Draft Constitution 102 to 111

The Treasury (Bayt al-Mal)

Article 102

The treasury (Bayt al-Mal) is the administration responsible for the revenues and expenditure in accordance with the Shari’ah rules in terms of their collection, storage and spending. The head of the office of the treasury is called the Treasurer of the Treasury (Khazin Bayt al-Mal). The offices in the provinces fall under it and the head of each office is called the Trustee of the Treasury (Sahib Bayt al-Mal).

Bayt al-Mal is a noun made from a genitive construction. It is used to mean the place where the state’s revenues are kept until they are spent. It could mean the authority responsible for receiving and spending the funds entitled for Muslims.

We have adopted – as we explained earlier - that the governor is given a special authority that excludes the army, judiciary and funds. Thus, the whole army will be a central department (presided over by the Amir of Jihad). The judiciary will be a central department (known as judiciary) and the entire funds form a central department (known as the treasury), which is separate from any other organisation in the State, and is subordinate to the Khalifah as are the other organisations.

This is in addition to the fact that there are abundant evidences that the treasury was under the direct authority of the Messenger  or the Khalifah, or whoever he appointed to preside over it. The Messenger of Allah  would sometimes deal directly with the funds and he  had a safe. He  used to receive the funds, distribute them, and spend them in their due place. On other occasions he  used to appoint somebody to take care of that. This is what the righteous Khulafaa’ used to do after him , where they either took charge of the treasury by themselves, or they delegated others to do that on their behalf.

The Messenger of Allah  used to place the funds in the mosque, as Al-Bukhari narrated from Anas, he said: “Some funds were brought to the Prophet  from Bahrain. He said: ‘Spread it in the mosque.’”

He would sometimes put it in one of the rooms of his wives, as it was narrated by Al-Bukhari from Uqbah, he said: “I prayed the afternoon behind the Prophet  in Madinah. He gave salam at the end of the prayer and stood up quickly. He crossed the lines of the Muslims behind him going to some of his wives' rooms. The people were amazed at his speed. He came back to them, and saw they were surprised at his speed. He said, ‘I remembered some gold dust with us, so I hated it would occupy me, and I ordered it should be divided’”.

With respect to keeping it in a safe - Muslim narrated from Umar (ra) that he said: “So I said to her, ‘Where is the Messenger of Allah ?’ She said ‘He is in his safe in the wooden oriel.’ I gazed in the safe of the Messenger of Allah  and I suddenly saw an amount of barley of about one sa' (a small cubic measure) and equal to that of tree fruits used for juice on one side of the room. I saw as well an un-tanned skin hanging in the room. My eyes wept. The Prophet said ‘What makes you weep, son of al-Khattab?’ I said ‘O Prophet of Allah! Why I should not weep when this mat has influenced your side and this is your safe in which I do not see except that which I see’.”

At the time of the righteous Khulafaa’, the place in which funds were kept came to be known as Bayt al-Mal. Ibn Sa‘d mentioned in al-Tabaqat from Sahl Ibn Abu Hathmah and others: “Abu Bakr used to have a house in Al-Sanh not guarded by anybody. So it was said to him, ‘Why do you not put somebody to guard it?’ He said, ‘It has a lock.’ He used to give out that which was in it until it became empty. When he moved to Madinah, he moved it and placed it in his house.” Hinad narrated in al-Zuhd with a good chain from Anas, he said: “A person came to Umar and said, ‘O Leader of the Believers! Support me for I want to go in Jihad. Umar replied, ‘Hold his hand and take him to Bayt al-Mal so he can take the funds he wants.” In al-Sunan al-Kubra by al-Bayhaqi, which was authenticated by Ibn Hajar from ‘Abd Allah b. Wadi‘ah, said: “Salim, the servant of Abu Hudhayfah, was a servant to a woman from us called Salma bint Ye’ar, she freed him in her days of Jahiliyyah. When he was killed in al-Yamamah, his heritage was brought to Umar Ibn al-Khattab. So he called upon Wadi‘ah Ibn Khidham and said, ‘This is the heritage of your servant, and you deserve it more.’ He said, ‘O Leader of the Believers. Allah has made us of no need to him. Our woman has freed him unrestricted; so we do not want to bring disgrace to ourselves, (or to bring loss upon us) from his matter.’ So, Umar put his inheritance wealth in the Bayt al-Mal.” Al-Bayhaqi and al-Darimi narrated, and Ibn Hazm authenticated it: “Sufyan b. ‘Abd Allah b. Rabi’ah al-Thaqafi found a leather bag and brought it to Umar b. Al-Khattab. He said, ‘Announce it for one year; and if it was recognised (by someone) then give it (to them), otherwise it is yours.’ No body recognised it, so he met him the next year and mentioned it to him. Umar said, ‘It is yours, for the Messenger of Allah  ordered us to do that.’ He said, ‘I do not want it.’ Umar took it and put it in the Bayt al-Mal.” Al-Darimi and Ibn Abi Shaybah narrated from ‘Abd Allah b. ‘Amru who said: “A servant passed away at the time of Uthman without having a relative. So, he ordered that his wealth be put in Bayt al-Mal.” Ibn ‘Abd al-Barr narrated in al-Istidhkar from Anas Ibn Sirin “Ali used to divide the funds until the Bayt al-Mal became empty, then he would wash it and sit inside.”

This is in regards to the first meaning of Bayt al-Mal, which is the place. With regards to the second meaning, which is the responsible authority, this is necessitated by the fact that the funds are sometimes not kept in a place, such as the lands, oil wells, gas wells, mines, and the charity funds that are taken from the wealth and paid to its deserving people without being kept in a place. The Bayt al-Mal is sometimes used to mean the responsible authority as narrated by al-Bayhaqi in Sunan, Ahmad in al-Musnad, and ‘Abd al-Razzaq in His Musannaf, from Lahiq Ibn Hameed “Ibn Mas’ood was sent to preside over the judiciary and Bayt al-Mal.” It would not mean that Umar (ra) sent him as a doorman to the Bayt al-Mal, but rather he meant that he was responsible to collect and spend the funds. This is the same meaning as narrated by Ibn Al-Mubarak in al-Zuhd from al-Hasan, when the leaders of Basra came with Abu Musa al-Ash‘ari and requested him to assign food for them. He said, in concluding his words to them: ‘O Leaders! I have assigned two sheep and two patches of arable land to you from the Bayt al-Mal’; thus it can mean the responsible authority.

The one that disposes of the revenues and deals with the expenses of Bayt al-Mal is the Khalifah.

The Messenger of Allah  was the one that received the donations of ‘Uthman (ra) to the army of hardship (‘usrah) in his lap. Ahmad narrated and Al-Tirmidhi reported a narration - they considered it to be Hasan gharib, and al-Hakim authenticated it and al-Dhahabi agreed with him - from ‘Abd al Rahman b. Samrah that he said:  “‘Uthman came to the Prophet  with one thousand dinars when he prepared the Army of the Hardship (Tabuk) and he emptied it in the lap of the Prophet . He said the Prophet  started to turn them around and say: ‘Uthman will not be harmed by any work he does after today, and he repeated it many times”. He  used sometimes to divide them by himself. Al-Bukhari narrated from Anas: “Funds from Bahrain were brought to the Prophet . He said ‘spread them in the mosque’. When he finished the prayer, he sat down close to them and left nobody he saw without giving him. So, when the Messenger of Allah  stood up there was not a single dirham left with them”.

Abu Bakr (ra) took responsibility of dividing by himself the funds coming from Bahrain. Al-Bukhari narrated from Jabir who said: “The Messenger of Allah  said: ‘If funds came from Bahrain, I would give you thus and thus and thus, i.e. three times. When the Messenger of Allah  passed away and the funds came from Bahrain, Abu Bakr ordered somebody to call: Whoever has some debt or something with the Messenger of Allah  let him come to us. So I went to him and said the Messenger of Allah  said: ‘for me is thus and thus, so he gave me three times.’”

In the narration mentioned above of Sufyan al-Thaqafi regarding the leather bag which he found and announced to Umar (ra): “ Umar took it and put it in the Bayt al-Mal”. Al-Shafi‘i reported in al-Umm “More than one of the scholars told us that when the spoils of Iraq reached Umar Ibn al-Khattab, the trustee of the Bayt al-Mal told him, ‘let me put them in the Bayt al-Mal’. He said: ‘No! By the Lord of the Ka’bah, it will not be kept in any house until I have divided it.’ So he ordered it should be put in the mosque, and leather mats were put on top of it and men from the Muhajir and al-Ansar guarded it. In the morning, al-‘Abbas b. ‘Abd al-Muttalib and ‘Abd al-Rahman b. ‘Awf went out with him, he was either holding the hand of one of them, or one of them was holding his hand. When they saw him, they removed the leather mats away from the funds. So, he saw a scene he never saw before. He saw the gold, sapphire, crystals, and pearl sparkling and he cried. One of them said to him, ‘By Allah! This is not a day of crying, rather a day of praising and delight.’ He said ‘By Allah! I did not think of it your way. Rather, such funds will not increase in any people except their harm falls between them.’ Then he turned to the Qiblah, rose up his hands and said, ‘O my Lord! I seek protection with you from being allured, for I hear You (swt) saying: “We lead them on from whence they do not know”. (TMQ 7:183). Then he said, ‘Where is Suraqah Ibn Ja’sham?’ He was brought to him while his arms were hairy and slim. He gave him the two bracelets of Kisra. He said, ‘Wear them’ and he did. He then said, ‘Allah is great.’ He said, ‘Allah is Great’ He said, ‘Say all Praise is to Allah, who wrested them from Kisra Ibn Hirmiz and dressed Suraqah b. Ja‘sham with them, a Bedouin from Bani Midlij.’ He started to turn over the funds with a stick and said, ‘Indeed the one that rendered that is honest.’ A man said to him, ‘Let me tell you, you are the trustee of Allah (ameen), and they render to you that which you rendered to Allah. So, if you reveled they would revel.’ He said, ‘You said the truth.’ then he distributed it”. We mentioned before also the narration of ‘Abd Allah b. ‘Amru as reported by al-Darimi “A servant passed away at the time of Uthman without having a relative. So, he ordered that his wealth be put in Bayt al-Mal”. This is aside from the narration of Anas Ibn Sirin in al-Istidhkar that “Ali used to divide the funds until the Bayt al-Mal became empty, then he would wash it and sit inside (on the floor).”

The Messenger of Allah  would sometimes appoint one of his  companions to preside over the division of the funds, or he  used to appoint him over some of the issues of the funds. Al-Bukhari reported a narration from ‘Uqbah that the Messenger of Allah  said: “I remembered some gold dust with us, so I hated it would occupy me and so I ordered it should be divided”. The narration of Ibn Shihab, as reported by Ibn Abi Shaybah through a narration considered Hasan by al-Hafiz Ibn Hajar al-‘Asqalani, al-Mundhiri and al-Haythami says: “The Messenger of Allah  entered the safe of Bilal in which he put the Sadaqah (charity) and found in it a heap of dates, so he said, ‘What are these dates, O Bilal?’ He said ‘O Messenger of Allah, I took it for your hard times.’ He said, ‘Do you feel safe from waking up and finding it to fume in Hell? Spend and do not feel fear of reduction or stinginess from the Owner of the Throne.’” And also in the narration: “‘Abd al Rahman b. ‘Awf used to take charge of the Sadaqah of camels and sheep at the time of the Messenger of Allah , and Bilal used to take charge of the Sadaqah of fruits; while Mahmiyyah Ibn Juz’ used to take charge of the fifth (of the Messenger of Allah and his household)”. And Khalifah said: “And Bilal was responsible for his expenses”.

Ibn Hibban reported in his Sahih from ‘Abd Allah b. Lahya Al-Huzani, who said: “I met with Bilal, the mu’adhin of the Messenger of Allah  and said, ‘O Bilal! How much were the expenses of the Messenger of Allah ?’ He replied, ‘He did not have anything. I was the one that took care of that since he was sent as a Messenger till the day he  passed away. If a Muslim came to him and he  saw him not dressed he ordered me to rush and borrow some money so as to buy him a cloak to dress him and also feed him’”. Muslim reported from Abu Rafi‘, the servant of the Messenger of Allah ,  who said: “The Messenger of Allah  borrowed a young camel. Then he received some camels of the Sadaqah, and so he ordered Abu Rafi‘ to repay the man his young camel. I said I did not find in the camels except a four year old good camel. The Messenger of Allah  said: give it to him, for the best people are those who are best in repayment”.

It is also mentioned in the narration of Ibn Abbas, which is agreed upon: That when the Messenger of Allah  sent Mu’adh to Yemen, he  said: “If they obeyed you then inform them that Allah has obliged upon them a Sadaqah which is taken from their rich and given to their poor. If they accepted that from you, then avoid taking the best of their wealth, and protect yourself from the invocation of the oppressed, for there is no curtain between it and Allah”. It is also reported in Muslim from Abu Hurayrah “that the Messenger of Allah  sent Umar to collect the Sadaqah”.

The Righteous Khulafaa’ followed him  in his  method, so they used to appoint some other people to run the affairs of funds. Ibn Ishaq and Khalifah said: “Abu Bakr appointed Abu ‘Ubaydah b. al-Jarrah in charge of Bayt al-Mal, and then he sent him to al-Sham”. Al-Dhahabi said commenting on the life of Mu’ayqib that “Abu Bakr and Umar appointed him in charge of the Bayt al-Mal”. In Ibn Kathir’s al-Bidayah wa ‘l-Nihayah he mentioned from ‘Abd Allah b. Zubayr “The Messenger of Allah  used ‘Abd Allah b. al-Arqam b. ‘Abdu Yaghuth as a scribe, and he used to reply to the Kings on his behalf, and it was mentioned that he used to order him to write to some of the Kings and would stamp what he read to him due to the trust he had with him, and he wrote to Abu Bakr and made him responsible for the Bayt al-Mal and Umar b. al-Khattab consented to that”. Ibn Sa‘d narrated in al-Tabaqat and Ibn Hajar in al-‘Isabah that the treasurer of Umar (ra) was his servant Yasar Ibn Numayr. Ahmad in his Musnad and ‘Abd al-Razzaq in Al-Musannaf reported from Lahiq b. Hamid that he said, “And he sent Ibn Mas‘ud in charge of judiciary and Bayt al-Mal”, meaning to Kufa. Khalifah reported from Malik Ibn Anas from Zayd b. Aslam that “Umar appointed ‘Abd Allah b. Arqam in charge of the Bayt al-Mal”. Ibn Khuzymah reported in his Sahih from ‘Urwah b. Al-Zubaiyr that “‘Abd al-Rahman b. ‘Abd al-Qari said, ‘I was in charge of the Bayt al-Mal at the time of Umar b. al-Khattab”. Ibn Hajar narrated in al-Fath in the context of speaking about the virtues of ‘Abd Allah b. Mas‘ud: “And he was appointed by Umar and ‘Uthman in charge of the Bayt al-Mal in Kufa”. Al-Jahshayari mentioned in al-Wuzara’ wa ’l-Kuttab “that ‘Abdullah b. Arqam Ibn ‘Abdu Yaghuth, one of the scribes of the Prophet, used to run the Bayt al-Mal to him”, meaning to ‘Uthman (ra). Al-Hakim mentioned in al-Mustadrak from Al-Zubayr Ibn Bakkar that, “Abdullah Ibn Al-Arqam Ibn Abdu Yaghuth was in charge of Bayt al-Mal at the time of Umar and the beginning of the authority of Uthman till he passed away; and he had some companionship (with the Messenger)”. Ibn ‘Abd al-Barr said in al-Isti’ab: “Zaid Ibn Thabit was in charge of the Bayt al-Mal during the Khilafah of Uthman; Zaid used to have a slave called Wahib, Uthman saw him helping them in the Bayt al-Mal, so he said: ‘Who is this?’ Zayd replied, ‘A slave to me.’ Uthman said, ‘I see that he helps the Muslims, and he is entitled for a right, and I allocate it to him.’ So he allocated to him two thousand. Zayd said, ‘By Allah, you cannot allocate two thousand to a slave’, so he allocated to him one thousand”. Al-Sadfi mentioned in the book about the scholars of Egypt and the companions of the Messenger of Allah  who entered it: “Abu Rafi‘ was referred after that to ‘Ali b. Abi Talib, so he put him in charge of Bayt al-Mal in al-Kufa”. Ibn ‘Abd al-Barr said in al-Isti’ab: “‘Ubayd Allah b. Abu Rafi‘ was a treasurer and secretary to ‘Ali”. Al-‘Ayni mentioned in ‘Umdat al-Qari': “‘Abd Allah b. Wahb al-Suwa’i, ‘Ali used to honour him, love him and trust him, so he was put in charge of Bayt al-Mal in Kufa”. ‘Ali appointed Ziyad in charge of Basra. Al-Jahshiyari said: “When he left Basra, he placed him in charge of Al-Kharaj and diwan".

The treasury (Bayt al-Mal) can be divided into two parts:

Revenues: It includes three registers (diwan):

• The register of the booty and kharaj: This includes the spoils of war, kharaj, lands, Jizya, booties and taxes.

• The register of the public property: This includes oil, gas, electricity, minerals, seas, rivers, lakes, springs, forests, pastures and hima (protected lands).

• The register of Sadaqah: This includes zakah of money, merchandise, harvest and fruits, camels, cows and sheep.

Expenditure: This includes eight registers:

• The register of the Dar al-Khilafah.

• The register of the State’s services.

• The register of grants.

• The register of jihad.

• The register of expenses of Sadaqah.

• The register of expenses of public property.

• The register of emergency.

• The register of general budget, general accounting and general inspection.

The Media

Article 103

The institution of the Media Office is responsible for drawing up and executing the political media strategy for the State in order to support the interests of Islam and the Muslims. Internally, it works to build an Islamic society that is strong and cohesive, and it refutes that which is malicious while confirming that which is good. In external affairs it is to promote Islam during peace and war, in a manner that explains the greatness of Islam, its justice and the strength of its army, and expose the corruption and oppression of manmade system and the weakness of its army.

Media is one of the important matters for the call to Islam (Da’wah) and the State. It is not one of the interests of the people that are under the authority of the department of peoples’ affairs. Rather, it is directly connected to the Khalifah as an independent institution, just like any of the institutions of the State.

The presence of a distinguished media policy that presents Islam strongly and effectively would provoke the minds of the people to turn toward Islam, to study it and to think about it. It also facilitates the annexation of Islamic lands to the Khilafah State. Furthermore, there are many issues of media which are closely related to the State and they cannot be published without the Khalifah's instruction. This is manifested in the military matters and related issues, such as the movement of the armies, and the news of victory and defeat and the military industries. This type of news must be linked directly to the Imam so he can decide which news has to be concealed and which news must be announced and advertised.

The evidence for this is the Book and the Sunnah.

With regards to the Book, His (swt) saying: “And if any tidings, whether of safety or fear, come to them, they announce it, whereas if they had referred it to the Messenger and those in authority, then those among them who are able to think out the matter would have known it” (TMQ 4:83) - the subject of the verse is the news.

With regards to the Sunnah it is the narration of Ibn ‘Abbas about the conquest of Makkah as is reported by al-Hakim in al-Mustadrak, described as authentic based on the condition of Muslim, and Al-Dhahabi confirmed that. The narration mentions:  “The news was obscured from Quraysh; so the news of the Messenger of Allah  would not reach them, and nor would they know what he is planning regarding them”. There is also the Mursal (narration not directly connected to the Messenger  rather the name of a companion is missing) of Abu Salamah as reported by Ibn Abi Shaybah, which mentions: “Then the Prophet  said to Aaisha: ‘Prepare me, and do not inform anyone about it…and then he ordered that the highways be obstructed, and so the people of Makkah were kept in the Dark and no news reached them.’”

There is also the narration of Ka’b which is agreed upon regarding the Battle of Tabuk which says:  “The Messenger of Allah  never intended an expedition without alluding to something else, until he made during a very hot weather, a distant place, a desert and a huge enemy. So, he explained to the Muslims their matter to be ready for their raid, and he thus informed them of the destination he wants.”

There is also the narration of Anas as reported by Al-Bukhari “The Prophet (saw) announced the death of Zayd, Ja'far and Ibn Ruwaha before the news of their death reached him. He said: Zayd took the flag but he was killed, then Ja'far took it and he was killed, then Ibn Ruwahah took it and he was killed; he said that while he was crying. Lastly one of the swords of Allah took it till Allah granted them victory.”

Some of the applications of this rule at the time of the Righteous Khulafaa’ is that which is narrated by Ibn al-Mubarak in the subject of jihad; Al-Hakim reported in al-Mustadrak - and he considered it authentic based on the condition of Muslim, which al-Dhahabi confirmed - from Zayd b. Aslam from his father from Umar b. al-Khattab (ra) “that he was informed that ‘Abu ‘Ubaydah was surrounded and the enemy rallied against him. So, Umar wrote to him, ‘Peace is upon you. After that, there is not any difficulty that befalls a believer except Allah made for him a way out of it; and never a hardship would defeat two eases.’“O you who believe! Endure, out do all others endurance, be ready and observe your duty to Allah, in order that you may succeed.” (TMQ 3:200) He said: Abu ‘Ubaydah wrote to him, “Peace is upon you, after that Allah says in His Book:  “Know that the life of this world is only play, and idle talk, and pageantry, and boasting among you, and rivalry in respect of wealth and children.” (TMQ 57: 20). He said, then Umar went out holding his letter, sat on the pulpit and read it to the people of Madinah and said, “O people of Madinah! Abu ‘Ubaydah expresses to you that you should show interest in Jihad.”

There are other types of news which have no direct connection to the State, and do not require the direct opinion of the Khalifah, such as the daily news, the political, cultural, and scientific programmes, and the international affairs. Though these may interfere with the viewpoint of life in some parts, and with the view of the State towards international relations, but despite that the type of State control over them differs from the first type of news.

Accordingly the media institution must contain two main departments:

The first: Its task is related to news that has connection with the State, such as the military matters, the military industry and international relations, and so on.

The task of this department is the direct supervision of such news. So, such news is not broadcasted in the state media or the special sources of media except after their presentation to the institute of media.

The second: is related to other news; and its supervision of them is not direct. Both state and private media do not need any permission for presenting such news.

Article 104

The media owned by any citizen of the State does not require a permit; rather they are simply required to inform the media office, such that the office knows about the media means that are being established. The owner and the editors of any media means are responsible for every article they publish and are accounted for anything which contradicts the Shari’ah in the same manner as any other citizen.

Sources of media do not require any permission for work. Rather, every citizen in the Islamic State is allowed to set up a source of media, whether written, audio or visual. He must only inform the media institution about the media outlet he wishes to establish.

He also needs permission for publishing the news connected with the State, as mentioned above. With regards to the other news, he can publish it without prior permission.

In all cases, the owner of the media outlet is responsible for the information he publishes, and he will be accounted for any violation of the Shari’ah like any other citizen.

The Ummah Council (The Consultation (shura) and Accounting (muhasabah))

Article 105

The individuals who represent the Muslims’ views to the Khalifah are the Ummah Council, and the individuals who represent the people in the provinces are the Provincial Councils. It is permitted for  non-Muslims to be members in the Shura council for the sake of raising any complaints against any oppression by the rulers or misapplication of the laws of Islam.

This is a Council formed by individuals representing the opinion of the Muslims at large, to which the Khalifah can refer to, in order to consult on various issues. They in turn are the representatives of the Ummah in holding the rulers accountable. This is deduced from the Messenger of Allah’s  consultation with some men from the Ansar and the emigrants who represented their people. It is also derived from the Messenger’s  assigning some of his companions for consultation (shura). He used to refer to them more than others for seeking opinion, such as Abu Bakr (ra), Umar (ra), Hamza (ra), ‘Ali (ra), Salman al-Farisi (ra), Hudhayfah (ra)….

It is also deduced from the fact that Abu Bakr (ra) designated some men from the Muhajir and the Ansar for seeking their opinion when something happened. The people of the consultation (shura) at the time of Abu Bakr (ra) were the scholars and the people capable of giving legal edicts. Ibn Sa’ad reported from al-Qasim: “when something happened and Abu Bakr wanted to consult the people of opinion and the people of jurisprudence, he called from the emigrants and the Ansar. Umar, ‘Uthman, ‘Ali, ‘Abd al-Rahman b. ‘Awf, Mu’adh b Jabal, ‘Ubay b. Ka‘b and Zayd Bin Thabit. They all used to give their opinion during the Khilafah of Abu Bakr. People would also take their legal edicts (fatwa). When Umar became Khalifah he would also call these people”. There are also evidences that call upon the Muslims to account the rulers. Muslims exercised such accounting as happened at the time of the Righteous Khulafaa’. As the Ummah is allowed to be represented in consultation (shura), she is also allowed to be represented in accounting. All of this indicates that it is allowed to have a special council that represents the Ummah in accounting and in the consultation that is established by the text of the Quran and Sunnah. It is called the Ummah Council because it represents the Ummah in consultation and accounting.

It is permitted for non-Muslim citizens to be members of the Council, in order to file complaints against any injustice perpetrated against them by the rulers or against any misimplementation of Islam upon them or the lack of services to them or the like.

Article 106

The members of the Provincial Councils are directly elected by the people in their provinces, and the number of members of any Provincial Councils is decided according to the ratio  of the inhabitants in such province to the whole population of the State. The members of the Ummah Council are elected directly by the Provincial Councils. The start and end of the terms of the Ummah Council are the same as those of the Provincial Councils.

The members of the Ummah Council are elected and not appointed. They are representatives of the people to voice the opinions of the public and the representative should be chosen by the person whom he represents and should never be imposed upon him. Furthermore, the members of the Ummah Council are representatives of the people’s opinions, whether they are individuals or groups; so to know the representative of people in a large area, and those peoples who are not well known, does not come about unless this representative is chosen by them. Also, the Messenger of Allah  did not choose those whom he consulted based on their ability, competence and personalities; rather he chose them because they were chiefs among their people, regardless of their ability and competence; in the second Bay’a of al-‘Aqabah, the Muslims who gave him the Bay’a were not known to him and this is why he left the matter of choosing the chiefs to them, by saying: “Choose from among you twelve leaders who will be responsible for themselves and their people” (as reported in the Sirah of Ibn Hisham from Ka’b b. Malik).

We can thus conclude from the fact that the members of the Ummah Council represent the opinion of the Muslims at large, and since the reason (‘Illah) for which the Council is founded is to represent the individuals and groups in voicing their opinions and in holding the rulers accountable, and since this cannot be achieved if the persons were not known (to the Khalifah) unless there was a general election, all of this proves that the members of the Ummah Council should be elected and not appointed.

The method of election is as follows:

1. In accordance with Article 56, a Provincial Council is elected for two goals: The first is to provide necessary information to the governor (wali) about the situation and needs of the province (wilayah). The purpose of that is helping the governor in conducting his task in a way that provides a comfortable and secure life for the people of the province and facilitates the fulfillment of their needs and the provision of their services. The second is to express contentment or complaint about the governance of the governor over them. This is because the complaint of the majority of the council of the province against the governor obliges his removal. This means the reality of the Provincial Council is administrative for helping the governor by informing him of the reality of the province and for expressing the contentment or complaint about him. All of this motivates him to improve his work. This council has other mandatory powers such as those of the Ummah Council, as explained below.

2. In accordance with Article 105 and the previous explanation, an Ummah Council is set up (for consultation and accounting), which must be elected by the Ummah and representative of her. It has mandatory powers which will be explained in the next article.

3. This means there will be election for selecting the members of the Provincial Council and another election for the members of the Ummah Council.

4. To facilitate the election process and save the citizens from repeated elections, we adopt the election of the Provincial Councils first, then those who won in the Provincial Councils would gather and elect from among themselves the Ummah Council. This means the Provincial Council would be directly elected by the Ummah, while the Ummah Council would be elected by the Provincial Councils. Hence, the beginning and end of the term of the Ummah council is the same as that of the Provincial Councils.

5. One that is elected from the Provincial Councils to the Ummah Council is replaced by the one with the highest votes among those who failed in the elections of the Provincial Councils. A lot is cast between those who got the same number of votes.

6. The people of the Dhimmah elect their representatives in the Provincial Councils and these representatives elect their representatives in the Ummah Council. All of this takes place at the same time of the election of the Provincial Councils and the Ummah Council in the State.

Consequently, a law has been prepared that takes into consideration the matters mentioned, and explains the measures used for the election of the Provincial Councils and the Ummah Council.

Article 107

Every citizen who is adult and sane, has the right to be a member of the Ummah Council or the Provincial Council, whether they are male, female, Muslim or non Muslim; the non-Muslim member is restriced to raising complaints regarding the oppression of the rulers or the misapplication of the laws of Islam.

Any Muslim who holds the citizenship of the State, provided he is mature and sane, has the right to be a member of the Ummah Council, irrespective of whether they were male or female. This is because the Council of the Ummah has no mandate to rule and it does not come under the narration that prevents the woman from becoming a ruler. It is rather within the issue of consultation (shura) and accounting, which is a right for both men and women. In the thirteenth year of the Messenger of Allah’s  Prophethood, in other words in the year he emigrated, there came to him  seventy-five Muslims, among whom were two women, and they all gave him the Second Bay’a of al-‘Aqaba, which was a Bay’a of war and fighting and a political Bay’a. Once they had all given their Bay’a, he said to all of them: “Choose from among you twelve leaders (naqibs) who will be responsible for themselves and their people.” This is part of a long narration reported by Ahmad through Ka’b Bin Malik and it is an order from him  addressed to everyone, to elect from all who were present. He  did not specify the men nor exclude the women, neither in regard to who would select nor to who should be selected. The mutlaq (unrestricted) rule should be taken as such, unless there is evidence that restricts it; and the ‘aam (general) rule should also be taken as such, unless there is evidence that specifies it. In this case the speech was unrestricted and general. No evidence of specification or restriction has been reported, which indicates that the Messenger of Allah  ordered the two women to elect the naqibs, and gave them the right to be chosen as naqibs from among the Muslims.

The Messenger of Allah  sat once to take the Bay’a from the people, with Abu Bakr (ra) and Umar (ra) sitting with him, and both men and women gave him the Bay’a. This Bay’a was one for ruling, and not on Islam, for the women were already Muslims. After the Bay’a of the Redhwan in Hudaybiyah the women gave him their Bay’a too. Allah (swt) says: “O Prophet! When believing women come to you to take the oath that they will not associate in worshipping any other thing whatsoever with Allah, that they will not steal, that they will not commit adultery (or fornication), that they will not kill their children, that they will not utter slander intentionally or in falsehood, and that they will not disobey you in any just matter, then do receive their oath, and pray to Allah for the forgiveness of their sins, for Allah is oft-forgiving, most merciful”.(TMQ 60:12)

This Bay’a was also a Bay’a on ruling, as the Quran states that the women were believers, and the Bay’a was that they would not disobey him in any good thing.

In addition to that, the woman has the right to represent and be represented in voicing an opinion. This is because she has the right to voice her opinion, so she can choose her representative; and moreover since deputyship does not necessitate being a man, she has the right to represent those who elect her.

It was also confirmed that our master Umar (ra) used to seek the opinion of the Muslims when a problem faced him, whether it related to the rules of the Shari’ah or governing or any of the actions of the State. When a problem faced him he used to call the Muslims to the mosque, and he used to call the men and women, and seek the opinion of all of them. He withdrew his opinion when a woman opposed him regarding limitation of the dowry.

Non-Muslims have the right, like the Muslims, to be represented in the Council of the Ummah, and to be representatives of their electorate in it, so as to express the opinion on their behalf regarding the misapplication of the rules of Islam upon them and the oppression of the ruler that might fall upon them. This is because Allah said “So ask the people of knowledge if you don’t know” (TMQ 16:43).

However, non-Muslims would not be allowed to voice their opinion in matters related to legislation, because the Islamic legislation emanates from the Islamic belief (‘Aqidah). It is a host of practical divine rules deduced from their elaborate evidences, which treat human problems according to a specific viewpoint outlined by the Islamic belief. The non-Muslim embraces a doctrine that is alien and contradictory to the Islamic ‘Aqidah and his viewpoint about life contradicts the Islamic viewpoint and therefore his opinion is not sought in matters of legislation.

The non-Muslim also does not have the right to elect the Khalifah, nor to participate in the short listing of the candidates from whom the Khalifah is to be elected, for he has no right in ruling. As for other matters that form part of the Ummah Council’s mandatory powers, he is just like the Muslim in these matters and in voicing an opinion regarding them.

Article 108

Shura (consultation) and Mashwarah (deliberation) is the taking of opinion in its absolute meaning, and it is not binding in legislation, definitions, and nor intellectual issues such as disclosing facts, nor technical and scientific issues; and it is binding when the Khalifah consults in any operational issue and the actions that do not require research and deep examination.

Shura is from the verb shawara, which is to seek opinion and consultation, and it is said I sought shura from him – is to seek mashurah for him.

Shura and mashurah have the same meaning as mashwara. In Lisan al-‘Arab it mentioned: it is said So and so is good mashurah and mashwarah, in two dialects. Farraa’ said: al-mashura comes from mashwarah, and then it became mashura for the sake of ease. And al-Layth said: al-mashwara is on the form mafa‘la derived from al-isharah, and it is said: mashura, which is shura and mashura and similarly mashwarah, and you say ‘I did shura with him in an issue, and I sought shura from him’, and it is mentioned in Mukhtar al-Sihah: al-mashwarah is al-shura, and also al-mashurah, we say from it ‘shaawarahu (I did shura with him) in an issue, and I sought shura from him’, with the same meaning.

The origin of the legitimacy of al-shura is the order of Allah (swt) to His Messenger  to seek consultation with the Muslims when He (swt) said: “And consult (wa shawirhum) them in the issue” (TMQ 3:159), and this indicates a request, and the indication that came with this request, which are reported in the texts, indicates that this is a request for something recommended. These texts are:

1.      Allah praises shura through his praise of the believers, by making the issue of shura linked to them:  “…and those who conduct their affairs by mutual Shura (consultation)” (TMQ 42:38).

2.      The Messenger of Allah  would often consult (take shura) from his companions in many issues, which indicates the extent of his  concern to do it and how he  considered it important and useful and to teach the Muslims after him  to be careful to undertake it. Al-Tirmidhi reported from Abu Hurayrah: “I did not see anyone who took shura (mashura) from his companions more than the Messenger of Allah ”.

3.      The order of Allah (swt) to His Messenger  to conduct mashawara (consultation) with the believers, when He (swt) ordered him  to be kind and remissive towards them, and to seek forgiveness for them, when He (swt) said: “And by the Mercy of Allah, you dealt with them gently. And had you been severe and harsh hearted, they would have broken away from about you; so pass over (their faults), and ask (Allah's) Forgiveness for them; and consult them in the affairs” (TMQ 3:159).

Accordingly the origin of the rule of shura (consultation) is that it is recommended.

However, when the Khalifah consults the Ummah Council, he must adhere to the opinion of the majority in practical affairs that do not require research and deep consideration, such as the internal affairs of the state linked to ruling, education, health, trade, industry, agriculture, and so on, and in the same manner when he is held accountable for actions which are being practically undertaken from these affairs and actions. This is derived from when the Messenger of Allah  left his  own opinion for the opinion of the majority in the issue of leaving Madinah to meet the army of the idol-worshippers in the battle of Uhud. This is despite the fact that the opinion of the Messenger  and the senior companions was to remain in Madinah and not to leave. It is also derived from his   words to Abu Bakr (ra) and Umar (ra) “If the two of you agree in an issue I consult you on (mashura) I will not differ with you” (as reported by Ahmad with a Hasan chain from ‘Abd al-Rahman Bin Ghanam al-Ash’ari).

Whereas if the Khalifah consults the Council on anything else, such as consulting them on technical and conceptual issues that require research and deep consideration, or the affairs of war, insight and strategy, then the opinion of the majority is not binding and the Khalifah retains the right to make the decision. This is derived from the Messenger of Allah’s  acceptance of the opinion of al-Hubab Bin al-Munthir in specifying the place for the battle of Badr and not paying attention to the opinions of the companions; rather he  did not even consult them regarding it. And it is also based upon the rejection of the opinion of the companions by Abu Bakr (ra) in regards to not fighting the apostates and those who withheld their zakah at the beginning of his Khilafah. In the same manner, when the Council holds the Khalifah accountable for an action that has already been practically carried out, the majority opinion is not binding.

Likewise, the opinion of the people is not sought regarding legislation, since the legislation is from Allah (swt) and not the people and consultation (shura) in what Allah (swt) has legislated is only within the permitted (mubah) issues, since in issues other than the mubah there is no choice, rather it is compulsory to accept what is reported of obligations, recommended and disliked issues, or that which is prohibited. Therefore, the actions that there is consultation in are only those that fall under the permitted (mubah) acts.

Article 109

Shura (consultation) is a right for the Muslims alone and the non-Muslims do not have a right to it. It is permitted for all of the subjects to put forward opinions, whether Muslim or not.

The fact that Shura is a right for the Muslims is proven by the two verses “And consult them in the issue” (TMQ 3:159) and “And who conduct their affairs by mutual Shura (consultation)” (TMQ 42:38) with respect to the Muslims, and His (swt) words “So ask the people of knowledge if you don’t know” (TMQ 16:43) with respect to the non-Muslims. So Allah (swt) ordered the questioning of the People of the Book regarding whatever we do not know, and this is proof for the permissibility of taking their opinion, and if it is permissible to take their opinion it is permissible for them to be members of the Shura council.

Article 110

The issues which fall under consultation (Shura) are decided by the opinion of the majority without considering whether it is correct or incorrect. As for any other issues which fall under Shura, the correct opinion is sought without any consideration given to the majority or minority.

The evidence for this is the actions of the Messenger , since in the Battle of Uhud he  took the opinion of the majority, while in the Battle of Badr he  took the opinion of al-Hubab Bin al-Munthir and left his  own opinion, and did not refer to the opinion of the majority. In the Expedition of Hudaybiyah he  held onto his  own opinion alone and paid no attention to the opinions of Abu Bakr (ra) and Umar (ra). In fact, he  did not pay attention to the opinion of all the Muslims, and forced them to abide by his  opinion even though they hated it. So if these three actions are compared with the words of the Messenger  to Abu Bakr (ra) and Umar (ra), “If the two of you agree in Mashura I will not differ with you” (reported by Ahmad), and with the words of Allah (swt) “And consult them in the issue” (TMQ 3:159) and “And who conduct their affairs by mutual Shura (consultation)” (TMQ 42:38), then the explanation of the meaning of the two verses and the narration is that whatever is like the example of the situation of al-Hudaybiyah, which is where the Shari’ah rule is apparent, then it is of the power of the Khalifah to act upon it, and Shura in the issue is not binding. Whatever is similar to the situation of Badr, where the issue requires insight and thought, or where the proposing of an opinion was in a specialist issue, then the correct opinion is sought without any consideration for whether it was the opinion of the majority or of a single person. And whatever is similar to the situation of Uhud, which is the opinion regarding actions, then the opinion of the majority is followed; this is what falls under the category of “Mashurah” and the meaning of the words of the Prophet (saw) to Abu Bakr (ra) and Umar (ra) “If the two of you agree in Mashurah I will not differ with you” (reported by Ahmad).

Article 111

The Ummah Council has five powers which are:

1. (a): The Khalifah has to consult the Council and the Council has the right to advise him in operational matters and actions related to carrying out the affairs of the domestic policy that do not require deep intellectual research and serious examination, like matters of ruling, education, health, economy, trade, industry, agriculture and the like, and the opinion of the Council in these areas is binding.

(b): In the intellectual matters that require deep research and serious examination, and issues which require experience and knowledge, and technical and scientific issues, and similarly the financal issues, the army, and foreign policy, the Khalifah has the right to consult the Council about them and to acquaint himself with its opinion; however the opinion of the Council is not binding in these matters.

2. The Khalifah has the right to notify the Council of the laws and rules which he wants to adopt. The Muslim members of the Council have the right to debate them and voice their opinions regarding those rules. However, if they disagree with the Khalifah regarding the validity of their deduction or their evidence, in terms of their disagreement with the method of adoption from the basis of legislation (usul) adopted in the State, then the decision will be referred to the Court of Madhalim, and its verdict in this matter is binding.

3. The Council has the right to hold the Khalifah accountable for all matters that took place effectively within the State, whether these were related to domestic or foreign affairs, financial affairs, or military matters. The opinion of the Council is binding if the majority’s opinion in such matters is binding, and it is not binding if the majority’s opinion in such matters is not binding.

If the Council and the Khalifah differed about the legitimacy of an action that had been already executed the matter should be referred to the Court of Madhalim to settle the question. Its verdict on the matter is binding.

4. The Ummah Council has the right to express discontent of the assistants, governors or the ‘amils. Its opinion in such a case would be binding and the Khalifah should dismiss them at once. If the opinion of the Ummah Council differed from the opinion of the council of the concerned province regarding contentment and discontent of the governors and ‘amils, the opinion of the council of the province overrides.

5. Muslim members of the Council have the right to restrict the nomination of candidates for the Khilafah from amongst those who fulfilled the qualification conditions as decided by the Madhalim Court. Their opinion in this is binding, and candidates other than those shortlisted by the Council should accordingly not be considered.

This article explains the powers of the Ummah Council. The evidences for these powers are as follows:

The first point, (a): The evidence for the fact that the opinion of the Ummah Council regarding practical actions and matters, which do not require research and deep consideration, is binding, is deduced from the Messenger of Allah’s  compliance with the opinion of the majority in going out of Madinah to meet the army of the idol worshippers in the Battle of Uhud. This is despite the opinion of the Messenger of Allah  and the senior companions to stay in Madinah and not to leave. It is also taken from his saying to Abu Bakr (ra) and Umar (ra): “If the two of you agree in a consulted matter (Mashurah) I will not differ with you” (reported by Ahmad). Therefore, the practical matters related to the opinion leading to an action, in terms of providing services to the citizens for reassuring their livelihood, and in terms of maintaining their security, strengthening their defences and driving danger away from them; the majority opinion of the Council in all of these issues is binding upon the Khalifah even if it disagreed with his wish, which happened with the Messenger of Allah  going out to Uhud in compliance with the opinion of the majority.

The first point, (b): In principle, the Khalifah takes the opinion of the scholars, experts and specialists regarding the matters of this section. This is in accordance with what happened with the Messenger of Allah  when he  took the opinion of al-Hubab b. al-Mundhir, in selecting the location of the Battle of Badr. It was reported in the Sirah of Ibn Hisham:  “When the Messenger  camped at the nearest side of the water of Badr, al-Hubab b. al-Mundhir was not content with that site. He said to the Messenger: “O Messenger of Allah! Did Allah make you camp in this place where we can’t depart from it, or is it the opinion, war and strategy?” He  said: “It is rather the opinion, war and strategy”. Hubab b. al-Mundhir said: “O Messenger of Allah, this is not the (right) place. Move the people till we come to the side of the water near to the people (enemy), we camp there, then we seep away the water from the other part, we build a basin on top of it, we fill it with water. Then we fight against the people where we drink and they do not”. The Messenger of Allah  said: “You gave the (right) opinion”. So the Messenger of Allah  and the Muslims stood up and walked till they reached the near side of the water from the enemy and camped there. Then he  ordered that the water be seeped away which was done. He  built a basin on top of the seeped wells, filled it with water and threw in their (water) pots.” So the Messenger of Allah  agreed with the opinion of al-Hubab and followed it.

In this incident, which has to do with opinion, war and strategy, the views of the people have no weight in taking the decision. Rather the view of the expert is what is considered. Similar to this are technical matters and thoughts which require study and scrutiny, together with definitions. In all such matters, reference is made to the experts and specialists, rather than to the ordinary people’s opinion. There is no value in such matters with the majority, but rather weight is given to knowledge, experience, and specialisation.

This also applies to financial matters, because the Shari’ah has determined the types of funds which must be collected and the areas over which they need to be allocated (spent). The Shari’ah has also determined the cases when taxes are imposed; therefore there is no point in seeking the opinion of the people in the collection and allocation of funds. Similar to this is the army; the Shari’ah has left to the Khalifah the right of managing the army’s affairs, and it determined the rules of Jihad. There is no validity in the opinion of the people over matters decided by the Shari’ah. This also applies to the relationship of the State with other States, because this is of the thought that requires study and deep insight and is related to Jihad. Furthermore, it is a part of opinion, war and strategy. Therefore, there is no point in the opinion of the people in this matter, whether it is the majority or minority. However, the Khalifah is allowed to present these matters to the Ummah Council for its consultation and opinion, because such presentation is from the permitted issues (mubah) and the opinion of the Council in these matters is not binding as in the incident of Badr. Rather the decision is entrusted with the concerned person.

The following examples are to distinguish the difference between points (a) and (b):

For deciding the building of a bridge over a river to serve the interests of the people in a village, almost isolated in terms of communications and the like, then the majority opinion of the council on this matter is binding to the Khalifah in building the bridge to solve the communication problem of the village. As for deciding the right technical location for building the bridge, and the best engineering design of the bridge, whether it should be a suspension bridge or standing over pillars in the river, etc; the experts and specialist people are consulted in such matters, rather than the majority opinion of the council.

Likewise, building a school for the children of a village, where its children find great difficulty in reaching the schools in the towns, the majority opinion of the Ummah Council on this matter is binding to the Khalifah. In regards to the choice of the location of the school in the village in terms of the soil strength suitable for design, as well as the style of its building, whether is possessed by the State, i.e. whether it is built, bought or leased, in such matters the experts and specialist people are consulted and the majority opinion of the council is not sought, though the Khalifah is allowed to consult with them over the matter, but their opinion is not binding.

As regarding a country at the frontiers, defying the danger of an enemy, then the majority opinion of the Ummah Council is binding in terms of the village’s fortification and driving the danger of the enemy away from it, and preventing its exposure to killing and expulsion after any aggression from the enemy. However, the method of building such fortifications and any fighting means used to drive the danger away from it; such things need the consultation of the experts and specialist people, rather than the majority opinion of the council.

The second point: Legislation belongs to Allah (swt) alone. Allah (swt) says:

"Verily, the decision rests with Allah only." (TMQ 12: 40)

"But nay, by your Lord, they will not be true believers until they make you judge of what is in dispute between them, and find within themselves no dislike of that which you decided and submit with full submission." (TMQ 4: 65)

In the explanation of the Messenger  to His (swt) saying: “They have taken as lords beside Allah their rabbis and their monks”, (TMQ 9:31), Al-Tirmidhi reported through ‘Adiyy b. Hatim who said: “I came to the Prophet  while wearing a cross of gold in my neck. He said: O Adiyy! Throw out this idol. And I heard him reading in chapter of Baraa’ah: “They have taken as lords beside Allah their rabbis and their monks” (TMQ 9: 31). He  said: As regarding they did not worship them; but when they allowed them something they took as halal and when they forbade them of something they prohibited it”.

Therefore, legislation is not taken from the opinion of the council, neither by consensus or majority. It is rather taken from the Book of Allah (swt) and the Sunnah of His Messenger , and from that which is indicated by them through valid Ijtihad. Thus, the Messenger  refused the opinion of many Muslims regarding the Hudaybiyah peace treaty, and said: “I am the servant of Allah and His Messenger, and will never disobey his order”. This is because the peace was a revelation from Allah (swt) and therefore the opinion of the people is not sought regarding legislation. Based on that, the adoption of the Shari’ah rules, enacting of laws and the adoption of the rules and canons are of the mandatory powers of the Khalifah alone as explained before. It is all derived from the Shari’ah texts, irrespective if it was from his Ijtihad or that of other respected mujtahids. However, it is allowed for the Khalifah to submit to the Ummah Council whatever he wants to adopt of Shari’ah laws and canons so as to find out its opinion regarding it. This is like what Umar bin al-Khattab (ra) did when he referred to the Muslims over the divine rules, which the companions did not object to, as in the incident of the conquered lands of Iraq, when the Muslims asked him to divide the lands amongst the fighters who opened them. So Umar (ra) asked the people, but his opinion settled on keeping the land with its landlords on condition that they pay a known Kharaj over it in addition to paying the Jizya over their persons. The reference of Umar (ra) and Abu Bakr (ra) before him to the companions for their opinion over the divine rules without an objection from the companions to this, indicates their Ijma’. This serves as evidence that the Khalifah has the right to do that.

With regard to reference to the Madhalim Court in case the Khalifah differed with the Ummah Council regarding the validity of the deduction of these canons, or regarding their evidences or terms of the adoption from the sources (usul) adopted by the State, in this case the authority of the Madhalim judge is to examine the law adopted by the Khalifah, to determine whether it has a Shari’ah evidence and whether the evidence applies to the incident. Therefore, if the Khalifah differed with the Council (in other words, with the majority of the Council) over the law which the Khalifah adopted in terms of being a valid Shari’ah law or not, then this dispute is settled by the Judge of Madhalim, because it is from his specialty and the opinion of Madhalim Court is binding.

Non-Muslim members of the Council have no right in examining the laws and cannons which the Khalifah wants to adopt. This is because they do not believe in Islam, and because their right is restricted to voicing their concerns regarding any oppression that might fall upon them from the rulers, rather than expressing their view regarding the Shari’ah laws and cannons.

With regards to the third point, its evidence is the general meaning of the texts related to bringing the rulers to task. Ahmad narrated from Ibn Umar, who said: “The Messenger of Allah  said: “There will be Amirs over you who order you of things they do not do. Whoever believed them in their lies and helped them in their injustice he would not belong to me nor I belong to him, and he will not join me on the hawd (basin)”.” Ahmad narrated from Abu Sa‘id al-Khudri, who said: “The Messenger of Allah  said: “…The best of Jihad is (to say) a word of truth before an oppressive ruler”.” Al-Hakim narrated from Jabir from the Prophet  who said: “The master of martyrs is Hamza bin ‘Abd al-Muttalib and a man who stood to an oppressive ruler where he ordered him and forbade him so he (the ruler) killed him.” Muslim narrated from Umm Salama that the Messenger of Allah  said: “There will be Amirs, you recognise some of what they do and deny some. Whoever recognised he would be free of responsibility, and whoever denied he will be safe; but whoever accepted and followed (he will be not).” These texts are in general form and indicate holding to accounting the ruler in accordance with the rules of the Shari’ah. Furthermore accounting can be over any action. This holding to account by the Council of the Khalifah and other assistants, governors, and ‘amils would be over any action which has been actually executed whether this action disagreed with the Shari’ah rule, was wrong or harmful to Muslims, or was unjust or complacent toward the citizens in looking after their affairs. The Khalifah must respond to this accounting and the objections by showing his view and evidence regarding his words, actions, and tasks he undertook, so that the Council can be assured of a good performance, the sincerity, and honesty of the Khalifah. If, however, the Council does not accept the view of the Khalifah and rejects his argument, this must be examined. If this matter was of the issues over which the majority opinion is binding then the opinion of the Council is binding like the issues in (a), otherwise it would not be binding as in the issues in (b). If the accounting, for example, was regarding not providing the school in the previous example then the accounting is binding. If the accounting was regarding the design he chose for the school then his accounting is not binding.

If those who account differed with the rulers over any matter from the legal (Shari’ah) point of view, the matter is referred to the court of unjust acts (Madhalim) by a request from the Council, due to what Allah (swt) says: “O you who believe obey Allah and obey the Messenger and those in authority from amongst you. If you disputed over a matter refer it to Allah and the Messenger.” (TMQ 4:59)

This means that if the Muslims dispute with the people of authority over a matter, they should refer it to Allah (swt) and to the Messenger , that is to arbitrate from the Shari’ah. This means to refer to the Judiciary, that is to the court of unjust acts, and its opinion is binding because it has the power in this case.

In regards to the fourth point, its evidence is that the Messenger of Allah  removed al-‘Ala’ b. al-Hadrami, his ‘amil over Bahrain, because the delegate of ‘Abd al-Qays complained about him to the Messenger . Ibn Sa’d narrated on the authority of Muhammad Bin Umar: “That the Messenger of Allah wrote to al-Ala’ b. al-Hadrami to come to him with twenty men from ‘Abd al-Qays. He reached him with twenty men headed by ‘Abd Allah b. ‘Awf al-Ashajj, and appointed after him al-Mundhir Bin Sawa. The delegate complained of al-Ala’ b. Al-Hadrami so the Messenger of Allah  removed him and appointed Aban Bin Sa’id b. Al-‘Aas and said to him: ‘Take care of ‘Abd al-Qays and respect their chiefs ’.” Also, Umar Bin al-Khattab (ra) removed Sa’d Bin Abi Waqqas (ra) from the governorship simply because of the complaint of the people against him, and he said: “I did not remove him because of deficiency or treason”. This indicates that the people of the province have the right to express their anger and discontent for their governors and amirs, and the Khalifah thus has to remove them. Likewise, the Ummah Council is allowed, as a representative of all Muslims in the State, to express its anger and discontent for the governors and ‘amils and the Khalifah has to remove them immediately if the complaint came from the majority of the Provincial Council or the majority of the Ummah Council. In the case of conflict between the views of these two councils, then the priority is given to the Provincial Council, for it is more aware and more acquainted than the Ummah Council of the condition of the governor.

With regards to the fifth point, this point has two issues: The first one is the short-listing of the nominees and the second is reducing the shortlist to six people and then to two.

As for the first issue, from following the manner of appointing the guided khulafaa’ it appears there was short-listing of nominees made by the representatives of the Muslims directly or through requesting the Khalifah to shortlist the nominees on their behalf.

In the hall of Bani Sa’idah, the nominees were Abu Bakr (ra), Umar (ra), Abu ‘Ubaydah (ra) and Sa‘id b. ‘Ubadah (ra). These were considered sufficient and the nominations were restricted to them. This took place before the people of the hall, and then by the consent of the companions later on, where they gave the Bay’a to Abu Bakr (ra).

Towards the end of Abu Bakr’s (ra) authority, he consulted with Muslims for about three months, discussing with them the post of Khilafah after him. After they discussed this with him they agreed to his nomination of Umar (ra); in other words, the nomination was restricted to one candidate.

Restricting of nominees was more clear and obvious after the stabbing of Umar (ra) for they requested him to nominate candidates for them so he confined it to six (nominees) at the expense of all others, and he emphasised that matter, as is well known.

At the time of nominating ‘Ali (ra), he was the only nominee, without having any one else with him and so there was no need for short-listing.

Short-listing of nominees used to take place before a gathering of Muslims; a matter which would have been opposed and not executed had it been not allowed, for this prevents the right of others in nomination. Therefore, short-listing the nominees for Khilafah post is allowed due to the consensus (Ijma’) of the companions. Thus, the Ummah, or in other words her representatives, are allowed to shortlist the nominees, whether this short-listing was conducted directly by the Ummah, or through authorising the outgoing Khalifah to do that on their behalf.

This is in regards to short-listing. In regards to evidence for the short-listing of the nominees to six people at first, this is taken from the action of Umar (ra); whilst shortening the list to two after that, is taken from the action of Abdul Rahman Ibn Auf (ra). Additionally, this verifies the meaning of the Bay’a by the majority of the Muslim electorate for if the nominees were more than two, then the winner amongst them might get for example thirty percent of the electorate, i.e. less than their majority. The winner would get the majority in the case that the nominees were not more than two.

In regards to short-listing of the six and two nominees by the Ummah Council, this must be by the Madhalim Court to ensure that the nominees fulfil the qualification conditions; this is because the short-listing conducted by the Ummah Council is for electing a Khalifah from amongst them. It means, in other words, that they must fulfil the qualification conditions. Therefore, the Madhalim Court would exclude from the nominees to the Khilafah anyone who does not fulfil the qualification conditions. After that the Ummah Council would make the shortlist from the nominees decided by the Madhalim Court to have fulfilled the qualification conditions.

This is where the fifth point is derived from.