Assalamualaikum wbt, ustaz. I have a confusion.
My friend owns a contractor license. While his friend is involved in politics. Due to his friend being a public figure, it is easy for him to bring my friend to meet political figures, even the ministers. He introduced my friend so that he may have access to the projects. Then as a return of easing the hold towards the projects, my friend provides monetary help through his projects to his friend especially for the purpose of political development.
- Does ‘aid’ or ‘gift’ by my friend considered as a bribe?
- What is the ruling of profits from the projects? Thank you ustaz.
I am sorry for disturbing. If you have some time, I hope this issue will be attended.
Firstly, the gift or aid is considered as a bribe. However, profits from the tender project falls into the category of haram lighairihi which means profits gained is permissible to be used if the project is related to matters permitted by the religion. But still, bribery done is still considered as a great sin.
At the same time, the committer shall repent to Allah SWT for the deviance done by reciting istighfar, adding up good deeds, and the most important thing is to have determination of not repeating it again. As a recommendation and suggestion, the contractor involved shall give sadaqah, do good deeds and channel the profits gained for public Muslim use like building schools, facilities in the orphanage and etc. All is done to showcase sincerity and strong determination to repent from the past mistakes.
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.
Based on the above situation, the contractor who provided the aid or gift to the middleman who eases the process of getting the tender may be considered as abetting towards bribery which is prohibited in the religion.
Bribe can be defined as reception or offering of a bribe as a wage or an urge for an individual for doing or refusing an act related to official tasks. Bribery consists of cash money, gift, bonus, vote, service, position, wage or discount.
Dr Yusuf al-Qaradhawi said “Included in taking others’ wealth unlawfully is receiving a bribe, which is money given to a ruler or officer so they decide on something benefited to him, or something causes loss towards his enemy according to his want, or to prioritise or delay his affair due to a benefit and etc.”
(See al-Halal wa al-Haram fi al-Islam, pg. 626)
There is a clear evidence from the Prophet PBUH which prohibits such matter. In a hadith narrated by Thauban RA, it is stated,
لَعَنَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسلم الرَّاشِيَ وَالْمُرْتَشِيَ وَالرَّائِشَ يَعْنِي الَّذِي يَمْشِي بَيْنَهُمَ
God’s Messenger cursed the one who bribes and the one who takes bribes and the raish is the go-between regarding a bribe.
Musnad Ahmad (22399)
Further discussion on the ruling of being a middleman between who bribes and the one who takes the bribe may be referred to our article, Pejabat Mufti Wilayah Persekutuan - AL-KAFI #711 : APAKAH HUKUM MENJADI PERANTARA DALAM PERBUATAN RASUAH? (muftiwp.gov.my)
Based on the above discussion, even though the contractor does not bribe the tender provider directly, but the action of involving as well as providing aid and gift to the middleman gives signal that the contractor relies on the middleman and urges him to promote the tender project on his behalf.
This is proven by the fact that if the middleman does not promote the contractor to the political figure or the tender provider, surely the contractor will not provide financial aid to the middleman. This clearly has the element of syubha and is one of the form of hidden bribery in the name of gift.
In a hadith narrated by Abi Humaid al-Sa’di RA, it is mentioned on an occurrence where the Prophet PBUH assigned a task to a Companion regarding the collection of zakah,
اسْتَعْمَلَ النَّبِيُّ صلى الله عليه وسلم رَجُلاً مِنَ الأَزْدِ يُقَالُ لَهُ ابْنُ اللُّتْبِيَّةِ عَلَى الصَّدَقَةِ، فَلَمَّا قَدِمَ قَالَ هَذَا لَكُمْ، وَهَذَا أُهْدِيَ لِي. قَالَ " فَهَلاَّ جَلَسَ فِي بَيْتِ أَبِيهِ أَوْ بَيْتِ أُمِّهِ، فَيَنْظُرَ يُهْدَى لَهُ أَمْ لاَ وَالَّذِي نَفْسِي بِيَدِهِ لاَ يَأْخُذُ أَحَدٌ مِنْهُ شَيْئًا إِلاَّ جَاءَ بِهِ يَوْمَ الْقِيَامَةِ يَحْمِلُهُ عَلَى رَقَبَتِهِ، إِنْ كَانَ بَعِيرًا لَهُ رُغَاءٌ أَوْ بَقَرَةً لَهَا خُوَارٌ أَوْ شَاةً تَيْعَرُ
The Prophet (ﷺ) appointed a man from the tribe of Al-Azd, called Ibn 'Utbiyya for collecting the Zakat. When he returned he said, "This (i.e. the Zakat) is for you and this has been given to my as a present." The Prophet (ﷺ) said, "Why hadn't he stayed in his father's or mother's house to see whether he would be given presents or not? By Him in Whose Hands my life is, whoever takes something from the resources of the Zakat (unlawfully) will be carrying it on his neck on the Day of Resurrection; if it be a camel, it will be grunting; if a cow, it will be mooing; and if a sheep, it will be bleating."
Sahih al-Bukhari (2597)
The above hadith clearly shows, if a person accepts an offering from his official task is considered as taking others’ wealth unlawfully, whatnot one accepts a gift from something not of his official task like a person involving himself in politics and introduces a contractor. The above prohibition includes those who abet to give gift to the middleman as the Islamic legal maxim states,
ما أدى إلى الحرام فهو حرام
“The means to haram is haram (even if it is originally permissible)”
The Ruling of Profits Gained from Tender Project
The scholars state that a prohibition is divided into two types;
- Prohibition due to its essence (haram lizatihi)
Something which is originally haram due to its essence which produces bad effects and contains filthiness.
For example: blasphemy, killing, drinking intoxicants, adultery and others.
The effect is, if there are sales and purchase of intoxicants among a seller and buyer, then the contract is invalid and revoked.
- Prohibition due to other matters (haram lighairihi)
Something which is originally permissible, but due to external factors, it becomes haram.
For example, sales and purchase during the second adhan for Juma’ah prayer. The explanation: sales and purchase are permissible. However, due to the selling takes place during the second adhan, then the sales and purchase are ruled as haram. The category of prohibition is haram lighairihi.
The effect is if there are sales and purchase of coconut water for example during the second adhan of Juma’ah prayer, then the seller and buyer are sinful, but the coconut water is still owned and halal to be drunk by the buyer.
The difference between the above categories of haram gives big implication in many Fiqh issues that take place. This is because the first category denies and revokes any sales and purchase between the two parties while for the second one, sales and purchase are still permissible. However, parties involved are still sinning. Borrowing the words of the scholars of usul al-fiqh regarding the effect of transaction from this haram lighairihi, “valid but sinning”.
(See Mu’jam Usul al-Fiqh, pg 105)
Therefore, looking at the above divisions, we are of the opinion that profits gained from the project tender falls into the second category which is haram lighairihi which means the profits gained can be used if the projects related to matters permissible by the religion, but bribing is still a great sin. Also, refer our related article Pejabat Mufti Wilayah Persekutuan - AL-KAFI #1617: THE STATUS OF PROPERTY OR GOODS BOUGHT THROUGH CONVENTIONAL LOAN (muftiwp.gov.my)
At the same time, the doer shall repent to Allah SWT for his misbehavior by reciting istighfar, practicing good deeds, and above all, have determination to not repeat it again. As a suggestion and recommendation, the contractor should do sadaqah, good deeds and channel the profits gained for Muslim general use like building schools, providing facilities in the orphanage and etc. All is done to showcase sincerity and strong determination to repent from his past mistakes.