Question: The Majlis has always held the view that it is not permissible to stipulate a salary for a partner in addition to his profit-share. A Mufti Saheb holds the opposite view, namely, that in addition to a working partner’s fixed profit-share, a salary may also be fixed for him. The Mufti Saheb has referred me to the fatwa which appears in Ahsanul Fataawa. According to this fatwa, the respected Mufti Rashid Saheb (rahmatullah alayh) is of the view that a salary for a working partner in addition to his profit-share is permissible. Please resolve this conflict.
ANSWER
The view of The Majlis is the official view of the Shariah while the contrary view is a personal opinion. The answer in Ahsanul Fataawa is erroneous. The honourable Hadhrat Mufti Rashid (rahmatullah alayh) has erred in his conclusion. Despite his erudite Knowledge of the Shariah and him being an outstanding Aalim of the Haqq, his arguments on this particular question are exceptionally weak. The error is compounded by the fact that in presenting his personal view, the honourable Mufti Rashid (rahmatullah alayh) has overridden the Consensus of the Fuqaha. In fact, he has abrogated a clear-cut ruling which all our Fuqaha have given from the very inception of Islam.
INDEPENDENCE OF THE judiciary from the executive is largely an empty slogan of the votaries of western democracy. In the annals of history there is no example to compare with the episode which appears on this page.
Islam has practically demonstrated the meaning of equality in front of the law. No monarch, governor, ruler, president, prime minister, cabinet minister, etc. could be ushered to court to stand as an ordinary citizen in front of the judge in the manner in which the Rulers of the Islamic Empire had demonstrated. Hadhrat Umar (radhiyallahu anhu) was not an isolated case. Islamic history bears ample testimony to the fact that even not so pious Muslim monarchs answered the summons of the Qaadhi without hesitation and stood on the same level as the plaintiff.
THE CONCEPT OF the independence of the judiciary is as old as Islam. Many, many centuries before the west began to theorize this concept, the courts of Islam acted independently of the executive. This concept is grounded in the Qur’aanic command of justice. The Qur’aan Majeed commands:
“O People of Imaan! Become the establishers of justice, witnesses for Allah even though it be against yourselves or your parents or your relatives. If he be a wealthy or a poor person, then (know that) Allah is closer to both of them. Therefore, do not follow (your) desire in (the matter of) enforcement of justice.”
(Surah Nisaa, Aayat 135)
The Rulers of Islam (the Khulafa and the Sultans) had practically demonstrated the independence of Islam’s judicial system. Besides the Khulafa-e-Raashideen, even worldly kings and Sultans upheld the principle of justice. Mighty rulers of Islam would immediately submit to the summons of the Qaadhi (Judge) and unhesitatingly stand trial in exactly the same way as an ordinary citizen would. The following episode illustrates the Islamic system of justice and the independence which the judiciary enjoyed from the very inception of Islam.
