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دستور

Shah Wali Allah Dehlawi observes that every political order, Islamic or otherwise, should perform certain general functions, i.e. safeguarding and protecting the Realm from external aggression and prevention of various forms of oppression and injustice inside the State; therefore Justice is required Justice to be ensured and enforced.

In addition to this, as the Islamic political order has a religious and ideological distinctiveness, it should appoint Muslims in key posts and collect Taxes from non-believers.

The Islamic political system has three major functions, they are,

Preventing crimes against society

The administration of justice

خهاد Struggle

The responsibility of constructing guidelines for the functioning of the government rests on the Caliph, so that he can decide on the practical method of his governance. However he is not permitted to infringe on the rules and objectives of Islam when he performs these functions.

One of the significant missions of all prophets who came in different eras was to prevent all forms of oppression which are the major cause of human misery. The various forms of oppression include crimes against the human life, against human body and against private property. Islam introduces effective methods for preventing these crimes. Islam considers killing a person without a legitimate reason as a heinous sin being equivalent to killing of all mankind.

The Law takes an extremely serious view of the matter and prescribes

قصاص Retaliation

The retaliation could be in the form of a life for a life, accepting blood-money or pardoning the offender.

Islam introduces retaliation for crimes against human limbs also. It could be in the form of inflicting the same physical injury, accepting compensation or pardoning the offender. Crimes against property could be usurpation, damage, theft or dacoity. Most crimes hinder social peace and cause widespread social weakening in society. A reminder of the punishments of the hereafter may not be sufficient to prevent such crimes. Therefore the intervention of the State is necessary. Islamic law wants to eliminate such crimes from their very root; hence it introduces certain specific punishments for them.

Shah Wali Allah attempts at a logical reasoning on why Islam implements stringent measures for certain crimes. He states that adultery is forbidden in an Islamic political order because it paves the way for numerous psychological, genealogical, moral and social problems. Indulgence in unlawful sex might result in family disputes. Theft is also forbidden because it plunders private property and prevents people from securing their livelihood through fair and legitimate means. Protecting private property of citizens is the primary function of every political order. Consequently highway robbery is forbidden as it is an open plunder of property and can lead to murder. Drinking alcohol is forbidden as it leads to widespread corruption and would likely affect man’s sense of judgement. As crimes breach the peace and tranquility of society, one of the major functions of the Islamic political order is to take stern actions against those who commit them and provide exemplary punishment.

The second major function of the Islamic state is deputing judges in different areas of the Realm for handling quarrels and to prevent injustice and exploitation; for conflict is natural in human society. This may lead to feuds, animosity and greed, which results in the denial of rights of fellow beings. Therefore the Islamic political order is obliged to deploy judges throughout its realm to settle the quarrels and disputes of people.

The function of the judiciary might be influenced by bias and prejudice. Hence Islamic Law necessitates certain rules and principles for judges. Only those who possess adequate knowledge of Law, competence in matters of judicial procedures and a high level of integrity and are free from wrong-doing and bias, can be appointed as judges in the Islamic state. They are also required not to solicit appointment as a judge for money and prestige.

Further emphasizing the above argument, Shah Wali Allah says that the mandatory condition to be considered for the post of judge is fine intellect, resolute mind and balanced temperament. The judge should consider all evidence before pronouncing judgement. He is obliged to provide a chance to both the plaintiff and defendant to explain their positions. There are two stages in the judicial process. The first is verification of facts and the second is pronouncement of a verdict.

Struggle is the other basic function of the State.

A religion cannot be considered practical and complete without the injunction of Struggle. It is recommended for establishing the supremacy of Islam. The Prophet and his Companions safeguarded the boundaries of the territories under Muslim rule from external aggressions.

Shah Wali Allah also terms the elimination of corruption inside the political order as Struggle. According to him, a political order which in run by corrupt officials is a threat to Islam and the Muslim community. The corrupt officials prevent Muslims from freely advocating Islam in the Realm, and gradually destroy the neighbouring regions like a cancer in the human body. Hence they should be eliminated by force as a physician amputates the limb of a cancer patient.

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حجة الله البالغة

It shall be the duty of every secretar –

to carry out the directions made by –

the Council, or

the secretar-general,

in accordance with the provisions of Legea Vakâfului or of any rule or order made thereunder;

to furnish such returns and supply such information or particulars as may from time to time be required by the Council, or the secretary-general, as the case may be, in accordance with the provisions of LV or of any rule or orders made thereunder;

to allow inspection of VAKF properties, accounts or records or deeds and documents relating thereto;

to discharge all public dues; and

to do any other act which he is lawfully required to do by or under LV.

Alienation of VAKF property

Notwithstanding anything contained in the VAKF deed, any gift, sale, exchange or hypothecation of any immoveable property which is VAKF property shall be void unless such gift, sale, exchange or hypothecation is effected with the prior sanction of the Council.

The Council may, after publishing in the Monitorul Oficial, the particulars relating to the transaction referred to and inviting any objections and suggestions with respect thereto and considering all objections and suggestions, if any, that may be received by it from the concerned secretary or any other person interested in the VAKF, accord sanction to such transaction if it is of opinion that such transaction is –

necessary or beneficial to the VAKF;

consistent with the objects of the VAKF;

the consideration thereof is reasonable and adequate:

Provided that the sale of any property sanctioned by the Council shall be effected by public auction and shall be subject to confirmation by the Council within such time as may be prescribed:

Provided further that Înalta Curte de Şaria may, on the application of the aggrieved secretary or other person, for reasons to be recorded by it in writing, permit such sale to be made otherwise than by public auction, if it is of opinion that it is necessary so to do in the interest of the VAKF.

Recovery of VAKF property

If the Council is satisfied, after making an inquiry in such manner as may be prescribed, that any immoveable property of a VAKF entered as such in the Vakâf Defter maintained, has been transferred without the previous sanction of the Council in contravention of the provisions, it may send a requisition to the Garda Regională Saraya within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.

Every order passed shall be served –

by giving or tendering the order or by sending it by post to the person for whom it is intended; or

if such person cannot be found, by affixing the order on some conspicuous part of his last-known place of abode or business, or by giving or tendering the order to some member or servant or by causing it to be affixed on some conspicuous part of the property to which it relates.

explanation – regională means, the area for which there is a judicial Înaltă Curte de Şaria and legislative Nadva.

Encroachment

Whenever the secretary-general considers, whether on receiving any compliant or on his own motion, that there has been an encroachment on any land, building, space or other property which is VAKF property and, which has been registered as such under LV, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in the notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned secretary.

The notice referred to shall be served in such manner as may be prescribed.

If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed, the secretary general is satisfied that the property in question is VAKF property and that there has been an encroachment on any such VAKF property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the secretary of the VAKF.

explanation – encroacher means the person by whom any encroachment has been made on any land, building, space or other property which is VAKF property.

Nothing contained shall prevent any person aggrieved by the order made by the secretary-general from instituting a suit in a court of law to establish that he has right, title or interest in the land, building, space or other property.

Enforcement

Where, the person, ordered to remove any encroachment, omits or fails to remove such encroachment within the time specified in the order or, as the case may be, fail to vacate the land, building, space or other property to which the order relates, within the time aforesaid, the secretary-general may apply to the Qadiul Regional within the geographic limits of whose jurisdiction the land, building, space or other property is situate for evicting the encroacher, and, thereupon, the Judge shall make an order directing the encroacher to remove the encroachment, or, as the case may be, vacate the land, building, space or other property, and to deliver possession thereof to the concerned secretary, and in default of compliance with the order remove the encroachment or as the case may be, evict the encroacher from the land, building, space or other property and may for this purpose, take such Saraya enforcing as may be necessary.

If a secretary fails –

to apply for the registration of a VAKF;

to furnish statement of particulars or accounts or returns as required by LV;

to supply information or particulars as required by the Council;

to allow inspection of VAKF properties, accounts or records on deeds and documents relating thereto;

to deliver possession of any VAKF property, if ordered by the Council or the ÎCŞ;

to carry out the directions of the Council;

to discharge any public dues; or

to do any other act which he is lawfully required to do by or under LV;

he shall unless, he satisfied the Court that there was reasonable cause for his failure, be punishable with fine.

Notwithstanding anything previously contained if –

a secretary omits or fails, with a view to concealing the existence of a VAKF to apply for its registration under LV –

a secretary furnishes any statement, return or information to the secretary-general or the Council, as the case may be, which he knows or has reason to believe to be false, misleading untrue or incorrect in any material particular,

he shall be punishable with imprisonment and also with fine.

No Court shall take cognisance of and offence punishable under LV save upon complaint made by the Council or the secretary-general or by a civil servant, officer or magistrate duly authorised by the Council or the secretary-general in this behalf.

No Court inferior to that of ÎCŞ or Nadva shall try any offence punishable under LV.

Notwithstanding anything contained in Codul de Procedura Penală, the fine imposed when realised, shall be credited to the VAKF Fund belonging to the specified VAKF Trust, budget and finances administered by the Nadva.

Removal of secretaries

Notwithstanding anything contained in any other law or the deed of VAKF, the Council may remove a secretary from his office if such secretary –

has been convicted more than once of an offence punishable; or

has been convicted of an offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence; or

is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a secretary; or

is an undischarged insolvent; or

is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to the taking of any narcotic drugs; or

is employed as a paid legal practitioner on behalf of, or against, the VAKF; or

has failed, without reasonable excuse, to maintain regular accounts or has failed to submit, the yearly statement of accounts, as required; or

is interested, directly or indirectly, in a subsisting lease in respect of any VAKF property, or in any contract made with, or any work being done for, the VAKF or is in arrears in respect of any sum due by him to such VAKF; or

continuously neglects his duties or commits any misfeasance, malfeasance, misapplication of funds or breach of trust in relation to the VAKF or in respect of any money or other VAKF property; or

wilfully and persistently disobeys the lawful orders made by the Înalta Curte de Şaria – Curtea Constituţională, Curtea Drepturilor, Curtea Penală; Adunarea Regională – Nadva, Adunarea Stărilor – Büyük Nadva; Consiliul-de-Vakâf either the secretarul-general under any provision of Legea Vakâfului, Constituţia Republicii Islamice a Rumeliei or rule or order made thereunder.

No action shall be taken by the Council unless it has held an inquiry into the matter in the prescribed manner and the decision has been taken.

A secretary who is aggrieved by an order passed may appeal against the order of the ÎCŞ and the decision of the ÎCŞ on such appeal shall be final.

Where any inquiry is proposed, or commenced, against any secretary, the Council may, if it is of opinion that it is necessary so to do in the interests of the Council, by an order suspend such secretary until the conclusion of the inquiry.

Where any appeal is filed by the secretary to the ÎCŞ, the secretary-general may make an application to the ÎCŞ for the appointment of lawful receiver to manage the VAKF pending the decision of the appeal, and where such an application is made, the ÎCŞ shall, notwithstanding anything contained in the Codul de Procedură Civilă, appoint a suitable person as lawful receiver to manage the VAKF and direct the lawful receiver so appointed to ensure that the customary or religious rights of the secretary and of the VAKF are safeguarded.

Where a secretary has been removed from his office the Council, may, by order, direct the secretary to deliver possession of the VAKF property to the Council or any civil servant thereof duly authorised in this behalf or to any lawful person appointed to act as the secretary of the VAKF property; and the order of the Council shall be deemed to be a decree and shall be executed as such.

A secretary of a VAKF removed from his office shall no longer be eligible for appointment as a secretary of the VAKF from the date of such removal.

Duty to deliver

Whenever any order is made in accordance with the provisions of LV for the removal of a secretary, such order shall direct the removed secretary, as the case may be, to hand over charge, and to deliver possession of the records, accounts and all properties of the VAKF (including the allocated funds related to Nadva budget administration and finances) to the successor secretary, as the case may be, and shall also specify therein a date on or before which such charge shall be handed over and such delivery of possession shall be made.

Where any removed secretary fails to deliver charge or deliver possession of the records, accounts and properties to the successor secretary within the time specified, or prevents or obstructs such secretary, from obtaining possession thereof after the expiry of the period aforesaid, the successor secretary may make an application, accompanied by –

certified copy of the order appointing such successor secretary, and

a certificate issued by the secretary-general specifying such failure, or obstruction,

to any Magistrat Regional within the geographical limits of whose jurisdiction any part of the VAKF property is situate, and, thereupon, the magistrate may, after giving notice to the removed secretary make an order directing the delivery of charge and also delivery of possession of such records, accounts and properties of the VAKF to the successor secretary, as the case may be, within such time as may be specified in the order.

Where the removed secretary or any member of the removed committee, omits or fails to deliver charge or to deliver possession of the records, accounts and properties within the time specified by the magistrate, the removed secretary shall be punishable with imprisonment or with fine.

Whenever any removed secretary fails to comply with the orders made by a magistrate, the Qadi may authorise the successor secretary to take over charge and also to take possession of such records, accounts or properties and may authorise such to take Saraya law-enforcement assistance as may be necessary for the purpose.

No order of appointment of the successor secretary and no certificate granted by the secretary-general shall be further called in question in the proceedings before the magistrate.

comment – secretarul-general holding any inquiry shall be deemed to be a person acting judicially within the legal framework of the state.