Bar-Sharci

Dawlada cusubi mayay u diyaar tahay wax ka badalka iyo hagaajinta sharciyadaha dalka lagu dhaqo ee kala daadsan?, Dawlada cusubi mayay u diyaar tahay wax ka badalka iyo hagaajinta sharciyadaha dalka lagu dhaqo ee kala daadsan?

Hadday jawaabta su ashaasi haa tahay waxaynu is waydiin karnaa sidee iyo waliba intee leegtahay baahida loo qabo in wax laga badalo lana hagaajiyo dhamaan sharciyadaha dalka iyo waliba cida ka shaqaysa maxkamadah iyo waliba xeer ilaalinta oo muhiim u ah ilaalinta iyo xanaanaynta xuquuqaha asaasiga ah ee muwadiniinta. 
 
 
 
Ilaa iyo intii aynu la soo noqonay xoriyadeenii 1991 ilaa iyo manta oo ay taariikhdu ay tahay 2010 horu marin lagu sameeyo ama wax ka qabad lagu sameeyo dhinaca sharciga dalku waxay iska ahayd uun mid riyo ah iyadoo ay dadka qaar ay ku doodaanba maynu gaadhin wakhtigii sharciga la hagaajin lahaa,shakhsi ahaana aanan anigu marnaba raacsanayn doodaasi lakiin aan aaminsanaa in sharcigu yahay waxa jamuuhriyad(Republic)ku noqonay amaba dawlad kala sarayn iyo maamul aynu ku dhisanay inagoo adeegsanayna sharci ee aynu isku maamuli Karin kala badnaansho iyo awoodo kale oo maadi ah. Ilaahayna waxa qudhatee uu rususha u soo dajiyay uuna soo dhiibay ahayd marka laga tago kali ahaanshaha ALLE ay ahayd shuruucdii ay ku kala bixi lahayeen iyo kuwii isku xukumi lahayeenba binu aadamku. 
 
 
 
Nidaamka aynu qaadanay wuxuu qaab ahaan u dhisan qaabka nidaamka MARAYKANKA kaas oo ka kooban sadeex qaybood oo kala ah xeer dajinta ,fulinta iyo Garsoorka. Kuwaas oo kala madax banana haddana wada shaqayn ay ka dhaxayso. 
 
waxaana waliba aad u muhiim ah in la ogaado nidaamka dawliga ah ee sidda qataa haddi mid ka mid ah sadexdan qaybood awoodiisu sharciyeed ee lagu dhisayaa ay ka yartahay amaba sharciga distooriga ah ee ay ku samaysmayaan sadexdan awoodood u ogolaanayso mid ka mida sadexdan qaybood inuu ka awood bato ka kale uu noqonaayo nidaam dawladeed oo ogalaaday fadhiidnimo. 
madaama uu u nafeeyay laba qaybood oo ka mida . xagii ay ka sinmi lahayeen awoodaha magacaabineed iyo walib xilka qaadiseedba uma jeedo inaan halkan kaga hadlo arin (Admintrative law)sharci maamuleed lakiin si aynu isku fahano marka horeba nidaamkeena dawladeed ee aynu dooranay iyo waliba wada shaqayntiisa sharci ahaneed ee muhumka u ah wax qabadka iyo ka shaqaysiinta qayb wal oo sadexdaa ka mida. 
sidda:- 
A- wasaaradaha oo u madax banaanaada shaqadooda iyo waliba xeer hosaadyadooda inta sharcigu u ogalayahay. 
B-baarlamaanka oo isna shaqadiisa dastuuriga ah ee sharci dajinta u madax banaanada fududeeyana sharciyadaha looga baahanyahay in lagu isticmaalo hawl shaqeedka wasaaradahu fulintiisa leeyiin. 
C- maxkamadaha oo iyagu saldhiga cadaalada u ah ee meesha haddii labada kala isku khaldamaan amaba ay ku khaldamaan muwaadiniinta kala saari lahayd ah.ay u madax banaanato shaqadeeda oo ah inay u qadaan dacwadiihii iyaga soo galay si waafaqsan nidaamka iyo shuruucda ka taala. 
uuna madax banaanaada shaqadooda si cad oo aan shaki ama faro galin kaga timaada qaybta fulinta.loona baas gareeyo sharciyo loogu bud dhigaayo xataa in dhaqaalaha ama mushaharka inay ka madax banaanadaan wasaaradda maaliyada magaacibistan uu madax waynu soo magaacabo garsooraha maxkamada sare meesha laga saaro iyo tan siddo kale gudida cadaaladu u xil saarantay.waayo gudida cadaaladu waxay noqonaysaa uun in si dadban qaybtii fulintu (Excutive) u maamulayso garsoorkii. 
 
 
Haddabaa inagoo u soo noqonayna maxaynu ka faaidi karna wax ka qabashada iyo hagaajinta nidaamka sharciga ah ee u yaala dalka ka mujtamac ahaan iyo waliba ka xukuumad ahaan bal aynu ku soo uruurino faaidooyinkaas dhawrkan qodob ee soo socda. 
 
 
1-wax meesha ka bixi doonta mad madaw badan oo sharciyeed oo imika jira. 
2-wax soo afjarmi doona muran dastuureedka ay inoogu wacan tahay qodobada dastuurka ku jira ee nidaamkeena dimoqraadiga ah dabraaya. 
 
3-in sharci la fuliyo ayaa fududaan doonta taasna waxay keeni doontaa u hogaansanaan xagga sharciga ah. 
 
4-waxa sahlimi doona oo ay horseedi doonta in marka la xakameeyo ashkhaastii iyagu awoodahooda dawliga ah ku takri falaayay dad u bisil oo dawladnimada wax walba ka doorbida ,waayo binu aadam waayay wax dabraa waxa walba way u banan yihiin inuu sameeyaa. 
 
4-madaama uu sharcigu yahay midkan nafta iyo maalkaba ilaalinaayay siinaayayna xaqa qofkii dulmanaha ahaa wax badan oo dhabar taabasho ah ayaa meesha ka bixi doona Dawlada ama ashkhaasta markaa xukunka hayana waxa u fududaan doonta inay si sahlan wax u maamulaan oo odaygan iyo kun shay ee qof walba ku daba jira ayaa meesha ka bixi lahaa. 
 
5-waxa fududaantooda maalgalintii shisheeye. 
6-waxa hir gali doona sharciyadihii lagu horu marin lahaa dhaqaalaha dalka sida xeerkii kala xadaynta ganacsig oo faaido wayn sadexda dhinac ee ay khusaysaba u noqonaaya kan soo dajinaaya kan sii iibinaaya iyo dawlada waayo ganacsadahan wayni hadduu wax walba isku duubo waxay ka goantay uun (Purchasing power)kiisii ama oo awoodii dhaqaale ee wax ka iibsan lahayd uunbaa wiiqmaysa. 
 
 
Waxa haddabaa aad u muhiim ah in maanta in la heli karo dad dhalin yar ah oo aad u firfircoon jecelna inay dib u noolayntii sharciga u diyaara tahayna wax aad loogu faani karo ka umad ahaan faaido wayna u ah dawlad wanaageena aynu doonayno inaynu caalamka iskaga iibino noqonana umad sharciyadeedu dhisan tahay oo ay ka muuqato dareen fiican iyo waliba idiilo wax qabad inaga muuqdo tusnana caalamka waxa aynu nahay. 
 
Markaa waxaan leeyay (it’s time to wake up, Somaliland. It’s time to think for development).

Dawlada cusubi mayay u diyaar tahay wax ka badalka iyo hagaajinta sharciyadaha dalka lagu dhaqo ee kala daadsan?, Dawlada cusubi mayay u diyaar tahay wax ka badalka iyo hagaajinta sharciyadaha dalka lagu dhaqo ee kala daadsan?

18 Aug 2010

The Use of Zakat Revenue in Islamic Financing:

by Drs. Mek Wok Mahmud and Sayed Sikandar Shah (Haneef)* 
 
 
Recent juristic debate rages around the possibility of using zakah revenue in Islamic law of public finance to better realize its intended poverty eradication goal. At the theoretical level, both the proponents and opponents employ extensive juristic argumentations to support their points of contention. The thrust of the proponents argument is that zakah without productive implementation would not serve its designated goal of poverty alleviation while the opponents countered this case by saying that zakah collection is primarily designed to be immediately disbursed to the consumption needs of the recipients and not vice versa. In practice, however, it seems that the arguments by the proponents is favored as some counties like Kuwait and Malaysia, aside from providing handouts, also finance health care and education for the poor and needy. Accordingly, in our considered opinion, these issues need to be revisited with the primary aim of identifying a balanced legal stand and a feasible institutional framework which takes into full account both the consumption needs and future self-sufficiency of the deserving recipients. To this end, this paper begins by briefly outlining some theoretical aspects of zakah. Then, it proceeds to critically examine the juristic debate surrounding the permissibility of zakah utilization for financing Islamic socio-economic infrastructure. And lastly, it reviews the proposed framework for such utilization with the idea of advancing some jurisprudentially consistent proposals for further academic explorations. 
Conceptual framework 
Zakah1 literally means to grow, to increase and to purify. When it is said about a person, zaka nafsuhu, it means to improve and become better.2 According to Ibn Taymiyyah, it implies the idea of making the soul of the zakah payer better and his wealth purified.3 This is succinctly clear from the declared ratio legis of zakah commandment according to the Holy Qur`an, “Take zakah from their wealth to purify and cleanse them.”4 
1 It is to be remembered that the Qur`an also uses the word sadaqah to imply zakah, for instance, see al-A`raf :156, Maryam:31, al-Anbiya:72, al-Mu`minun:4. Similarly, the Prophet, when dispatching Mu`adh to Yemen, said: “Inform them that Allah has prescribed sadaqah on their funds…” Nevertheless, it was later on that the jurists made a technical distinction between sadaqah and zakah, defining the former as donation and voluntary charity, and viewing the latter as financial obligation that a zakat payer must fulfill toward the poor. See Yusuf al-Qaradawi, Fiqh az-Zakat, Monzer Kahf (trans.), (London: Dar al Taqwa Ltd, 1999), pp.xlv-xlvi. See also Muhammad Abu-Saud, Contemporary Zakat (Cincinnati: Zakat and Research Foundation, 1988), pp.9-12 
2 Al-Qaradawi, Ibid, p.xliii. 
3 Ahmad Ibn `Abd al-Halim Ibn Taymiyyah, Majmu` al-Fatawa (Mecca: Maktabat al-Nahdah al-Hadithah, n.d), vol.25, p.8. 
4 Al-Tawbah:103 
R 
2 | S I M E j o u r n a l majalla.org 
Technically, zakah stands for an act of monetary worship according to which any Muslim who possesses wealth (mal) equal to or exceeding a laid down amount (nisab) has to give away (in person or through proxy), at the prescribed rate, a portion of it to specifically designated categories of people.5 
Legislative foundation 
Zakah derives its validity from numerous verses of the Qur`an and prophetic traditions, among which the following are explicit. The Qur`an6, among others, mentions: 
- And they were commanded not, but that they should worship none but Allah alone and perform the salah and give zakah, and that is the right religion.7 
- ... and in their wealth and of possessions is assigned a right for the needy and those who suffer deprivation.8 
- O Muhammad, take out of their possessions sadqat so that you may cleanse and purify them thereby, and pray for them.9 
The substance of the above Qur`anic ayat are affirmed by many ahadith (pl. of hadith)10 of the Prophet: 
i. It classifies zakah as one of the pillars of Islam: 
Islam is based on five principles: “to testify that there is no god but Allah and that Muhammad is His Prophet, to offer regular prayers, to pay zakah, to perform hajj and to observe fasting.”11 
ii. It declares it to be the designated right of the poor that has to be levied on the wealth possessed by the wealthy: 
The Prophet sent Mu`adh to Yemen and told him, “You are going to the people of a Divine Book. First of all invite them to worship Allah (alone) and when they come to 
5 Wahbah al-Zuhayli, al-Fiqh al-Islami wa Adillatuhu (Beirut: Dar al-Fikr, 1989) vol.2, p.730. 
6 The word zakah occurs thirty times in the Qur`an, and in twenty-seven of them it is mentioned side by side with salah. For details see, al-Qaradawi, Fiqh al-Zakat, pp.9-22. 
7 Al-Bayyinah:5 
8 Al-Dhariyat:19 
9 Al-Tawbah:103 
10 Hadith, the plural of which is ahadith, means relayed information about the Prophet‟s statements, practices and tradition which may either contain legislation or may just relate the Prophet‟s undertaking as an administrator. In Islamic jurisprudence, the import of the hadith as such is called Sunnah, which is the second primary source of the hukm (law or rule) in Islam. 
11 Al-Khatib Tabrizi, trans. Fazlul Karim, Mishkat al-Masabih (Delhi: Islamic Books Services, 1994), vol1, p.96. 
3 | S I M E j o u r n a l majalla.org 
know Allah, inform them that Allah has enjoined on them five prayers every day and night, and when they start offering these prayers, inform them that Allah has enjoined on them zakah which is to be taken from the rich among them and given to the poor among them. And if they obey you, then take zakah from them and do not take the best of their possessions.12 
Accordingly, zakah like other pillars of Islam is another fundamental `ibadah without which the fulfillment of one‟s claim of loyalty to Islam will be seriously doubted and even negated. That is why Abu Bakr, one of the righteous Caliphs, resolved to fighting those who defied paying it, contending, among others, that it would be legitimate to fight against anyone who discriminates between the two pillars of salah and zakah by doing the former and willfully rejecting the other.13 The Prophet was also reported to have said: “He who pays it seeking the reward from Allah will be rewarded and he who refuses to pay it, we shall take it from him…”14 
Characteristics 
Zakah, unlike the social security system in the West15, has the following unique features16: 
- It is a pillar of Islam, and hence its payer does not do any favor to the beneficiary but discharges his obligation toward Allah. 
- Although it somewhat resembles other state-enacted taxes as the state can collect it through its own functionaries and can penalize its deliberate default, zakah surpasses the worldly jurisdiction of the sovereign states as its enforcement as a religious obligation lies deep in the inner conscience of the believers. 
- It has been designed to be used for specific causes. 
- In terms of welfare coverage, it does not only provide relief for the poor and downtrodden but even to wealthy under stress such as new entrants to the fold of Islam and bona fide insolvent debtors. 
The socio-economic purposes 
Aside from its spiritual and moral17 objectives, zakah as a pillar of Islam is legislated to achieve the following socio-economic goals: 
12 Muhammad Ibn Majah, Sunan Ibn Majah (Beirut: Ihya al-Turath al-`Arabi, n.d.), p.416. 
13 He said this in response to `Umar‟s objection to such a policy. For details see Mustafa al-Khin et. al, al-Fiqh al-Manhaji (Beirut: Dar al-Qalam, 1996), pp.274-275. 
14 Ahmad Ibn Husayn Al-Bayhaqi, al-Sunan al-Kubra (Multan: Nashr al-Sunnah, n.d.), vol.4, p.105. 
15 It is a system devised to provide for social contingencies, such as incapacity to work, unemployment, old age or death of the bread winner in two ways: by social insurance in which the beneficiary must contribute; and social assistance which, although does not require contribution by the beneficiary, is conditioned upon his means of income. Furthermore, the coverage of zakah is wider than the social assistance as aside from helping disabled, it also helps a debtor in distress etc. See Najmul Hasan, “Social Security System of Islam”, International Centre for Research and Islamic Economics (Saudi Arabia: King Abdul Aziz University, 1984), pp.5-9 & 36. 
16 Ibid., p.18. See also M.M. Metwally, “Fiscal Policy of an Islamic Economy”, in Readings in Public Finance in Islam, edit., Mahamoud A. Gulaid & Mohamed Aden Abdullah (Jeddah: Islamic Research and Training Institute, 1995), pp.303-305. 
4 | S I M E j o u r n a l majalla.org 
1. to promote economic growth and productivity through the circulation of wealth i.e. zakah stimulates the economic growth in the sense that it either enables the poor and the needy to become economically productive or helps the state to channel the zakah fund to profit-accruing business sectors with the view of creating job opportunities for the needy and the jobless18 
2. to meet the consumption demand of the poor, thereby enhancing their purchasing power for goods and services 
3. to check the tendency for hoarding the idle money, hence leading to production of goods and services 
4. to finance projects such as education, medical care and social welfare, and again raising the productivity of the poor19 
5. to ensure equitable distribution of wealth through this means. By instituting zakah, Islam aims at forestalling the creation of unnecessary unjust gap between the living standard of the poor and the rich, thus avoiding the most serious malady that afflicts the capitalist society.20 Accordingly, it serves as a basic system for the implementation of socio-economic justice of Islam by which a certain portion of the income is transferred from the haves to the have-nots.21 
Accordingly, from an economic point of view, these objectives have been epitomized zakah as a fundamental `ibadah aside from cleansing the human soul from selfishness and niggardliness, it is designed to serve as an effective measure in Islamic law of public finance. At the macro-economic level, it helps the redistribution of wealth from the wealthy to the vulnerable and the poor either by direct disbursement or by providing them with education, health facilities and other social services. At the micro-economic level, it provides powerful incentive to invest wealth rather than leaving it idle or unused.”22 
Bases of zakatablity 
Zakah becomes obligatory on a person, among others,23 in accordance with the following general terms: 
17 Zakah as a pillar of Islam and an act of worship is profoundly and spiritually flourishing. Its spiritual effect in terms of cleansing the zakah payer from the stinginess and niggardliness is underlined by the Qur`an, al-Tawbah:103. For details see, Ahmad Husayn `Ali Husayn ,Muhasabat al-Zakat (al-Iskandariyyah: al-Maktab al-Jami`I al-Hadith, 2006), pp.29-39. 
18 Ibid., pp.41-42. 
19 Imtiazi et al (edits), Management of Zakat in Modern Muslim Society, (Riyad: IDB, IRTI, 2000), p.11. 
20 Al-Zuhayli, al-Fiqh al-Islami wa Adillatuhu vol.2, p.372. 
21 Mundhir Kahf, “Unresolved Issues in Contemporary Fiqh”, in Development and Finance in Islam (edit. Sadeq et al), International Islamic University Press, 1991, p.174. 
22 Abu Al-Hasan Sadeq, A Survey of The Institution of Zakah: Issues, Theories and Administration (Riyad: Islamic Development Bank Islamic Research and Training Institute, 2004), Discussion Paper II, pp.61-17, and Habib Ahmed, Zakah and Awqaf in Poverty Alleviation (Jeddah: Islamic Development Bank Islamic Research and Training Institute, 2004), Discussion Paper 8, p.70. 
23 The juristic discourse on conditions of zakah is extensive, which have been ably summarized by Al-Qaradawi in his renowned work Fiqh al-Zakat. Some of these terms, such as productivity (growth/nama) has been seriously questioned by some contemporary economists. However, these details extend beyond the discussion of this paper, which offers only a brief outline of what we see as fit for the purpose of this study. For details see al-Qaradawi, Fiqh al-Zakat, pp.42-95. 
5 | S I M E j o u r n a l majalla.org 
i. He fully owns and has control over his zakah payable wealth. This implies that mere possession of property is not a condition for obligation of zakah. 
ii. He owns productive property (known as „growing wealth‟ as defined by the classical jurists). An item of wealth is held to be productive if it naturally increases by itself or has the potential to yield income. Thus, assets that are subject to depreciation owing to their use are not zakatable. 
iii. He owns nisab-fulfilling wealth which is over and above of his basic needs (subsistence). In Islamic Jurisprudence, in order to be zakatable, all zakatable wealth must reach certain quantum. For instance, the quantum for cash money and business inventory is the value of 85 grams of gold. 
iv. He owns such a quantum of money for duration of one year. 
Types of zakatable wealth 
The Prophet (p.b.u.h.) designated six common types of wealth that constituted the sources of income as zakatable in his time. They were metals (gold and silver-minted and unminted), agricultural crops (wheat, maize, barely, date and grape), mineral, treasure troves, livestock (camel, sheep and cow) and trade inventory. The succeeding generations of scholars have added other growing sources of wealth to the above list. Today zakatable wealth consists of agricultural wealth, animal wealth, underwater wealth, mineral wealth, industrial wealth, cash money, trade asset and income from shares, bonds, etc.24 
Zakah Beneficiaries 
The Holy Qur`an identifies eight categories on which zakat must be spent. As we read in the Qur`an: “as-sadaqat (zakat) are only for the fuqara’ (the poor), and al-masakin (the poor) and those employed to collect (the funds); and to attract the hearts of those who have been inclined (toward Islam); and to free the captives; and for those in debt; and for Allah‟s Cause, and for the wayfarer a duty imposed by Allah and Allah is All-Knower, All-Wise.”25 
In practice, what do these categories refer to? The Prophet had determined them according to the socio-economic condition of his time and environment.26 Likewise, the classical jurists27 detailed the law within the context of their own understanding of the categories. Today, they are defined as follows: 
i. Fuqara’ and masakin (the poor and needy) include orphans, divorced women, old people, handicapped, patients, permanent low income earners, families of 
24 For technical details see Ibid, 64-338. 
25 Al-Tawbah: 60. 
26 For instance, the Prophet defined miskin as the one who does not turn round men and who a morsel or two and a date or two turns back, but a miskin is he who does not find enough to make himself free from wants… nor he stands up and beg. See Mishkat al-Masabih, vol.2, p.61. 
27 The classical jurists also defined these beneficiaries. For instance, according to Hanafiyyah, faqir is better off than miskin as he has but not equal to nisab, whereas to Shafi`iyyah and Hanabilah, the reverse is the case. Abd Allah Ibn Ahmad Ibn Qudamah, al-Mughni (Cairo: Dar al-Qalam, n.d), vol.6, p.457-458. See also Abd al-Hafiz Farughli Ali al-Qarni, al-Zakah wa Hajat al-`Asr, (Qairo: Dar al-Sahwah, 1989), pp.113-114. 
6 | S I M E j o u r n a l majalla.org 
the prisoners and missing people, as well as students.28 However, as to how much they should be given, the jurists‟ opinions differ. Some jurists maintain that they should be given what is sufficient for them and their families for a duration of one year.29 This is mainly because if one full year is the unit of time for the collection of zakah, by the same unit of time the poor and needy should also be given the zakah. According to contemporary ijthad, the payment can be made directly to them if they have no expertise or are handicapped, sickly or weak; but if they are able to work, they should be equipped with tools and training to become productive or helped to become self-employed. That is why the Prophet asked a beggar to take the hatchet and collect wood wire rather being dependent on begging.30 
ii. The `amil refers to the employee of the zakah department or other zakah management organizations as they devote their time and energy in the collection and distribution of zakah. In today`s context, such officers are salaried civil servants31 or staff of charity organizations. Thus, this portion may be given by way of another benefit to them or made part of portion to be used in financing. 
iii. Those who have been inclined (toward Islam) refer to new converts, and this is in order to integrate them into the Muslim community as they are cut off from their economic resources when revering to Islam. It may be also spent on encouraging peace and friendship between Muslims and non-Muslims.32 It may be also used to rehabilitate those confused about Islam or show tendency to renounce Islam. 
iv. Freeing slaves. Today, however, slavery is no longer part of our social life. Thus, this allocation can be used to free Muslims from captivity or oppression and socio-economic domination of the powerful.33 
v. The insolvent. This category includes those who have incurred debt on account of poverty, wars, economic recession or even bona fide34 loss in business activities. They should be helped to write off their liability. 
vi. For Allah‟s Cause. There are numerous interpretations as to what this category means. Some say that it assigns a portion for those involved in jihad in the real sense of doing it for the sake of Allah, as the Prophet explained when he was asked about a man who fought for his tribe, because he is brave, or to show off: which of them was fighting for the sake of Allah? He said: “The one 
28 The list shows the practice zakah of Kuwait and Malaysia. See Abdul Qader Dhahi al-Ajeel “A Study on the Activities of Zakah Institutions that are Based on Non-Compulsory Payment of Zakat”. A paper presented on the Third Zakah Conference, Kuala Lumpur, May 14-17, 1990, pp.11-12. See also Sayed Sikandar Shah (Haneef), Zakat of Salary through Income Tax Rebate: Understanding its Legal Bases in Islamic Jurisprudence, Unpublished IIUM Funded Research Project, 2007, pp.31-33, respectively. 
29 This is the view of the Malikiyyah, while to the Hanafiyyah each should be given 200 dirhams, and to the Shafi`iyyah they should be given an amount which makes them self-sufficient for their whole life. See Al-Khin, al-Fiqh al-Manhaji, p.323 and Ibn Qudamah, al-Mughni, vol.6, p.456. 
30 Mishkat al-Masabih, vol.2, p.245. 
31 Abu Saud Contemporary Zakat, pp.166-167. 
32 Ibid. See also Nadiyah Ahmad Hashim, “Masarif al-Zakat” in Abhath Nadwat al-Tatbiq al-Mu`asir li al-Zakat (al-Azhar: S.A. Kamel Centre for Islamic Economics, 2002), vol.3, pp.19-20. 
33 Sadeq, A Survey of the Institution of Zakah: Issues, Theories and Administration , p.40 and also Abu Saud, Contemporary Zakat, p.166. 
34 Sadeq, A Survey of the Institution of Zakah: Issues, Theories And Administration, Ibid. 
7 | S I M E j o u r n a l majalla.org 
who fights so that the word of Allah may be supreme is the one who is fighting for the sake of Allah.”35 Nonetheless, a vast majority of modern jurists suggest a broader understanding of “the cause of Allah” that extends beyond military engagements. To them, this phrase includes all types of struggles toward a righteous cause, such as propagation of Islam, Islamic education, activities to establish Islamic way of life by replacing anti-Islamic or secular systems, spending for social welfare programs and economic development projects, manpower training or even education in various scientific and technical fields on the ground that such programs will help the poor who directly participate in them.36 
vii. The way farers. This category refers to travelers and all those who have lost contact with their local residence and are stranded in a foreign land and want to go back to their countries.37 Such people may be given enough zakah to enable them to reach their homeland, even if they are rich in their own country.38 
Modern ijtihad on Zakah Disbursement 
The classical jurists addressed the minutest details of the law of zakah to address judicious implementation of zakah in the context of socio-economic conditions as obtained at their time. Modern jurists in their turn revisited similar issues in the conditions that prevail at our time. In brief, some of the pertinent issues that pertain to today`s disbursement of zakah are as follows: 
Mode of payment to the poor and needy 
The issue here is whether the zakah has to be given directly to the poor and needy or if it can be utilized to take care of their welfare. Some contemporary scholars including Mohammad Qutub say that zakah can be used to provide social services such as for hospitals, schools and also for factories which create employment opportunities for the people.39 According to Abu Zahrah, zakah can be given to welfare organizations whose core business is to look after the welfare of the poor and destitute.40 
Nevertheless, other scholars like Shihatah object to the use of zakah in socio-economic structure for the public as zakah does not belong to general public revenue in the state budget.41 But some exceptions include the financing of: 1) Islamic education, (2) vocational training and its necessary tools, (3) agriculture and cottage industries, (4) simple fixed assets for small utility and trade projects, (5) working capital for craftsmen, (6) low-cost-housing, and (7) medical facilities, free of charge or at a nominal fee. To 
35 Ibid. 
36 Renown figures like Maududi, Syed Qutb, Abul Kalam Azad and Shibli Nomani maintain this stand, Ibid. 
37 Ibid. 
38 For a detailed account of modern interpretation of asnaf (zakah beneficiaries), see Ahmad `Abd al-Aziz al-Muzayni, al-Murshid al-Hayran fi Ahkam al-Zakat (al-Kuwait: Dhat Salasil, 1984), pp.111-176. 
39 Ibid. 
40 Ibid. 
41 Ibid. 
8 | S I M E j o u r n a l majalla.org 
him, Islamic moral values and brotherhood requires provision of these goods and services in an Islamic society. 
Qureshi also maintains that in principle, zakah should not be spent for the development of socio-economic structure except if such projects would enhance the position of the poor and the needy.42 This is also the official stand in Pakistan.43 
We believe that the proponents‟ view is more consistent with the spirit of the law of zakah, which was long ago envisaged by our jurists. For instance, al-Nawawi stated: “The purpose of zakah is to make the poor and needy reach their sufficiency. A craftsman would be given an amount sufficient to buy tools and equipment that would allow him to work and gain his sustenance… farmers would be given enough farming land to enable them to gain sufficiency of sustenance.”44 This thesis is built upon the statement by `Umar who said: “When you give, make the recipient rich.”45 
1.2. Non-Muslims as recipients 
Modern scholars are of divided opinions on this matter. Some like Shaik and Abu Saud maintain that there is no evidence in the Qur`an nor in the Sunnah to prohibit this, provided that the needs of Muslims are met first and the non-Muslims in question do not indulge in hostility towards Muslims.46 
On the contrary, other scholars like Maududi held this not to be permissible on the basis of the hadith “To be taken from your rich people and to be distributed to your poor people.” Here “you” refers to “Muslim”, while the non-Muslims should be helped from general welfare funds.47 We believe some may argue that the view of permissibility may find support from non-conditionality of Islam on the part of slaves and insolvent debtor but its extension to faqir and miskin requires a policy decision on the principle of siyasah shar`iyyah by individual states. 
2. Amount to be given to the recipients 
A question arises as to whether the zakah fund should be equally distributed to all categories or to the extent of their needs. Some scholars like Abu `Ubayd appear to have suggested that there is no limit of paying zakah to a single recipient.48 For example, it is permissible to pay a beneficiary so much that he can buy a house, if he does not have one. This receives support from the implication of the classical jurists` pronouncements. For instance, al-Nawawi is reported to have held that a recipient of zakah should be given enough money to make him self-sufficient. According to Malikiyyah and Hanabilah, 
42 Ibid, p.40 
43 The Majlis Tahqiq Masail Hadirah totally rejected this idea as it violates the principle of its tamlik by the deserving beneficiaries, Ibid. 
44 Quoted in al-Qaradawi, Fiqh al-Zakat, pp.355-356. 
45 Sunan al-Dar Qutni, vol.2, p.133. 
46 Ibid, Abu Saud, Contemporary Zakat, p.176. 
47 Sadeq, A Survey of the Institution of Zakah: Issues, Theories and Administration, p.41. 
48 This represents the Hanafi‟s position. See Nadiyah Ahmad Hashim, “Masarif al-Zakat”, p.38. 
9 | S I M E j o u r n a l majalla.org 
self-sufficiency should be assured for a full year.49 But according to al-Shafi`I, all beneficiaries must be give their due shares. 
Corollary to this is, must zakah be given to all the heads of recipients? The answer to this question varies among the jurists. Some like Abu `Ubayd and al-Mawardi maintain that it has to be spent on all the categories mentioned and no category should be encroached upon by another. Nevertheless, according to Ab `Ubayd, it does not have to be equally portioned, and the ruler has the discretion to allocate more to those who are more in need than others.50 
Abu Yusuf, on the other hand, does not see this as necessary. To him, the ruler has the liberty to give the zakah to anyone of the eight categories. He may spend only on one category if it is deemed most appropriate.51 
Debate over legitimacy of zakah financing 
As to whether zakah fund can be utilized in financing development projects and trade ventures to expand its disbursement beyond the current need of the recipients, especially among them the poor and needy, the jurists have generally held two diverging views52. One group maintains53 that the zakah collections must be disbursed immediately to the recipients; the state has no locus standi to invest it with the view of generating more income. Their main arguments are:54 firstly, it does not only blur the designated class of beneficiaries, it also contravenes the principle of tamlik by the recipients, namely the faqir, miskin, amil and mu`allafat al-qulub among them. The reason being that the Qur`anic use of proposition li with reference to them implies the transference of zakah from the owner of wealth to these groups. Hence, the ruler has no such discretion on the matter. Secondly, it is against the condition of prompt distribution of the zakah to its recipient. This is the view of the majority of the jurists who argued that delay might be detrimental to the interest of the poor in the event that the fund is destroyed or lost.55 Thirdly, zakah is not supposed to be reserved for future needs, rather it is primarily designed to alleviate the present economic need of the recipients. Lastly, using zakah in income earning projects is a kind of disapproved innovation in the area of immutable aspect of Islam i.e. legislating on a pillar and religious rite, thus ultra vires of the Islamic law. 
49 Ibid, p.39. See also Khurshid Ashraf and Iqbal al-Nadwi, “Masraf al-Fuqara wa al-Masakin: Tatbiqatuha al-Mu`asirah”, in Abhath Nadwat al-Tatbiq al-Mu`asir li al-Zakat (al-Azhar: S.A. Kamel Centre for Islamic Economics, 2002), vol.3, pp.6-14. 
50 Sadeq, A Survey of the Institution of Zakah: Issues, Theories And Administration, Ibid, p.42. 
51 Ibid. See also Khurshid Ashraf and Iqbal al-Nadwi, “Masraf al-Fuqara wa al-Masakin: Tatbiqatuha al-Mu`asirah”, pp.6-14. 
52 According to the resolution adopted by the Fiqh Academy in its third round of discussion on 13 October,1986, there were four different position on the issue: conditionally permissible, allowed on the surplus of the collected zakat, permissible to the extent of using the portion allotted to fi sabil Allah (in the cause of God) only and total prohibition. See Husayn Ali Muhammad Munazi`, “Tawzif al-Zakat fi Mashru`at Intajiyyah” in Abhath Nadwat al-Tatbiq al-Mu`asir li al-Zakat (al-Azhar: S.A. Kamel Centre for Islamic Economics, 2002), vol.3, p.8. 
53 Scholars like Qureshi and Taqi Uthmani represent this point of view. Daud, Malaysian Zakat System p.19. 
54 Abd al-Fattah Muhammad Farah, al-Tawjih al-Istithmari li al-Zakat (Dubai: Bank Dubay al-Islami, 1997), pp.45-46. 
55 Al-Qaradawi, Fiqh al-Zakat, pp.519- 520. 
10 | S I M E j o u r n a l majalla.org 
The majority56, on the other hand, disagree and rebut the opponents‟ arguments by saying that firstly, since according to the majority of classical schools the ruler can spend the entire zakah fund for the benefit of the most in need of help among the zakah recipients, it is well within his power to finance socio-economic infrastructure for such as an end. Secondly, it would not be a violation of tamlik (transference of private ownership to the poor) as some jurists like Hanafiyyah and Shi`ah Zaydiyyah do not make this a condition for spending on these categories. To them, feasting and clothing of the poor from the zakatable income of the zakah payer amount to the fulfillment of his zakah.57 Thirdly, its disbursement does not have to be prompt as maintained by Abi Bakr al-Jassas of the Hanfiyyah and al-Razi and Shi`ah Imamiyyah. According to al-Razi, it is a well-established principle of usul al-fiqh that mere command (to give zakah) does not require delayed or prompt disbursement but requiring the disbursement itself (sooner or later).58 The Hanafiyyah also generally classify zakah as an obligation with extended due time (wajib muwaasa`/bi al-tarakhi).59 Accordingly, instead of giving the poor recipients their share in lump sum, they could be given monthly stipend from the proceeds of the zakah investment. Forthly, the very fact that `Umar was insistent on giving the poor an amount that would be sufficient for them for rest of their lives, and the Hanafis and al-Shafi`is agreement on providing the poor with tools of labor from zakah fund to become self-reliant are cogent proofs that zakah can be used for future security and the need of the recipients.60 Lastly, it is not an innovation of a denounced type (madmumah) as it benefits the recipients and does not harm them, thus belonging to the category of approved or praiseworthy innovation (mahmudah), which can be initiated on financial matters, such as zakah.61 
Accordingly, the majority of contemporary jurists hold it to be permissible provided that: 
- the ultimate ownership of its return and the capital sum be spent on the recipients, 
- only the surplus fund should be invested, and 
- investment activities should be carried out with extra caution and prudent financial planning so as to avoid loss to the pool of zakah property. 
Qureshi, on the other hand, still contests this idea by maintaining that it should not be given a blanket approval and this matter should be left to the poor and needy to choose between consumption and investment, since their consumption needs may be more pressing, which may be compensated only by very high profits. Thus, the optimal choice for the poor and needy may be to avoid any investment from zakah funds.62 El-Din also 
56 Scholars like al-Qaradawi, al-Zarqa, Wahabah al-Zuhayli al-Nabhan, Shahhatah, Munazi` and Farah represents this view. See Munazi` in Abhath Nadwat al-Tatbiq al-Mu`asir li al-Zakat (al-Azhar: S.A .Kamel Centre for Islamic Economics, 2002), vol.2, p.4. 
57 Ibid, pp.17-18. 
58 Ibid, pp.14-15. 
59 Al-Qaradawi, Fiqh al-Zakat, p.519. 
60 Ibid., pp.19-21; Farah, al-Tawjih al-Istithmari li al-Zakat, pp.51-52. 
61 Farah, ibid, p.52. 
62 He commented on investment proposal by expressing his misgiving about it. See Shawki Ismail Shihatah, “Limitation on the Use of Zakah Funds in Financing the Socio-economic Infrastructure of Society”, in Imtiazi et al (edits), Management of Zakat in Modern Muslim Society, (Riyad: IDB, IRTI, 2000), p.75. 
11 | S I M E j o u r n a l majalla.org 
joins Qureshi by saying that in today‟s context this option is not economically feasible as the role of small scale industries today has dwindled and is superseded by the increasing rise of global corporate economy.63 
In our opinion, the view of the majority is to be credited as it receives support based on the Prophet‟s permission to a group of people from `Uraynah to drink milk of the zakah camels.64 This, according to Ibn Hajar, implies that other uses such as riding and leasing would be also permissible, which by extension covers the issue in question. Furthermore, this argument is strengthened by the substance of many jurisprudential rule of zakah including the following: 
1. It is to benefit the deserving poor recipients by providing them with working capital or tools of profession as was agreed by all the jurists. 
2. It is in line with the idea behind the territorial disbursement of zakah as according to al-Qaradawi was intended to effectively help in the alleviation of poverty.65 This process is also in consonance with giving priority to the poor and destitute as the ruler may deem fit. This definitely also harnesses the proposition for productive use of zakah funds to make these segments self-sufficient.66 
3. From the economic point of view, productive disbursement of zakah to the poor and needy would thwart the inflationary effect67 of zakah on Islamic economy. Accordingly at macro level, it should be permissible as a matter of economic necessity within the framework of Islamic fiscal policy. The productive disbursement scheme for this is suggested to be through preparing a surplus zakah budget. Then, this fund should be mobilized by investing it in industries to provide employment for the poor. The profit from these investments would be granted in the form of zakah certificate, cashable at the option of the holder after a period of three to six months. This way, the propensity for the poor to consume more (demand) can at least be dampened for a short period.68 Another dimension to this is that investment oriented disbursement of zakah funds would have a cumulative effect on reducing poverty.69 
Proposed theoretical mechanisms for zakah financing 
63 Saifeddin Tag El-Din, “Allocative and Stabilization Function of Zakat in an Islamic economy”, in Readings in Public Finance in Islam, edit., Mahamoud A. Gulaid & Mohamed Aden Abdullah (Jeddah: Islamic Research and Training Institute, 1995), p.332. 
64 Quoted in Farah, al-Tawjih al-Istithmari li al-Zakat, p.55. 
65 Al-Qaradawi, Fiqh al-Zakat, p.637. 
66 Quoted in Shihatah, Limitation on the Use of Zakah Funds in Financing the Socio-economic Infrastructure of Society, p.62. 
67 It would be inflationary as the poor have higher tendency to consume than the rich. If they were given direct cash as zakah, the result would be increased in the aggregate demand in the economy (pushing the price higher). It thus further damages the interest of the poor. See Sabahaddin Zaim, “Recent Interpretation of the Economic Aspect of Zakah”, in Imtiazi et al (edits), Management of Zakat in Modern Muslim Society, (Riyad: IDB, IRTI, 2000), p.114. 
68 Ibid. 
69 Ibid., p.116 
12 | S I M E j o u r n a l majalla.org 
The supporters of zakah‟s potential for financing have offered various models for zakah investments, among them include the following models: 
Shihatah’s proposed model 
Shihatah, while proposing a framework for the contemporary use of the zakah fund in financing the Islamic socio-economic projects,70 suggests the following:71 
1. Zakah revenues can be used in lawful mudarabah projects, with the zakah authority acting as the owner of the capital, and the zakah beneficiaries acting as partners by contributing their work. The profits will be distributed between them on the basis of a pre-decided ratio. 
2. Loans can be provided to able-bodied beneficiaries who pay the money back; this may generate a new source of finance for the beneficiaries. 
3. Giving possession of low cost houses on the basis of rent financing. 
4. Financing partnership businesses that would culminate in the ownership for the benefit of the zakah recipients. 
5. Provision for leasing light fixed assets and production tools with a nominal fee or rent to the poor or the needy. 
6. Interest free loans to those suffering from calamities, illnesses or costly surgery. 
Anwar’s Proposed Model 
According to this model, a jurisprudentially consistent mechanism can be worked out for the purpose of zakah utilization in financing development projects. To this end, Anwar proposes the establishment of a special financial institution called “Awqaf-Zakat Investment Fund" (AZIF) from the zakah fund. It would be registered as a waqf institution and shall operate as profit-seeking corporate venture. It may have its branches and affiliate offices throughout the country, investing zakah funds into long-term concerns. Its paid up capital would be distributed in terms of shares to the zakah beneficiaries. In collaboration with Islamic banks, AZIF would engage in financing activities in accordance with well-known Shari´ah-compliant modes in projects that would most benefit the poor and the needy and helps alleviate poverty. For example, the financing of building infrastructure in the rural areas, as well as the financing of the small- and medium-sized industries, such as fisheries and poultries run by the poor and for their benefit etc. To manage the loss risk, AZIF would diversify its investment portfolios as well as building a loss reserve account from its earnings over time. To Anwar, this model is a Shari´ah-compliant one because of the following reasons: (i) it satisfies the juristic conditions of tamlik (personal ownership of the zakat fund) by the poor and needy as they would be the shareholders of commercial products by virtue of their shares; (ii) it guarantees against the loss and meets it, if incurred, from its built-up loss reserve account; (iii) it fulfills the condition of immediacy of zakah disbursement to 
70 He proposes financing projects such as education, vocational training, rehabilitation facilities, small agricultural and cottage industries, low cost housing, health care etc. For details see Shihatah, Limitation on the Use of Zakah Funds in Financing the Socio-economic Infrastructure of Society, pp.70-71 
71 Ibid, pp.69-73. 
13 | S I M E j o u r n a l majalla.org 
satisfy the pressing consumption need of the poor and the needy as it makes arrangements with prominent outlets to accept their certificates (Zakah House in Kuwait issues coupons), representing shares at a price not less than their face value when selling their commodities or services. These outlets can redeem these certificates later from the zakah centers.72 Farah’s model To Farah, to accomplish the utilization of zakah fund for investment purposes, there is a need for establishing a special zakah investment bank (bank ithtithmar al-zakawiyyah). This bank, in coordination with zakah departments, can conduct financing activities that any other banks may undertake.73 
Zaki Badawi’s model 
To Zaki, in order to tackle the issue of zakah financing, a clear distinction should be made between the utilization of zakat al-fitr and zakat al-mal. The former should be used for the urgent consumer need of the poor and needy, while the latter should be invested in productive ventures such as textile factories, machine tools of manufacturing and low cost houses as long-term solutions in overcoming the problem of poverty.74 
The Practical Model: The Practice of Kuwait Zakat House 
After outlining the theoretical framework for investment oriented disbursement of zakah funds, it is worthwhile to briefly mention what has been happening at the implementational level in the Muslim countries. To this end, we refer to the practice by Kuwait Zakat House as an example.75 
Kuwait Zakat House is a government institution. It has an independent budget and was established by Law No.5 in 1982. It aims at collecting and distributing zakah funds and other donations and spending them according to the Shari`ah principles. In this pursuit, its investment oriented approaches to zakah disbursement are as follows:76 
i. It keeps zakah funds in two types of accounts with the bank, namely current and saving accounts. Its earning on saving accounts increases the original fund deposited with the bank. 
ii. It provides free interest loan to people in need of money and secure its repayment by way of installments. 
72 Muhammad Anwar, “Financing Socio-economic Development with Zakat Funds” in Journal of Islamic Economics, vol. 4, 1 & 2, July 1995, pp.17-18. 
73 Farah, al-Tawjih al-Istithmari li al-Zakat, pp.19-23. 
74 Zaki Badawi, “Zakat—A New Source of Development Finance” in Islamic Banker: News and Analysis of Islamic Banking, Finance and Insurance, Issue: 4, March 1996, pp.18-19. 
75 It is regarded as a successful experience so far. See Anwar, “Financing Socio-economic Development with Zakat Funds” in Journal of Islamic Economics, vol. 4, 1 & 2, July 1995, pp.17-18. 
76 al-Ajeel, “A Study on the Activities of Zakah Institutions that are Based on Non-Compulsory Payment of Zakat”, pp.10-30. 
14 | S I M E j o u r n a l majalla.org 
iii. It finances the vocational training for capacity building of people capable of becoming productive citizens (under a scheme called productive rehabilitation scheme). 
iv. It sponsors poor students‟ education by offering them interest-free loans. 
Conclusion 
From the above discussion, it is clear that the productive use of zakah funds for the benefit of its beneficiaries derive its validity from many arguments by both legal and economic scholars. It becomes all the more rationally acceptable on the surplus zakah fund lying with the current accounts and even saving accounts of the banks in the case of countries that impose mandatory zakah on its citizens.77 It would not be sensible that such huge amounts would be left idle and not exploited to increase the much needed fund for alleviating poverty and helping other shari`ah-designated social causes. As for religious legitimacy of such procedure, it suffices that the Prophet‟s practical guidance of asking the beggar to get the hatchet and collect the wood fire and sell it rather than being dependent on begging. Similarly, his permission to utilize the camel (collected as zakah) for milk and other utilities should not leave any shred of doubt on the lawfulness of zakah investment and financing. Moreover, since some countries have already embarked on this mode of disbursement, the academic debate about its legality should no longer be a subject of academic controversy. What remains ahead of us is the challenge of doing it efficiently so that the twin objectives of seeing people still fulfilling their zakah obligations, and beneficiaries from among the poor and needy attaining self-sufficiency are met. Accordingly, to successfully undertake such financing activities at the legal plane, the following fiqhi requirements must be met: 
i. The financiable funds should come from the portions of zakah allocated to beneficiaries other than those allotted to the unproductive poor and needy recipients. This should be combined with surplus funds available, if any, with zakah institutions. To do this, zakah collection must be made compulsory on all wealth including wages or businesses. 
ii. The operational cost should come from the profits or the organization budget. 
iii. Financing mechanism to carry out investment activities could be framed within the legal framework of each and every country. The reason is that in most of the Muslim countries, the zakah collection and disbursement are carried out by statutory bodies such as state religious councils affiliated with the other government bodies, such as Awqaf Ministry or Ministry of Finance. In our opinion, such a zakah body can have an entrepreneurship wing to conduct such financing activities, advised by competent shari`ah experts from an array of fields, such as Islamic law, economics, business, management, sociology etc. This would have the advantage of saving zakah departments from being seen as business organizations by ordinary folks. 
77 For instance, in Pakistan by 30 June 1989, over 4 billion rupees of undisbursed zakah fund was left idle in a current account. See Muhammad Anwar, “Financing Socio-economic Development with Zakat Funds” in Journal of Islamic Economics, vol. 4, 1 & 2, July 1995, pp.17-18. 
15 | S I M E j o u r n a l majalla.org 
iv. The proper financial planning as highlighted in this paper should be in place so as to forestall avoidable business risks. 
v. The immediate consumer needs of the able bodied poor for essential goods and services, via practical mechanisms as referred to in this paper, should be fulfilled.

The Use of Zakat Revenue in Islamic Financing:

by Drs. Mek Wok Mahmud and Sayed Sikandar Shah (Haneef)* Recent juristic debate rages around the possibility of using zakah revenue in Islamic law of public finance to better realize its intended pove…

13 Aug 2010

Definition and classification of Islamic Jurisprudence

Edited by Jonathan T. Capes 
 
PART I 
DEFINITION AND CLASSIFICATION OF ISLAMIC JURISPRUDENCE 
 
Article 1. The science of Islamic jurisprudence consists of a knowledge of the precepts of the Divine Legislator in their relation to human affairs. 
 
The questions of Islamic jurisprudence either concern the next world, being known as rules relating to worship, or to this world, being divided into sections dealing with domestic relations, civil obligations and punishments. Thus God decreed the continuation of the world until the appointed time. This, however, can only occur by mankind being perpetuated which is dependent upon marriage of male and female with a view to procreation. Moreover, the continuation of the human species is assured by individuals associating together. Man, however, in view of the weakness of his nature is dependent upon food, clothing, housing and the industries for his subsistence. In other words, in view of the fact that man is a civilized being, he cannot live in solitude like the other animals, but is in need of co-operation and association in work with his fellow men in order to live in a state of Civilization. Every person, however, asks for the things which he likes and avoids things which are disagreeable to him. As a result, it has been necessary to establish laws of a nature likely to maintain order and justice as regards marriage, mutual help and social relations, which are the basis of all civilization. 
 
The first division of Islamic jurisprudence is the section dealing with domestic relations. The second is the section dealing with civil obligations. In view of the fact that the continuance of civilization on this basis necessitates the drawing up of certain matters relating to punishments the third section of Islamic jurisprudence deals with punishments. 
 
As regards the section dealing with civil obligations, the questions which are of the most frequent occurrence have been collected together from reliable works and set out in this Code in the form of Books. These Books have been divided into Chapters and the Chapters into Sections. The questions of detail which will be applied in the Courts are those questions which are set out in the following Chapters and Sections. Muslim jurists, however, have grouped questions of Islamic jurisprudence under certain general rules, each one of which embraces a large number of questions and which, in the treatises on Islamic jurisprudence, are taken as justification to prove these questions. The preliminary study of these rules facilitates the comprehension of the questions and serves to fix them in the mind. Consequently, ninety nine rules of Islamic jurisprudence have been collected together as follows, before commencing on the main work and form Part II. 
 
Although a few of them, taken alone, admit of certain exceptions, their general application is in no way invalidated thereby, since they are closely interrelated

Definition and classification of Islamic Jurisprudence

Edited by Jonathan T. Capes PART I DEFINITION AND CLASSIFICATION OF ISLAMIC JURISPRUDENCE Article 1. The science of Islamic jurisprudence consists of a knowledge of the precepts of the Divine Legislat…

13 Aug 2010

The first somaliland constitution

The Republic of Somaliland was the separate country of British Somaliland, with clear internationally delineated boundaries until 26 June 1960 when it became the independent State of Somaliland. Of the 18 African countries which became independent in 1960, Somaliland was the fourth country in that year and was welcomed by many countries. It had a Constitution of its own, a government, and an elected legislature and a judiciary. Somalia (former Italian trusteeship) was the seventh African country to become independent that year (with Madagascar and the Democratic Republic of Congo receiving their independence in between). 
This is the first Constitution of the independent STATE OF SOMALILAND and came into force on 26 June 1960. 
 
 (For a note on the Somaliland Constitutional History between 1946 to 1960, click here) 
 
 
-------------------------------------------------------------------------------- 
(FIRST) CONSTITUTION OF SOMALILAND 
PART I 
INTRODUCTORY 
 
Citation and commencement 
 
1. This Constitution may be cited as the Constitution of Somaliland and shall come into operation immediately before the 26th day of June 1960. 
 
Territory of Somaliland 
 
2. (1) The territory of Somaliland shall be all that territory which on the commencement of this Constitution, is comprised in Her Britannic Majesty's Protectorate of Somaliland. 
 
(2) The Council of Ministers hereinafter established for Somaliland may, by order published in the Gazette, define any boundaries of the territory of Somaliland and divide the territory into provinces, districts or sub-districts and may group districts and their sub-districts into provinces, as may be convenient for the purposes of administration, describing the boundaries thereof, and assigning names thereto. 
 
(3) If any question arises whether any place is or is not within Somaliland, or within any province, district or sub-district, and such question does not appear to be determined by any such order or by other evidence, the question shall be referred to the Council of Ministers and a certificate given under the authority of the Council of Ministers shall be conclusive on the question and judicial notice shall be taken thereof. 
 
PART II 
THE EXECUTIVE 
 
Council of Ministers 
3. (1) There shall be a Council of Ministers for Somaliland which shall consist of a Prime Minister and three other Ministers. 
 
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly for the performance of their functions. 
 
Executive authority of Somaliland vested in Council of Ministers 
4. (1) The executive authority of Somaliland shall be vested in the Council of Ministers and may be exercised either by the whole Council or by any Minister duly authorized in that behalf by the Council or, subject to any directions of the Councillor such Minister, by subordinate officers acting on behalf of the Council or such Minister. 
 
(2) Without prejudice to the generality of the preceding subsection, the authority thereby vested in the Council of Ministers extends to the conduct of the external relations of Somaliland. 
 
(3) Nothing in .the foregoing provisions of this section shall prevent the Legislature of Somaliland from conferring functions on persons or authorities other than the Council of Ministers. 
 
(4) In this Constitution, unless it is otherwise provided or required by the context, references to the functions of the Council of Ministers shall be construed as references to the powers and duties of the Council in exercise of the executive authority of Somaliland and to any other powers and duties conferred or imposed upon the Council by this Constitution or any other law. 
 
(5) (a) Where the execution of any document by a Minister is expressed to be on behalf of the Council, any question whether that Minister was duly authorised by the Council to execute the document shall not be enquired into in any court. 
 
(b) The references in this subsection to the execution of a document shall be construed as including references to the making of, or the signification of approval or assent to, any legislative instrument and to the conclusion of any treaty or written agreement. 
 
First Council of Ministers 
5. On the commencement of this Constitution those members of the Legislative Assembly who immediately before that commencement were the Unofficial Members of the Executive Council of Somaliland shall become the first members of the Council of Ministers, and, of those members, the person who was the leader of Government business in the Legislative Council of Somaliland immediately before that commencement shall become the first Prime Minister. 
 
Filling of vacancies among Ministers 
 
6. (1) 1f the office of Prime Minister falls vacant the Legis1ative Assembly shall, as soon as practicable, elect a person from among its members to be Prime Minister. 
 
(2) If the office of a Minister other than the Prime Minister falls vacant, the Prime Minister shall appoint a person from among the members of the Legislative Assembly to fill the vacancy. 
 
Tenure of office of Ministers 
7. (1) The Prime Minister shall vacate his office-- 
 
(a) if he ceases to be a member of the Legislative Assembly for any reason other than a dissolution of the Assembly; 
 
(b) if he resigns his office by writing under his hand addressed to the Speaker of the Legislative Assembly; or 
 
(c) if a motion that the Legislative Assembly should declare a lack of confidence in the Council of Ministers receives in the Assembly the affirmative votes of a majority of all the members of the Assembly. 
 
(2) A Minister other than the Prime Minister shall vacate his office- 
 
(a) if he ceases to be a Member of the Legislative Assembly for any reason other than a dissolution of the Assembly; 
 
(b) if he resigns his office by writing under his hand addressed to the Prime Minister; or 
 
(c) if the Prime Minister by writing under his hand directs that he shall cease to hold office. 
 
(3) A Minister (including the Prime Minister) shall vacate his office if he is not a member of the Assembly when the Assembly first meets after any dissolution. 
 
Oath of members of Council of Ministers 
 
8. Before entering on the duties of his office the Prime Minister shall take and subscribe before a Judge of the High Court and every other Minister shall take and subscribe before the Speaker of the Legislative Assembly the oath prescribed in Part I of the First Schedule to this Constitution. 
 
Performance of the functions of the Prime Minister in certain events 
 
9. (1) Whenever the office of Prime Minister is vacant or the Prime Minister is ill or is absent from Somaliland, the Council of Ministers may appoint one of the other Ministers to perform any of the functions conferred on the Prime Minister by this Constitution; and any Minister so appointed may, during the subsistence of his appointment, perform such of these functions as may be specified in the instrument of appointment. 
 
(2) The Council of Ministers or the Prime Minister may revoke or vary any appointment made under this section, and, in the case of a vacancy in the office of Prime Minister or the absence of the Prime Minister from Somaliland, any such appointment shall in any case cease to have effect when the vacancy is filled or the Prime Minister returns to Somaliland, as the case may be. 
 
Summoning and procedure in Council of Ministers 
10. (1) The Council of Ministers shall not be summoned except by the authority of the Prime Minister: Provided that if the office of Prime Minister is vacant or the Prime Minister is ill or is absent from Somaliland and there is no other Minister specially authorised to summon the Council, the Council may be summoned by any other Minister. 
 
(2) (a) The Prime Minister shall, so far as practicable, attend and preside at all meetings of the Council of Ministers. 
 
(b) If the Prime Minister is absent from any meeting of the Council such one of the other Ministers as the Prime Minister may appoint shall preside; and if no Minister is so appointed such Minister as the Council may decide shall preside. 
 
(c) The reference in the preceding paragraph to circumstances in which the Prime Minister is absent from a meeting of the Council includes a reference to circumstances in which the office of Prime Minister is vacant. 
 
(3) Subject to the next following subsection, the Council of Ministers shall not be disqualified for the transaction of business by reason of any vacancy in the membership thereof and the validity of any business transacted in the Council shall not be affected by reason only of the fact that some person, who was not entitled to do so, took part in those proceedings. 
 
(4) No business except that of adjournment shall be transacted in the Council of Ministers if less than three members thereof are present. 
 
(5) Any decision shall be regarded as a decision of the Council of Ministers if a majority of the votes of the Members of the Council present and voting are cast in favour thereof, and if the votes are equally divided the Prime Minister may give a casting vote in addition to his original vote. 
 
(6) Whenever the Prime Minister desires to obtain the advice of any person in Somaliland concerning the government thereof, he may summon such person in writing to the Council of Ministers. 
 
Assignment of responsibility to members of Council of Ministers 
11. (1) The Prime Minister may by directions in writing assign to any Minister responsibility for dealing with any business on behalf of the Council of Ministers, including responsibility for any department of government. 
 
(2) Nothing in this section shall empower the Prime Minister to confer on any Minister authority to exercise any power or discharge any duty that is conferred or imposed by this Constitution or any other law on any person or authority other than that Minister. 
 
Permanent Secretaries 
 12. (1) Where responsibility for any department of government has been assigned to any Minister he shall exercise general direction and control over that department; and, subject to such direction and control, the department shall be under the supervision of a Permanent Secretary whose office shall be a public office. 
 
(2) A person may be a Permanent Secretary in respect of more than one department of government, whether responsibility for the departments concerned has or has not been assigned to one Minister. 
 
Assistant Ministers 
13. (1) The Prime Minister, with the consent of the council of Ministers may appoint Assistant Ministers from among the members of the Legislative Assembly to assist Ministers in the performance of their functions, but the total number of Assistant Ministers shall not at any time exceed three. 
 
(2) An Assistant Minister may be appointed to assist more than one Minister. 
 
(3) The provisions of subsections (2) and (3) of section 7 of this Constitution shall apply to Assistant Ministers as they apply to Ministers. 
 
Leave of absence 
14. The Prime Minister may grant leave of absence from his duties to any Minister or Assistant Minister. 
 
Secretary to Council of Ministers 
15. (1) There shall be a Secretary to the Council of Ministers; appointments tothat office shall be made by the Prime Minister and, subject thereto, the office shall be a public office. 
 
(2) The Secretary to the Council of Ministers shall be responsible in accordance with such instructions as may be given to him by the Prime Minister for arranging the business and keeping the minutes of meetings of the Council of Ministers and for communicating the decisions of the Council to the appropriate person or authority and shall perform such other functions as the Prime Minister may from time to time direct. 
 
PART III 
THE LEGISLATURE 
 
Legislative authority of Somaliland 
16. The legislative authority of Somaliland shall be vested in a Legislature consisting of the Council of Ministers and a Legislative Assembly. 
 
The Legislative Assembly Establishment of Legislative Assembly 
17. There shall be a Legislative Assembly for Somaliland which shall consist of a Speaker and thirty-three members who, subject to the provisions of this Constitution, shall be elected in accordance with the provisions of any law in that behalf for the time being in force in Somaliland. 
 
First Legislative Assembly 
 
18. (1) On the commencement of this Constitution the person who immediately before that commencement was the Speaker of the Legislative Council of Somaliland shall become the first Speaker of the Legislative Assembly and the persons who immediately before that commencement were elected members of the Legislative Council shall become members of the Legislative Assembly and shall be deemed to have been elected thereto under this Constitution. 
 
(2) A person shall become a member of the Legislative Assembly by virtue of the preceding subsection notwithstanding that he is not a citizen of Somaliland or that he is a citizen or national of any other country and acquired that citizenship or nationality by his own voluntary and formal act, but any such person shall vacate his seat in the Legislative Assembly at the expiration of a period of twelve months beginning on the commencement of this Constitution if he is not than a citizen of Somaliland or if he has not then ceased to be a national or citizen of that other country. 
 
Speaker and Deputy Speaker 
19. (1) When the Legislative Assembly first meets after any general election and before it proceeds to the despatch of any other business it shall elect a person who is not a member of, the Legislative Assembly and does not hold a paid public office to be the Speaker of the Assembly; and, if the office of Speaker falls vacant for any reason other than a dissolution of the Assembly, the Assembly shall, as soon as practicable, elect a person as aforesaid to that office. 
 
(2) The Speaker of the Legislative Assembly shall vacate his office- 
 
(a) if he announces the resignation of his office to the Legislative Assembly, or if, by writing under his hand addressed to the Clerk of the Assembly he resigns that office; 
 
(b) on a dissolution of the Legislative Assembly; or 
 
(c) if he is nominated with his consent as a candidate for election as a member of the Legislative Assembly or he is appointed to a paid public office. 
 
(3) On the commencement of this Constitution the member of the Legislative Assembly who immediately before that commencement was he Deputy Speaker of the Legislative Council of Somaliland shall become the first Deputy Speaker of the Legislative Assembly. If the office of Deputy Speaker falls vacant the Legislative Assembly shall, is soon as practicable, elect a member of the Assembly who is not a Minister or an Assistant Minister to that office. 
 
(4) The Deputy Speaker of the Legislative Assembly shall vacate his office- 
 
(a) if he resigns that office by writing under his hand addressed to the Speaker or, if the Speaker is absent from Somaliland or if the office of Speaker is vacant, by writing under his hand addressed to the Clerk of the Legislative Assembly; 
 
(b) if he ceases to be a member of the Legislative Assembly; or 
 
(c) if he becomes a Minister or an Assistant Minister . 
 
(5) In any election of a Speaker or Deputy Speaker voting shall be by secret ballot. 
 
(6) The Speaker shall be paid such salary and allowances as the Council of Ministers may prescribe: 
 
Provided that the salary of the Speaker shall not be reduced during his continuance in office. 
 
(7) The salaries and allowances payable under the preceding sub-section shall be a charge upon and shall be paid out of the revenues of Somaliland. 
 
(8) For the purposes of subsections (I) and (2) of this section the Speaker shall not be considered to hold a paid public office by reason only that he is in receipt of emoluments as a member of the Commission established by section 46 of this Constitution. 
 
Qualifications for membership 
20. Subject to the provisions of the next following section, any male person who – 
 
(a) is a citizen of Somaliland; 
 
(b) is of the age of twenty-eight years or upwards ; 
 
(c) has resided in Somaliland for a period of at least two years before the date of his nomination for election or is domiciled in Somaliland and is resident there on that date; and 
 
(d) possesses such other qualifications as may be prescribed by any law for the time being in force in Somaliland, 
 
shall be qualified to be elected as a member of the Legislative Assembly and no other person shall be so qualified. 
 
Disqualifications for membership 
21. (1) No person shall be qualified to be elected as a member of the Legislative Assembly who - 
 
(a) is a citizen or national of any country other than Somaliland and acquired that citizenship or nationality by his own voluntary and formal act; 
 
(b) is an undischarged bankrupt having been adjudged or otherwise declared bankrupt under any law in force in Somaliland; 
 
(c) is disqualified for membership of the Assembly by any law enacted by the Legislature of Somaliland by reason of his having any such interest in any such Government contract as may be prescribed by any such law; 
 
(d) is under sentence of death imposed on him by a Court in Somaliland or is serving a sentence of imprisonment (by whatever name called) exceeding twelve months imposed upon him by such a Court or substituted by competent authority for some other sentence imposed upon him by such Court, or is under such sentence of imprisonment the execution of which has ,been suspended; 
 
(e) is, under any law in force in Somaliland, adjudged or otherwise declared to be of unsound mind, or detained as a criminal lunatic ; 
 
(f) holds or is acting in any paid public office; or 
 
(g) is otherwise disqualified under any law for the time being in force in Somaliland. 
 
(2) For the purposes of paragraph (d) of the preceding subsection- 
 
(a) two or more sentences of imprisonment that are required to be served consecutively shall be regarded as a single term of imprisonment for the aggregate period of those terms; and 
 
(b) no account shall be taken of a sentence of imprisonment imposed as an alternative to, or in default of, the payment of a fine. 
 
Tenure of office of members 
22. (1) A member of the Legislative Assembly shall vacate his seat- 
 
(a) upon the dissolution of the Legislative Assembly; 
 
(b) if he resigns his seat in the Legislative Assembly by writing under his hand addressed to the Speaker; 
 
(c) if he is absent from two consecutive meetings of the Legislative Assembly for any reason other than incapacitating illness and the Speaker does not, before the end of the second of those meetings, excuse his absence by writing under his hand; 
 
(d) if he ceases to be a citizen of Somaliland; 
 
(e) if he ceases to possess any qualification prescribed for the purposes of paragraph (d)of section 20 of this Constitution ; 
 
(f) subject to the provisions of any law enacted by the Legislature of Somaliland, if he acquires any such interest in any such Government contract as may be prescribed by any such law; or 
 
(p) if any circumstances arise that, if he were not a member of the Assembly, would cause him to be disqualified for election as such under paragraphs (a), (b), (e), (f) or (g) of sub section (1) of the last foregoing section. 
 
 (2) (a) Subject to the provisions of the next following paragraph, if any circumstances arise that would cause any member of the Legislative Assembly, if he were not such a member, to be disqualified for election as such under paragraph (d) of subsection (1) of the last foregoing section, that member shall thereupon cease to exercise any of his functions as such and his seat in the Assembly shall become vacant at the expiration of a period of thirty days thereafter: 
 
Provided that the Speaker may, at the request of the member, from time to time extend, that period for further periods of thirty days to enable the member to pursue any appeal against conviction or sentence, so, however, that extensions of time exceeding in the aggregate three hundred and, thirty days shall not be given without approval, signified by resolution, of the Assembly. 
 
(b) If at any time before the member vacates his seat he is granted a free pardon or his conviction is set aside or his sentence is reduced to a term of imprisonment of twelve months or less or a punishment other than imprisonment is substituted, his seat shall not become vacant under the preceding paragraph and he may resume the exercise of his functions as a member. 
 
Determination of questions as to membership of Legislative Assembly 
 
23. Any question whether- 
 
(a) a person has become the Speaker or a member of the Legislative Assembly; 
 
(b) any member of the Assembly should, under subsection (2) of the preceding section, cease to exercise his functions as a member; or 
 
(c) the office of Speaker or the seat m the Assembly of a member has become vacant, shall be determined by the High Court in accordance with the provisions of any law for the time being in force in Somaliland and, subject to the provisions of any such law, in accordance with any directions given by a Judge of the High Court. 
 
Speaker to report vacancies 
 
24. Whenever it appears to the Speaker that the seat of a member of the Legislative Assembly has become vacant for any reason other than dissolution of the Assembly he shall by writing under his hand, report such vacancy to the Council of Ministers. 
 
Filling of vacancies 
25. Whenever the seat of a member of the Legislative Council becomes vacant the vacancy shall be filled by election in accordance with the provisions of this Constitution. 
 
Penalty for sitting or voting in Assembly when unqualified 
26. (1) Any person who sits or votes in the Legislative Assembly knowing or having reasonable grounds for knowing that he is not entitled to do so shall be liable to a penalty not exceeding four hundred shillings for every day on which he so sits or votes. 
 
(2) Any such penalty shall be recoverable by civil action in the High Court at the suit of the principal law officer (by whatever name caned) of the Government of Somaliland. 
 
Clerk to Legislative Assembly 
 27. (1) There shall be a Clerk to the Legislative Assembly; appointments to that office shall be made by the Speaker and, Subject thereto, the office shall be a public office. 
 
(2) The Clerk of the Legislative Assembly shall be responsible for keeping the minutes of the Legislative Assembly and shal1 perform other functions as may be prescribed by the Standing Orders of the Legislative Assembly. 
 
Legislation and legislative procedure 
Exercise of legislative power 
28. (1) The power of the Legislature to make laws shall be exercised by Bills passed by the Legislative Assembly and assented to by the Council of Ministers. 
 
(2) When a Bill has been passed by the Legislative Assembly it shall, subject to the provisions of section 52 of this Constitution, be presented to the Council of Ministers and the Council of Ministers may assent or refuse to assent thereto. 
 
(3) The assent of the Council of Ministers to a Bill shall be signified by a Minister signing the Bill on behalf of the Council, and on such assent being so signified the Bill sha11 become law. 
 
(4) All laws shall be styled " Laws " and shall be published in the Gazette. 
 
(5) A law shall come into operation on the date of its publication in the Gazette or, if it is provided either in such law or in some other law that it shall come into operation on some other date, on that date. 
 
Standing Orders 
29. (1) Subject to the provisions of this Constitution, the Legislative Assembly may make Standing Orders for the regulation and orderly conduct of its own proceedings and the dispatch of business and for the passing, intituling and numbering of Bills, and for the presentation thereof to the Council of Ministers for assent. 
 
(2) The Standing Orders of the Legislative Council of Somaliland in force immediately before the commencement of this Constitution shall, with such adaptations as may be necessary to bring them into conformity with this Constitution, be the first Standing Orders of the Legislative Assembly as if they had been made under the preceding subsection. 
 
 Presiding in Assembly 
 
30. (1) The Speaker or in his absence the Deputy Speaker, or if they are both absent such member of the Legislative Assembly (not being a Minister or an Assistant Minister) elected by the Assembly for the sitting, shall preside at any sitting of the Legislative Assembly: 
 
Provided that the Speaker may nominate any member (not being a Minister or an Assistant Minister) to preside as Chairman of a Committee of the whole Assembly. 
 
(2) References in this section to circumstances in which the Speaker or the Deputy Speaker is absent include references to circumstances in which the office of Speaker or Deputy Speaker is vacant. 
 
Assembly may transact business notwithstanding vacancies 
31. Subject to the next following section, the Legislative Assembly shall not be disqualified for the transaction of business by reason of any vacancy in the membership thereof and any proceedings therein shall be valid notwithstanding that some person who was not entitled so to do sat or voted in the Assembly or otherwise took part in the proceedings. 
 
Quorum 
 
32. (1) If objection is taken by any member of the Legislative Assembly present that fewer than twelve members of the Assembly are present besides the Speaker or member presiding and, after such interval as may be prescribed in the Standing Orders of the Legislative Assembly, the Speaker or member presiding ascertains that the number of members present is still less twelve, he shall thereupon adjourn the Council. 
 
(2) If at any sitting of the Legislative Assembly it appears to the Speaker or member presiding that there are fewer than twelve members of the Assembly present besides the Speaker or member presiding when the votes of the members on any question proposed for decision are counted, the vote on that question shall be invalid, that question shall stand over to the next sitting of the Assembly and the attention of the Speaker or member presiding shall be deemed to have been drawn to the presence of fewer than twelve members for the purposes of the last foregoing subsection. 
 
Voting 
33. (1) Save as otherwise provided in this Constitution, all questions proposed for decision in the Legislative Assembly shall be determined by a majority of the votes of the members present and voting. 
 
(2) The Speaker, or any member presiding in his absence, shall not have an original vote, but if on any question the votes are equally divided he shall give a casting vote. 
 
Introduction of Bills, etc. in Legislative Assembly 
34. (1) Subject to the following provisions of this section and to the Standing Orders of the Legislative Assembly, any member may introduce any Bill or propose any motion for debate in or may present any petition to the Legislative Assembly and the same shall be disposed of according to the Standing Orders of the Legislative Assembly. 
 
(2) Except with the consent of the Council of Ministers the Legislative Assembly shall not - 
 
(a) proceed upon any Bill (including any amendment to a Bill) which, in the opinion of the person presiding in the Assembly, makes provision for imposing or increasing any tax, for imposing or increasing any charge on the revenues or other funds of Somaliland, or for altering any such charge otherwise than by reducing it or for compounding or remitting any debt due to Somaliland; 
 
(b) proceed upon any motion (including any amendment to a motion) the effect of which, in the opinion of the person presiding in the Assembly, is that provision should be made for any of the purposes aforesaid; or 
 
(c) receive any petition which, in the opinion of the person presiding in the Assembly, requests that provision be made for any of the purposes aforesaid. 
 
(3) The conduct of a Judge of the High Court or a judge or magistrate of a subordinate Court shall not be discussed in the Legislative Assembly except on a substantive motion of which notice has been given by not less than ten members of the Assembly. 
 
Privileges of Assembly 
35. The privileges, immunities and powers of the Legislative Assembly and of its members shall be determined and regulated by law. 
 
Oath of members of Assembly 
36. No member of the Legislative Assembly shall be permitted to take part in the proceedings of the Assembly (other than proceedings necessary for the purposes of this section) until he has made and subscribed before the Assembly an oath in the form set out in Part II of the First Schedule to this Constitution: 
 
Provided that the election of a Speaker and a Deputy Speaker of the Legislative Assembly may take place before the members of the Assembly have made such oath. 
 
Sessions of the Assembly 
37. (1) Subject to the provisions of the next following subsection, the sessions of the Legislative Assembly shall be held in such place and begin at such time as the Prime Minister shall appoint by notice published in the Gazette: 
 
Provided that, if the office of Prime Minister is vacant and it appears to the Speaker that the Council of Ministers is for any reason unable to appoint a Minister under section 9 of this Constitution to perform the function conferred upon the Prime Minister by this subsection, the Speaker may summon the Legislative Assembly by notice published in the Gazette for the purpose of electing a person to be Prime Minister. 
 
(2) The first session of the Legislative Assembly shall begin within one month after the commencement of this Constitution, and thereafter sessions of the Assembly shall be held from time to time, but so that a period of twelve months shall not intervene between the last sitting of the Assembly in anyone one session and the date appointed for its first sitting in the next session, whether or not a dissolution of the Assembly occurs between such sessions. 
 
Prorogation and dissolution 
38. (1) The Prime Minister may at any time prorogue or dissolve the Legislative Assembly by notice published in the Gazette. 
 
(2) Unless sooner dissolved, the Legislative Assembly shall continue for three years beginning, in the case of the first Legislative Assembly, on the commencement of this Constitution or, in the case of any subsequent Legislative Assembly, on the date when it first meets after any general election, and shall then stand dissolved. 
 
(3) A general election of members to the Legislative Assembly shall be held at such time within three months after every dissolution of the Legislative Assembly, asthe Prime Minister shall appoint by notice published in the Gazette. 
 
PART IV 
THE JUDICATURE 
The High Court 
 
39. (1) There shall be for Somaliland a High Court which shall consist of such number of Judges as may from time to time be appointed by the Council of Ministers: 
 
Provided that the office of any Judge of the High Court shall not be abolished without his abolished without his consent during his continuance in office. 
 
(2) The High Court shall be a Court of record and shall have unlimited original jurisdiction in civil and criminal matters and such appellate and revisional jurisdiction as may be prescribed by any law. 
 
(3) The High Court shall be deemed to be duly constituted notwithstanding any vacancy in the office of any Judge of the Court. 
 
(4) Provisions relating to the qualifications for appointment, order of precedence, duties and powers of Judges may be prescribed by law. 
 
(5) Subject to the provisions of any law, the High Court may make rules of Court for regulating the practice and procedure of the High Court in exercise of the jurisdiction conferred upon it by this Constitution or any other law and for regulating the practice of the legal profession in any Court. 
 
(6) The Council of Ministers may from time to time, as in the opinion of the Council occasion may require, appoint persons to act as Judges of the High Court. 
 
(7) A person appointed under the preceding subsection to act as a Judge of the High Court shall, subject to subsections (2) and (3) of the next following section, hold office as an acting Judge for such period as may be specified in his instrument of appointment. 
 
(8) The Judges of the High Court shall be paid such salaries and allowances as the Council of Ministers may prescribe: 
 
Provided that the salary of any Judge shall not be reduced during his continuance in office. 
 
(9) The salaries and allowances payable under the preceding subsection shall be a charge upon and shall be paid out of the revenues of Somaliland. 
 
Tenure of office of Judges 
40. (1) Subject to the following provisions of this section each substantive holder of the office of Judge of the High Court shall hold office until he attains the age of sixty-two years: 
 
Provided that the Council of Ministers may permit a Judge who has attained that age to continue in office for a further period not exceeding one year. 
 
(2) A Judge of the High Court may at any time resign his office by writing under his hand addressed to the Council of Ministers. 
 
(3) (a) A Judge of the High Court Shall not be removed from office except in accordance with the following provisions of this subsection. 
 
(b) If the Council of Ministers considers that a Judge ought to be removed from office for misbehaviour or for inability to discharge the functions of his office the Council of Ministers shall appoint a tribunal in accordance with paragraph (c)of this subsection and refer the question of removing that Judge for misbehaviour or inability, as the case may be, to the tribunal; and the Council of Ministers may, if the tribunal so recommends, remove the Judge from office. 
 
(c) The said tribunal shall consist of not less than two persons being persons who hold or have held high judicial office in Somaliland or any other country. 
 
(4) (a) If the question of removing a Judge of the High Court from office has been referred to a tribunal under the preceding subsection the Council of Ministers may suspend the Judge from performing the functions of his office. 
 
(b) Any such provision may at any time be revoked by the Council of Ministers and shall in any case cease to have effect if the tribunal recommends that the Judge should not be removed from office. 
 
Subordinate Courts 
41. There shall be for Somaliland such Courts subordinate to the High Court and possessing such jurisdiction and powers as may be prescribed by any law. 
 
Application of certain Indian enactments and the law of England 
42. (1) The criminal and civil jurisdiction of the Courts of Somaliland shall, so far as circumstances permit, be exercised in conformity with the enactments set out in the Second Schedule to this Constitution and subject thereto and so far as the same do not extend or apply shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 16th Day of March , 1900, and with the powers vested in and according to the procedure and practice observed by and before the Courts of Justice and Justices of the Peace in England according to their respective jurisdiction and authorities at that date, save in so far as the said enactments and the said common law, doctrines of equity and statutes of general application, and the said powers, procedure and practice have been, or hereafter may be, modified, amended or replaced by any written law made for Somaliland : 
 
Provided always that the said common law, doctrine of equity and statutes of general application shall be in force in Somaliland so far only as the circumstances of Somaliland and its inhabitants permit and subject to such qualifications as local circumstances render necessary. 
 
(2) For the purpose of facilitating the application of the enactments set out in the Second Schedule to this Constitution - 
 
(a) a Court may construe any such enactment with such alterations not affecting the substance as may be necessary or proper in order to adapt the same to the matter before the Court ; 
 
(b) the Council of Ministers may by order direct by what authority any jurisdiction, powers or duties incident to the operation of any such enactment and for the exercise or performance of which no convenient provision has been otherwise made shall be exercised or performed ; 
 
(c) any order of the Council of Ministers made in pursuance of this subsection shall be published in the Gazette and shall have effect as from a date to be specified in the order. 
 
Courts to be guided by Somali customary law in certain cases 
43. In all cases, civil and criminal, to which only Somalis are parties, every Court shall- 
 
(a) be guided by Somali customary law, (including Somali customary law which is based upon Islamic law) so far as it applicable and is not repugnant to justice, equity and good conscience or is inconsistent with any written law in force in Somaliland or any regulation or rule made thereunder; and 
 
(b) decide all such cases according to substantial justice, without excessive regard to technicalities of procedure and without undue delay. 
 
PART V 
THE PUBLIC SERVICE 
Constitution of offices 
44. Subject to the provisions of this Constitution and of any law for the time being in force in Somaliland, the Council of Ministers may constitute offices for Somaliland and may abolish such offices. 
 
Appointment, etc. of public officers 
45. (1) Save as otherwise provided by this Constitution or by any law for the time being in force in Somaliland, power to appoint persons to public offices and to dismiss and to exercise disciplinary control over public officers shall vest in the Council of Ministers. 
 
(2) The Council of Ministers may delegate (in such manner and on such conditions as the Council may think fit) to any Minister or to any public officer any of the powers conferred upon the Council by the preceding subsection. 
 
(3) (a) Whenever a substantive holder of any public office constituted by or under this Constitution is on leave of absence pending relinquishment of his office, it shall be lawful for another person to be appointed substantively to same office. 
 
(b) Where two or more persons are holding the same office by reason of an appointment made under this subsection, then, for the purpose of the exercise of any functions conferred upon the holder of that office, the person last appointed to the office shall be deemed to be the sole holder of the office. 
 
Public Service Commission 
 
46. (1) There shall be for Somaliland a Public Service Commission (in this Part referred to as "the Commission ") which, subject to the provisions of the next following subsection, shall consist of such persons as may be prescribed by law. 
 
(2) No member of the Legislative Assembly shall be appointed as a member of the Commission, and if any member of the Commission becomes a member of the Legislative Assembly, .his appointment as a member of the Commission shall thereupon be terminated. 
 
Functions of Public Service Commission 
47. (1) The Council of Ministers may, either generally or specially, and in whatever manner the Council thinks fit, refer to the Commission for advice any matter relating to the appointment, promotion, transfer, dismissal or disciplinary control of public officers or any other matter which, in the opinion of the Council, affects the public service. 
 
(2) It shall be the duty of the Commission to advise the Council of Ministers on any question referred to it under this section, but the Council of Ministers shall not be obliged to act in accordance with the advice given by the Commission. 
 
Preservation of pensions, etc. 
 
 48. (1) All pensions, gratuities or other like allowances which have been or which may be granted to any persons who have been, and have ceased to be, in the public service of the Protectorate of Somaliland at any time before the commencement of this Constitution, or to the widows, children, dependents or personal representatives of such persons, shall be governed by the law under which they were granted or, if granted after the commencement of this Constitution, by the law in force at that commencement, or, in either case, by any law made thereafter which is not less favourable. 
 
(2) All pensions, gratuities and other like allowances which may be granted to persons who are public officers on the commencement of this Constitution, or to the widows, children, dependents or personal representatives of such persons, shall be governed by the law in force at that commencement or by any law made thereafter which is not less favourable. 
 
(3) Any pension, gratuity or other like allowance which may be granted to any person who may be appointed to be a public officer after the commencement of this Constitution, or to the widow, children, dependents or personal representatives of any such person, shall be governed by the law in force on the date on which such person is so appointed or by any law made thereafter which is not less favourable. 
 
PART VI 
 
MISCELLANEOUS PROVISIONS AND AMENDMENT AND INTERPRETATION OF THE CONSTITUTION 
 
Citizenship 
49. The acquisition and loss of citizenship of Somaliland shall be regulated by law. 
 
Taxes not to be levied except under authority of law 
 
50. No tax shall be levied or collected except under the authority of a law. 
 
Powers of pardon, etc 
 
51. The Council of Ministers may- 
 
(a) grant to any person concerned in or convicted of any offence against the law of Somaliland a pardon, either free or subject to conditions; 
 
(b) grant to any person a respite, either indefinite or for a specified period, of the execution of any sentence passed on that person for such an offence; 
 
(c) substitute a less severe form of punishment for that imposed by any such sentence; or 
 
(d) remit the whole or any part of any such sentence or of any penalty or forfeiture otherwise due to the Government of Somaliland on account of such an offence. 
 
Amendment of the Constitution 
52. (1) The Legislature of Somaliland may by law amend or repeal any of the provisions of this Constitution (including this section): 
 
provided that no Bill for the amendment or repeal of any such provision shall be presented to the Council of Ministers for assent unless, at the last occasion during its consideration by the Legislative Assembly on which the Assembly voted on the question of passing the Bill, the votes of not less than two-thirds of all the members of the Assembly were cast in favour thereof. 
 
(2) A certificate under the hand of the Speaker endorsed on a Bill that the provisions of the proviso to the last foregoing subsection have been complied with in relation to that Bill shall be conclusive evidence of such compliance. 
 
Interpretation 
53. (1) In this Constitution, unless it is otherwise provided or required by the context - 
 
“the Council of Ministers ", “the Legislative Assembly ", “the Legislature" and “the High Court" mean respectively the Council of Ministers, the Legislative Assembly, the Legislature and the High Court established by this Constitution ; 
 
“the Gazette " means the Government Gazette of Somaliland ; 
 
“Government contract " means any contract made with the Government of Soma1iIand, or a department of that Government, or an officer of that Government contracting as such ; 
 
“meeting " means in relation to the Legislative Assembly any sitting or sittings of the Assembly commencing when the Assembly first meets after being summoned at any time and terminating when the Council is adjourned sine die or at the conclusion of a session ; 
 
“member” in relation to the Legislative Assembly does not include the Speaker; 
 
“month " means calendar month ; 
 
“public office " means any office in the service of the Government of Somaliland in a civil capacity and includes the office of a judge or magistrate but does not include the office of a member of the Council of Ministers, Assistant Minister, Speaker, Deputy Speaker or member of the Legislative Assembly; 
 
“public officer” means the holder of any pubic office and includes any person appointed to act in any such office; 
 
“the public service of the Protectorate of Somaliland” means the service of Her Britannic Majesty in a civil capacity in respect of the Government of the Protectorate and includes service in the office of a judge or magistrate; 
 
"session" means, in relation to the Legislative Assembly, the sittings of the Assembly commencing when the Assembly first meets after the commencement of this Constitution or after its prorogation or dissolution at any time, and terminating when the Assembly is prorogued or is dissolved without having been prorogued ; 
 
"sitting" means, in relation to the Legislative Assembly, a period during which the Assembly is sitting continuously without adjournment and includes any period during which the Assembly is in committee : 
 
"the Speaker" and “the Deputy Speaker” mean respectively the Speaker and the Deputy Speaker of the Legislative Assembly. 
 
(2) (a) For the purposes of sections 19 and 21 of this Constitution a person, who is on leave of absence pending relinquishment of a public office shall not be considered to be the holder of that office and a person shall not be considered to hold a paid public office by reason only that he - 
 
(i) is in receipt of emoluments as a Local Authority, a member of a Local Authority, an Akil, a Sultan, a Gerad, or a member or employee of a Local Government Council; or 
 
(ii) is in receipt of a pension or other like allowance in respect of service in a public office. 
 
(b) If it shall be declared by any law for the time being in force in Somaliland that an office shall not be considered to be a paid public office for the purposes of sections 19 and 21 of this Constitution or either of them those sections or that section shall have effect accordingly. 
 
(3) References in this Constitution to the commencement of this Constitution shall be construed as references to the coming into operation of this Constitution. 
 
(4) In this Constitution, unless the contrary intention appears - 
 
(a) words importing the masculine gender shall include females; and 
 
(b) words in the singular shall include the plural and words in the plural shall include the singular. 
 
(5) Where this Constitution confers a power to make appointments to any public office the power shall, un1ess a contrary intention appears, be construed as including power to make appointments on promotion and transfer to that office and to appoint a person to perform the functions of that office during any period during which it is vacant or the holder thereof is unable for any cause to perform those functions. 
 
(6) Where this Constitution confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires. 
 
(7) Where this Constitution confers a power or imposes a duty on the holder of an office, then, unless a contrary intention appears, the power may be exercised and the duty shall be performed by the holder of the office for the time being or, to the extent of his authority, by any person who is for the time being authorised to perform the functions of that office. 
 
(8) Where this Constitution confers a power to make orders or rules or to issue any notice or to give any directions, the power shall be construed as including a power, exercisable in like manner, to revoke or amend any such orders, rules, notice or directions. 
 
(9) Where a person is required by this Constitution to make an oath he shall be permitted, if he so desires, to comply with that requirement by making an affirmation. 
 
(10) For the purposes of this Constitution the resignation of a member of any body or the holder of any office that is required to be addressed to any person shall have effect from the time that it is received by that person: 
 
provided that a resignation (other than the resignation of the Deputy Speaker) that is required to be addressed to the Speaker shall, if the office of Speaker is vacant or the Speaker is absent from Somaliland, have effect from the time that it is received by the Deputy Speaker on behalf of the Speaker. 
 
(11) For the avoidance of doubt it is declared that any person who has vacated his seat in any body, or has vacated any office, established by this Constitution may, if qualified, again be appointed or elected as a member of that body or to that office as the case may be. 
 
PART VII 
TRANSITIONAL PROVISIONS 
 
Existing Laws 
 54. (1) Without prejudice to the repeal or revocation of any existing law with effect from the commencement of this Constitution, the existing law shall continue to be the law of Somaliland as from the commencement of this Constitution except in so far as it is thereafter amended, modified, repealed or revoked by competent authority but shall be construed with such adaptations and modifications as may be necessary to bring itinto conformity with the provisions of this Constitution. 
 
(2) The Council of Ministers may by order published in the Gazette at any time within twelve months after the commencement of this Constitution make such amendments and modifications of the existing law as appear to the Council of Ministers to be necessary or expedient for bringing the existing law into conformity with this Constitution or otherwise for giving effect or enabling effect to be given to this Constitution; and the existing law shall have effect accordingly from such time as may be specified in the order, not being earlier than the commencement of this Constitution. 
 
(3) An order made under this section may be revoked or amended by a further order made under this section or in relation to any law or instrument affected thereby, by the authority having power to repeal, revoke or amend that law or instrument. 
 
(4) In this section “the existing law” means the written and unwritten law of Somaliland as it exists immediately before the commencement of this Constitution. 
 
Existing officers 
55. (1) Subject to the next following subsection, any person who immediately before the commencement of this Constitution held or was acting in any office in the public service of the Protectorate of Somaliland (other than the office of Governor and Commander-in-Chief) shall, unless he resigns or retires or accepts appointment to some other office continue, continue as from that commencement to hold or to act in the like public office as if he were appointed thereto under the Constitution. 
 
(2) The offices of Chief Secretary and Financial Secretary are abolished. 
 
(3) Any person who, immediately before the commencement of this Constitution, held an office in the public service of the Protectorate of Somaliland and who does not continue as from that commencement to hold a public office shall be entitled to the leave for which, under the terms of service applicable to him immediately before that commencement, he is then eligible. 
 
(4) In respect of any period during which a person is on leave under the provisions of the preceding subsection he shall be regarded as holding office in the service of the Government of Somaliland on the same terms of service (including terms relating to any pension, gratuity or other like allowance) as were applicable to him immediately before the commencement of this Constitution. 
 
Legal proceedings 
56. (1) Any proceedings pending or part-heard immediately before the commencement of this Constitution before the High Court of the Protectorate of Somaliland or any subordinate Court of the Protectorate may, as from that commencement, be carried on before the High Court or the like subordinate Court, as the case may be, established by or under this Constitution as if they had been commenced in that Court. 
 
(2) In any such proceedings as aforesaid to which Her Britannic Majesty in right of the Government of the Protectorate of Somaliland or that Government or any person or authority on behalf of that Government is a party, the Council of Ministers or such person or authority on behalf of the Council as the Council may direct shall be substituted as a party. 
 
(3) Subject to the preceding subsection, any such proceedings as aforesaid may, for the purposes of being carried on after the commencement of this Constitution, be amended by order of any Judge or magistrate of the Court concerned in such manner as appears necessary or proper in consequence of the provisions of this Constitution. 
 
Succession to property 
57. Any property (including any rights arising from contract or otherwise) that immediately before the commencement of this Constitution is vested in her Britannic Majesty, or in some person or authority on behalf of Her Britannic Majesty, for the purposes of the Government of the Protectorate Of Somaliland or is vested in that Government or in some person or authority on behalf of that Government shall, on the commencement of this Constitution, vest in the Council of Ministers, or in such person or authority on behalf of the Council of Ministers as the Council may, by order published in the Gazette, direct. 
 
Succession to liabilities 
58. Any liability or obligation whether arising from contract or otherwise, incurred by Her Britannic Majesty or some person or authority on behalf of Her Britannic Majesty, for the purposes of the Government of the Protectorate of Somaliland or by that Government or by some person or authority on behalf of that Government and subsisting immediately before the commencement of this Constitution shall, on that commencement, be a liability or obligation of the Council of Ministers or of such person or authority on behalf Of the Council of Ministers as the Council may, by order published in the Gazette, direct. 
 
_______________ 
 
THE FIRST SCHEDULE 
 
(Sections 8 and 36) 
 
 PART I 
 
OATH OR AFFIRMATION TO BETAKEN BY A MINISTER 
 
1. I, ………………………………………….., do swear in the name of God the Compassionate and Merciful that I will well and truly serve the State of Somaliland in the office of Prime Minister (or Minister, as the case may be) and that, except with the authority of the Council of Ministers, I will not directly or indirectly reveal the business or proceedings: of the Council of Ministers or the nature or contents of any document communicated to me as a member of the Council or any matter coming to my knowledge in my capacity as a member of the Council. 
 
2. In the case of an affirmation the words " solemnly and sincerely affirm and declare-" shall be substituted for the words " swear in the name of God the Compassionate and Merciful". 
 
PART II 
 
OATH OF AFFIRMATION TO BE TAKEN BY A MEMBER OF THE 
 
LEGISLATIVE ASSEMBLY 
 
1. I,……………………………………………………… do swear in the name of God the Compassionate and Merciful that 1 will be faithful and bear true allegiance to the State of Soma1iland, and as a member of the Legislative Assembly of Somaliland will do everything in my power to promote the interests of the State and act for the well-being of the inhabitants thereof. 
 
2. In the case of an affirmation the words" solemnly and sincerely affirm and declare “shall be substituted for the words” swear in the name of God the Compassionate and Merciful ". 
 
THE SECOND SCHEDULE 
 
 (Section 42) 
 
INDIAN ENACTMENTS APPLIED 
 
 The Indian Penal Code (Act XL V of 1860). 
 
The Indian Succession Act (Act X of 1865). 
 
" The Indian Post Office Act, 1898 " (Act VI of 1898). 
 
The Indian Divorce Act (Act IV of 1869), except so much as relates to divorce and nullity of marriage. 
 
" The Bombay Civil Courts Act, 1869 " (Act XIV of 1869) except sections 6, 15, 23, 31, 33, 34, 38 to 43 (both inclusive), the last clause of section 19 and the last two clauses of section 22. 
 
" The Indian Evidence Act, 1872 " (Act I of 1872). 
 
"The Indian Contract Act, 1872 "(Act IX of I872). 
 
" The Indian Oaths Act, 1873 " (Act X of 1873). 
 
The Indian Mutiny Act (Act IX of l875). 
 
" The Indian Limitation Act, 1908 " (Act IX of 1908). 
 
" The Transfer of Property Act, 1882 " (Act IV of 1882). 
 
The Code of Civil Procedure (Act V of 1908). 
 
" The Land Acquisition Act, 1894 " (Act of 1894). 
 
" The Prevention of Cruelty to Animals Act, 1890 " (Act XI of 1890). 
 
" The Indian Stamp Act, 1899" (Act II of 1899).

The first somaliland constitution

07 Aug 2010

Load more posts