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IRSYAD AL-FATWA SERIES 460: RESTRICTIVE MOVEMENT ORDER ACCORDING TO SIYASAH SYAR’IYYAH

460

Question:

Is the restrictive movement order issued by our government currently is based on syarak evidences? Hope for an explanation.

 

Answer:

Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.

Recently, our government has decided to issue the restrictive movement order from 18th March 2020 until 31st March 2020 throughout the country. This restrictive order is under the
Infectious Disease Prevention and Control Act 1988 and the Police Act 1967. This restrictive movement order includes;

First, all religious house of worship, business premises are closed except supermarket, market, grocery and convenience stores.

Second, total overseas travel restriction for Malaysians.

Third, entry restrictions for all tourists and foreign visitors into the country.

Fourth, closure of child care centres, government and private schools including daily and boarding schools, tahfiz centres and other education institutions including public and private higher learning educations and skill training institutes throughout the country.

Fifth, closure of all government and private premises except those involved in essential services of the country.

The Viewpoint of Siyasah Syar’iyyah

The decision made by the government of Malaysia during this time is in line with the spirit of shariah according to several Islamic legal maxims discussed by scholars through Siyasah Syar’iyyah.

Basically, the majority of rulings in Islamic shariah are subject to the power of the authority. The rulings are impossible to be implemented except through the power and order of the ruler; such as in the sentencing of court cases, the appointment of trustee, declaration of a state of emergency, restrictions (al-hajr) and war, peace treaty and others.

Thus, in order for syarak rulings to be fully implemented correctly and accepted by Allah SWT, a ruler is a must in the implementation and monitoring of the rulings.

In shariah Islam, there is a category of rulings known as the rulings of imamah (governance) or the rulings of siyasah syar’iyyah. Scholars have several definitions of Siyasah Syar’iyyah.

Syeikh Abdul Wahhab Khallaf presented several meanings of siyasah syar’iyyah, among them are:

  • The government has the authority to act according to the maslahah, as long as it does not contradict the principles of religion, even if there are no specific evidences about it.
  • Implementation of maslahah mursalah; the reason is maslahah mursalah is a chapter of which there is no syarak evidences that rules it as mu’tabar (acceptable/considered) or rejected (mulghah).

According to the opinion of this scholar, he concluded that the knowledge of siyasah sayr’iyyah means a knowledge that discusses management or governing matters in legal, policy and system aspects according to the principles of Islam even if there is no specific syarak evidences that explained it. (See al-Siyasah al-Syar’iyyah, pg. 6-7)

Rulings in this category are flexible and syara’ did not specifically decided on these matters. Consequently, the rulings in this category depend on the ijtihad and wisdom of the ruler according to the interests of the Muslim ummah.

The Practice of the Concept of Siyasah Syar’iyyah in Previous Times

There are various narrations and stories in history that recorded the application of siyasah syar’iyyah in the lives of a society, especially in the era of the rule of the Prophet Muhammad PBUH and the Companions R.Anhum.

Among the famous narrations are:

  • The Prophet PBUH’s refusal to rebuild the Ka’ba according to its original build. Saidatina ‘Aisyah R.Anha narrated that the Prophet PBUH told to her:

يَا عَائِشَةُ، لَوْلاَ قَوْمُكِ حَدِيثٌ عَهْدُهُمْ ـ قَالَ ابْنُ الزُّبَيْرِ بِكُفْرٍ ـ لَنَقَضْتُ الْكَعْبَةَ فَجَعَلْتُ لَهَا بَابَيْنِ باب يَدْخُلُ النَّاسُ، وَبَابٌ يَخْرُجُونَ

“O `Aisha! Had not your people been still close to the pre-Islamic period of ignorance (infidelity)! I would have dismantled the Ka`ba and would have made two doors in it; one for entrance and the other for exit.”

Sahih al-Bukhari (126)

Imam al-Bukhari included this hadith under the chapter “Leaving some choice because of fear for a misunderstanding by some people and fear of a greater harm from the choice made.

Imam Ibn Hajar al-Asqalani when explaining the hadith said, a ruler needs to manage the matters of his citizens for the maslahah of his people, although the actions contradict several matters, as long as it is not from haram matters. (See Fathul Bari, 1/271)

  • Saidina ‘Umar RA was among the Companions who had applied most of the concept of siyasah syar’iyyah in his legislation and administration matters during his rule.

Among his policies based on siyasah sayr’iyyah is to not divide the land in Khaibar that has been conquered by the Muslims, consequently, the land remained with their original owners and only tax is imposed on them.

Umar RA also issued his own ijtihad regarding the three talaq (divorce), where he decided that three talak in one pronouncement is valid, although it was not so in the times of the Prophet PBUH and Abu Bakar RA.

The same with the introduction of several bodies to manage the country’s financial matters and the system of Baitulmal which is also considered as matters of siyasah syar’iyyah according to scholars. (See Al-Madkhal ila as-Siyasah as-Syar’iyyah, pg. 33-38)

The ijtihads of Saidina Umar RA are made into the country’s policies even if they are not directly supported by syarak evidences for he understood that these matters are under siyasah syar’iyyah and they depend on the maslahah of the people.

The Decision of a Ruler is Based on the General Maslahah

The famous Islamic legal maxim applied is,

تصرف الإمام على رعيته منوط بالمصلحة

“The action of a ruler for his people is based on maslahah.”

Scholars have set that it is wajib for every action decided by the government must be based on the maslahah and the good of the general public; which means the people under its authority of administration. If the action contradicts the original purpose and objective, then the action is invalid and inapplicable according to syarak. (See Mausu’ah al-Qawa’id al-Fiqhiyyah, 2/308)

This maxim is supported by the words of Saidina Umar RA,

قَالَ عُمَرُ رَضِيَ اللَّهُ عَنْهُ " إنِّي أَنْزَلْتُ نَفْسِي مِنْ مَالِ اللَّهِ بِمَنْزِلَةِ وَالِي الْيَتِيمِ، إنْ احْتَجْتُ أَخَذْتُ مِنْهُ فَإِذَا أَيْسَرْتُ رَدَدْتُهُ فَإِنْ اسْتَغْنَيْتُ اسْتَعْفَفْتُ ".

“Indeed, I placed myself on the property of Allah SWT as the property manager for the orphans. If I need it, I would take it. If I am no longer in need, I would give it back. The same goes when I don’t need it, then I would distance myself from it (from using it).”

(See al-Ashbah Wa al-Nazhair, 1/121)

Considering the critical maxim, the drastic decision made by the government to restrict the movement of people is based on the general maslahah and interests, to decrease the risks of the spread of the pandemic from getting worse.

The Change of Ruling from Permissible to Others

Imam Zarkasyi Rahimahullah (w. 794 H) concluded that the permissibility of something changes according to the situations. Sometimes it can change to wajib if leaving the matter could lead to a greater harm. Or it can also change to haram if it would result in him leaving other obligation set by syarak and it can also change to other taklifi such as sunnah and makruh (undesirable). (See al-Bahru al-Muhith, 1/365)

The original ruling of assembly, going on vacations or travelling overseas and others is permissible according to the general Quranic and prophetic evidences. However, the permissibility can change to makruh or even haram depending on the situation that is happening. Especially when there is an order issued by the government which acts as the ruler and governing body that considers the country’s issues with a macro and comprehensive viewpoint.

Deliberation Between Two Harms

Undeniably, the restriction on movement order will have a negative impact and results in losses for various non-essential businesses such as hotels, tourism and others. Closure of education institutions would also affect the planned structured implementation of the learning process for students. All of these are categorized under harms that is considered by shariah.

However, when these harms coincide with other harms especially if it is related to the spread of an outbreak, shariah has given a guideline through the Islamic legal maxim:

إذا تعارض مفسدتان روعي أعظمهما ضررا بارتكاب أخفهما

“If two harms coincide, then avoid the greater harm and choose a lesser harm.”

(Refer Mausu’ah al-Qawa’id al-Fiqhiyyah, 1/87)

Specific for the current COVID-19 situation, we do not deny that both actions would have a negative impact on our society. First, from the movement restriction order and second from consequences that the people will have to face if there is no intensive control or effort to stop the spread of the virus.

According to both situations that would lead to harm, we are inclined to support the decision made by the government of Malaysia to avoid a greater harm by stopping the spread of the virus through the restriction on movement order.

This is the right decision in line with the spirit of the hadith that is narrated from the Prophet PBUH who said:

إِذَا سَمِعْتُمْ بِالطَّاعُونِ بِأَرْضٍ فَلاَ تَدْخُلُوهَا، وَإِذَا وَقَعَ بِأَرْضٍ وَأَنْتُمْ بِهَا فَلاَ تَخْرُجُوا مِنْهَا

"If you hear of an outbreak of plague in a land, do not enter it; but if the plague breaks out in a place while you are in it, do not leave that place."

Sahih al-Bukhari (5728)

This hadith shows that a ruler has the authority to quarantine or impose any restriction in an effort to stop the spread of an outbreak. ‘Abd al-Rahman bin ‘Auf once recounted this hadith to Caliph ‘Umar bin al-Khattab when he was planning to go to Syria during the outbreak of the plague there. Hearing this hadith, Amirul Mukminin ‘Umar al-Khattab cancelled his plans. (See al-Bidayah wa al-Nihayah3/5)

Conclusion

The decision made by the government of Malaysia on the imposition of the movement of restriction order should be fully supported. Any advice issued by the authorities should be obeyed by all walks of life. All of us should work together as agents to prevent and stop the spread of the COVID-19 virus and decrease the risks of deaths.

Especially for Muslims, even when all the mosques and surau are temporarily closed, it should not prevent us from praying and ask Allah SWT to protect us from this dangerous pandemic.

Lastly, may this effort made by the government with the cooperation of all the citizens results in the decrease of risks of infection which will ultimately curb and stop the spread of the virus and all Malaysians will be able to resume their daily lives without the worry of getting infected. We are well aware that this effort will not be successful without the support and cooperation of every Malaysian citizen.

Wallahua’lam.