ANALYSIS

M.Olhitheregey case

Overview

Adduonline 05/03/2005-The legal battle over 'M.Olhitheregey' land dispute highlights the structural flaws within the ruling, judicial, and the administrative apparatus of the country. This particular dispute which simmered in the courts for more than a decade, also reveals the endemic level of corruption and individualism which has seeped into every strata of the society. The case has been finally settled in the court with the verdict going against the defendant Mr.Ibrahim Latheef who has to lose ownership of his land(M.Olhitheregey) which he inherited from his father Late Ali Hasan Manikfan who had actually bought the land from Late Mohamed Rashad some twenty five years ago.

Mr.Ahmed Rashad, son of Late Mr.Mohamed Rashad made an appeal to the court to reclaim the land which his father had sold to Late Ali Hasan Manikfan. Mr Ahmed Rashad insists that when the actual transaction of selling the land to Mr. took place, there was a municipality 'law' which prohibits non-residents of Male' from owning land in Male'. He also claims that because the land was not registered in Male' municipality (because of this 'law'), the trade contract between his father and Late Ali Hasan Manikfan should be declared as an 'illegitimate' or void contract. And therefore the real inheritor of the land should be himself instead of Mr.Ibrahim latheef (son of late Ali Hasan Manikfan)

Before we make any comments about the court decision we would like to inform the readers that the purpose of our objective enquiry is to present the correct Islamic opinion on the subject matter. Constitutional skullduggery would be omitted and Islamic Shariah daleels will utilised to arrive at the correct conclusion.

First things first

Although this case would give great excitements to lawyers, one is hard pressed to find any legal aspect in the case. Also, it is astounding that a case which does not constitute as a 'legal case' have been battled in the courts for more than 10 years.

Does it constitute as a legal case ?

The answer to the above question is provided at the end of the analysis.

a) Subject

Late Ali Hasan Manikfan buys land from Late Mohamed Rashad

The subject matter indicates that a transaction (mu'amalat) took place between Mr.Ali Hasan Manikfan and Mr.Mohamed Rashad.

1.Shariah evidences regarding trade (i.e. the type of transaction )

''Allah has permitted trade and forbidden usury.'' [ 2:275]

So the Islamic texts permits trade regardless of the gender, ethnicity or race. Therefore the action (i.e. trade transaction) of Late Ali Hasan Manikfan and Late Ahmed Rashad are permitted.

2.Shariah evidences regarding contracts

The basis of all trading is the contract. It is obligatory to honour contracts and agreements are therefore we have to understand the subject of contracts within Islam.

''O you who believe! Fulfil all your covenants'' [ 5:1]

''Fulfil (every) engagement, for (every) engagement will be enquired into (on the Day of Reckoning)'' [17:34]

Contracts may be generally described as the effective mode of acquisition of ownership and transfer of property or services. It expresses the combination of offer and acceptance. The contract, aqd or tie forges legal relations between two parties over a particular matter. It is formed with the declaration of offer al-ijaab (offer) and al-qabool (acceptance). An example of ijaab by a seller would be, ''I sold this to you for the price of...'' Al-qabool would then be ''I accepted''. Regardless of how elaborate a transaction may be, this simple model is the basis of all Islamic contracts.

Contracts and agreements should preferably involve the spoken word. The maximum degree of clarity must be given by the one who makes the offer, and the maximum degree of clarity must be ascertained by the one who accepts. This is the underlining principle of contracts in Islam.

The trade contract between Late Ali Hasan Manikfan and Late Mohamed Rashad should be deemed as a correct legal contract because it fulfills all the conditions of an Islamic contract. That is all there to it. We could not find any other legal aspects of the case which requires scrutiny.

b) The Conflict

The conflict arises when Mr.Ahmed Rashad (son of Late Mohamed Rashad) files a case to reclaim the land from its current inheritor Mr.Ibrahim Latheef on the basis that Male' municipality 'law' at that time prevents non-residents of Male' from owning land in Male'. Mr.Ahmed Rashad also used this basis to claim that the original trade transaction between Late Ali Hasan Manikfan and Late Mohamed Rashad should be declared as an illegitimate transaction.

Before we proceed further , let us explain the meaning of two important terms and their relationships:

1) Legislative issue

2) Administrative issue

What is a legislative issue?

A legislative issue is an issue which requires an opinion from the legislative sources of the state. Even in the corrupt secular societies legal opinions emanates from specific sources.

What is an administrative issue?

An administrative issues deals with the management and administration of the affairs of the citizens which have been already legally sanctioned by the state constitution.

Islamic Perspective

The administrative system is that body of people which executes the Islamic State's orders upon the citizens and manages the Islamic State's affairs. Since the Islamic State must implement the Shari'ah upon all of its citizens, it becomes necessary to have an administrative system to accomplish this. Many rules in Islam compel the Islamic State to have an administrative body for their implementation. As such, the rule for collection of zakat, which necessitates the Islamic State to employ personnel for its proper implementation, is one example. Any style or tactic used would be permissible. But, the important point is that 'the job gets done'. The administrative units do no MAKE or ENACT laws, but they administer the rules for the objective of serving the citizens in the most efficient manner.

Example to highlight the differences between a legislative issue and administrative issue

1)Marriage Contract - For a marriage contract to be legal in Islam, some conditions have to be fulfilled. They are

1) consent of the two parties

2) consent of bride's guardian

3) Two witnesses

4) The bride has to receive dowry

These constitute as legislative issues in marriage because legislative issues are shariah issues which require an opinion from the Islamic texts. The registration of marriage is an administrative issue managed by the administrative units of the state. The purpose of registration is to manage the affairs of the citizens in the best possible manner. For example marriage registration records may provide inputs for future policy planning and logistical purpose. Therefore administrative units such as post office, municipalities, identity card unit or marriage registrar cannot ENACT 'laws' because they are not legislative bodies in the first place. The legality of actions or objects are addressed are by Shari'ah (i.e. Islamic texts). Administrative units of the state have to implement or manage the paper work pertaining to the issues which the Shari'ah has already addressed. However administrative units can have regulations (not laws) regarding their work hours, organizational structure...etc.

We know that the Prophet (saw) managed the affairs of the Ummah, during his period in Madinah. He (saw) appointed many administrators to carry out various functions so that the Islamic State would run efficiently. As an example, he appointed 'Ali ibn Abi Talib (ra) as a scribe for treaties which the Prophet (saw) concluded with other nations.

Ibn Abi Fatimah was designated to compile the statistics of the ghanima (spoils of war). Hudhayfa ibn al-Yaman was the writer for the numbers of cultivated fruits in the Hijaz area of the Arabian peninsula. 'Abdullah ibn Arqam was appointed to calculate the number of people in the tribes and was further assigned the task of management of water in the Islamic State. In the twentieth year of the Hijrah, 'Umar ibn al-Khattab, as the second Khaleefah, initiated the deewan as a list of names of soldiers and other essential facts.

Coming back to the issue, now the readers can answer the questions we posed earlier: Does this case constitute as a legal case ? Is there any legal aspect of the case ? Is there any point in belabouring about this case using constitutional jargons ?

The legal aspects of 'olhitherege case' involves trading. The Islamic texts permits the possession, buying and selling of property. The land registration procedure is an administrative issue which Late Ali Hasan Manikfan could not complete because Male' municipality - the administrative body assigned with the task of registration - turned out to be a legislative body. Therefore the Male' municipality should not be in the business of suppressing the rights of citizens guaranteed by the Shariah by enacting its own set of laws. Furthermore, the role of municipalities, identity card units, immigration department, transport department, post offices is of administration NOT legislation.

Allah says, ''The rule is to none but Allah (i.e. Quran, Sunnah, Ijma'a Sahabah, and Qiyas).''

Conclusion

If there is any legal aspect, it is the attempt by Mr.Ahmed Rashad to nullify a contract to which he is a witness and a signatory. Ordinary citizens like Mr.Ibrahim latheef and his family cannot be victimised and cannot be held responsible for the structural flaws that exist within the ruling, judicial and administrative structure.

On another note, the olhitheregey affair highlights a wider malaise of the society such that all values of trust and responsibility towards others have become eroded as individuals pursue their selfish interests above all other issues. This has led to our society being characterised by a permanent sense of agitation and anxiety amongst the populace as people can no longer trust each other over the the most basic issues. The courts in Male' are inundated with disputes over inheritance, debt repayments, company shares, breach of contract, neglect of child maintenance...etc. Astoundingly, majority of these disputes occur between blood relatives.

What allows this total lack of trust and absence of any sense of responsibility is the Capitalist philosophy that places the individual and his selfish material pursuits at the heart of all human conduct. Therefore, individuals with the Capitalist mindset pay no regard to honouring a promise to someone else or standing by their contracts as long as they feel they can get away with it. For the Capitalists this world is everything, and the only accountability is in this life. Such a mentality produces suspicion and worry in all human relationships in society.

In Islam the idea of Trust (amanah) means to fulfil ones promises, undertakings and commitments whether they are to Allah (SWT) or to other people:
Allah (SWT) says:

''Verily! Allah commands that you should render back the trusts to those, to whom they are due; and that when you judge between men, you judge with justice. Verily, how excellent is the teaching, which He (Allah) gives you! Truly, Allah is Ever All Hearer, All Seer''. [Surah An Nisa: 58]

''There is no faith for the one who has no trust, and there is no deen for the one that does not fulfill his promises.'' (Ahmad Musnad)

This idea of trust is of great importance in these times because there is no Islamic ruling system to deliver justice. Therefore, it is highly recommended that Muslims acquaint themselves with the rich Islamic culture and implement Islamic rules in their daily transactions. To resolve any disputes, we have to use Akham Shariah as our reference point and disputes should be resolved amicably. This is a far better option than getting embroiled in lengthy and expensive court processes.

Ends