Implementation of Al Kharaj (Land Tax) During Islamic Rule

Transcription

1. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 Shariah Journal, Vol. 18, No. 3 (2010) 629-658 THE DYNAMISM IN THE IMPLEMENTATION OF AL-KHARAJ DURING THE ISLAMIC RULE (634-785AD) Fuadah Johari* Patmawati Ibrahim** ABSTRACT This article discusses the implementation of al-kharaj or land tax in the Islamic ruling era. The focus of our analysis and discussion is on the dynamism of past Islamic leaders of between 634-785AD in managing and implementing al-kharaj. Our discussion centres around the philosophy behind the terminologies and the theory that underlies the implementation of al-kharaj, the dynamics of its policy changes and the rationale behind the reduction in tax rates, the policy of affordable taxes and the changes in types of taxes (to prevent it from becoming a burden) and the collection policy. The final part of this study describes the principle that had guided the rulers between 634-785AD. This was mostly during the time of Caliph ‘Umar al-Khattab (634-644AD), Abu Ja‘far alMansur (754-775AD) and al-Mahdi (775-785AD). They placed great importance on the ‘ability’ of taxpayers to pay taxes and this is evident each time there was change in policy. Keywords: al-Kharaj, land tax, Islamic taxation policy * ** Fellow SLAI (Academic Training Scheme for Public Higher Institution) and fulltime postgraduate student in Doctoral Programme (PhD) in the area of Comparative Taxation, Department of Shariah and Economics, Academy of Islamic Studies, University of Malaya, Kuala Lumpur, fuadah.johari@yahoo.com. Senior Lecturer, Department of Shariah and Economics, Academy of Islamic Studies, University of Malaya, Kuala Lumpur, y0patma@um.edu.my. 629
2. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 INTRODUCTION Al-Kharaj is defined as taxes1, revenue2, revenue obtained from human property3, tribute4, rental5, income6, general property7, a public’s revenue or revenue from land8, and sometimes it is defined as a rates. Al-Kharaj is an Arabic word of Greek origin9 and also said take from literary official language of Rome, Byzantine10 and Ancient Greek11 which generally means `tax’12. However, throughout the history of Islam it was used to refer to land tax13. 1 2 3 4 5 6 7 8 9 10 11 12 13 Al-Firuzabadi, Muhammad Ibn Ya‘qub (n.d), al-Qamus al-Muhit, al-Qahirah: Mu’assasah al-Halabi wa al-Sharikah, Vol.1, p. 184. Refer also: Muhammad Thabit al-Fandi (n.d), Dā’irat al-Ma’ārif al-Islāmiyyah Naqalaha ila al-Lughah al-’Arabiyyah, al-Qahirah: Matba’ah Mustafa al-Babi al-Halabi, vol. 8, p. 280. Means: ‫ الرضيبه‬tax or revenue that is compulsory to non-Muslim in the Islamic State. Refer: Muhammad Thābit al-Fandi (n.d), op.cit, p. 280. ‫ الرضيبه الرايض‬means land tax, refer: Idris Abdullah (1992) Kamus Istilah Ekonomi dan Perdagangan: Melayu-Arab, Kuala Lumpur: Kintan Sdn. Bhd, p. 38. Jamāl al-Din Muhammad bin Mukarram Ibn Manzur (1990), Lisan al-‘Arab,Beirut: Dar Sadr, vol. 2, p. 251. Mahayudin Yahya (2001), Tamadun Islam, Selangor : Fajar Bakti, p. 278. Abu Ubayd al-Qāsim b. Salām (1986), Kitāb al-Amwāl, Muhammad Khalil Haras (tahqiq wa ta‘liq), Beirut: Dar al-Kutub al-Ilmiyyah, p.75. Al-Kharāj means ‫الكراء‬ ‫ والغلة‬refer: ‘Auf Muhammad al-Kafrawi (1993), al-Māl al-‘Ammah fi al-Islam: Bidayah al-Mujtahid wa Nihayah al-Muqtasid, Iskandariyah : al-Intisar Press, p. 37. ‫ الكراء والغلة‬means rental and income, refer to: Idris Marbawi (n.d), Kamus Idris Marbawi: Arab-Melayu, Kuala Lumpur: Darulfikir, p. 182. Ibid, p. 65. Means: ‫ راد الدولة‬according to Idris Marbawi (n.d) is revenue or public revenue. Ibid, p. 232. Muhammad Diyā’ al-Din al-Rais (1969), al-Kharāj wa al-Nuzum al-Māliyyah li Dawlah al-Islamiyyah, Mesir: Dar al-Ma’ārif, p. 8. The Encyclopaedia of Islam (1997), Vol. IV, Edisi 2, Netherland : E.J. Brill. Leiden, p. 1030. Muhammad Thābit al-Fandi (n.d), op.cit, p. 280; refer also : Ensiklopedia Islam (1998), Kuala Lumpur: Pusat Penyelidikan Ensiklopedia Malaysia, p. 35. Ibid. Ibid. Refer also : The Encyclopaedia of Islam (1997), op.cit, p. 1030. Auf Muhammad al-Kafrawi (1993), op.cit, p.37; refer also: Muhammad Thābit al-Fandi (n.d), op.cit, p. 280; The Encyclopaedia of Islam (1997), op.cit, p. 1030; Ensiklopedia Islam (1998), op.cit, p. 35. 630
3. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) Taxation systems that had been implemented in Islamic countries were land tax (al-kharaj), protection tax (sulh al-jizyah), poll tax (jizyah al-ru’us) and commerce tax (al-‘usyr)14. Al-Kharaj represents a specific percentage of income obtained from land or property and it includes land obtained from war or by peaceful means15. Al-Kharaj was implemented early in the Islamic rule in Khaibar when the Jews requested for the land that Muslims had conquered to remain as theirs because they were very good farmers. The prophet p.b.u.h. consented to the request on condition that they surrender half the revenue obtained from the land as tax al-kharaj; in accordance with the al-muzara’ah principle16. Initially al-kharaj included in ghanimah’s type of asset, which should be divided among the Muslim soldiers but Caliph ‘Umar felt that the practice was a waste for Muslims of that time as well as the future if the land in Iraq and Syam were divided among Muslim soldiers. So he proposed that the land remained the owners’ on condition that they pay kharaj 17. The scope of the study is situated between the years 634-785 AD because throughout this period there were a lot of ijtihad and evolution that took place in al-kharaj taxation system. These later formed the rationale behind the Islamic taxation, eventhough the system had originated from the practice of emperors prior to Islam. Throughout this period also the views of the fuqaha’ became the basis for decision and reference for the Islamic leaders of the past. What was interesting was, the leaders had made the effort to fully understand the nas and Islamic jurisprudence before attempting to apply them in the administration of the country. According to Mahmood Zuhdi Ab. Majid18, right from the beginning, the fuqaha’ had not restricted their views to mere literal (harfi) interpretation. On the contrary, they studied the nass in its social reality and in terms of the people’s thinking. Thus, although the nass is fixed and never change, fiqh or the product of Syariah enquiry continued to experience changes to reflect the current thinking and lifestyle of a dynamic society. 14 15 16 17 18 Hailani Muji Tahir (1986), Pengenalan Tamadun Islam Dalam Institusi Kewangan, Kuala Lumpur: Dewan Bahasa dan Pustaka, p. 19. Abu Yusuf Ya’qub (1981), Kitab al-Kharāj, (tahqiq wa ta’liq) Muhammad Ibrahim al-Banna, Egypt: Dar al-Islah, p. 67. Abu Ubayd al-Qasim Salam (2006), The Book of Finance, Noor Muhammad Ghiffari (trans.), New Delhi: Adam Publishers, p. 69. Ibid, pp. 68-69. Mahmood Zuhdi Ab. Majid (1997), “Pengajian Syariah: Satu Pentakrifan”, in Mahmood Zuhdi Ab. Majid (ed.) Dinamisme Dalam Pengajian Syariah, Kuala Lumpur: Berita Publishing Sdn. Bhd., p. 10. 631
4. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 According to Abdullah @ Alwi Hassan19, implementation and role of ijtihad and harmonization of Syariah law with the current situation should not need to localized everything as solitary local legislation or national, because it is a global system without boundary, time limit and certain condition. However, some or a part from this syariah law, has to have local characteristic to be adapted to the current situation, place and humanity’s need as in the constitutional law, administration, self need and others. Rahimin Affandi Abdul Rahim et. al20 agreed that ijtihad are a concepts, methods and applications that are extremely important in the Islamic legislation system to be considered in implementing Syariah law in the context of the current situation. When referring specifically to land tax, Mahmud Saedon Awang Othman & Muhammad Arifin21 suppose that the ruling party can impose additional taxes on the public with regard to ‘just and fair’ as the element of that tax characteristic and the most important criteria is that the tax revenue must be spent for the benefit of the public as a whole. This opinion is supported by Naziruddin Abdullah22 said that, it assumes that the government be it the Federal Government or State Government are merely administrators which act as Allah’s representative on earth and are accountable as Khalifatullah. The Government nominated by the ummah is no more than Allah’s trustee who is responsible in the administration and management on the basis of “good practice” namely efficiency, proactively and productivity for each goods and services entrusted by Allah to be enjoyed by the public, as stated in surah al-Ma'idah (5) : verse 49. Before further exploring the dynamism of the implementation of al-kharaj throughout the period, let us first put forth the theory behind the formation of the term al-kharaj. 19 20 21 22 Abdullah @ Alwi Haji Hassan (2007), “Ijtihad dan Peranannya dalam Pengharmonian Undang-Undang Syariah di Dunia Islam Masa Kini”, Jurnal Syariah, vol. 15, no. 2, p. 19. Rahimin Affandi Abdul Rahim, Paizah Ismail and Nor Hayati Mohd Dahlal (2009), “Ijtihad Dalam Institusi Fatwa di Malaysia: Suatu Analisis”, Jurnal Syariah, vol. 17, no. 1, p. 215. Mahmud Saedon Awang Othman & Muhammad Arifin (1999), “Percukaian Tanah Menurut Perspektif Islam”, Jurnal Syariah, vol. 7, no. 1, Januari 1999, pp. 4356. Naziruddin Abdullah (2005), “Polisi Pentadbiran dan Pengurusan Tanah : Analisa Perbandingan antara Kanun Tanah Negara dan Hukum Islam”, dalam Jurnal Syariah, vol.13, no. 2, p.131. 632
5. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) THE THEORY BEHIND THE DEVELOPMENT OF THE TERM ALKHARĀJ The Word al-Kharāj In The Quran Al-Kharāj and kharj are used in the Quran but not to mean land tax23. The words generally means a gift/income as in Surah al-Mu’minun verse 72: “Or is it that thou askest them for some recompense? But the recompense of thy Lord is best: He is the Best of those who give sustenance”. (Surah al-Mu’minun, 23:72) According to Subhi Salih24, al-kharāj as used in the verse above means to ‘withdraw’; as if a portion is taken out from a whole (taxable item) in order to fulfil an obligation25; as is meant in the verse below: They said: “O Zul-qarnain! the Gog and Magog (People) do great mischief on earth: shall we then render thee tribute in order that thou mightest erect a barrier between us and them?” (Surah al-Kahfi, 18:94) According to al-Mawardi , al-kharāj is the fee imposed on land ownership and it is the kind of obligation that has to be fulfilled. In the Quran, the description for tax is different from that of jizyah. Therefore, the imposition of taxes has been left entirely to the ijtihad of imams. Based on the verse in the 26 23 24 25 26 S.M.Hasanuz Zaman (1981), Economic Functions of an Islamic State: The Early Experience, Karachi: International Islamic Publishers, p. 197. Subhi Salleh (1983), Sistem Ekonomi dan Kewangan Dalam Islam, Osman Khalid (trans.), Kuala Lumpur: Bahagian Hal Ehwal Islam Jabatan Perdana Menteri, p. 33. Ibid, p. 34. Al-Mawardi (2000), al-Ahkam al-Sultaniyyah: Prinsip-Prinsip Negara Islam, Fadhli Bahri (trans.), Jakarta: Darul Falah, p. 261. 633
6. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 Quran from surah al-Mu’minun, 23: verse 72, there are two interpretations of Allah’s verse “Am tas’aluhum kharjan”; and they are: 1) The word kharāj refers to wages 2) The word kharāj refers to benefit. There are also two interpretations of “Fakhraju rabbika khayrun”: 1) God’s bounties in this world is better. This is al-Kalbi’s interpretation. 2) Reward from God in the hereafter is far better. This is also al-Kalbi and al-Hassan’s interpretation Abu Amr bin al-Ala’ said “the difference between al-kharju and al-kharāj are kharju (wages) is tied to a person whereas al-kharāj (taxes) is tied to land.” the word al-kharāj (taxes) in Arabic however, refers to rental or revenue27. Apart from kharāj there are other terms associated with the term revenue which is fay’ and ghanimah which have been mentioned extensively in the Quran and they are associated with war and conquest28. Three other specialised terminologies stressed in the Quran in discussions on fiscal and public finance are referred to as anfal (Sūrah al-Anfal 8:1), khums (Sūrah al-Anfal, 8:41) and jizyah (Sūrah al-Tawbah 9:24). Based on the Quranic verifications above, we can now say that in terms of fiscal and public finance, Allah has not stipulated how it should be managed. Allah has merely reminded people that when wealth is redistributed, one should ensure that the redistribution is done as widely as possible and that wealth is not meant to benefit a selected group only. This was stressed in Surah al-Hasyr verse 7: “What Allah has bestowed on His messenger (and taken away) from the people of the townships,- belongs to Allah,- to 27 28 Ibid. Ugi Suharto (2005), Kitāb al-Amwāl: Abu ‘Ubayd’s Concept of Public Finance, Kuala Lumpur: Islamic Thought and Civilization (ISTAC), p. 88. 634
7. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) His messenger and to kindred and orphans, the needy and the wayfarer; In order that it may not (merely) make a circuit between the wealthy among you. So take what the messenger assigns to you, and deny yourselves that which he withholds from you. And fear Allah. for Allah is strict in punishment”. (Surah al-Hasyr, 59:7) This verse stresses the importance of spreading wealth among various communities and that it does not remain among the rich only. The Constitution of al-Khums as a Method for Distribution, Became an Inspiration for the Conception of al-Kharāj Although there is no mention of the al-kharāj taxation in the Quran, nevertheless, Allah has given general guidelines on the practise of taxation in the constitution of al-khums as a method of distributing taxes. This became a source of inspiration for Muslim leaders in redistributing the country’s wealth according to Surah al-Anfal verse 41: “And know that out of all the booty that ye may acquire (in war), a fifth share is assigned to Allah,- and to the messenger, and to near relatives, orphans, the needy, and the wayfarer,- if ye do believe in Allah and in the revelation We sent down to Our servant on the day of testing,- the day of the meeting of the two forces. For Allah hath power over all things”. (Surah al-Anfal, 8:41) Based on the meaning of the verse, Allah shows how a public’s revenue should be distributed. Eventhough there is no clear command on how taxes are to be imposed on a community, Allah has shown how wealth or what had been collected is to be redistributed to the rightful parties (the stress here is on redistribution). 635
8. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 Al-Kharāj Tax According to al-Fay’ In The Quran Abu Yusuf29 in his book “Kitab al-Kharāj” said that al-fay’ is kharāj and kharāj is al-fay’30 meanings that al-fay’ is nothing else but al-kharāj31. He does not distinguish between al-fay’ and al-kharāj as land tax. Here al-fay’ refers to spoils obtained from a party that surrenders to the Muslim soldiers peacefully, in order to avoid confrontation32. Abu Yusuf refers to the Quran of Surah alHasyr verse 6: “What Allah has bestowed on His messenger (and taken away) from them - for this ye made no expedition with either cavalry or camelry: but Allah gives power to His apostles over any He pleases: and Allah has power over all things”. (Surah al-Hasyr, 59: 6) Abu Yusuf33 further added that what he meant by al-fay’ refers to land, alkharāj (‫)األرض خراج‬, which are territories which Muslims obtained in a peaceful manner from non- Muslims in expanding their sphere of influence. Kharāj land can be divided into 5 parts: the first fifth is given to Rasulullah p.b.u.h and the remaining is to be given out to his family members, orphans, the poor and wayfarers who run out of money. The remaining (four fifths) initially was divided amongst Muslim soldiers so that they could equip themselves better but during Caliph ‘Umar’s time he set up divisions or departments that determined the amount of wages the soldiers were to receive34. 29 30 31 32 33 34 Abu Yusuf (1981), op.cit, p.67. Al-Fay’ as literal meaning is ‘return’. Refer: Subhi Salih (1968), al-Nuzum alIslamiyyah: Nashatuha wa Tatawwuruha, Beirut: Dar al-‘Ilm Li al-Malayin, p. 368. Ugi Suharto (2005), op.cit, p. 139. Ibid, p. 368. Abu Yusuf (1981), op. cit, p. 67. Subhi Salih (1968), op.cit, p. 368, Refer also Subhi Salih (1983), op.cit, p. 45. 636
9. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) Abu ‘Ubayd35 in his Kitab al-Amwal mention in his athar no.40 that after the prophet p.b.u.h era, the property turned into three groups, namely fay’, khums and zakat. Hence, in the past-propehetic period fay’ simply means public revenue comprising various types of income as evolved in the history of Islam and these are includes : 1) Jizyah from Ahl al-Dhimmah according to the peace treaty agreed by them, 2) Kharaj from the countries which are conquered by force, 3) Tasq which is specified by the head of the state, 4) Kharāj al-Wazifah, a fixed tribute from the country conquered by peace treaty, and 5) ‘Usyur ; tax collected from traders among Ahl al-Dhimmah, or import duties from traders of a non-Muslim country (Ahl al-Harb)36. Al-Kharāj here means a part of the portion of al-fay’ and the public revenue as whole. Al-Kharāj as an Official Government Document and Its Methodology of Writing A system of taxation is part of the code of law for business and it often undergoes constant changes from time to time37. Nevertheless, Muslim leaders were always mindful in their efforts to formulate a policy for al-Kharāj. A few Caliphs after the times of the Khulafa’ al-Rasyidin had instructed the nations’s Qadi to compile the code of practice of al-kharāj from time to time. For instance, the Risālah fi al-kharāj was written and compiled by Qadi Abu Yusuf b.Ya‘qub on the orders of Caliph Harun al-Rashid (786-809AD) 38. According to Ben Shemesh39, there were twenty one40 known separate writings on kharāj; written throughout the rule of the early Caliphs. All were 35 36 37 38 39 40 Abu ‘Ubayd al-Qāsim b. Salām (1986), op.cit, p. 21. Ugi Suharto (2005), op.cit, pp. 138-139. Mahmood Zuhdi b. Abdul Majid (1992), Sejarah Pembinaan Hukum Islam, Kuala Lumpur: Dewan Bahasa dan Pustaka. p. 16. Yahya b. Adam (1958), Taxation in Islam: Yahya Ben Adam’s Kitab al-Kharaj, A. Ben Shemesh, (trans.), Leiden: E.J. Brill, vol. 1, p. 4. Ibid, pp. 3-6. The cronology of the 21 writers and books are as follows: 1) Mu‘āwiyah b. ‘Ubayd Allah b. Yasār al-Ash‘ari (w. 170/786), al-Kharāj. 2) Hafasawiya (n.d), al-Kharāj. 3) Abu Yusuf , Risālah fi al-Kharāj. 4) Yahyā b. Adam (d. 203H/818 M), Kitab al-Kharāj. 5) Abu ‘Ali, Hasan b. Ziyād al-Lu’lu’ (d. 204 H/ 819), Kitab al-Kharāj. 6) Abu ‘Uthmān, ‘Amr b. Bahr b. Mahbūb al-Jāhiz (d. 255H/869M), Kitab Risālat Abi al-Nijm bi al-Kharāj. 7) Qadi Ahmad b‘Umar al-Syaybāni al-Khassāf (d. 261H/875M), Kitab al-Kharāj lil Muhtadi. 8) Abu ‘Abbās, Ahmad b. Muhammad b. Sulaymān b. Bishār al-Kātib (d. 270H / 884M), Kitāb al-Kharāj Kabir. 9) Abu ‘Abbās, Ahmad b. Muhd b. ‘Abd al-Karim (d.270H/884M), Kitāb al-Kharāj. 10) 637
10. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 on the same topic, i.e. “Kitab al-Kharāj” or “Kitab Risālah fi al-Kharāj”. However, only three of them exist either in manuscript or original document form till today41. The three books are “Kitāb al-Kharāj” by Abu Yusuf, “Kitāb al-Kharāj” by Yahya b. Adam and “Kitāb al-Kharāj” by Qudamah b. Ja’far. They are now the main sources of reference for Islamic taxation. These books have also been recompiled and even translated into various languages as they are referred to by academics all over the world. Ben Shemesh42 while doing translation on Kitāb al-Kharāj by Abu Yusuf, he found that the methodology of writing are more on a report on the state of the religious precepts dealing with taxation problems, with his recommendations and legal opinions. Abu Yusuf wrote the Kitāb al-Kharāj as an answer to Caliph Harun al-Rashid’s requests and questions on certain issues of taxation problems. Ahamed Kameel Mydin Meera and Syed Nazmul Ahsan43 later explained that Abu Yusuf’s work included issues on the tax on the farming system and the harsh treatment of the taxpayers which probably existed during his time. His work was more judicial in nature since he frequently supports his arguments with authority from the Holy Quran and the Holy Prophet’s Tradition. Ben Shemesh44 also interprets that through the writing, Abu Yusuf visualizes this documenting works as not an easy task. Careful manner and the firmness in writing also shows in his writing as indicated by his concern for accuracy, through constant usage of the phrase “Wallāhu ‘Alam”( ‫ )واهلل علم‬right after he elaborated a certain fact or thought.45 41 42 43 44 45 Abu Sulaymān, Dāwūd b. Khalaf al-Isfahāni (d.270H/884M), Kitāb al-Kharāj. 11) Qudāma b. Ja‘far b. Qudāma al-Kātib, Kitāb al-Kharāj. 12) Abu al-Qāsim, ‘Ubayd Allah b. Ahmad b. Muhd al-Kaludhāni, Kitāb al-Kharāj,1st ed. on 326H and 2nd ed. on 336H. 13) Abu al-Hasan, ‘Ali b. al-Hasan (n.d), Kitāb al-Kharāj Latif. 14) Abu al-Hasan, ‘Ali b. Wasif al-Katib Hashkamanja (n.d), Kitāb alAfsāh Wa al-Tathqif fil Kharaj Wa Rusamihi. 15) ‘Abd al-Rahman b. ‘Isa, Wazir to al-Mundaqi (330/940-333/943), Ahl al- Kharāj. 16) Ishāq b. Yahyā b. Sarih al-Nasrāni al-Kātib (337), Kitāb al-Kharāj. 17) Nasr b. Musa al-Rāzi al-Hanafī. 18) ‘Abd Allah b. ‘Armaram Abu al-Qāsim, Kitāb al- Kharāj. 19) Muhd b. Ahmad b. ‘Ali b. Khiyār al-Kātib, Kitāb al- Kharāj. 20) ‘Ali b. Ahmad b. Bistam, Sahib al- Kharāj. 21) Abu Nadr, Muhammad b. Mas’ud al-Ayyāshi, Kitāb al-Jizya wal Kharāj. Refer: Yahya b. Adam (1958), op.cit, p. 3. Ibid. Abu Yusuf (1969), Taxation in Islam: Abu Yusuf Kitab al-Kharaj, A. Ben Shemesh (trans.), Leiden : E.J. Brill, vol. III, p. 13. Ahamed Kameel Mydin Meera dan Syed Nazmul Ahsan (1992), op.cit, p. 205. Abu Yusuf (1969), op.cit, p. 13. Meaning: “only Allah knows best”. 638
11. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) According to Cengiz Kallek46, Yahya’s Kitāb al-Kharāj is not a book written by Yahya, it is merely a collection of traditions on the subject of land taxation, with some explanations added by Yahya while its primary references are the Qur’an and the Prophetic Sunnah. Ahamed Kameel Mydin Meera and Syed Nazmul Ahsan47 state that Kitāb al-Kharāj by Yahya b. Adam is more of a compilation of hadiths on the relevant subject and was done during the reign of al-Ma’mun (813-833AD). The methodology in his writing revolve on the collection of traditions, anecdotes, legal precepts and aphorisms arranged according to the different issues. Among others, this book deals with problems and laws of land taxation holding, cultivation and the position of non-Muslims. The interesting part between Kitāb al-Kharāj by Abu Yusuf and Yahya shows that, Abu Yusuf’s strength was in his analysis and ability to derive legal rules whereas according to Yahya, hadith authentic collections and completeness were the most important things. However only fourthy of Yahya’s traditions are to be found in the six authority collections of traditions, that is, those by al-Bukhari, Muslim, Abu Dawud, Nasa’i, Tirmidhi and Ibn Majah 48. Ahamed Kameel Mydin Meera and Syed Nazmul Ahsan futher mention that Qudamah’s work was done in the first quarter of the fourth century Hijrah. This period was considered as the beginning of the decline of the Abbasid’s Caliphs when Qudamah served as a Qadi. There had been numerous allegations that the existing Kharāj was not in line with the religion precepts. Hence, Qudamah wrote his book to prove that the existing laws of taxation were in fact based on religious precepts and to refute the allegations of Katibs that they were not performing their tasks in accordance with the Shariah. Qudamah seemed to have done a great deal of research especially into the earliest sources to write his book. His source, as quoted by him, was Kitāb al-Amwal by Abū ‘Ubayd al-Qāsim b. Sallām al-Azdi (d. 224H /838C.E), a work which probably came after Abu Yusuf’s and Yahya’s. However, Abu Yusuf and Yahya were also cited in his work49. Interestingly, Ugi Suharto50 in his analysis, state that the Kitāb al-Amwal of Abu ‘Ubayd, although containing a lot of a hadith, is not categorized by early Muslim scholars as a book of hadith, but a book of fiqh. Kitāb al-Amwal 46 47 48 49 50 Cengiz Kallek (2001), “Yahya ibn Adam’s Kitab al-Kharadj: Religious Guidelines for Public Finance”, Journal of the Economic and Social History of the Orient, Vol. 44, (2), (2001), pp. 103-122. Ahamed Kameel Mydin Meera dan Syed Nazmul Ahsan (1992), op.cit, p. 205. Ibid. Ibid, p. 206. Ugi Suharto (2005), op.cit, pp. 8-9. 639
12. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 is not merely a collection of traditions similar to the work of Yahya b. Adam as alleged by Ben Shemesh, since in addition to the traditions he has collected almost 2000, as on top of that, Abu ‘Ubayd also presents his own views on hadith, tafsir, fiqh, the Arabic language etc. He sometimes criticizes the hadith on its isnad and matn, explains difficult Arabic words (gharib al-hadith), and gives his own independent views on certain issues of fiqh. The Word al-Kharāj Is Used To Mean Ministry of Finance and Revenue From Tax The term al-kharāj was also used to name the ministry in charge of finance or taxation revenue during the Islamic rule. It was called Diwan al-Kharāj (Ministry of Finance) 51. Collection of all types of taxes from all over of the empire (except the one for al-birr) was deposited here. Branches of al-kharāj was also set up at every region. These bureau were assigned with evaluating, collecting and surrendering tax revenue to Diwan Bayt al-mal. Due to its importance, Diwan al-Kharāj was chaired and managed by the viceroy. Heads of bureaus in the regions and Sahib al-Kharāj was also responsible for duties other than collection, like identifying other sources of revenue for the nation52. All forms of payments at the regions, and salary for government officers, soldiers, public works expenses, including all other government expenses are made by this ministry53. In the modern world, the function of the diwan is carried out by Wizarah al-Maliyyah or the Finance Ministry. All the bureaus in the other ministries are responsible for the collection of taxes. Normally the main diwan will have a record of all the regional diwans and each region would have a representative of a particular diwan in Baghdad. These representatives serve to link the regional diwans with that at the centre. However, when Caliph al-Mu’tadid restructured his administration, he combined all these diwans to form Diwan al-Dar al-Kabir54. An important bureau in this department functions to audit. Its head is called mushrif or nazir. Together with the assistance from his subordinates, 51 52 53 54 Abdul Malik A. al-Sayed (1995), Etika Sosial Dalam Islam, Syed Putra Syed Ahmad (trans.), Kuala Lumpur: Dewan Bahasa dan Pustaka, p. 192. Ibid, pp. 192-193. Ibid, p. 193. Ibid. Refer also Encyclopedia of Islam (1930), International Union of Academics Leiden: E.J. Brill, Vol.. 2, p. 87. 640
13. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) he audits the coffers and act as an agent for accounting for Diwan al-Zimam55. Bureaus under the Diwan al-Kharāj at the regions function as regional offices that maintaind records on taxation rates and the cadastral method used at the various regions56. At the regional level, Diwan al-Kharāj receives all revenues from alkharāj, jizyah and tithes. The main bureau within Diwan al-Kharāj, Diwan al-‘Ushr receives one tenth of all revenue called ‘ushr57. However, in the absence of Diwan al-Birr wa al-Sadaqah, tithes would be collected by Diwan al-‘Ushr. In that case, collection from tithes, has to be divided and distributed according to the breakdown specified. The governors, ‘amil, wali or amir or each region are required to remist excess revenue in the form of money or items to the central al-kharāj. Meanwhile, the centre in Baghdad is responsible to check and make up for the shortage in the collection at the regions. When the amount collected did not match the amount required for administrative expenses. The main duty of this diwan is not as a bursar, but more for the purpose of collecting all forms of taxes and other revenue. After deducting the amount needed to cover expenses, the remainder will be given to Diwan Bayt al-mal, the nation’s treasury58. Al-Kharāj Is Used In More Than One Sense In the hadith the word al-kharaj is repeatedly used to mean returns, reward and gift. Even the term al-jizyah and al-kharāj are used interchangeably in hadiths and throughout the history of Islam. Al-kharāj is also used for another meaning. For instance the prophet Muhammad in his hadith conveyed by Abu Dawud, one proposed that the al-kharāj rates for Abū Tiba be reduced59 and the term al-kharāj here is used as levy imposed on employers on their slaves. In addition, al-Baladhuri reported that the prophet Muhammad instructed two Najrani priests to take a vow (mubāhala) but instead they opted to pay kharaj. Here kharāj is used to mean poll tax60. 55 56 57 58 59 60 Abdul Malik A. al-Sayed (1995) op.cit, p. 193. Ibid. Ibid, p. 194. Encyclopedia of Islam (1930), op.cit, p. 325. Abdul Malik A. al-Sayed (1995), op.cit, p. 194. S.M. Hasanuz Zaman (1991), Economic Functions of an Islamic State, Karachi: The Islamic Foundation, p. 197. Ibid. 641
14. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 Al-Kharāj as Ijtihad By Caliphs ‘Umar In the matter of redistribution of the nation’s revenue, Caliph ‘Umar did not concede to idea that the agricultural land conquered in Iraq and Persia falling into the “khums” category where the redistribution method has been clarified in surah al-Anfal verse 4161. As far as Caliph ‘Umar could determine, ghanimah does not include fixed property like those agricultural lands but it refers strictly to non-fixed items only62. According to him further, if the land was divided up according to the principle of ghanimah, the nation would lose a potential source of income from it in the form of taxes paid by the land owners. In addition, Caliph ‘Umar felt the land should be frozen for the benefit of future generations as they are useful for defence63. When Sawad (fertile land full of vegetation) was conquered, Caliph ‘Umar held discussions with the people. Most of them were of the opinion that the Sawad land should be distributed. Bilal bin Rabah was among those who strongly felt that way64. The Muslim soldiers did not agree with Caliph ‘Umar who wanted to freeze the land in Iraq and Persia as the nation’s asset as they felt it was against Allah’s command in Surah al-Anfal verse 41. They held discussions on this for three nights65. On the third night, Caliph ‘Umar revealed to them the Quran verse that supports his view that spoils from war need not be treated as ghanimah; that there is a method called al-fay’ of managing spoils66, as in Surah al-Hasyr verse 6-7: 61 62 63 64 65 66 Mahmood Zuhdi Abdul Majid (1992), op.cit, p. 81. Abu Yusuf (1969), op.cit, pp. 78-79. Ibid, p. 82. Abu Yusuf (1981), op.cit, p.67. Refer also Muhammad Firdaus Nurul Huda (2002), Kesan Perubahan Sosial Terhadap Hukum Islam, Selangor: Thinker’s Library Sdn. Bhd., p. 164. Ibid, p.165. Mahmood Zuhdi Abdul Majid (1992), op.cit, p. 82. Refer also: Abu Yusuf (1981), op.cit, p. 68. Ibid. 642
15. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) “What Allah has bestowed on His Messenger (and taken away) from them - for this ye made no expedition with either cavalry or camelry: but Allah gives power to His apostles over any He pleases: and Allah has power over all things.What Allah has bestowed on His Messenger (and taken away) from the people of the townships,- belongs to Allah,- to His Messenger and to kindred and orphans, the needy and the wayfarer; In order that it may not (merely) make a circuit between the wealthy among you. So take what the Messenger assigns to you, and deny yourselves that which he withholds from you. And fear Allah. for Allah is strict in punishment”. (Surah al-Hasyr, 59:6-7) When Caliph ‘Umar was further pestered by those wanting a share in the loot, he showed them a verse from the Quran: “(Some part is due) to the indigent Muhajirs, those who were expelled from their homes and their property, while seeking grace from Allah and (His) good pleasure, and aiding Allah and His Messenger….” (Surah al-Hasyr, 59:8) Then, he gave them a verse from the Quran, from which he concluded: 643
16. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 “And those who came after them say: “Our Lord! Forgive us, and our brethren who came before us into the faith, and leave not, in our hearts, rancour (or sense of injury) against those who have believed. Our Lord! Thou art indeed full of kindness, Most Merciful”. (Surah al-Hasyr, 59:10) He pleaded with them asking how he could possibly divide the land amongst them without a thought to those that come after them who may be left with nothing. So in the end the dispute was peacefully settled by letting the land remain in the hands of the original owners but on condition that they pay jizyah (individual tax) and kharāj on their land67. As soon as they heard the verse, the Muslim soldiers immediately agreed with Caliph ‘Umar r.a. eversince that incident, al-kharāj became a major source of income for the country during the rule of Caliph ‘Umar bin alKhattab (13-23H/634-644AD). He had not only implemented al-kharāj fairly but he even made some adjustments to the original practice which dated back to the pre Islamic times, which he found no longer suitable for his time. All the time he made sure he kept as closely to the original practice as long as it was found to be fair to the people. Al-Kharāj imposed by Caliph ‘Umar was able to relieve the strain on the farmers compared to the taxes they had to pay during the Roman and Persian rule. In addition to that, al-kharāj was able to benefit and contribute to the nation’s treasury with its contribution to Bayt almal (Public Treasury)68. In terms of implementation, al-kharāj was imposed on land that had been taken by Muslim soldiers but which was not divided amongst them. Instead the soldiers were given other property in place of the land they had taken over. The land the soldiers won over remained with the owners albeit they had kharāj imposed on them. For Muslims, kharāj was not imposed on them but instead they paid tithes (zakat). Similarly, land that had been divided and given out to the soldiers were not imposed with kharāj but the soldiers merely paid 1/10 of the value in taxes69. In conclusion, the ijtihad and wisdom of Caliph ‘Umar in obtaining approval from the Sahabah in the issue of land acquired through war was clearly not in contravene any proof from al-Quran or al-Sunnah from Rasulullah. In fact, ijtihad and wisdom is encouraged in Islam because it allows the Ulil Amri a wider scope to determine the law whilst taking the time and the general good 67 68 69 Abu Yusuf (1969), op.cit, p. 94. Mahayudin Yahya (2001), op.cit, p. 278. Ismail Hamid (1985), Pengantar Sejarah Umat Islam, Kuala Lumpur: Heinemann (M’sia) Sdn. Bhd., p. 47. 644
17. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) of the population into consideration. In other words it was incumbent upon the Ulil Amri to exeercise wisdom and discretion70. The Word al-Kharāj is Used to Mean Taxes in General The word al-Kharāj has been popularly used by the ‘ulama’. For instance, the three famous writers Abu Yusuf Ya‘qub, Yahya bin Adam and Qudamah bin Ja’far used al-kharāj as a title for their writings that discussed revenue or a country’s taxes. According to Ben Shemesh71, kharāj as used in the titles originated from the Aramaic root word ‘halak’ and it was used in the Persian empire to refer to ‘taxes’ in general. Although at times, it was used to refer to taxes on landed property, in contrast with the per head/individual tax (jizyah). We have found that Muslim writers used the term according to its original meaning in general to refer to all forms of taxes. Yahya b. Adam often used it to mean ‘land tax’. He also used it to mean taxes in general. Abu Yusuf, Abu ‘Ubayd, Qudāmah, Khatib and Yahya also used ‘tasq’, ‘‘usyr, ‘jizya’ and ‘kharāj’ to mean the same thing72. According to Muhammad Diya’ al-Din alRais73 the word al-kharāj has two meanings; a general and a specific meaning. Al-Kharāj in general terms refers to public property or government revenue. Al-Kharāj As Land Tax Al-Kharāj is a tax imposed on the owner of a piece of land that had been conquered by Muslim soldiers in a war or peacefully. When Iraq was taken over by Muslim soldiers during Caliph ‘Umar’s rule, there were two categories of conquered land: land with owners and land without owners. The former refers to land that was owned by someone and the owner or owners have surrendered to the soldiers; while the latter refers to land where the owners have absconded or was killed during the war. Both types of land are considered kharāj land and are taxed, unless if the owner becomes a Muslim, then zakat is imposed. This is in the case of land with an owner. As for land without owners, they remain kharāj land eventhough the person who manages the land is a Muslim. It was customary then for land without owners to be managed by the local residents since they were skilled farmers compared to the Arabs. However, 70 71 72 73 Ibid. Ibid, pp. 3-6. Ibid, p. 6. Muhammad Diya’ al-Din al-Rais (1980), al-Kharāj wa al-Nuzum al-Māliyyah li Daulah al-Islamiyyah, Kaherah: Dar al-Thurat, p. 8. 645
18. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 where general administration like work division, setting of rate of tax and the distribution was concerned, these still reside in the hands of the Arab army generals74. As for unowned or abandoned lands, Caliph ‘Umar instructed that these land cannot be sold off or divided, but instead should collectively belong to all Muslims75. Al-Kharāj became the main contributor to the nation’s revenue at that time because the Muslim nation then were largely an agrarian society. Initially the tax was imposed on land owned by non-Muslims, but when the majority of the society submit to the new ruler and the people embraced Islam, the government then began to impose it on all the people. In other words, all land owners were subject to al-kharāj76. According to Muhammad Diya’ al-Din al-Rais77 this went on until a point when the meaning of al-kharāj evolved to mean land tax exclusively. Al-Kharāj As Rent Abu ‘Ubayd in his Kitab al-Amwal wrote about Caliph ‘Umar’s implementation of al-kharāj here he had set a fixed rate. In this sense kharāj was like rental. For that purpose, Caliph ‘Umar rented land for one dirham and one qafiz per jarib annually. That does not include the farms and date orchards. This shows that he did not impose taxes on trees78. Al-Kharāj in reality means rental like that implemented in Syria and Egypt because the land was government property like land where their owners die without leaving anyone to inherit the land79. Ziaul Haque80 commented in referring to Abu ‘Ubayd’s definition, in Arabic, kharāj means lease, rental, revenue or product (ghallah): the Arabs refer to products of land, house or slaves as kharāj in the sense of income. In a hadith this was referred to as income that is accompanied by responsibility (ann alkharāja bi al-damān). 74 75 76 77 78 79 80 Mahayudin Yahya (2001), op.cit, p. 278. Ibid, p. 279. Abdul Malik A. al-Sayed, (1995), op.cit, p. 190. Muhammad Diya’ al-Din al-Rais (1980), op.cit, p. 8. Abu Ubayd al-Qasim Salam (2006), op.cit, p. 63. S.A. Siddiqi (1975), Public Finance in Islam, Lahore: SH Muhammad Ashraf Kashmiri Bazar, p. 67. Ziaul Haque (1984), Landlord and Peasant in Early Islam, Islamabad: Islamic Research Institute Islamabad (Pakistan), p. 286. 646
19. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) Al-Kharāj: Taxes Imposed On Dhimmi Remained As Land Tax As for al-kharāj for the dhimmis, if one of them embraces Islam, then he is regarded a free Muslim and therefore exempt from (jizya per head)81. However, where land is concerned, one has a choice. They either pay al-kharāj (like before) or surrender the land to the government for the use of all Muslims and the land in the control of the Persia’s authority as before 82. Kharāj was imposed on every piece of land that remained theirs (as ahl-dhimmah) 83. “Dhimmah” is word which means agreement, assurance and protection. Further to what this means is, they have been assured by Allah and the prophet, as well as indirectly, other Muslims that they have been given the right to live under the rule and protection of the Muslim community. They lived in peace and harmony. Based on the agreement, they are free to live under the protection and assurance of the Muslims84. Al-Kharāj: Tax Exempt For Residential Land According to Abu ‘Ubayd, a fiqh principle that could be deduced from kharāj as practiced by Caliph ‘Umar is that he only imposed kharāj on land that could grow grains and fruit regardless of whether they were grown or not. In other words, kharāj was imposed on the productive potential of the land. Further according to him, Caliph ‘Umar exempted land on which there were dwellings and residences from kharāj85. DYNAMISM IN THE POLICY AND THE RATIONALE FOR SETTING THE RATE OF AL-KHARĀJ In outlining the policy and rationale for the setting of the rate for al-kharāj, based on the descriptive data collected from secondary sources, three main features were identified in the formulation of policy and the rational behind the setting of the tax rate. Firstly, the reduction in the tax rate policy and secondly, the affordable taxes policy and thirdly adjustments in taxes to avoid it from becoming a burden. 81 82 83 84 85 Qudāmah b. Ja‘far (1965), op.cit, p. 38. Hadits / tradition no. 25, Yahya b. Adam (1958), op.cit, p. 27. Yusof al-Qardawi (1985), Kedudukan Non-Muslim Dalam Negara Islam, Mat Saat Abd. Rahman (trans.), Kuala Lumpur: Bahagian Hal Ehwal Islam, Jabatan Perdana Menteri, p.31. Ibid, p. xiv. Abu Ubayd al-Qasim b. Salam (2006), op.cit, p. 65. 647
20. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 The Reduction In The Tax Rate Policy There was a flexibility in the implementation of al-kharāj. Discretion could be exercised by the rulers. One example was a policy for reduction in the amount of tax to be paid by the people for the purpose of easing their burden. This was exercised by Caliph ‘Umar during his rule between 634-644AD as soon as he gained control of Iraq (Sawad and Jazirah). He reduced the rate for kharāj from 27 dirham (in practice before the coming of Islam) to a mere 1 dirham for every jarib land per qafiz of wheat or barley or its equivalent, regardless whether the land was used or unused but watered annually86. Caliph ‘Umar appointed ‘Uthman b. Hunayf and Hudhaifah b. al-Yaman to measure land and issue tax on land watered by the Euphrates dan Tigris87. according to Abu ‘Ubayd in his Kitab al-Amwal, Hunayf measured Sawad and set 10 dirham for every jarib of grapes, 5 dirham for every jarib of dates, 6 dirham for every jarib of sugar cane, 4 dirham for every jarib of wheat and 2 dirham for every jarib of barley88. This is supported by athar by ‘Affan, Maslama b. ‘Alqamah, Dawud b. Ani Hind, al-Sha’bi who said: “Caliph ‘Umar entrusted the management of Sawad to Ibn Hunayf who was responsible for administering kharāj for the region. He had set 2 dirham for every jarib of barlley, and 4 dirham for every jarib of wheat, and 6 dirham for every of jarib sugar cane, and 8 dirham for every jarib of dates, and 10 dirham for every jarib of grapes and 12 dirham for every jarib olives”89. There were however, discrepancies in the reports for the rate for kharāj imposed on Sawad, Iraq. These discrepancies were reported by Ifran Mahmud Ra’ana (1970) in his study entitled “Economic System Under ‘Umar The Great” and they are as follows: Table 1: Rates for Al-Kharāj in Sawad, Iraq (for every 1 jarib) No Type of Crop Abu Yusuf Yaqut in Mu’jam alBuldan Sibli Nu’mani ‘Uthman bin Hunayf 1 2 Grapes Dates 10 dirham 8 dirham 6 dirham 8 dirham 19 dirham 8 dirham 10 dirham 5-8 dirham 86 87 88 89 Abu Yusuf (1969), op.cit, p. 99. Irfan Mahmud Ra’ana (1970), Economic System Under Umar The Great, Lahore: SP. Muhammad Ashraf, p. 83. Abu ‘Ubayd al-Qasim Salam (2006), op.cit, p. 62. Ibid. 648
21. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) 3 4 5 6 7 8 9 10 Sugar cane Wheat Barley Cotton Orchard Sesame Vegetables Olives 11 Uncultivated land 6 4 2 5 dirham dirham dirham dirham 4 dirham 2 dirham 6 dirham 4 dirham 1 dirham 5 dirham 10 dirham 8 dirham 3 dirham 6 4 2 dirham dirham dirham 12 dirham 1 dirham: 2 jarib Source: Adapted from Ifran Mahmud Ra’ana (1970), Economic System Under ‘Umar The Great, Lahore : SP. Muhammad Ashraf, p. 84, Abu ‘Ubayd al-Qasim (2006), The Book of Finance, Noor Muhammad Ghiffari (trans.), New Delhi: Adam Publishers, p.62. Affordable Tax Policy One of the policies of al-kharaj states that taxes must be set at a level that is affordable and bearable to the land owner. Caliph ‘Umar al-Khattab set a fixed amount of money or a certain quantity of grain and he did not apply the tax system al-muqasamah, not because he was not in a position to reduce taxes but because he was satisfied with the report from his representatives Hudhayfah and ‘Uthman who assured him that taxpayers found the rate affordable90. Caliph ‘Umar himself cautioned them not to impose taxes that are burdensome to the people, as reported in this athar: “Husayn b.‘Abd al-Rahman from ‘Amr b. Maymun al-Awdi: I saw Caliph ‘Umar b. al-Khattab about three or four days before he was stabbbed, asking Hudhayfah b. al-Yaman dan ‘Uthman bin Hunayf: “Have you imposed taxes on land at a rate the people find too high? ‘Uthman replied: I set taxes on their land that is at a level affordable to them and I can easily raise it.” Hudhayfah said : I impose taxes on land that the people can afford and not only that, they still have plenty left after tax.” Caliph ‘Umar finally said: “Be mindful and ensure that you don’t set taxes at a level that cannot be born by the land.” 91 90 91 Ibid, p. 103. Ibid, p. 98. 649
22. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 Change In Type Of Tax To Avoid Burdening The People Policy The policies set by Caliph ‘Umar was continued by the following Caliphs until the times changed and again the dynamism of al-kharaj was seen again. The dynamism al-kharaj can be observed from the rationale behind the changing the form of tax from al-wazifah / al-misahah to al-muqasamah. As far as land tax is concerned, the Abbasiyyah caliphs showed a keen attention to farmers and sympathy with the problem faced by them. Khalifah Abu Ja‘far al-Mansur (754-775AD) abolished taxes on wheat which was paid by money and introduced al-muqasamah system. This meant that tax was paid in the form of the crop itself and a certain percentage was determined. The fruit and date orchard was placed under this system. When payment was made with currency, the whole ripened harvest was valued and then verification from the farmer is sought on his agreement to the quantum of payment. Apart from that, the farmer is free to manage his farm as he liked92. Changes were made because the fixed rate tax (al-wazifah / al-misahah) were too heavy. The factors that contributed to the change to the al-muqasamah tax was low price of crops. Abu ‘Ubayd Allah, Mu‘awiyah b. ‘Ubayd Allah as secretary (wazir) to Khalifah al-Mahdi wrote to him detailing the strife and difficulties faced by kharaj payers under the kharaj al-misahah system93. In addition to that, there was not a standard method for measuring the size of a piece of land94. The dynamism of the kharaj policy in the switch to almuqasamah was meant to reduce the burden on land owners following the instability of price of crops in the light of fixed al-kharaj rates under the alwazifah / al-misahah system. At the same time it was meant to increase the nation’s revenue. This incident demonstrated that the principle of ensuring taxes did not become a burden continued to be stressed by the caliphs after Caliph ‘Umar. The above system was open to abuse and can be used to oppress. In order to avoid undesirable incidents, Caliph al-Mahdi (775-785AD) issued an official directive outlining only certain amount of produce that was equivalent to the rate of tax crops should be collected from the total harvested crops. In a case where the land was indeed fertile, and does not require labour, then the farmer 92 93 94 Kamis Ismail (1996), Diwan al-Kharaj (Kementerian Kewangan) Dalam Pemerintahan Khalifah Harun al-Rashid, Selangor: Tinta Image, p. 9. Ibid. Ibid, p. 12. Refer also: Hasan Ahmad Mahmud & Ahmad Ibrahim al-Sharif (1996), al-‘Alam al-Islami fi al-‘Asr al-‘Abbasi, cet.1, Kaherah : Dar al-Fikr al-‘Arabi, p.189. 650
23. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) was required to set aside half the produce. In a situation where the farmer had to irrigate the land on his own effort, which was difficult and costly, he was only required to part with 1/3 of the total harvest. If however, the farmer owns extremely problematic land, he only needs to give out 1/5 in taxes95. According to S.B. Samadi, another name for this system is ‘a reverse or productive rate system’, which clearly was different from the previous system which was based on measuring the land area (muhasabah). Abu Ja‘far al-Mansur (754775AD) was the first to implement al-muqasamah system; switching it from the system of al-Misahah. The new system was fully implemented during the rule of Caliph al-Mahdi (775-785AD)96 as seen on the table 2 as follows: Table 2: Rates for Kharāj al-Muqasamah During the Era of Caliph alMahdi (775-785AD) No Condition of Land Rate of tax 1 Fertile land that does not require labour 1/2 2 Land that requires manual irrigation which is laborious and costly 1/3 3 Problematic soil 1/5 Source: Kamis Ismail (1996), Diwan al-Kharaj (Kementerian Kewangan) Dalam Pemerintahan Khalifah Harun al-Rashid, Selangor: Tinta Image, p.10. Collection Policy Concerning the collection policy in the al-kharaj taxation system, the main policy implemented during the administration of Caliph ‘Umar 634-644AD (in early stages of al-kharaj) he did not modify or change sahib al-kharaj 97 drastically. Rather, he allowed sahib al-kharaj to be maintained among the local staff who spoke Persian, Greek and Coptic. The pre Islamic machinery was also maintained because they were experienced in managing finance and monitoring accounts98. Fairness in the collection of kharaj was greatly stressed. 95 96 97 98 Kamis Ismail (1996), op.cit, p. 10. Refer also: Samadi, S.B (1971), “Some Aspects of the Theory of the State and the Administration Under the Abbasids”, Islamic Culture, Vol. XXIX, New York: Johnson Reprint Corporation, p. 136. Hasan Ahmad Mahmud & Ahmad Ibrahim al-Sharif (1996), op.cit, p.189. Abdul Malik A. al-Sayed (1995), op.cit, pp. 192-193. S.M. Hasanuz Zaman (1991), Economic Functions of an Islamic State, Karachi: The Islamic Foundation, p. 204. 651
24. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 Caliph ‘Umar was reported to have instructed an oath of loyalty from his staff that they will follow the administrative agreement to ensure that collection was done fairly. Whenever an officer refuses to take an oath, and he found that there was a complaint against the officer, he would immediately sack him99. Because of the fact that al-kharaj was administered by an officer that went around collecting taxes directly from the people, it was imperative that ethical officers were employed. They were known as sahib al-kharaj 100. The characteristics or conditions imposed on tax collectors that was stressed at that time was firstly, they are not allowed to get physical on taxpayers. Secondly al-‘afw101, in collection dirhams, do not flog anyone nor sell his provisions, his winter or summer garments, nor the beasts he works with, and never let a man stand (in the sun) in order to collect dirhams102. Thirdly, ensure that tax collectors were kind and fair in their judgement and not to impose taxes on a community beyond what is affordable to them103. Fourthly, they should be flexible whilst bearing in mind the social term for taxes is sadaqah. For instance, tax should not be collected from dates grown on ba’l land because very little dates is produced on this infertile land compared to dates grown on fertile agricultural land that was irrigated104. Fifth, al-kharaj tax collectors should posses the tayyib (good and with integrity) quality and ihsān as directed by Caliph ‘Umar ‘Abd ‘Aziz (717720AD) when he wrote to his governor: “the spirit of Islam in economy are ‘adl (fairness) and ihsān (integrity), and study the land, make your evaluation and do not burden fertile land or otherwise. Taxes on infertile land should be just as much as the farmer can bear”. He had forbidden farming equipment from being sold for the purpose of settling taxes105. 99 100 101 102 103 104 105 Ibid, pp. 203-204. Abdul Malik A. al-Sayed (1995), op.cit, pp. 192-193. Explained by meaning of ‫ الفضل‬: hadith no. 233 in : Yahya b. Adam (D. 203H), Kitab al-Kharaj, (Syarah) Ahmad Muhammad Syakir (D.1377H), Mesir: Matba’ah al-Salafiyyah wa Maktabatuha, p. 70. Refer also: S.M. Hasanuz Zaman (1991), op.cit, p. 203. Being explained with the meaning of ‘favour’ in: Yahya bin Adam (1958), op.cit, p. 60. Yahya bin Adam (D. 203H), op.cit, p. 70. Refer also Yahya bin Adam (1958) op.cit, p.60. Refer also : M.J. Kister (1960), “The Social and Political Implications of Three Traditions in the Kitab al-Kharadj, Journal of the economic and Social History of The Orient, vol. III, Leiden, pp. 326-335. Refer also S.M. Hasanuz Zaman (1991) op.cit, p. 204. Ibid, p. 202. Yahya bin Adam (1958), op.cit, p. 89. S.M. Hasanuz Zaman (1981), op.cit, p. 203. 652
25. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) Sixth, an unfair tax collector would be replaced. For instance during the administration of Caliph Mu’awiyah (661-680AD), a governor reported on the injustice practice of a Muslim tax collector. He was promptly replaced by a local officer. Seventh, a tax collector should be flexible and mild mannered and not too strict with taxpayers. He cannot coerce them into selling their grains or livestock for the sake of paying taxes. In the case of Hajjaj who was shocked at the reduction in the amount of taxes collected in Iraq, asked Caliph ‘Abd Malik (685-705AD) if he could raise taxes. Caliph ‘Abd al-Malik turned down the request and advised him to be thankful with what was collected and not to be greedy. He also advised Hajjaj “to leave something behind for the farmers so they too can enjoy a comfortable life106.” Eighth, tax collection must be done firmly but kindly because it has to be done in occordance with the law free of any adjustments by the administrator. The administrator must set their own opinions aside because they are expected to be fair to all parties. This is so that those who are present and those far away, the aristocrats or ordinary citizens get to enjoy the same rights and treatment107. The appointed tax collectors should be assisted by a group of people from the local armed forces so who are loyal to the Caliph. Their monthly salary is paid by the authority to ensure that they don’t illegally help themselves to the tax money. Not only that, if a taxpayer offers to give them some money, they should politely but firmly refuse the money108. Apart from outlining desirable characteristics of tax collectors, some prerequisites were also stressed. In fact they are the same prerequisites as for becoming a faqih109. The qualifying criteria for becoming a tax collector are a person of good character, taqwa and honest110. An individual of good character is describes as someone not involved in bribery, and who does not collect taxes for selfish reasons. Appointed officers must be people who are well versed with the religion, wise, logical and patient, not known for a flaw in their character, one who places priority on rewards in the hereafter111. The individual’s religious practices and social life would have to be checked out 106 107 108 109 110 111 Ibid, p.203. Abdul Malik A. Al-Sayed (1982),op.cit, p. 197. Qudamah B. Jaafar (1965), Taxation in Islam, A. Ben Shemesh (trans.), Leiden : E.J. Brill, p. 76. Abdul Malik A. Al-Sayed (1982), op.cit, p. 196. Qudamah B. Jaafar (1965), op.cit, p. 75. Abdul Malik A. Al-Sayed (1982), op.cit, p. 196. 653
26. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 first just like they do for someone aspiring for the role of a judge112. If the individual is found to be unfair and untrustworthy, the job of collecting taxes cannot be given to him113. The collection policy also took discretion and flexibility of collection into account. Discretion is based on some Islamic taxation principles practised by past Muslim leaders. Among them were the amount of tax imposed was up to that which is affordable to the taxpayer114, tax on infertile land was abolished115, and taxpayers were not forced to sell of their stock for the sole purpose of paying taxes116, and ensuring that farmers enjoy a confortable life with the appropriate taxes117. In addition to that, climatic factors were also taken into consideration like when the water level of River Nile (in Egypt) was considered before deciding on the rate of tax for every district118, evaluating the fertility of land from those considered fertile right to those which were totally infertile119, while considering the type of crop able to grow on each type of land so that land owners are not victimised120. Farmers were exempted from tax when there was a period of long draught. Outbreak of disease or other factors beyond the control of humans. In these cases kharaj was exempted or postponed until conditions have improved121. CONCLUSION In conclusion, the dynamism of the tax system al-kharaj began with the ijtihad by Caliph ‘Umar al-Khattab and hence it evolved its own philosophy of terminology. This was a system that was retained from the past practise through a dynamic revolution based on Islamic principles that was maintained by past leaders. Studies have also shown that the principle of affordable tax and ethical practise of tax collectors were stressed based on the changes in policies. Based on this, it is recommended that whatever policy applied in the 112 113 114 115 116 117 118 119 120 121 Ibid, p. 197. Ibid, p. 196. S.M. Hasanuz Zaman (1981), op.cit, p. 203. Yahya bin Adam (1958), op.cit, p. 89. S.M. Hasanuz Zaman (1981), op.cit, p. 203 Ibid. Richard S. Cooper (1976), “The Assessment and Collection of Kharāj Tax in Medieval Egypt”, Journal of The American Orientalis Society, vol. 96, p. 366. Ibid Al-Mawardi (2000), op.cit, p. 264. Hailani Muji Tahir (1988), op.cit, p. 29. 654
27. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) current system of taxation in general and in Malaysia specifically should be more dynamic in nature by taking into account the affordability factor and a rate that is not a burden to taxpayers and Malaysians in general like that done by Muslim leaders in the past. REFERENCES Abdullah @ Alwi Haji Hassan (2007), “Ijtihad dan Peranannya dalam Pengharmonian Undang-Undang Syariah di Dunia Islam Masa Kini”, Jurnal Syariah, vol.15, no.2, 1-24. Abdul Malik A. al-Sayed (1995), Etika Sosial Dalam Islam, Syed Putra Syed Ahmad (trans.), Kuala Lumpur: Dewan Bahasa dan Pustaka. Abu ‘Ubayd al-Qasim b. Salim (1986), Kitāb al-Amwāl, Muhammad Khalil Haras (tahqiq wa ta’liq), Beirut: Dar al-Kutub al-Ilmiyah. Abu ‘Ubayd al-Qasim (2006), The Book of Finance, Noor Muhammad Ghiffari (trans.), New Delhi: Adam Publishers. Abu Yusuf (1969), Taxation in Islam : Abu Yusuf Kitab al-Kharaj, A. Ben Shemesh, (trans.), Leiden: E.J. Brill, vol. III. Abu Yusuf Ya‘qub (1981), Kitab al-Kharaj, (tahqiq wa ta’liq) Muhammad Ibrahim al-Banna, Egypt: Dar al-Islah. ‘Auf Muhammad al-Kafrawi (1993), al-Māl al-‘Ammah fi al-Islam: Bidayah al-Mujtahid wa Nihayah al-Muqtasd, Iskandariyah: al-Intisar Press. Cengiz Kallek (2001), “Yahya ibn Adam’s Kitab al-Kharadj: Religious Guidelines for Public Finance”, Journal of the Economic and Social History of the Orient, Vol.44, (2), (2001), 103-122. Encyclopedia of Islam (1930), International Union of Academics Leiden: E.J. Brill, vol. 2. Fairuzabadi, Muhammad Ibn Ya‘qub al- (n.d.), al-Qamus al-Muhit, al-Qahirah: Mu’assasah al-Halabi wa al-Sharikah, vol.1. Hailani Muji Tahir (1986), Pengenalan Tamadun Islam Dalam Institusi Kewangan, Kuala Lumpur: Dewan Bahasa dan Pustaka. Hasan Ahmad Mahmud & Ahmad Ibrahim al-Sharif (1996), al-‘Alam al-Islami fi al-‘Asr al-‘Abbasi, Kaherah: Dar al-Fikr al-‘Arabi. Idris Abdullah (1992), Kamus Istilah Ekonomi dan Perdagangan: MelayuArab, Kuala Lumpur: Kintan Sdn. Bhd. Idris Marbawi (n.d.), Kamus Idris Marbawi: Arab-Melayu, Kuala Lumpur: Dar al-Fikr. 655
28. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 Irfan Mahmud Ra’ana (1970), Economic System Under ‘Umar The Great, Lahore: SP. Muhammad Ashraf. Ismail Hamid (1985), Pengantar Sejarah Umat Islam, Kuala Lumpur: Heinemann (M’sia) Sdn. Bhd. Jamāl al-Din Muhammad b. Mukarram b. Manzur (1990), Lisan al-‘Arab, Beirut: Dar Sadr. Kamis Ismail (1996), Diwan al-Kharaj (Kementerian Kewangan) Dalam Pemerintahan Khalifah Harun al-Rashid, Selangor: Tinta Image. M.J. Kister (1960), “The Social and Political Implications of Three Traditions in the Kitab al-Kharadj”, Journal of the Economic and Social History of The Orient, vol. III, Leiden, 326-334. Mahayudin Yahya (2001), Tamadun Islam, Selangor: Fajar Bakti. Mahmood Zuhdi Ab. Majid (1992), Sejarah Pembinaan Hukum Islam, Kuala Lumpur: Dewan Bahasa dan Pustaka. Mahmood Zuhdi Ab. Majid (1997), “Pengajian Syariah: Satu Pentakrifan”, in Mahmood Zuhdi Ab. Majid (ed.) Dinamisme Dalam Pengajian Syariah, Kuala Lumpur: Berita Publishing Sdn. Bhd, 6-20. Mahmud Saedon Awang Othman & Muhammad Arifin (1999), “Percukaian Tanah Menurut Perspektif Islam”, Jurnal Syariah, vol. 7, no. 1, 43-56. Muhammad Diya’ al-Din al-Ra’is (1980), al-Kharāj wa al-Nuzum al-Māliyyah li al-Dawlah al-Islamiyyah, Kaherah: Dar al-Thurat. Muhammad Firdaus Nurul Huda (2002), Kesan Perubahan Sosial Terhadap Hukum Islam, Selangor: Thinker’s Library Sdn. Bhd. Muhammad Thabit al-Fandi (n.d.), Dā’irat al-Ma‘ārif al-Islāmiyyah Naqalaha ila al-Lughah al-‘Arabiyyah, al-Qahirah: Mat ba’ah Mustafa al-Babi alHalabi, vol. 8. Mawardi, al- (2000), al-Ahkam al-Sultaniyyah: Prinsip-Prinsip Negara Islam, Fadhli Bahri (trans.), Jakarta: Darul Falah. Naziruddin Abdullah (2005), “Polisi Pentadbiran dan Pengurusan Tanah: Analisa Perbandingan antara Kanun Tanah Negara dan Hukum Islam”, Jurnal Syariah, vol.13, no. 2 (2005), 125-145. Qudamah b. Jaafar (1965), Taxation in Islam, A. Ben Shemesh (trans.), Leiden: E.J. Brill. Rahimin Affandi Abdul Rahim, Paizah Ismail and Nor Hayati Mohd Dahlal (2009), “Ijtihad Dalam Institusi Fatwa di Malaysia: Suatu Analisis”, Jurnal Syariah, vol. 17, no.1, 195-222. 656
29. The Dynamism In The Implementation Of al-Kharaj During The Islamic Rule (634-785AD) Richard S. Cooper (1976), “The Assessment and Collection of Kharāj Tax in Medieval Egypt”, Journal of The American Orientalis Society, vol. 96, 365-382. S.A. Siddiqi (1975), Public Finance in Islam, Lahore: SH Muhammad Ashraf Kashmiri Bazar. S.M.Hasanuz Zaman (1981), Economic Functions of an Islamic State: The Early Experience, Karachi: International Islamic Publishers. Subhi Salih (1968), al-Nuzum al-Islamiyyah: Nash’atuha wa Tatawuruha, Beirut: Dar al-‘Ilm Li al-Malayin. Subhi Salleh (1983), Sistem Ekonomi dan Kewangan Dalam Islam, Osman Khalid (trans.), Kuala Lumpur: Bahagian Hal Ehwal Islam Jabatan Perdana Menteri. Ugi Suharto (2005), Kitāb al-Amwāl: Abu ‘Ubayd’s Concept of Public Finance, Kuala Lumpur: Islamic Thought and Civilization (ISTAC). Yahya b. Adam (1958), Taxation in Islam: Yahya Ben Adam’s Kitab al-Kharaj, A. Ben Shemesh, (trans.), Leiden: E.J. Brill, vol.1. Yahya b. Adam (D. 203H), Kitab al-Kharaj, (Syarah) Ahmad Muhammad Syakir (D.1377H), Mesir: Matba’ah al-Salafiyyah wa Maktabatuha. Yusof al-Qardawi (1985), Kedudukan Non-Muslim Dalam Negara Islam, Mat Saat Abd. Rahman (trans.), Kuala Lumpur: Bahagian Hal Ehwal Islam, Jabatan Perdana Menteri. Ziaul Haque (1984), Landlord and Peasant in Early Islam, Islamabad: Islamic Research Institute. 657
30. Jurnal Syariah , Jil. 18, Bil. 3 (2010) 629-658 658