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Fatwa CenterApplying the Hadd on the supreme Muslim ruler if he commits a crime
Question
Asalaam alaikam I want to know regarding the khalifah if he is a evil disobedient one what happens in the following situation. If the khalifah,king and imam does zina or a crime that warrants the hadd is it true there is no hadd for him because the khalifah can impose it on himself and we are ordered to obey the khalifah even is he a fasiq? Some people bash the hanafi madhaab as apparently its stated in raddul muthar the above ruling can you show me references regarding this or explain to me please shukran
Answer
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
held that if the supreme Muslim ruler commits a crime entailing the application of Hadd punishment that should be applied by the supreme authority of the Muslim state (i.e. the Muslim ruler himself or his deputy) and there is no higher authority to apply the Hadd against him, the Hadd is waived, except if it is related to Qisaas (retaliation) or others' property; in this case, the Hadd is applied against him. That is because the Muslim ruler has the sole authority to implement the Hudood and he is the perpetrator at the same time; he cannot apply the Hadd against himself. The Islamic Sharee‘ah does not authorize the Muslim ruler to appoint himself as a deputy to apply the Hudood against himself; applying the Hadd involves humiliation and punishment and a person does not subject himself to that. Also, the lower authority is a deputy of the ruler; so he is not authorized to apply the Hudood as per the Sharee‘ah. Therefore, the Hadd is waived due to the absence of the authorized entity to apply it.
On the other hand, Imaam Ash-Shaafi‘i maintained that the Hadd should be applied against the ruler in this case; pious Muslim individuals in the community should gather to choose a person to carry out this duty and apply the Hadd against the ruler.
Misguided groups give certain justifications by saying that if the Muslim ruler commits adultery, then he has been removed from his office because of committing this sin. Thus, he had committed adultery at a time when there was no Muslim ruler and accordingly no authorized entity to apply the Hadd. They added if a Muslim commits adultery in a place outside the sovereignty of a Muslim ruler in enemy lands (Daar Al-Harb), he is exempt from the Hadd of adultery. The same applies when a Muslim commits adultery at a time when there is no Muslim ruler (i.e. the Hadd is waived). In fact, we believe that this opinion is invalid because being of bad moral character is not a valid reason to remove the Muslim ruler from his office.
As for Qisaas and crimes related to property, these are the rights of people and they have the authority to claim their rights back from the Muslim ruler, if they could.” [Al-Mabsoot]
Thus, jurists held different opinions in this regard; the Hanafis practised Ijtihaad (i.e. personal reasoning) and reached this conclusion. If their opinion is proved correct, they gain two rewards (for their Ijtihaad and for deducing the correct religious ruling). If their opinion is proved wrong, they get one reward for their Ijtihaad.
Allaah Knows best.
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