
Islamic Nationality
 The prerequisite condition before non muslim be regarded as
Dhimmi is jizyah(penalty/ monetary obligation on non-Muslim), it
is the protection by way of tax. Therefore since Dhimmi is under the
protection, he will be taken the tax from him from his property and if
one did not have any property, he can still become citizen but only be
granted until he is capable to pay. It is not cruel as Muslim also
paying zakat.
 Thus in order for non-muslim to become a Dhimmi, he is require to
portray his allegiance.

ii. Conquered People - those who fought against Muslim until they were defeated
and were overpowered(overcome)
iii. Non-Muslim who clearly residing in Non-Muslim State as its citizen but given
privilege and protection in Islamic state.
Rights of Dhimmi in the Islamic Polity (rights given as reciprocal effect)
25 m discuss all (1 principle- 2-2.5) ,15m -general 5-6 -

 If Dhimmi are to be considered as citizen, there are rights = conferred to them and not
inherently because it is dependent on their duties (give allegiance, loyalty, pay jizyah)

 Therefore Muslim have the duty to protect the life, property, honour of Non-Muslim
since it forms part and parcel of his Faith
1. Protection of Life
 According to classical view, those who are not Dhimmi, they are considered
belong to enemy of the state thus their life is not protected
 However, once a person become Dhimmi or are consider as those who are
given privilege by Islamic state, first and foremost the protection of life is
given. Therefore, if a Muslim kill non-Muslim who is Dhimmi, the Muslim
shall be take his life in retaliation or qisas
Hadith : when a Muslim killed a Dhimmi in days of Holy Prophet, Prophet
had ordered his execution by saying “I am responsible for
obtaining redress for the weak(victim)”
Hadith : “Prophet state that when they had answer to your call so for them
what for us (whatever right that is conferred to Muslim, the
same right must be given to non-Muslim)”
Summon of the last pilgrimage of Prophet : “your life is as sacred as his
day of pilgrimage(Hajj)”
 This can be seen in 2 situation
a) During the time of Caliph Umar, a person of the tribe of Bakr bin
Waiil (muslim) killed a Dhimmi of Hira and Umar had ordered the
murderer to be handed over to the next of kin of deceased to be
executed with Qisas
b) During the time of Ali, a Muslim was accused of murdering Dhimmi
and proven, Ali ordered the execution of the Muslim and brother of
the deceased submitted that he had forgive him thus require to pay
diyah(blood money)
 Art 16 of Sahifah Madinah - those who obey among Jews, will have help and
equality
 Hudaibiyyah treaty - people from Makkah and commit crime in Madinah will
be sent back to his/her origin country

2. Protection of Honour
 It is prohibit for Muslim to backbite, slander, assault or abuse a Dhimmi since it
this act is prohibited to be done on Muslim, thus it should also applies to
Dhimmi.
 Therefore, Muslim citizen are duty bound to spare their hands and tongues from
hurting the Non-Muslims citizens, so there are prohibited to keep any enmity or
 hatred against them as Allah does not like tyrants but give them a punishment
in this world or next world
Hadith : “Prophet said that the best among you is those who are save from
your hand and tongue”
Hadith : “Whoever hurts a Dhimmi, I shall be his complainant and for
whosover I am a complainant, I shall ask for his right on the
Day of Resurrection”
Hadith : “One who hurts a Dhimmi, he hurts me and one who hurst me,
hurts Allah”
 Art 16 of Sahifah Madinah - those who obey among Jews, will have help and
equality

3. Freedom of Practicing the Personal Law

 Personal law not necessary relating to religious but it can relate to culture,
practices.
 All personal matters of Dhimmis are to be decided according to their own
personal law and Shariah law are not enforce on them . Therefore, if anything is
prohibited according to Shariah, but not forbidden to Dhimmis according to
their Personal Law then they will have right to follow their law pertaining to
that things and court will decide their cases in light of their Personal law
 For example,
i. During the time of Sahifah Madinah, there are Jews who live with
Muslim so Jews are also be given rights to apply their personal law.
ii. For Muslim, they cannot consume alcohol but non-Muslim is allow to
consume alcohol
iii. During the time of Prophet, there are 2 market in Madinah where one
is for Muslim and one is for non-Muslim because Jews’ market are
full with usury and prophet allow the Jews to continue their business
even though usury is prohibited according to Shariah as the have their
right to practice their personal law.
 Dhimmis are given right to both criminal and civil law such as
i. in matter of drinking wine, Dhimmis are exempted from punishment
ii. Imam Malik stated that Dhimmis are exempted from punishment for
adultery but according to majority jurist, if non-Muslim commit
adultery with Muslim, hudud will be impose on non-Muslim but
according to Maliki they are exempted as they are not bound by the
faith
iii. If Muslim harms or destroy non-Muslim property, Muslim must pay
compensation
 Art 26-35 of Sahifah Madinah, where Jews have the same right Jews of Banu
thus, their right remain as usual and would not be touch

4. Freedom of Religion
  Difference from personal law as personal law talks about execution of law
whereas Freedom of Religion is the right of non-Muslim to profess their own
belief and propagate the good points of their religion to only non-Muslim
 Thus, Dhimmis never be forced to adopt a belief that contrary to their
conscience and it is their right whether to refuse or not so long it does not
violate the law
AQ(109:6) : “To you be your Way, and to me mine”
 Religious Rites - according to Islamic Law and practice regarding the public
performance of religious rites and communal festival by the Dhimmis are
equally given and cannot retracted but limited to their own district.
 Places of Worship - In purely Muslim areas, the non-Muslim place of worship
that built in the past is not interfered and if Muslim destroy it, Dhimmis have
right to rebuild and repair it but not entitle to build new worship place in
Muslim area(Muslim dominant) unless the area is not purely Muslim area
 Art 25 of Sahifah Madinah - jews consider as political community along with
believers and Jews their religion, for Muslim theirs
 Hudaibiyyah treaty - where Prophet sign a treaty with Makkah person where
prophet want to portray Mohammad is Messenger of God but Makkah people
object and Prophet acknowledge the objection and this show that Prophet give
freedom to people to profess their own religion and belief

5. Concessions in Realisation of Jizyah and Kharaj

 Jizyah is an obligation that is require to be performed by the non-Muslim in
order regarded them as citizen and given their rights and fail to do so, will not
granted citizenship
 Kharaj is land tax/ quit-rent where it impose on non-Muslim who own land
 During the time of Caliph Umar, where he introduce kharaj because at
that time when Muslim open the land by the ahli in order to get the
title og the land Umar impose the kharaj to the original owner who are
basically non-Muslim
 However, in order to obtain jizyah and Kharaj, it is prohibited to use violence
and coercion.
 However, Caliph Umar clearly ordered that Non-Muslim should not pay more
that what they could actually afford and if they are unable to pay so it is
sufficient if they can pay whatever they have at that time.
Hadith : “Do not chastise them, if you do so, God Almighty, will do the
same to you on the Day of Judgment”
 Muslim jurist stated that the punishment for defaulters of Jizyah(not able to
pay), is only simple imprisonment as corrective measure and those who become
bankrupt, not only exempt from payment of jizyah but also entitle aid from
Baitumal
 Khalid bin Walid in his “Conevanant of Peace” stated that “one is exempted to
pay jizyah if he become unfit to work due to old age or other cause, or become
poor from rich that his co-religionist have to support him by giving alms..”
6. Protection of Property
Hadith : the last sermon of Prophet : “your order, life, property, honour,
dignity shall be as sacred as His day of pilgrimage”
 Thus, the hadith above apply to Dhimmi where the property of Dhimmi is
considered as protected and thus Muslim cannot manipulate and take the
property of Dhimmi and if they do so they will be subjected under Hudud
 Since the property of Dhimmi is protected, thus if they fail to pay jizyah, their
property cannot be auctioned or confiscated
 In the case of Caliph Ali had directed one of his governors not to
auction or sell their apparel or cattle for the realisation of Kharaj
 In another case where Caliph Ali also order his governor “their winter
and summer apparel(clothes), utensils which they use everyday, and
agricultural implements(whatever use to cultivate) and their cattle
[basic needs] should not sold to realise Kharaj unless sold thing which
is not their basic need, nor should done cruel act upon them nor
should any of their property to be auctioned. ……if I learn your
disobedience, I shall remove you from office”
 Thus,Caliph Umar said that Muslim is prohibited to harm Dhimmis or put them
inconvenience or illegally deprive them of their properties
 In Trade and Profession, the door of any trade and professions are open to
all ,as long as they are qualified person, they may be employed in the services
subjected that they are prohibited to appoint as highest position of State and
Muslims have no privileges over Non-Muslims not Non-Muslims
debarred(prohibited) from doing that Muslims are permitted,
 As such, every citizen regardless Muslim or non-Muslim, enjoys equal rights in
field of economic enterprise but must be regulated with Islamic principle
 Art 37 of Sahifah Madinah - Jews and Muslim shall beat the burden of their
expenses themselves

7. Government Service
 Non-Muslims have rights to government service provided that he/she is a
qualified person and thus will be selected without discrimination except for the
key posts ie
i. Wilayah tahkim (policy maker)
 Only Muslim can impose the law but non-Muslim can be
part of member of Shura provided that they had been invited
as member of shura
  According to majority jurist, position of judge who sit as
Wilayah tahkim , non-Muslim still can be appointed as a
judge but cannot judge in a matter involving Islamic matters
ii. Wilayah taufik (executive)
 Only Muslim can execute the policy that have been made
and decided and non-Muslim is given as wide chances as
possible
 According to Maududi, it is general principle that all posts relating to
formulation of State policies and control of important departments is
considered as key posts whereas in army, only posts relate to actual warfare is
treated as key posts.
 Thus, one the person who shared the same ideology who fit to decide on the
matter and in Islamic state it is refer to Muslim

8. Freedom of Expression
 Non-Muslims are also be given the right to conscience, voice out their opinion,
share their idea, expression through words, spoken and written and Non-
Muslims also granted right to freedom of association as what the Muslim
enjoyed subjected to the same limitation imposed by law on Muslim.
 For example, Muslim cannot defamed other thus this also apply
to non-Muslims
 Within those limitations subject that not criticising the Faith, non-Muslim will
be entitled to critise the Government and its officials, including Head of State
and also enjoy the same rights of criticsing Islam as the Muslim will criticise
their religion
 Art 10 of Sahifah Madinah - whatever given to Muslim also impose to non-
muslim

9. Rights to Education
 Non-Muslim have the rights to be educated with the same system of education
however, for religious education, non-Muslims will not be forced to study
Islam but have right to make arrangement for imparting knowledge of their
own religion ( arrange slot) to their children in their own schools or colleges or
even National universities or colleges
 Also granted their rights to go to universities, colleges, high schools and
scholarships

10. Political Representation

 Non-Muslim can also be given right to sit as shura council subject to they
cannot be the Head of Islamic state because the Head must be someone who
shared the same ideology of Islam since Head is bound by law to conduct the
 administration of the State in accordance with Islamic Principle and Shura
council is to assist him.
 In regard to Parliament or Legislature concept it is different from Shura in its
tradition because the rule could allow non-Muslims to become its members
provided that it fully ensured in constitution that :
i. It would be ultra vires for Parliament or legislature to enact law which
contravene to the Islamic principle and supremacy must be given to
God
ii. Quran and Sunnah would be the chief sources of law
iii. Head of State or the assenting authority must be Muslim

Duties of Dhimmi in the Islamic Polity

1. Obedience
 In order for non-muslim to become Dhimmi or remain as Dhimmi, he must obey
and remain loyal to the state under all circumastances
Hadith : “The State shall have to be heard and shall have to be obeyed, in
adversity and in prosperity and whether it is pleasant or unpleasant
to do so”

2. Loyalty
 The citizen, Muslim or Dhimmi must be loyal to the State and work for its welfare.

 Citizen mist truly and faithfully and with all his heart and it is not because of own
personal interest, but it is because for the good and betterment for the general

3. Co-operation
 It is obligation for citizen to co-operate with the rest of citizen and should not have
any discrimination and any division of people
 It is obligation for the citizen to co-operate with government with whole heartedly
and make sacrifices of life and property for it if state being threaten and those who
unwilling to do so is hypocrite in Quraa

4. Payment of Jizyah
 It is one of the condition of Non-Muslim to become or remain as Dhimmi and if one
fail to pay jizyah then the right of citizenship may be removed as this is the return of
the protection given to them by the State

 Caliph Ali said that “the contract has been granted so their properties as our
properties and their blood as ours”

5. Criminal law and Civil law

 Criminal and Civil law are same for both Muslim and Non-Muslim but with few
exception
  For example, laws that involve general crime, in hudud crime there are several
crime that consider as general such as theft, robbery,rebellion whereas apostasy,
adultery, Qazf are personal crime but Qazaf is not applicable as it only from Muslim
to Muslim as non-Muslims cannot be witnesses in Islam. Thus, if non-Muslim
commit slander against Muslim it will not be under Hudud but Ta’azir
 According to Majority jurist, Criminal Law is applicable to all thus, if Muslim are
subject to Hudud of theft then the Dhimmi who commit same crime must also
subjected to the same law as Muslim whereas in Civil Law it is the same for both of
Muslim and Dhimmi where they are sitting in the same court and judge must hear
both claimant and defendant
 Thus,there is complete equality between them.
 Caliph Ali said that “their properties are as sacred as the properties of
Muslims”
 However there is a time where there is an argument between Ali and
Jewish where it happen in front of the valid prominent judge when he was
hearing a claim by Ali who accused a Jewish to have taken his armour and
Ali have bring his son to become the witness and the judge stated that
since his son have the interest in this case it is not valid.

CONCLUSION
 Principle of Islamic Constitutional must be from the Quran and Sunnah in order to form
a government
 It is important to know that Islam is not merely a religion buy a way of life as well
embracing politics, economics, science, etc.