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

Wrien for my son Saifullah Sarwar Khan Nyazee

 Published in Pakistan in 2011
by e Federal Law House,
Head Office:Mian Plaza, Chandni Chowk,
Rawalpindi, Pakistan. Tel. No. (051) 4843011, 4571229
Branch: 7, Turner Road, Near High Court
Lahore, Pakistan. Tel. No. 0322-4843011

©2011 by Imran Ahsan Khan Nyazee

All rights reserved.

All rights reserved. No part of this publication may be reproduced or transmied in

any form or by any means, including photocopying and recording, without the wrien
permission 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 Pakistan
by
Haji Hanif & Sons
Lahore, Pakistan.
 C

Preface 1

1 Sharī‘ah, Justice and Rights 3

1.1 e Rights of the Poor are in Reality the Rights of Allah . . . . . 5
1.2 e State Holds Everything in Trust on Behalf of the Ummah . . 6

2 e First Right: Share of the Poor in all Mineral Wealth 7

2.1 ings at Come out From Under the Soil . . . . . . . . . . . . 7
2.2 e Derived Right of the Poor . . . . . . . . . . . . . . . . . . . 12

3 e Second Right: Share of the Poor in the Produce of the Land 13

3.1 e Rules for ‘Ushr in the Ḥidāyah . . . . . . . . . . . . . . . . . 13
3.2 Right of the Poor to Enforce Revival of Barren Lands . . . . . . 14
3.3 Abū Ḥanīfah’s Opinion on Tenancy (Muzāra‘ah) Should be Im-
plemented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4 e ird Right: Share of the Poor in all Pasturing Animals and Com-
mericial Assets 17
4.1 Rules for Pasturing Animals in the Ḥidāyah . . . . . . . . . . . . 17
4.2 Rules for Trading Goods in the Ḥidāyah . . . . . . . . . . . . . . 18
4.3 Land for Pasture to be Set Aside Everywhere . . . . . . . . . . . 19
4.4 Returns Must be Filed for Zakāt Even When Paid Personally . . 19
4.5 Certain Issues Not Mentioned Here . . . . . . . . . . . . . . . . 19

5 e Fourth Right: No Commercial Loans, but all Loans of the Poor

to be Repaid 21
5.1 Rights of Refugees . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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

i
ii CONTENTS

6.1 e Rights of Allah Must be Secured Before all Other Rights . . 23

6.2 Implementation of the System . . . . . . . . . . . . . . . . . . . 24
6.3 e Standard for Management . . . . . . . . . . . . . . . . . . . 24
6.4 Swi Distribution of Allowances . . . . . . . . . . . . . . . . . . 26
6.5 Pay Everyone Who Claims to be Poor . . . . . . . . . . . . . . . 26
6.6 Personal Accountability and the Beneficiaries to Watch the Corrupt 27
6.7 Wherever Possible Payment Should be in the Form of Goods and
not Paper Money . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

7 Conclusion 31
7.1 e Result Will be a riving Economy . . . . . . . . . . . . . . 31
7.2 e Politics of False Promises Will Come to an End . . . . . . . 32
7.3 Feudalism Can Come to an End . . . . . . . . . . . . . . . . . . . 32
7.4 e State Can Focus on Security and the Provision of Utilities . 32
7.5 Documentation of the Economy can be Rapidly Achieved . . . . 32
7.6 List of Rights of the Poor . . . . . . . . . . . . . . . . . . . . . . 32
7.7 Concepts for the System as a Whole . . . . . . . . . . . . . . . . 33

Bibliography 35
 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 Lord
of manifest authority and unshakeable proofs, the Creator of all things, the King
of all the dead and the living, who creates and then perfects, who cras and
then refines, who empowers and then forgives, who sees (violations) yet gives
protection, 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 are
perfect, and His command and authority manifest. Praise be to Him, how great
is His glory.1
And, prayers and blessings on the One sent as the giver of glad tidings and
a warner, and as one inviting to God, with His permission—the bright and shin-
ing lamp—who elaborated all arguments, drove away all ignorance, eradicated
indiscretion, and demolished idolatry: Muḥammad, the chief of all Messengers
and the Imām of the righteous. Prayers and blessings also on his revered Family
and on his Companions, who were the chosen and the elect.2
T: e people of Pakistan are being offered cheap bread, income
support programmes, and all kinds of subsidies as part of politics, as if they were
beggars. ere are also those who talk about some new revolution when the
benefits 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 the
poor of Pakistan when it is for these rights that they agreed to create a separate
homeland.
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 Allah
Almighty through the noble sharī‘ah: rights that no one can dare take away. is
is a clarion call for establishing the Islamic system of distributive justice, which
has been denied for too long now by those at the helm of affairs of this Ummah.

¹ese are the words of the learned Imām ‘Alā’ al-Dīn Abū Bakr al-Kāsānī (God bless him),
which we have gratefully borrowed, aer 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
 1

Sī‘, J  R

Imam al-Sarakhsī, one of the greatest jurists of the Muslim Ummah, who unjustly
stayed in a prison cell for fieen 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, aer 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, the Majestic, said, ‘I am going to appoint a vicegerent upon earth’ ”1 Justice
is judging and deciding on the basis of what Allah has taught us. Accordingly,
aer 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 from
any of that (teaching) which Allah hath sent down to thee,”2 Imām al-Sarakhsī
says that the reason for its importance is that a judgment based on truth is indeed
the manifestation of justice, and it is through justice that “heavens and earth are
maintained,” 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 of
injustice 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 ‘Abd
Allāh Ismā‘īl al Shāfi‘ī (Beirut: Dār al-Kutub al-‘Ilmiyyah, 2001), 67. e verse of the r’ān
referred 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 has
He raised high, and He has set up the Balance (of Justice), 8. In order that ye may not transgress
(due) balance.
3
4 1. SHARĪ‘AH, JUSTICE AND RIGHTS

blessings be on them all), and it is with justice that the Khulaā’ Rāshidūn (God
be pleased with them) were occupied.”4
Philosophers, since Socrates and Plato and even earlier, have grappled with
the 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-faced
concept.5 Not only does it change shape from time to time, it is difficult for two
people 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.
DISTRIBUTIVE JUSTICE

CORRECTIVE JUSTCE
Aristotle’s master mind could see two types of justice: distributive and cor-
rective justice.6 Distributive justice deals with how resources are allocated within
the community. is form of justice is tied up with the concept of rights. It is
rights that determine what is due to us, and it is rights that assign duties on those
who have to secure rights. When rights are disturbed or are denied, it is the other
form 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 and
impartial judiciary is essential. Both forms are essential, but it is distributive
justice that comes first, because rights cannot be secured unless they are first
identified and recognized by the system.
In the Islamic system rights are granted by the sharī‘ah, and the sharī‘ah has
le no doubt in our minds about the meaning of justice, whether distributive
or corrective. Both systems revolve around rights gied by the noble sharī‘ah.
ese rights cannot be suspended, altered or waived by human beings, without
falling into sin and disgrace.7 Sayyadnā ‘Umar ibn al-Khaṭṭāb (God be pleased

⁴Sarakhsī, Kitāb Adab al-Qāḍī, 67.

⁵Edgar Bodenheimer, Jurisprudence: e Philosophy and Method of the Law (Harvard: Harvard
University Press, 1974), 196.
⁶ese 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 and
that no one as a maer of principle has the right to suspend them in whole or in part or violate
or ignore them in as much as they are binding divine commandments, which are contained in
 Sī‘ B  R 5

with him) identified this in his famous leer on justice, called kitāb siyāsat al-
qaḍā wa-tadbīr, which translates into the Leer of Judicial Policy and Admin-
istration. He said, “[D]o not torment the public,…by denying them the sources of
their rights through whi Allāh, the Exalted, gives rise to rewards and arranges
provisions. Verily, he who purifies his intention about a right in his relationship
with 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 person
adopts misrepresentation (deception) before the people when Allāh knows that the
truth 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 arranges
provisions,” especially the provisions of poor Muslims. He also brings “disgrace”
to those who stand in the way of the rights that Allah has granted, whether
such person is an individual, a group or the entire Ummah. is point cannot be
emphasised 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; the
rights of the individual; and the rights of the Ummah collectively pertaining to
worldly maers. e rights of Allah are claimed by Allah, the Majestic, not only
from the indiviudal, but also from the Ummah as a whole. us, a person owes
religious duties, like prayer and other forms of worship, to the Almighty. He
is answerable to Allah for these duties and this is the realm of the Hereaer.
But Allah also claims this as a right from the whole Ummah insofar as seing
up facilities for the performance of these duties is concerned.9 e Ummah as
a whole (call it the state if you will) owes certain rights directly to Allah. An
example of this is the imposition of the ḥudūd of Allah, which have been imposed
as the right of Allah.10 Zakāt, and all other rights pertaining to the rights of the
poor, 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 or
violation an abominable sin, and accordingly every person is individually responsible—and the
Ummah collectively responsible—for their safeguard.” Issued by the Nineteenth Islamic Conference
of Foreign Ministers (Cairo, 14 Muharram, 1411A.H. / 5 August, 1990 A.D.). e rights of Allah are
the 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.
¹⁰is 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, or
even to punishments awarded as ta‘zīr, but the ḥudūd are the right of Allah, claimed directly
from the Ummah as a whole.
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 financial
burden, 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 calls
itself 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 the

Ummah
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 the
modern state, with its concept conceived in the West, owns everything that falls
within the territory over which it has jurisdiction, just as a corporation owns all
its assets to the exclusion of the shareholders. It also has jurisdiction over the
citizens, who are its subjects. If Bentham is to be believed, it is this state that
gives rights to its subjects, and it is this state that takes them away, or suspends
these rights in times of emergency.11
e concept of state conceived in the West by human minds cannot stand in
the face of the sharī‘ah, which has its own system. e state is not over and above
the Ummah, but is merely an agent of the Muslim Ummah, an adminstrative
device created by the Ummah, and holds everything in trust for the Ummah. It
holds and administers everything on behalf of the Ummah: all territory that it
holds is for the Ummah; all property that it holds in the name of the President or
the 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 through
the sharī‘ah can never be suspended, restricted, abrogated or set aside by the
state, as already stated. e state has to enforce the rights of Allah first and then
move on to worldly maers, otherwise disgrace is the lot of the Muslims who
are 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 implemented
by the Islamic Republic of Pakistan, as these are the rights of Allah Almighty. e
primary duty of this agent of the Muslim Ummah, that is, the state, is to enforce
these rights so that Muslims can be safe both here and in the hereaer.

¹¹is is the idea that prevailed in England and consequently in the dominions. e United
States followed the ideas of John Locke and others, who believed in natural rights from which the
idea of human rights came up. Today, the world is moving towards the position adopted by the
United States, because the United Nations, toeing the line of the United States, advocates these
ideas. e sharī‘ah, however, has its own system.
 2

T F R: S  

P   M W

Minerals like gold, silver, iron, copper and so on, things that can be melted down
and given shape are considered as war booty, and a fih out of these is allocated
to the poor, just like booty. e reason for treating them as war booty is that
originally all land was in the control of the unbelievers (kuār) and was taken
from them by the Muslims. e rule is based upon the following verse:

‫ول َولِ ِذي‬ِ ‫َواع َلموا أَنَّ َما َغ ِنم ُتم ِّمن شَ يءٍ َفأَ َّن لِلّه ُخ ُم َس ُه َولِل َّر ُس‬
َّ ِ‫المس ِكينِ َوابن‬
‫الس ِبيلِ إِن كُن ُتم آ َمن ُتم بِاللّ ِه‬ َٰ ‫القُر َبى ٰ َواليتٰ َمى ٰ َو‬
And know that out of all the booty that ye may acquire, a fih 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 the
mere 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. e
first is called kanz (treasure), which is something that is buried by human beings
under 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

¹r’ān 8 : 41
7
8 2. SHARE OF THE POOR IN ALL MINERAL WEALTH

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 fih.”2 e tradition not
only shows that a fih is imposed, but also that treasure is different from rikāz.
us, its original application is for minerals.

Ḥanaī Sool
e Ḥanaī 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 and
can be given a shape. ese include gold, silver, iron, copper and all
base metals. Khums (also called khumus) or fih is charged on all
these metals. It is to be noted that gold and silver in this form are
to be subjected to a fih and not the one-fortieth that is charged as
zakāt. e condition of ḥawl or passage of one year is not imposed.
Further, the fih is charged only once and not every year. e reason
for imposing a fih, as mentioned above, is that these minerals are
treated as booty. e avenues of expenditure are not fixed like zakāt
and they can be given to the needy.4 is fih belongs to the poor,
and the Ummah or the state if you will, or whoever is mining the ore,
has no right to this fih.
b) Solids other than base metals: ese are like, gypsum, coal, lime and all
other 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 on
soil. Perhaps, the true commercial value of these things had not been
realised in their times. ese are things that cannot be melted down
and given shape like metals.
Precious stones—like rubies, diamonds, emeralds and so on—were
also part of those solids that were not subjected to any charge. e
reason assigned was that these are stones and there is no arge on
stones.

²It is recorded by Abū ‘Ubayd, Imām al-Shāfi‘ī and others. It is also found in the Ṣaḥīḥ of
Imām al-Bukhārī.
³Smelting is a form of extractive metallurgy; its main use is to produce a metal from its ore.
⁴e details can be gleaned from any book of fiqh.
 Sī‘ B  R 9

2. Liquids: Liquids were like coaltar or pitch and naphta (oil). ere was no
arge 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 very
survival of the Muslim world, and that oil would be called “black gold.”
ere was a discussion about mercury whether it should be classified with
metals or treated like liquids and water. e predominant view was that it
was a metal.

e Rules in the Hidāyah

e Hidayah, one of the most authentic and reliable sources of Islamic law, which
is used all over the world and in all madāris, even those of other schools, records
the rules about minerals as follows:

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

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

• It was in the hands of the unbelievers and it was transferred to our hands
through domination, therefore, it is equivalent to spoils (ghanīmah), and a
fih 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 liable
for khums.10

• ere is no khums on turquoise found in the mountains11 due to the

words of the Prophet (God bless him and grant him peace), “ere is no
khums on stones.”12

⁵Not owned by the finder.

⁶Burhan al-Dīn Abū Bakr Marghīnānī, al-Hidāyah: e Guidance, trans. Imran Ahsan Nyazee,
4 vols. (Bristol: Amal Press, 2006), vol. 1, p. 279
⁷It is recorded by all the six sound compilations. Al-Zayla‘ī, vol. 2, 380.
⁸Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 279
⁹ibid.
¹⁰ibid., vol. 1, p. 280
¹¹ibid., vol. 1, p. 281
¹²It is gharīb. Al-Zayla‘ī, vol. 2, 382.
10 2. SHARE OF THE POOR IN ALL MINERAL WEALTH

• ere is khums on mercury (quisilver), according to the last opinion of

Abū Ḥanīfah and it is the opinion of Muḥammad (God bless him) as well
with Abū Yūsuf (God bless him) disagreeing.13
• ere is no khums on pearls and ambergris according to Abū Ḥanīfah
and Muḥammad (God bless them). Abū Yūsuf (God bless him) said that
there is khums on both as well as on all jewellery recovered from the sea,
because ‘Umar (God be pleased with him) took a fih 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 amount
to spoils even when this is gold or silver. e report from ‘Umar (God be
pleased with him) is applicable to what the sea has cast out on the shore
and that is the view we uphold.15
• He said: e imām divides the spoils and (first) takes out a fih from
it.16
• As for the fih (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 to
the ri near relatives.17

e statement of the above rules should be sufficient. Further details can be

gleaned from any earlier book of fiqh (Islamic law).

Other Sunni Sools

e other Sunni schools disagree with the Ḥanaīs to the extent that they do not
impose a fih, however, they all impose zakāt on the minerals extracted. e
details 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 something
derived 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. 322
¹⁷ibid., vol. 2, p. 325
 Sī‘ B  R 11

the author of Kitāb al-Amwāl, an independent jurist, aer 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 resemblance
to spoils as compared to agricultural produce. e reason is that it involves
expenditure and physical risk in the same way as is faced while fighting
against the enemy. In fact, jihād imposes a more severe and greater dan-
ger. Even in such a risky venture, God has imposed a fih upon the spoils.
e least that should be imposed upon minerals should be the same that is
imposed on what is acquired from the enemy. At the same time, the rule
for gold and silver is different from the rule for agriculture, which is subject
to a single imposition of zakāt at the time of harvest. Aer that nothing
more 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 a
year has passed over them, and the imposition of this zakāt continues each
year. We therefore hold that their ḥukm is different not only in the original
conception, 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 then
can the two be similar, especially when they are considered in the light of
the report from ‘Abd Allāh ibn ‘Amr from the Prophet (p.b.u.h.), which we
have 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 charged
till this day. Had this been established from the Prophet (p.b.u.h.), it would
have become persuasive proof that could not be denied.18

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

¹⁸Abū ‘Ubayd ibn Sallām, e Book of Revenue: Kitāb al-Amwāl, trans. Imran Ahsan Khan
Nyazee (Reading: Garnet Publishing, 2002), 327–28.
¹⁹r’ān 2 : 267.
12 2. SHARE OF THE POOR IN ALL MINERAL WEALTH

2.2 e Derived Right of the Poor

It can be seen from the above discussion that all the schools impose something on
minerals, and some impose zakāt on everything that comes out of the earth, that
is, they treat them like trading goods that are subject to zakāt. e Ḥanaīs im-
pose a fih on metals. is would mean that one-fih of all Reko Diq in Baluchis-
tan belongs to the poor. e same, it may be argued, can be said of all the minerals
extracted in the Punjab, Sindh and Khyber Pakhtunkhwa. As the majority of the
people in Pakistan are Ḥanaīs, it is the opinion of the Ḥanafi school that must
be applied. e most important point to be noticed is that khums (fih) is not
restricted 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 on
cannot 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 by
scientific 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 be
brought under the poor-due. ese things can be treated like trading goods and
be subjected to zakāt. is would mean that zakāt should be paid on oil, gas, coal
and perhaps even electricity. e reason why we insist that these things should
be brought under a charge is due to a tradition of the Prophet (p.b.u.h.): “ree
things are free: water, vegetation, and fire.” If no charge is imposed on things
like oil (treated as water), gas (like air), electricity (like fire), then all these things
have to be provided “free” to the whole Ummah. In reality, the jurist considered
these items to be free things for anyone to take by gathering them like firewood
or a hunted bird or animal. is is why in the rules quoted above, the Hidāyah is
distinguishing metals from the hunted animal when it says: “It is distinguished
from the hunted animal that was in no one’s possession.”20 If these things are
considered things of value today, and are not treated like water, air or fire, then
a charge has to be imposed.
e main point to be made here is that even if the least charge is levied on
account of the poor it comes to two and one-half percent on all that is extracted
from under the earth. Further, this is to be paid upon the gross production and
not aer expenses and losses have been adjusted.21 What the amount will be
annually is beyond our reckoning, but one thing is clear: the poor Muslims of
Pakistan have an established right in all these things.

²⁰Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 279 For example, the Hidāyah says: “He
said: ere is no arge on a spring of tar and oil in ‘ushr land. e basis is that it is not
something 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.
 3

T S R: S  

P   P   L

e terms ‘ushr (tenth) and niṣf ‘ushr (fih) on the agricultural produce of the
land is well known. e former for rain-fed crops and the laer for manually
irrigated crops. e books of fiqh are full of the details and we do not have to
reproduce them here. What is important is that there is talk about imposing a
tax on agricultural income. No tax can be imposed, unless the right of Allah meant
for the poor is first allocated and set aside for the poor. We may recall that this is
not only the right of Allah, but a fundamental right of the Muslims according to
the 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 those
entitled to the spoils is ‘ushr land.e reason is that there is a primary
need to distribute it among Muslims, and imposition of ‘ushr is suitable
for it insofar as it carries within it the meaning of worship. Further, it is
lighter 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 being
irrigated 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. 346

13
14 3. SHARE OF THE POOR IN THE PRODUCE OF THE LAND

on those (crops and fruit trees) that leave behind (storable) yield whose
quantity reaes the level of five awsuq. One wasaq is equal to sixty ṣā‘s
by 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 buets, watering wheel or the water
scoop, there is one-half of the tenth on the basis of both views.4 e
reason is that the burden is excessive5

• In things that are produced by the earth and are subjected to ‘ushr, the
wages of the workers and expenditure incurred on cattle are not to be
taken 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 right
of the poor. Islamic law says that whoever revives barren land, that is, makes
it fit for cultivation comes to own it. If he does not do so for a period of three
years (according to some), the land will be taken back and given to one who will
develop and cultivate it. e right of the poor is directly linked to this method of
revival 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 to
tenants. ere are methods of doing so in Islamic law, but the primary method
of ownership has to be on the condition of revival and cultivation. In fact, it is
believed by many that all land belongs to Allah Almighty and is held in trust by
human beings; it can be taken back if it lies undeveloped, because in this way
the right of the poor is being violated and the distributive system frustrated.

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

Implemented
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 they
have 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

²at is, Abū Yūsuf and Muḥammad (God bless them).

³Marghīnānī, al-Hidāyah: e Guidance vol. 1, p. 283
⁴ibid., vol. 1, p. 284
⁵e charge is reduced due to the excessive burden in this case.
⁶In case where half of ‘ushr is charged these expenses are already accommodated.
 Sī‘ B  R 15

not been implemented and were turned down by the earlier jurists for reasons
of “necessity” and “practice,” for it was a system that was prevalent all over. Had
the majority view of the earlier jurists been implemented, feudalism would have
disappeared 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 no
risk for the owner of the land when he hands it over to the tenants: there can
be no loss in land as it always stays there. All that the owner of the land can do
is rent it out or cultivate it himself (in person).7 Renting out agricultural land is
looked down upon by most jurists, as this converts it into a business asset, which
is subject to a different charge. If the person renting it uses it for cultivation, it
will lead to a dual charge, that is, ‘ushr too will be charged. Further, it may
be noted that land is not like other rented property as land cannot be destroyed,
while other rented property can be destroyed. It is Imām Mālik alone who allows
renting of agricultural land.
e Ḥanaī school adopted the views of Imāms Abū Yūsuf and Muḥammad,
the two disciples of Abū Ḥanīfah, preferring their opinion over that of their
teacher. Today, it is time for the opinion of the teacher and of the founders of
the other Sunnī schools to be given preference. is can give way to “corporate
farming” and “cooperative methods,” methods that will increase the production
thus increasing share of the poor.

⁷Imran Ahsan Khan Nyazee, Partnership in Islam (Islamabad: Federal Law House, 2007), 358.
 4

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 forms
of zakāt that may be paid personally by the person liable. is is the form of
zakāt for which the first Caliph (God be pleased with him) waged war as soon as
he 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 small
holdings 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 the
number reaes 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. 255

²ibid., vol. 1, p. 257
³ibid., vol. 1, p. 258
⁴ibid.

17
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 gold
and silver. It is also charged on all commercial assets, irrespective of who owns
them. e corporate form and its accompanying legal personality should not
stand 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 covers
all 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 as

their value reaes the niṣāb valued in silver or gold.6
• He (the collector) is to valuate them in a manner that is most beneficial
for 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 and
dirhams) 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 state
taxes are computed and paid.
Out of all this, however, trading goods will perhaps be the largest source
of zakāt. Today, it will include all things from which an income is derived; it
does not merely mean sale and purchase. Accordingly, all “capital employed”
by corporations, partnerships, associations of persons, and sole proprietorships
will be subject to two and one-half percent zakāt. e simple rule is expected
to be “total capital employed minus debts.”10 Further, all property being used for
rental purposes, including plazas, houses given on rent, or any property used
for commercial purposes, other than agricultural land will be included in the
meaning of “trade.” Income from all such property is not lawful, unless the right
of 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. 269
⁷ibid., vol. 1, p. 270
⁸ibid.
⁹In other words, the personal niṣāb cannot be worked out separately from one’s business
niṣāb.
¹⁰But see the rule for loans below.
 Sī‘ B  R 19

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 must
be supported with facilities. Today, the whole country is being turned into plots
for commercial purposes. Pasture lands must be set aside near every township
where the animals can graze. is will be good for the right of the poor and also
for the environment. Zakāt may be collected when herds pass by the toll.

4.4 Returns Must be Filed for Zakāt Even When Paid

Personally
e people of Pakistan are religious people and many of them do pay zakāt; many
pay it on their own, while in the case of bank accounts it is deducted at source
unless waiver is claimed. ere are many, however, who do not pay zakāt. ere
is no option in this and the payment of zakāt is obligatory; it is not enough to
say ‫( ہم بھی مسلمان ہیں‬we too are Muslims) and then skip zakāt. Accordingly, a
separate department should be set up where all wealth owning citizens, who are
under an obligation to pay zakāt must file returns, even when they are claiming
that they have paid zakāt on their own. is will ensure that the claim of Allah
for 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 pertaining
to the issue of zakāt. ere are numerous details that can only be mentioned in a
study of some size. By way of illustration we mention certain things that might
come 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 kind
as well where possible.

Certain Goods Are Exempted From Business Assets

e determination of business assets depends on the intention to employ assets
for business, except for cash that does not need any intention. Besides this, there
are exemtpions for some assets, like assets used for professional purposes and so
on.
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 are
details here too, but the general statement to be made is that duties levied on
goods coming into the country and on some goods leaving the country (when no
zakāt 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.
 5

T F R: N

C L,   D
  P   R

e only form of loan that Islamic law recognises is called qarz (qarḍ), which
is an interest-free loan without a fixed period of repayment. It is this loan that
people 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 money
through central banks.1 In the Islamic system every means of making a profit or
earning money is based upon “risk sharing” and not on credit. us, the loans
raised within the Islamic system are those raised by the needy for their personal
needs.2
An avenue of expenditure for the zakāt collected is, therefore, repayment
of loans of those under debt. Repaying of loans in a country where the levels
of 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 the
medical and education costs of the poor and their children, because most debts
of the poor are likely to be incurred on this account. e payments can be made
directly to the service providing instiutions. Debts can also arise through the
purchase of food each year. A system of stamps can be started through which
poor people can collect food. One of the most important reasons for debts for
the poor are the marriages of their children, especially females. Debt payments
should 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
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 alien
stranded in our territory. e refugees must be paid to make their way safely
back home and to survive till they reach home.
is rule may also apply to internally displaced persons, that is, those who
become 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 have
been enough for dealing with the problem arising from the recent floods. ere
would have been no need to beg from non-Muslims. is shows that the words
in the r’ān, like ibn sabīl, can acquire new meanings with the occurrence of
new incidents.
 6

S  R   P,

M  C

6.1 e Rights of Allah Must be Secured Before all Other

Rights
Wealth must be purified before it can be used. is is the meaning of zakāt. e
rights of Allah, which are meant for the poor, must be satisfied before any wealth
can be lawfully consumed or used.
In any case, the rights of the poor have to be enforced. Here is a report from
the the Noble ‘Alī ibn Abī Ṭālib (God be pleased with him).

(1909) He (Abū ‘Ubayd) said: Aḥmad ibn Yūnus related to me from

Abū Shihāb al-Ḥannāṭ from Abū ‘Abd Allāh al-aqaī, who said: I
heard Abū Ja‘far Muḥammad ibn ‘Alī relating it from ‘Alī, who said,
“God, the Exalted and Glorious, has deemed obligatory in the wealth
of 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 devolves
upon 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 are
enforced, because what Allah has granted is “sufficient” for the poor.

¹e word is jahd, which means poverty and hardship.

²Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 541.

23
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 these
times of mass corruption and immorality? e response is that Muslims can
work wonders when they set their hearts to a task. If they can make the atomic
bomb and missiles, if they can deal with catastrophes of gigantic proportions
like earthquakes, they can surely implement a system that is demanded by Allah
Almighty. 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 other
than 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 the
standard and the practice:

(1919) He (Abū ‘Ubayd) said: Sa‘īd ibn Abī Maryam 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 that
he went out with ‘Umar ibn al-Khaṭṭāb—or ‘Umayr was informed
by someone who went out with ‘Umar—although ‘Umayr himself
was a very old man. He said, “When ‘Umar was sleeping during the
aernoon under the shade of a tree, a woman from a village came
and 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 ‘Umar
ibn al-Khaṭṭāb has sent Muḥammad ibn Maslama as a collector for
us, but he did not give us anything. Perhaps you, may God bless
you, could recommend our case to him’ ”. He said, “He called out
to Yarfa’ saying, ‘Go, fetch Muḥammad ibn Maslama for me’. She
said, ‘It would be beer for the solution of my problem that you
accompany me to him’. He said, ‘God willing, he will solve your
problem’. Yarfa’ came to him and said, ‘Respond to his call’. He came
and said, ‘Peace be on you, O Amīr al-Mu’minīn’. At this the woman
was embarrassed. ‘Umar said, ‘By God, it is my earnest endeavour
to choose the best of you.4 What will you say when God, the Exalted
and Mighty, asks you about this affair?’ At this tears welled up in
Muḥammad’s eyes. ‘Umar then said, ‘God sent His Prophet (p.b.u.h.)

³at is, she was gazing at their faces with concentration.

⁴at is, I am not negligent or inefficient in doing so.
 Sī‘ B  R 25

to us. We testified to his truthfulness and followed him. He acted as

God commanded him to. He gave the ṣadaqa to the deserving needy
persons, and continued doing so till God took him away. God then
made Abū Bakr succeed him, and he acted on his sunna till God took
him away. He then made me succeed him and I strive to select the
best of you for the purpose. If I appoint you again, you must give
this woman the ṣadaqa for the current year and that for the previous
year, however, it is possible that I may not appoint you again’. He
then called for a camel for her and gave her flour and oil. He said,
‘Hold on to these till you meet up with us at Khaybar, as we are going
there’. She went up to Khaybar and he ordered two more camel-
loads for her and said, ‘Take this. It will suffice you till Muḥammad
ibn Maslama comes over to you, for I have ordered him to give you
your 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 from
al-Layth ibn Sa‘d from Yaḥyā ibn Sa‘īd a similar tradition, or one
close to it, except that he said, “e woman looked at a man asleep
under the tree. She touched his toe and he woke up. He said, ‘What is
it you want?’ At this she narrated the problem she had with Muḥam-
mad ibn Maslama. He said to her, ‘Go to him and tell him that this
man is calling you’. She said to him, ‘is is not how a recommender
is to speak’. He said, ‘Go call him as I have asked you to, he will
come’. She passed through the people till she came up to him and
said as she had been asked to say. He jumped up and she followed
him till he stood in front of ‘Umar”. He then narrated the rest of the
tradition.6

us, only the best and the God-fearing are to be appointed for this task. e
officials must have a spotless career. is does not mean that the ulama are to
be appointed just because it is a religious maer; many of them have political
aims and stand disqualified for such a task anyway. Political parties must not
be permied to appoint their nominees for this task. It is suggested that this
gigantic task should be assigned to educated, dedicated, young persons rather
than people of our generation. e reason is that the young were born free,
while we still suffer from the hangover of colonial slavery.

⁵e editor of the text says at this point: Tell me by your Lord, O reader, as to what are your
emotions when you read these stories about the acts of the Companions, God be pleased with
them? What do you think about a society in which you find people like ‘Umar and Muḥammad
ibn Maslama? Will a poor person ever feel insecure or threatened?
⁶Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 544-45.
26 6. SECURING THE RIGHTS OF THE POOR

6.4 Swi Distribution of Allowances

e right of the poor must reach them as soon as possible. ere are traditions
from 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 is
one tradition recorded by Abū ‘Ubayd:

(617) He said: Ḥajjāj related to me from Ibn Jurayj, who said: ‘Umar
ibn Dīnār reported to me from al-Ḥasan ibn Muḥammad “that the
Messenger of Allah (p.b.u.h.) did not receive wealth himself7 nor did
he let the night pass over it”.
Abū ‘Ubayd said: at is, if it arrived during the forenoon he dis-
tributed it by aernoon, and if it arrived during the evening he would
distribute it before nightfall.8

All this means that red tape should not delay the immediate and efficient
transfer 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 commiees,
or the adoption of other methods, to investigate whether a person is really poor
is not to be adopted, prior to the distribution. Any person who claims that he is
poor should be enlisted and granted the benefits meant for the poor. is is in
line 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 as

upright and proper, unless the contrary is established.

e principle implies that whatever a Muslim claims is taken to be true. is

is particularly so in the case of poor people for whom it is very difficult to part
with their self-respect and to fall upon the benefits meant for the poor. If a person
is claiming to be poor, he must really be poor. If, however, it is discovered that
he was lying or was trying to indulge in fraud, he must be severely punished, as
underming the right of the poor is a serious offence.

⁷ere may be a problem with these words when they are tallied with the text that follows
in the book, that is the words “did not receive wealth himself.”
⁸Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 247.
 Sī‘ B  R 27

6.6 Personal Accountability and the Beneficiaries to Wat the

Corrupt
When honest (young) people are appointed, they will set standards of personal
accountability. 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 ibn
Ayyūb from ‘Ubayd Allāh ibn Zaḥr from al-A‘mash from Zayd ibn
Wahb—Abū ‘Ubayd said: Another chain has a person different from
Yaḥyā ibn Ayyūb, but from al-A‘mash from Ibrāhīm—who said: “ ‘Umar
sent 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 have
the 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 overtake
me,10 and you and your companions will say, “Let us write off this
amount for the Amīr al-Mu’minīn”. is will then weigh against me
in my balance on the day of judgment. I, therefore, seek to borrow
from you, for I am aware of your love for wealth. When I die, you
will 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 from
Hishām 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 of
earning. 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 there
is 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 when
these belong to the Muslim community they are deemed worthless
and it is said, ‘It is God’s wealth’ ”.12
(666) He said: ‘Abd Allāh ibn Ṣāliḥ related to us from al-Layth ibn
Sa‘d from Yaḥyā ibn Sa‘īd that when ‘Amr ibn al-Ṣa‘iq saw that the

⁹at is, he demanded this as a qarḍ.

¹⁰at is, death will take me away.
¹¹Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 265.
¹²Ibid.
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. ese
have 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 said
to him, ‘O enemy of God and of His Book, you have stolen God’s
wealth’. 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 stolen
God’s wealth’. He said, ‘How then have you accumulated ten thou-
sand dirhams’. He said, ‘My horses were breeding, my stipends were
reaching me, and so were my shares’. ‘Umar, however, took all this
away.14 Abū Hurayra said, “When I offered the morning prayer, I
prayed for the forgiveness of the Amīr al-Mu’minīn”.15
(668) He said: Ya‘qūb ibn Isḥāq related to us from Yazīd ibn Ibrāhīm
al-Tustarī from Ibn Sīrīn from ‘Umar and from Abū Hurayra a similar
tradition, however, he added: He said: Abū Hurayra said, “Aer this
‘Umar said to me, ‘Will you not accept an office’? I said, ‘No’. He
said, ‘ose beer 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 three
and two things’. He said, ‘Why did you not say five at once’. I said, ‘I
am afraid that I would say something without knowledge and decide
without understanding—or he said, ‘I would say something without
understanding and decide without knowledge’ and this doubt comes
from Ibn Sīrīn—and I am afraid that I will get a beating on my back,
my reputation would be soiled and my wealth will be confiscated’ ”.16

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

¹³e editor of the text says: He took away one-half of their wealth. ‘Umar (God be pleased
with him) applied a very strict standard of accountability for his officials. Abū ‘Ubayd ibn Sallām,
Kitāb al-Amwāl, 265.
¹⁴e editor of the text says: Notice that he did not affirm the veracity of Abū Hurayra even
aer he had claimed that this was wealth that had grown over time in his possession. He con-
sidered injustice being done to Abū Hurayra beer than the violation of a right of the Muslims
collectively.
¹⁵Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 265-66.
¹⁶Ibid., 266.
 Sī‘ B  R 29

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 recorded
and their assets during their tenure and when they leave must be assessed for
normal 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 ordinary
human 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 us
from Hārūn ibn ‘Antara from his father, who said: “I visited ‘Alī at
Khawrnaq and at that time he had upon him an old sheet17 in which
he 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 yourself
this 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 from
Madina’ ”.18
He was worried about the other person and conveyed to him that he was not
seing a standard for him or creating a problem for him, implying that what he
was doing was between him and his Creator.

6.7 Wherever Possible Payment Should be in the Form of

Goods 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 goods
and 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 legal
tender for the present, it is preferable to pay in kind rather than cash, wherever
possible. For example, gas and electricity can be provided directly from their
share. ere can be different ways of assessing what is to be paid in the form of
goods and food, and here is one method followed by ‘Umar (God be pleased with
him):
(612) He said: Aḥmad ibn Yūnus related to me from Zuhayr ibn
Mu‘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‘.
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 aer-
noon meal. He did the same for the evening meal. He said, “e
yield of two jarībs is sufficient for a man for one month”. us, he
fixed the quantity of two jarībs for each individual—male, female,
and slave—per month.21

²⁰at is, broken and dipped in oil.

²¹Abū ‘Ubayd ibn Sallām, Kitāb al-Amwāl, 246.
 7

C

‫اور ظلمت رات كی سیماب پا ہو جاۓ گی‬ ‫آسماں ہو گا سحر كے نور سے آئینہ پوش‬

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

‫پھر جبین خاك حرم سے آشنا ہو جاے گی‬ ‫پھر دلوں كو یاد آ جاۓ گا پیغام سجود‬

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

Shama‘ aur Shā‘ir (‫—)شمع اور شاعر‬Allāma Iqbal

7.1 e Result Will be a riving Economy

e system of distributive justice will ensure that the meaning of the following
verse is realised:

What Allah has bestowed on His Messenger (and taken away) from
the people of the townships,—belongs to Allah,—to His Messenger
and to kindred and orphans, the needy and the wayfarer; in order
that it (wealth) may not (merely) make a circuit between the wealthy
among you. So take what the Messenger gives you, and refrain from
what 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 people
will result in the revitalization of businesses that work to meet their needs. Such
an economy can never face recession. Economists can describe beer the healthy
31
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 awareness
level 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 for
meeting their basic needs of food and clothing. Once the basic needs of the
people are served through the system of distributive justice, such promises will
lose araction for the masses, and politicians will have to focus on real issues
facing society. Politics will, therefore, move in the right direction and become
focused.

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 be
wiped out from the system anyway. Further, the institution of “revival of barren
lands” can considerably increase the agricultural potential of the country.

7.4 e State Can Focus on Security and the Provision of

Utilities
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 and
order, security and the provision of basic utilities: electricy, gas, water and so on.

7.5 Documentation of the Economy can be Rapidly Aieved

Asking the people to declare their assets for purposes of zakāt will lead to the
automatic documentation of the economy. is will have a healthy impact on
other 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. ose
who have such information can do a beer job. All that we have to say in the
 Sī‘ B  R 33

end is to repeat that these are the rights of Allah exercised on behalf of the poor
members of the Muslim Ummah. e right of Allah purifies wealth and makes it
lawful for use. e sources of wealth mentioned below can become lawful once
the share of the poor is set aside and is delivered to them.
Sr.# Type of Wealth subject to Zakat, Rate Total Wealth Amount Due
Ushr or Khums in Country
1. Minerals: metals like gold, copper, 20% ⁇? ⁇?
etc.
2. Mineral wealth other than metals 2.5% or 20% ⁇? ⁇?
like oil, coal, gypsum, etc.
3. Agricultural produce: Rain-fed 10% ⁇? ⁇?
4. Agricultural produce: Irrigated 5% ⁇? ⁇?
5. All trading goods, that is, capital 2.5% ⁇? ⁇?
employed by corporations and busi-
nesses as well as plazas, houses and
other property used for business.
6. All pasturing animals kept for Varies: to be ⁇? ⁇?
breeding and growth, like camels, paid in ani-
cows, buffaloes, goats and sheep, mals
even horses.
7. All personal wealth subject to zakat 2.5% ⁇? ⁇?
like jewellry, cash, etc.

7.7 Concepts for the System as a Whole

A reading of what has preceded must have revealed to the reader that there are
certain fundamental concepts involved that do not affect the collection and dis-
bursement of khums and zakāt, but they do have implications for the Islamic
system 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 trust
for 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 to
be managed in accordance with Islamic law.
ose in power are, therefore, the agents of the Ummah in reality and when
they 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 which
everyone is answerable, and this is the law of Almighty Allah.
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 paern as that of the state exists for corporations whether public or
private. e corporation provides cover to the shareholders and affords them
limited 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 who
hide behind the corporate veil and have huge loans wrien off will be accountable
for all these loans through their personal assets.

e Majority Opinion of the Sools Must be Implemented and the Muzayrah

System Prevalent in Pakistan Must be Abolished
e later jurists of the Ḥanaī school preferred the views of Imāms Abū Yūsuf and
Muḥammad (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 that
the views that hold the tenancy system, or the muzayrah system, to be unlawful
be preferred, especially when these are the majority views considereding all the
schools as a whole. ere is no other way to end feudalism.

Payment of Zakāt is not a Maer of Choice; Returns Must be Filed by All ose
Who Are Liable for Payment of Zakāt
Many people are under the impression that payment of zakāt is a personal maer,
like charity, therefore, they have a choice with respect to payment. Nothing
could be farther from the truth. Zakāt is claimed by Allah Almighty and is to
be taken by force if people do not pay it voluntarily. e reason is that the right
(ḥaqq) of the poor is aached to it, and those who do not pay are depriving the
poor of their rightful entitlement. Accordingly, a system must 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

‫رض لِلّه ُيو ِرث َُها َمن َيشآ ُء ِمن ِع َبا ِد ِه‬
َ َٔ ‫( إِ َّن الا‬e earth is Allah’s, to give as a heritage to
1
such of His servants as He pleaseth.) is may be the most difficult concept for
people to accept. e least that can be done is to implement the philosopy behind
the doctrine of “revival of barren lands.” Land held by the state on behalf of the
Ummah must be handed over to private persons only on the condition of revival
within a specified time. ose who do not revive it within such time, and let it
lie idle, must return it so that it can be given to those who will revive it.

¹r’ān 7 : 128.
 B

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35