The Khalifah
Article 24
The Khalifah is the representative of the Ummah in
excercising of the authority and in implementing of the Shari’ah.
The Khilafah
is the general leadership for all of the Muslims in the World, in order to
establish the rules of the Shari’ah and to carry the Islamic call to the
world. The ones whom appoint the one who undertakes this leadership, in other
words appoint the Khalifah, are the Muslims alone. Since the authority
belongs to the Ummah, and the implementation of the Shari’ah is
obligatory upon the Muslims, and the Khalifah is a leader for them,
accordingly his reality is that he is their representative in the authority and
the implementation of the Shari’ah. Therefore, there is no Khalifah
unless the Ummah gives him the pledge of allegiance; their pledge to him
is proof that he is their representative. The obligation of obedience to him is
proof that this pledge, which concludes the contracting of the Khilafah to
him, gives him the authority, and this means that he is their representative in
the authority. And upon this basis this article has been drafted.
Article 25
The Khilafah is a contract of choice and consent, so no one is
compelled to accept it, and no one is compelled to choose the one who would
undertake it.
The proof for this is
the evidence that any Shari’ah contract is completed between two parties
since it is a contract like all the other contracts. On top of that, the
narration of the Bedouin who gave the pledge of allegiance to the Messenger
and then returned to
request the cancellation of his pledge, which the Messenger
refused, is proof that the Khilafah is
a contract. It is narrated by Jabir b. ‘Abd Allah that a Bedouin gave the
pledge of allegiance to the Messenger of Allah
and then became ill and so said, “Cancel my
pledge”, so he
refused. Then he returned and said, “Cancel my
pledge”, so he
refused. The man then left. The Messenger
said “Madinah is like bellows; it
rejects its dirt and purifies its goodness” (agreed upon by Muslim and
al-Bukhari). As the pledge upon the Khilafah is a pledge upon obedience
to the one who has the right to be obeyed from the people of authority, then it
is a contract upon choice and consent and so it is not correct by compulsion;
neither compulsion on the one given the pledge nor compulsion upon those who
are giving the pledge due to the words of the Messenger
“Mistakes, forgetfulness and what
they have been forced upon, have been raised from my Ummah” (reported by Ibn Maja
through Ibn ‘Abbas), and this is general for every contract including the
contract of the Khilafah. Accordingly, every contract that occurs due to
compulsion is void, since it has not been contracted. In the same manner as the
other contracts, the Khilafah is not contracted by compulsion.
Likewise, the Khilafah
is not completed except with two contracting parties like any other contract;
so someone would not be a Khalifah unless someone appoints him to the Khilafah
and so if someone appoints themselves as Khalifah without a pledge from
those whom the Khilafah is contracted through, he would not be a Khalifah
unless they gave him the pledge with satisfaction and consent, in which case he
becomes Khalifah after this pledge; as for before it then he would not
be considered such. If the people are forced to give the pledge, the person
would not be the Khalifah after this pledge which was taken by
compulsion, and the Khilafah would not be contracted to him since it is
a contract which is not contracted through compulsion due to the words of the
Messenger
“Mistakes,
forgetfulness and what they have been forced upon, have been raised from my
Ummah”, and what has been raised is considered
to be void.
Article 26
Every sane, adult Muslim, a male or a female, has the right to elect the
leader of the State and to give him the pledge of allegiance; while the
non-Muslims do not have such right.
The reality of the Khilafah
is evidence that every Muslim has the right to elect the Khalifah
and to give him the pledge, since there are narrations which indicate that it
is the Muslims who give the pledge of allegiance to the Khalifah,
irrespective of whether they were male or female; it is narrated by ‘Ubadah b.
Samit “We gave the pledge of allegiance to the Messenger of Allah…” reported
by al-Bukhari, and narrated from Um Attiyya who said “We have the pledge
of allegiance to the Messenger of Allah…” also from al-Bukhari, and
what Ibn Kathir reported in al-Bidayah wa ’l-Nihayah when ‘Abd al Rahman
b. ‘Auf was appointed to take the opinion of the Muslims as to who should be
the Khalifah he said “I did not leave a man nor a woman except
that I took their opinion”, and not one of the companions rebuked him
over this. So every Muslim, a male or a female, has the right to elect the Khalifah
and to give him the pledge of allegiance. As for the non-Muslims they have no
right in these issues since the pledge of allegiance is upon the Book and the Sunnah
and he does not believe in either of them, since if he believes in them he
would be a Muslim.
Article 27
If the Khilafah is contracted to an individual by the pledge of
those it is valid to be contracted with, the pledge of the remainder of the
people is a pledge upon obedience and not a pledge of contracting; and so any
one who is seen to have the potential of rebellion is forced to give the
pledge.
The evidence for this
is what happened in the pledge of the four Khulafaa’, because it was an Ijma’
of the companions. In the pledge of Abu Bakr (ra), the people of power and
influence (ahl al-hal wa ’l-‘aqd) of Madinah alone were sufficient, and
that was the case in the pledge of Umar (ra), and in the pledge of ‘Uthman (ra)
it was enough to take the opinion of the Muslims in Madinah, and take the
pledge from them, and in the pledge of Ali (ra) the pledge of the majority of
the people of Madinah and Kufa was enough. All of this indicates that it is not
necessary that all the Muslims have to give the pledge in order to contract the
Khilafah; rather the pledge of most of their representatives is enough.
As for the remainder, then if they gave a pledge their pledge is upon
obedience.
With respect to
forcing those whom may rebel to take the pledge after the pledge of the
majority of the representatives, the evidence is the resolve of our master Ali
(ra) to make Mu’awiyah give him the pledge and agree with what the people had
agreed, and his forcing of Talha and az-Zubayr to take his pledge, and none of
the companions rebuked him for doing so, though some of them gave him advice
not to remove Mu’awiyah from the governorship of as-Sham. The silence of the
companions upon the actions of one of them, if it was from the actions that are
rebuked – such as forcing someone to take the pledge whereas it is a contract
upon satisfaction and consent – is considered to be an Ijma’ of silent
consent, and is considered a Shari’ah evidence.
Article 28
No one can be Khalifa unless the
Muslims appoint him, and no one possesses the mandatory powers of the
leadership of the State unless the contract with him has been concluded according
tothe Shari’ah, like
any contract in Islam.
The evidence is that
the Khilafah is a contract upon satisfaction and consent, since its
reality as a contract means it is not contracted except through two contracting
parties, and therefore no one is the Khalifah unless he was appointed to
it by those whose agreement completes the conclusion of the contract
according to the Shari’ah. So if someone appoints himself Khalifah
without the pledge from those whom the Khilafah is contracted through,
then he would not be a Khalifah until his pledge occurs with choice and
consent from those whom the conclusion of the contract takes place. So the fact
that the Khilafah is a contract necessitates the presence of two
contracting parties, with each of them having the necessary Shari’ah
qualifications to be entrusted with the contract and conclude it.
If a conqueror came
about and took the ruling by force he does not become a Khalifah by
that, even if he announces himself as Khalifah of the Muslims, since the
Khilafah was not contracted to him by the Muslims. If he took the pledge
of allegiance from the people by force and compulsion, he does not become the Khalifah
even if he was given the pledge, since the pledge given through compulsion
and force is not considered and so the Khilafah cannot be contracted by
it. This is because a contract of choice and consent cannot be completed
through compulsion and force, and so it is not contracted except through a
pledge given with satisfaction and consent. However, if this conqueror managed
to convince the people that it was in the benefit of the Muslims to give him
the pledge, and that the implementation of the Shari’ah would be
complete through giving the pledge to him – and so the people became convinced
and satisfied with that and gave him the pledge of allegiance on that basis
with their own choice, then he would become the Khalifah from the moment
that he was given that pledge by the people freely even though he took the
authority through force and power. Therefore, the condition is the contracting
of the pledge, and this is only reached through consent and choice,
irrespective of whether the one who reached it was the ruler and leader, or
wasn’t.
Article 29
It is stipulated that the authority of the region or the country that
gives the Khalifah a contracting pledge is autonomous dependent upon the
Muslims alone, and not upon any disbelieving state; besides the security of the
Muslims in that country, both internally and externally, is by the security of
Islam not the security of the disbelief. With respect to the pledge of
obedience taken from other countries, there are not such conditions.
The evidence is the
forbiddance of the disbelievers having authority over the Muslims, in
accordance with the His (swt) words “Allah
will never grant to the disbelievers a way over the believers” (TMQ 4:141), so if the authority of the disbelievers over the Muslims is present in
any part of the Islamic lands, then that land would not be suitable to
establish the Khalifah, since the establishment of a Khalifah is
simply the establishment of an authority. Since that land does not possess the
authority it therefore cannot give it. Also its authority is an authority of
disbelief, and the Khalifah is not established with the authority of
disbelief.
This is from the angle of the authority; as for the issue of security,
its evidence is the evidence for Dar Al-Islam and Dar Al-Kufr,
since the establishment of the Khalifah would make the abode into an
abode of Islam, and it is not possible for an abode to be an abode of Islam
simply by establishing the rule of Islam but rather it is imperative that its
security is by the security of Islam and not that of disbelief, since the
conditions for the abode to be considered an abode of Islam are: firstly, to be
ruled by Islam and secondly, for its security to be the security of Islam and
not the security of disbelief.
Article 30
The only conditions for the one who is given the pledge to be the leader
of the State is that he fulfils the contracting conditions of the contract,
even if he does not fulfil the preference conditions, since what matters are the contracting conditions of the contract.
The proof for this is
the evidences that were narrated regarding the characteristics of the Khalifah.
In some oft the narrations regarding his characteristics the request is non-decisive, such as his
words “This order is in Quraysh” (reported
by al-Bukhari from Mu’awiyah). This narration is informative, and it is in the
informative form, and though it conveys the meaning of a request, it is not
considered decisive so long as it is not
accompanied by an indication that confirms its decisiveness, and there is no
such indication from an authentic narration. As for what is transmitted in the
narration, “Whoever is against them, while they are establishing the
Deen, will be thrown in the fire by his face by Allah” – this is to do
with showing enmity to them and not as a confirmation for his
words “This order is in the Quraysh”.
This is apart from the fact that the word “Quraysh” is a noun and not an
adjective, and is called a laqab (title) in Usul al-Fiqh, and
the understanding (Mafhum) of the noun, or laqab is not acted
upon since the noun or laqab does not have a Mafhum. For that
reason the text about the Quraysh does not mean that other than they cannot be
appointed.
Based upon this, this
narration indicates a preferred condition and not a condition of contracting
due to the absence of an indication that would make the request decisive;
rather there is an indication that makes it non-decisive. When the Messenger
offered himself to
the tribe of ‘Amir Bin Sa’asa’a who asked “Will the order remain with us
after you”, to which he
said “The order is in the Hand of Allah,
He places it wherever He wills”, narrated by Ibn Ishaq from al-Zuhri,
then this indicates that the request was non-decisive since the reply of the
Messenger
indicates the permission for the order to be
with them after him
, and permitted to be
with other than them, which indicates that the condition of being from Quraysh
is a condition of preference.
As for the conditions
of contracting, they are those that are related with a decisive request such
that their absence leads to an absence of contracting (as is understood from
the definition of what is a condition). In other words, the result of its absence
would mean the invalidity of the Khilafah for him if he was not from
Quraysh. The reply of the Messenger
to the
tribe of ‘Amir takes the request away from being decisive, as opposed to what
has been narrated in the texts for the conditions of contracting. For example,
the condition of maturity comes from the fact that the Messenger
refused to take the pledge of allegiance from
a child – when he refused to take allegiance from ‘Abd Allah b. Hisham – and
the reason was due to his young age. Therefore, it is evidence that it is a condition for
the Khalifah to be adult, since if the pledge is not correct from the
child then by greater reasoning it would not be correct for the child to be the
Khalifah.
Whatever
characteristic has been mentioned by a decisive request is considered a
condition for the contracting of the Khilafah with him, and anything
else is not made a condition for contracting even if there is a text which
mentions it as long as the request was non-decisive.
Article 31
There are seven conditions for the Khalifah to be contracted,
which are: to be male, Muslim, free, adult, sane, just, and from the people who
have the capability.
Since the Khilafah
is a part of the ruling (guardianship), or rather it is the greatest guardianship,
for that reason the text of the 19th article is mentioned here, in
other words the obligation for the seven mentioned conditions to be fulfilled:
The evidence that the
Khalifah should be male is what has been narrated from the Messenger
that when he heard
that the Persians had given the rule to the daughter of Kisra, he
said “A
people who appoint a woman as their leader will never succeed” (narrated by al-Bukhari from
Abu Bakrah[s1] ); this narration contains a
decisive prohibition regarding a woman being appointed the leader of a State,
since the expression “never” indicates permanency, which is an exaggeration in
negating the success, so it is a blame, which means that the request to leave
the Khalifah from being a woman is a decisive request, and for this
reason it was made a condition that he should be male.
As for the
condition that he should be Muslim, this is due to His (swt) words “Allah will never grant to the disbelievers a way over
the believers.” (TMQ 4:141), which is also a decisive prohibition since the expression “never”
indicates permanency, and is information with the meaning of a request. As long
as Allah (swt) prohibited the disbelievers having a way over the believers,
then He (swt) prohibited for them to be made rulers over them, since the rule
is the greatest way over the Muslims. Additionally, the Khalifah is the
person of authority, and Allah (swt) made it a condition that the person of
authority should be a Muslim. Allah (swt) said “Obey Allah and Obey
the Messenger and the people of authority amongst you” (TMQ 4:59) and He (swt) said “When there comes to them some matter
touching (public) safety or fear, they make it known (among the people); if
only they had referred it to the Messenger or to those charged with authority
among them” (TMQ 4:83). The words “people of authority” are not mentioned in the Quran
unless it is also mentioned that they are from the Muslims, which indicates
that the person of authority must be a Muslim. And since the Khalifah is
the person of authority, and he is the one who appoints the people of authority,
then it is a condition that he must be a Muslim.
With respect to the
condition that he should be free, this is since the slave is owned by his
master and so does not control the independence of conduct for himself, and by
greater reasoning he does not control the conduct of others, and therefore he
cannot control the guardianship over the people.
As for the
condition that he should be an adult, this is due to what was narrated by ‘Ali
b. Abi Talib (ra) that the Messenger
said “The pen is raised from three: the one who is
asleep until they wake, the child until they become an adult, and the madman
until he becomes sane” and in a narration “and the one who is afflicted with madness until he
recovers”, reported by Ibn
Maja and al-Hakim from ‘A’ishah, and the wording is from Ibn Maja. Al-Tirmidhi
and Ibn Khuzaymah also reported a similar narration through ‘Ali (ra).
What is understood
from lifting the pen is that it is not correct for him to act independently in
his own affairs, so it would not be correct for him to be the Khalifah.
Also, it is narrated from Abu Hurayrah that the Messenger
said “Seek protection with Allah from the head of
the seventy and the leadership of the child” reported by Ahmad from Abu
Hurayrah, which includes proof that it is not correct for a child to be the Khalifah.
There is another narration from Abu ‘Aqil Zahrah Bin Ma‘bad, on the authority
of his grandfather ‘Abd Allah Bin Hisham who lived at the time of the Prophet
, and his mother
Zaynab bint Hamid took him to the Messenger
and said “O Messenger of Allah, take the pledge from
him”, and so the
Messenger
said “He is young”, and touched his head and
prayed for him, as reported by al-Bukhari. Since the child is not permitted to
give the pledge, then by greater reasoning he is not permitted to be given the
pledge either.
As for the
condition of being sane, the narration which was just mentioned “the
pen is raised from three” to “the one who is afflicted with madness until he recovers”, and in another narration “the
madman until he wakes”, and from the understanding of raising of the pen is that it is not
correct for him to act independently in his own affairs, so it would not be
correct for him to be the Khalifah and act upon the affairs of other
people.
With respect to the
condition of being just, this is because Allah (swt) made it a condition for
the witness to be just; He (swt) says “And take as witness two just persons from
among you” (TMQ 65:2), and so the one who is more significant than
the witness, and that is the Khalifah, must by greater reasoning also be
just. That is because if the just characteristic has been made a condition for
the witness then for it to be a condition for the Khalifah is of a
higher priority.
As for the condition that he is a capable person from amongst those who
are able to fulfil the responsibility, this is necessitated by the pledge of
allegiance, since the one who is not capable would be incapable of running the
affairs of the people by the Quran and the Sunnah for those who gave him
the pledge upon them.
The evidence for that includes:
1. Muslim narrated from Abu Dharr “I said: O Messenger
of Allah, will you not use me? He placed his hand upon my shoulder and then
said O Abu Dharr, you are weak, and it is an ‘amanah (trust),
and on the Day of Judgement it will be a disgrace and a regret except (for
those) who take it by its right and perform its duties correctly”.
This explains that
giving the order its due right and performance is only done by those who are
capable of it, and the indication that engenders decisiveness is what the
Messenger
said about whoever takes it and is not capable
of it “and
on the day of Judgement it will be a disgrace and a regret except for he who
takes it”.
2. Al-Bukhari reported from Abu Hurayrah that the Messenger of Allah
said, “If the trust is abandoned, then
wait for the Hour. He said: How would it be abandoned O Messenger of Allah? He
replied: if the ruling was given to those who
were not suitable for it, then wait for the Hour”
The narration indicates a decisive prohibition for the guardianship to be
placed with one who is not suitable for it. And the decisive indication is that
such an act would mean the abandonment of the trust, which is from the signs of
the Hour, which is an indication of the enormity of the prohibition of it being
undertaken by those not suitable for it.
As for how capability should be defined, this requires establishing the
reality since it might be connected to bodily or mental illness, etc. and
therefore its definition is left for the Madhalim court, which will
confirm that the conditions of contracting have been met in the candidates for
the Khilafah.
Article 32
If the position of the Khilafah becomes vacant due to the death
of its leader, his resignation or his removal, it is obligatory to appoint a Khalifah
within three days from the date that the position of the Khilafah became
vacant.
Appointing the Khalifah
becomes obligatory from the moment that the previous Khalifah dies or is
removed. However, it is permitted for the appointment to occur within three
days with their nights as long as it is due to working to achieve it. If it
takes longer than three nights and the Khalifah has still not been
appointed, then the issue is considered – if the Muslims are working to
establish it but are unable to achieve that during the three night time limit
due to overwhelming circumstances that they are unable to overcome, then the
sin is lifted from them since they are busy working to establish the obligation
and are compelled to delay its establishment due to whatever forced them. It is
reported from Ibn Hibban and Ibn Maja from Ibn Abbas: the Messenger of Allah
said: “Allah has
excused for my Ummah mistakes, forgetfulness and what they are
forced to do”. If they were not made busy with such overwhelming
issues, then the most time allowed for the appointment is three days with their
nights.
The evidence for the
obligation of immediately working to establish the pledge of allegiance (Bay’a)
to the Khalifah due only to the vacation of the position of the Khilafah
is the Ijma’ of the companions. They immediately hurried to gather at Saqifa
Bani Sa‘idah after the death of the Messenger
on the same day and before his
burial, and
the pledge of contracting (bay‘at al-in‘iqad) was completed on the same
day with Abu Bakr (ra), and the next day the people gathered in the mosque to
give the pledge of obedience (bay‘at al-ta‘ah).
Limiting the time to establish the
appointment of the Khalifah to three days is due to that when it became
apparent that Umar (ra) was going to die from his stab wound, he delegated the
issue of appointment of his successor to the people of Shura, and limited
them to three days, and then commissioned that if the Khalifah was not
agreed upon within the three days, those who differed after the three days
should be killed. He appointed fifty men from the Muslims in order to execute
this - in other words to kill the dissenter, even though they were from the
senior companions, and all of this was seen and heard by the companions and
none of them rebuked it even though normally anything similar to it would have
been reproachable, so it is considered an Ijma’ of the companions that
it is not permitted for the position of Khalifah to be left vacant for
more than three days, and the Ijma’ of the companions is an Islamic
evidence in the same manner as the Quran and the Sunnah.
Al-Bukhari reported
through al-Miswar Bin Makhramah who said: “Abdur-Rahman called on me
after a portion of the night had passed and knocked on my door till I got up,
and he said to me, "I see you have been sleeping! By Allah, during the
last three nights I have not slept enough”. And Ibn Kathir mentioned in
the book al-Bidayah wa ’l-Nihayah “When the night whose morning would
have been the fourth day after the death of Umar, ‘Abd al-Rahman Bin ‘Auf came
to the house of his nephew al-Miswar Bin Makhramah and said “You are sleeping O
Miswar? By Allah I did not get much sleep for the last three” - in
other words the last three nights and when the people prayed the Morning Prayer
the pledge with ‘Uthman (ra) was completed.
Article 33
A temporary leader is appointed to take charge of the affairs of the
Muslims, and to prepare for the election of the new Khalifah after the
vacation of the position of the Khilafah according to the following
process:
a.
When the previous Khalifah feels that his life
is coming to an end, or is committed to resigning, he has the right to appoint
the temporary leader.
b.
If the Khalifah dies or resigns before
appointing the temporary leader, or the position of the Khilafah becomes
vacant due to another reason, then the eldest of the assistants becomes the
temporary leader unless he intended to be a candidate for the Khilafah
in which case the next senior assistant is to be given the position and so on.
c.
If all of the assistants intend to be candidates, then
the eldest of the executive ministers will become the temporary leader or the
one after him in seniority if he intends to be a candidate, and so on.
d.
If all of the executive ministers intend to be
candidates for the Khilafah, then the position of the temporary leader
is given to the youngest executive minister.
e.
The temporary leader does not have the right to adopt
rules.
f.
The temporary leader makes all effort to complete the
appointment of a new Khalifah within three days, and it is not permitted
for this to be extended except due to overwhelming circumstances approved by
the Madhalim court.
When the Khalifah feels
that his death is close, close to the time that the Khilafah would
become vacant, he may appoint a temporary leader to be responsible for the
Muslims’ affairs during the period of steps being taken to appoint the new Khalifah.
He would undertake his work after the death of the Khalifah and his main
work would be to complete the appointment of the new Khalifah within
three days.
It is not permitted
for the temporary leader to adopt rules, since this is the right of the Khalifah
who has been given a pledge by the Ummah. In the same manner, it is not permitted for
him to be nominated for the Khilafah or to support the nominees, since
Umar (ra) appointed someone other than those who were nominated for the Khilafah.
The responsibility of
this leader ends with the appointment of the new Khalifah since his task
was time-constrained to this goal.
The evidence for this
is what Umar (ra) did when he was stabbed and this was done without any
opposition from the companions and so is considered to be an Ijma’.
Umar (ra) said to the
six candidates “Suhayb will lead you in prayers during the three days
that you are consulting on the issue” and then he said to Suhaib, as
mentioned in Ta’rikh al-Tabari, “lead the people in prayer for
three days….if five of them agreed upon a man while one disagreed, then strike
his head with a sword..”. This means that Suhaib was appointed as a
leader over them – he was appointed as a leader for the prayer and leadership
of the prayer meant leadership over the people. Also, he was given the right to
apply the punishment (strike his head) and the only one who can establish
punishment by death is the leader.
This issue took place
in front of the companions without any dissenters and so it is an Ijma’
that the Khalifah can appoint a temporary leader who undertakes the
steps to appoint the new Khalifah. In the same manner based upon this it
is permitted for the Khalifah during his lifetime to adopt an article
which would state that if he died without appointing a temporary leader to
oversee the appointment of a new Khalifah, someone is to be the
temporary leader.
Based upon this, it
is adopted that if the Khalifah did not appoint a temporary leader
during his terminal illness, then the temporary leader would be the eldest of
his assistants as long as they are not a candidate, in which case it would be
the next senior in age from his assistants, and so on, and then the executive
ministers in the same manner.
This is applied in
the event of the removal of the Khalifah, so the temporary leader would
be the eldest assistant as long as he is not a candidate, and if he is a
candidate then the next one in seniority and so on until all the assistants are
considered, in which case it would then fall to the eldest executive minister
and so on. If all of them want to be candidates then the youngest of the
executive ministers is compelled to become the temporary leader.
This leader is
different from the one the Khalifah appoints in his place when he goes
out for jihad or a journey, as the Prophet
used to do when he went out for jihad
or the final hajj, or similar. In this situation the one who is
delegated in his stead has the powers that the Khalifah defines for him
to take care of the affairs necessitated by the delegation.
Article 34
The method of appointing the Khalifah is the pledge of allegiance
(Bay’a). The practical steps to appoint the Khalifah and his Bay’a
are:
a. The Madhalim court
announces the vacancy of the position of the Khilafah
b. The temporary leader
takes control of his responsibility and announces the opening of the nomination
procedure immediately
c. Applications of the
candidates fulfilling the contracting conditions would be accepted, excluding
the other applications, by the decision from the Madhalim court.
d. The candidates who
have been accepted by the Madhalim court, are then short listed twice by
the Muslim members of the Shura council: first; they select the six
candidates who got the highest votes from them, and the second stage is to
select the two candidates who got the highest votes
e. The names of the two are
announced and the Muslims are requested to vote for one of them
f.
The result of the elections is announced and the
Muslims are informed of the one that got most of the votes.
g. The Muslims promptly
set out to give the pledge to whoever got most of the votes, as the Khalifah
of the Muslims upon the Book of Allah (swt) and the Sunnah of His
Messenger
.
h. Once the pledge has
been completed, the Khalifah is announced to the public, until the news
of his appointment has reached the whole Ummah, with mentioning of his
name and that he fulfilled the characteristics that make him valid for
contracting the Khilafah to him.
i.
After completing the steps to appoint the new Khalifah
the responsibility of the temporary leader ends.
When the Shari’ah
obligated the appointment of a Khalifah upon the Ummah, it
specified the method by which he would be appointed. This method has been
defined by the Quran and Sunnah and the consensus of the companions.
This method is the pledge of allegiance (Bay’a). The appointment of the Khalifah
occurs through the taking of the Bay’a of the Muslims upon the action by
the Book of Allah (swt) and the Sunnah of His Messenger
. What is meant by
“Muslims” is those Muslims who were under the responsibility of the last Khalifah
if the Khilafah was established or the Muslims of the area which the Khilafah
was being established within if it was not already established.
The fact that this
method (Bay’a) is confirmed by the Muslims’ Bay’a to the
Messenger
, and from the order of the Messenger
upon
us to give the Bay’a to the Imam.
As for the Bay’a of the Muslims to the Messenger
, it was not a Bay’a on Prophethood
but rather upon ruling, since it was a Bay’a upon action and not upon
confimation (of the truth of his
Prophethood).
So he
was
given the Bay’a upon the basis that he was a ruler and not that he was a
Prophet or a Messenger, since the confirmation of belief in Prophethood and his
message is Iman and not Bay’a.
Therefore all that remains is that the Bay’a must have been in respect
of him
being
the head of the state. The Bay’a is mentioned in the Quran and the Sunnah.
Allah (swt) says: “O Prophet! When believing women
come to you to give you the Bay’a (pledge), that they will not associate
anything in worship with Allah, that they will not steal, that they will not
commit illegal sexual intercourse, that they will not kill their children, that
they will not utter slander, intentionally forging falsehood (i.e. by making
illegal children belonging to their husbands), and that they will not disobey
you in Ma‘ruf (Islamic Monotheism and all that which Islam ordains) then accept
their Bay‘a (pledge)” (TMQ
60:12), and Allah (swt)
says “Verily, those who give Bay‘a (pledge) to you (O Muhammad) they are
giving Bay‘a (pledge) to Allah. The Hand of Allah is over their hands” (TMQ 48:10).
Al-Bukhari reported: Isma‘il said that Malik said to me from Yahya b. Sa‘id who
said: ‘Ubadah b. al-Walid said his father said to him from ‘Ubadah b. al-Samit “We
gave the oath of allegiance to Allah's Apostle that we would listen to and obey
him both at the time when we were active and at the time when we were tired and
that we would not fight against the ruler or disobey him, and would stand firm
for the truth or say the truth wherever we might be, and in the Way of Allah we
would not be afraid of the blame of the blamers”. And in Muslim from
‘Abd Allah b. ‘Amru b. al-‘As that the Messenger of Allah
said “He who swears
allegiance to a Khalifah should give him the pledge of his hand and the
sincerity of his heart (i.e. submit to him both outwardly as well as inwardly).
He should obey him to the best of his capacity. If another man comes forward
(as claimant to Khalifah) disputing his authority, they (the Muslims) should
behead the latter”. And also in Muslim from Abu Sa‘id al-Khudri that the
Messenger of Allah said “If the Bay’a is given to two Khalifahs
(khalifatayn) then strike the neck of the latter”. Muslim also reported
from Abu Hazem who said: I sat with Abu Huraira for five years, and I heard him
say from the Prophet
“The tribes of Isra’il
were ruled by the Prophets, every time a Prophet died he was followed by
another Prophet, and there will be no Prophets after me, and there will be
khulafaa’ (successors) and they will be many”.
The texts of the
Quran and Sunnah are explicit that the method to appoint the Khalifah
is the Bay’a. It could also be understood from the consensus of the
companions, who acted upon this, and the Bay’a to the righteous Khulafaa’ are clear in this regard.
The practical steps
which conclude with the action of the appointment of the Khalifah before
the giving of the pledge to him are understood from what occurred with the
righteous khulafaa’ who came straight after the death of the Messenger
. They were Abu Bakr (ra), Umar (ra), ‘Uthman
(ra) and ‘Ali (ra), may Allah be pleased with them. All of the companions were
silent upon and consented to the steps taken, even though they were steps which
would have been rejected if they contradicted the shari‘a since they
were connected to the most important issue upon which the Muslim entity rested
and the continuity of the ruling by Islam.
Whoever followed what occurred in the
appointment of those khulafaa’, they would find that some of the Muslims
discussed the issue in Saqifa Bani Sa‘idah and that the candidates were
Sa’d (ra), Abu ‘Ubaida (ra), Umar (ra) and Abu Bakr (ra). However, both Umar
(ra) and Abu ‘Ubaida (ra) did not wish to contest the issue against Abu Bakr
(ra), and so the issue was really between Abu Bakr (ra) and Sa’d Bin ‘Ubada
(ra) and no one else, with the result of the discussion being that the Bay’a
was given to Abu Bakr (ra). Then on the second day the Muslims were called to
the mosque to give him their Bay’a, and so the Bay’a in al-Saqifa
was one of contracting, and with it the person becomes the Khalifah of
the Muslims, and the Bay’a in the mosque on the second day is the Bay’a
of obedience.
When Abu Bakr (ra)
felt that his illness was terminal and specifically that the Muslim armies were
involved in battles with the major powers of the time, the Persians and the
Romans, he called the Muslims in order to consult them upon who should be the Khalifah
for them and spent three months doing this consultation. When he had completed
it and knew the opinion of the majority of the Muslims, he commissioned them,
or in modern terminology nominated, that Umar (ra) should be the Khalifah after
him. This commissioning or nomination was not a contract for Umar (ra) to be
the Khalifah after him, since after the death of Abu Bakr (ra) the
Muslims attended the mosque to give their Bay’a to Umar (ra) and through
that he became the Khalifah of the Muslims, and not through the
consultations, or Abu Bakr’s (ra) commission, since if the nomination by Abu
Bakr (ra) was a contract for the Khilafah then he would not have
required the Bay’a of the Muslims. This is on top of the texts mentioned
earlier which explicitly indicate that the only manner for a person to become
the Khalifah is through the Bay’a given by the Muslims.
At the time that Umar
(ra) was stabbed the Muslims requested that he appoint a successor which he
refused to do. They pressed upon him and so he made, or nominated, six
candidates for them, after which he appointed Suhayb to lead the people in
prayer and to prevail upon those whom Umar (ra) had nominated until they
decided upon a Khalifah from amongst themselves during the three days he
had specified for them. He said to Suhayb “if five of them agreed upon a
man while one disagreed, then strike his head with a sword..” as has
been reported by al-Tabari in his al-Ta’rikh, as well as Ibn Qutaybah who
authored the book al-Imama wa ’l-Siyasa which is commonly known by al-Ta’rikh
al-Khulafaa’, and Ibn Sa’d in al-Tabaqat al-Kubra. Then Umar (ra)
appointed Abu Talha al-Ansari along with fifty men to guard them, and charged
al-Miqdad Bin al-Aswad with finding a place for them to meet. Then after the
death of Umar (ra) and subsequent to the council settling upon the candidates,
‘Abd al Rahman Bin ‘Auf said: Which of you would remove yourselves (from
consideration) and assume responsibility to select the best of you? To which
all of them remained silent. Then ‘Abd al Rahman said I remove myself and then
consulted each of them individually asking them who they considered the most
worthy of the responsibility if they didn’t consider themselves, and he found that
their answers were limited to two: ‘Ali (ra) and ‘Uthman (ra). After that ‘Abd
al Rahman sought the opinions of the Muslims asking them which of the two they
would prefer. He asked the men and women, surveying the opinion of the people,
not just during the daytime but even during the night. Al-Bukhari narrated from
al-Miswar Bin Makhrama who said “Abdur-Rahman called on me after a
portion of the night had passed and knocked on my door till I got up, and he
said to me, "I see you have been sleeping! By Allah, during the last three
nights I have not slept enough”. After the people had offered morning prayer,
Bay’a of ‘Uthman (ra) was completed. He became the Khalifah
through the Bay’a of the Muslims, and not because Umar (ra) limited it
to six. Then ‘Uthman (ra) was killed, and so the masses of the Muslims in
Madinah and Kufa gave their Bay’a to ‘Ali b. Abi Talib (ra), and so he
became the Khalifah through the Bay’a of the Muslims.
By close examination
of the manner of their Bay’a, it becomes clear that the candidates for
the Khilafah were announced to the people and that they all fulfilled
the necessary conditions of contracting. After this the opinion of the
influential people (ahl al hal wa ’l-‘aqd) from the Muslims was taken, the
representatives of the Ummah, and the representatives were well known in
the era of the righteous Khulafaa’ since they were the companions, may
Allah be pleased with them, or the people of Madinah. Whoever the companions,
or the majority of them, wanted to become Khalifah was given the Bay’a
of contracting, and thus became the Khalifah to whom obedience was
obligatory, and so the Muslims would give them the Bay’a of obedience.
In this manner the Khalifah is found and becomes the authorised
representative of the Ummah in ruling and authority.
As for the issue of
limiting the candidates, then by following the manner in which the righteous khulafaa’
were appointed, it becomes clear that the candidacy was limited. In Saqifa
Bani Sa’idah the candidates were Abu Bakr (ra), Umar (ra), Abu ‘Ubaida (ra)
and Sa’d Bin ‘Ubada (ra) and that was all, though Umar (ra) and Abu ‘Ubaydah
(ra) didn’t wish to compete against Abu Bakr (ra) and so in practical terms the
candidates were Abu Bakr (ra) and Sa’d Bin ‘Ubada (ra). Then the ahl al hal
wa ’l-‘aqd elected Abu Bakr (ra) the Khalifah in al-Saqifa
and gave him the Bay’a of contracting, and the next day the Muslims gave
Abu Bakr (ra) the Bay’a of obedience in the mosque.
Abu Bakr (ra)
nominated Umar (ra) as the Khalifah for the Muslims, without there being
any other candidate, and then the Muslims gave him the Bay’a of
contracting and then the Bay’a of obedience.
Umar (ra) nominated
six candidates for the Muslims and told them to elect the Khalifah from
amongst themselves, then ‘Abd al-Rahman b. ‘Awf discussed with five of them and
limited them to two: ‘Ali (ra) and ‘Uthman (ra), after the others had charged
him to do. After that he surveyed the opinion of the people and that opinion
settled upon ‘Uthman (ra) as the Khalifah.
As for ‘Ali (ra),
there was no other candidate for the Khilafah and so the masses of the
Muslims in Madinah and Kufa gave him the Bay’a and he became the fourth Khalifah.
And due to the Bay’a
of ‘Uthman (ra) being settled within the maximum permitted time to elect the Khalifah
– three days and nights – and also that the candidates were limited to six
and then after that to two, we will mention how that occurred with the details
in order to understand the issue we are discussing:
1. Umar (ra) died on
Sunday morning in Muharram 24 A.H. from the effects of being stabbed by Abu
Lu’lu’a, may Allah (swt) curse him, when Umar (ra) was standing in prayer in
the pulpit of the mosque during the Wednesday morning prayer four days before
the end of Dhul Hijja 23 A.H. Suhayb led the prayer for him in accordance with
his will.
2. When they had
completed the issue of Umar (ra), al-Miqdad gathered the council of six which
had been entrusted by Umar (ra) in one of the houses and Abu Talha took care of
their needs. They sat therein and discussed and then appointed Abd al-Rahman b.
‘Awf to select the Khalifah from amongst them with their consent.
3. ‘Abd al-Rahman began
to discuss with them and he asked each of them: If he was not to be the Khalifah
then who did he think should be from amongst the others? Their answers were
limited to ‘Ali (ra) and ‘Uthman (ra), and so Abd al-Rahman limited the
candidacy to two from the original six.
4. After that Abd
al-Rahman began to consult the people as is well known.
5. On Tuesday night - in
other words the night of the third day after the death of Umar (ra) on Sunday,
Abd al-Rahman went to the house of his nephew al-Miswar Bin Makhramah. The
following is taken directly from al-Bidayah wa ’l-Nihayah of Ibn Kathir:
“When the night whose morning would have been the fourth day after the
death of Umar, Abd al-Rahman b. ‘Awf came
to the house of his nephew al-Miswar Bin Makhrama and said “You are sleeping O
Miswar? By Allah I did not get much sleep for the last three (nights)”
in other words the last three nights after the death of Umar (ra) which
occurred on Sunday morning, which was Sunday, Monday and Tuesday night – until
he said “Go and call ‘Ali and ‘‘Uthman for me…and then he went out with
them to the mosque…the people were called to the prayer in congregation”, which
was the Wednesday morning prayer. Then he took Ali’s (ra) hand, may Allah (swt)
be pleased with him and honour his face, and asked him regarding taking the Bay’a
upon the Book of Allah (swt), the Sunnah of His Messenger
and the actions of Abu Bakr (ra) and Umar
(ra). ‘Ali (ra) famously replied: upon the Book and the Sunnah – yes. As
for the actions of Abu Bakr (ra) and Umar (ra), he would make his own Ijtihad. Abdul Rahman removed his hand,
took the hand of ‘Uthman (ra) and asked the same question. ‘Uthman (ra)
replied: By Allah yes, and so the Bay’a was completed with ‘Uthman (ra).
Suhayb led the people
in the morning and midday prayer that day, and then ‘Uthman (ra) led them in
the afternoon prayer as the Khalifah of the Muslims. This means that despite the contracting Bay’a to
‘Uthman (ra) starting at the Morning Prayer, the leadership of Suhayb did not
expire except after the Bay’a of
the influential people in Madinah to ‘‘Uthman (ra). This was completed a little
before the afternoon prayer, where the companions summoned each other to give Bay’a
to ‘Uthman (ra) until after the middle of that day had passed and before
the afternoon prayer. When the taking of the Bay’a was completed before the afternoon prayer, the leadership of
Suhayb finished, and ‘Uthman (ra) led the people in the afternoon prayer as
their Khalifah.
The author of al-Bidayah wa’ l-Nihayah
explains why Suhayb led the people in the afternoon prayer though ‘Uthman (ra)
took the Bay’a at the morning prayer,
saying: “The people gave him the Bay’a in the mosque, then he was taken
to the house of shura (i.e. the house where the people of consultation
met), so the rest of the people gave him the Bay’a . It seems he did not
finish taking the Bay’a until after the midday prayer. So, Suhayb prayed
that prayer in the Prophet’s mosque, thus the first prayer in which the Khalifah,
leader of the believers ‘Uthman (ra) led the Muslims was the afternoon prayer”.
Consequently the following matters must be
considered when making nominations for the post of Khilafah after it
becomes vacant (through death or dismissal), which are:
1.
The work regarding candidacy and appointment
must be done day and night until the task is completed.
2.
Nominees have to be short listed in terms of
fulfilling the contractual conditions, a matter that is conducted by the Madhalim
court.
3.
Nominees are short listed twice: to six and
then to two. The council of the Ummah conducts this short listing as
representatives of the Ummah. This is because the Ummah delegated
Umar (ra) to represent them, who nominated six people and the six nominees
delegated a representative from amongst themselves, ‘Abd al Rahman, who short
listed the nominees to two after discussion. Thus, the reference in all of this
is the Ummah’s council; in other words its representatives.
4.
After the completion of the elections and the
Bay’a, the Khalifah is announced to the public such that all of
the Ummah are aware of it, and his name and characteristics that mean he
fulfils the criteria for the contraction of the Khilafah are also
mentioned.
5.
The task of the temporary leader expires
after the completion of the taking of the Bay’a by the Khalifah,
rather than by the announcement of the results. The leadership of Suhayb did
not finish by the election of ‘Uthman (ra), but rather by the completion of his
Bay’a.
This is the case if
there was a Khalifah and he passed away or was removed and a Khalifah
needs to be appointed to replace him.
If there is no Khalifah
at all, it becomes obligatory upon the Muslims to appoint a Khalifah, to
implement the rules of the shari’a and to carry the Islamic call to the
world, as is currently the case since the removal of the Islamic Khilafah
in Istanbul, on 28th Rajab 1342 AH (3rd March 1924). In
such a situation, every one of the Muslim countries in the Islamic world is
suitable to appoint a Khalifah, and the Khilafah would be
contracted to him. So, if one of the Muslim countries gave the Bay’a to
a Khalifah, and the Khilafah was contracted to him, it becomes
obligatory upon the Muslims in the other countries to give him the Bay’a
of obedience or in other words a Bay’a of submission to his authority.
This is after the Khilafah has been concluded to him through the Bay’a
of the people of his country. The following four conditions have to be
fulfilled in that country:
1.
The authority of the country must be in the hands of the
Muslims and not in the hands of a non-Islamic country or under a non-Islamic
influence.
2.
The security of the Muslims in that country must be
guaranteed by Islam; in other words its protection at home and abroad should be
in the name of Islam and by Islamic forces to the exclusion of all others.
3.
The implementation of Islam should take place with
immediate effect in a comprehensive and radical manner; the Khalifah must
be involved in the conveying of the call to Islam.
4.
The Khalifah must fulfil all the contractual
conditions, although he might not fulfil the preferred conditions, since what
matters are the conditions of the contract.
Should that country
satisfy these four conditions then the Khilafah would be established by
the Bay’a of that country alone, and the Khilafah would be
concluded by it alone. The Khalifah to whom
they gave the Bay’a would become the legitimate Khalifah and any Bay’a
to other than him would be invalid.
Any country that might give the Bay’a
to another Khalifah after that, then their Bay’a would be
invalid, due to the saying of the Messenger of Allah
“If Bay’a was given to two Khalifah, then
kill the latter of them” and his
saying
“Fulfil the Bay’a of the first, then the first” and his
saying
“Whoever gave Bay’a to an imam, giving him the clasp of his hand and the
fruit of heart, let him obey him as much as he could. If anybody else came to
challenge his authority, then strike the head of the latter.”
The method of the Bay’a: In the aforementioned we have explained the evidences for
the Bay’a as the prescribed method of appointing a Khalifah in
Islam. Regarding its practical implementation, it is through shaking the hand
as well as by writing. It has been narrated by ‘Abd Allah b. Dinar who said: “I
witnessed Ibn Umar when people agreed on Abd al-Malik b. Marwan saying: "I
write herewith that I agree to hear and obey ‘Abd Allah Abd al-Malik, the
leader of the believers, according to the Book of Allah and the Sunnah of His
Messenger, and to the best of my ability”. The Bay’a can also be given by any
other means.
The Bay’a should only be given by an
adult as the Bay’a of the minor is not valid. Abu Aqeel Zahrah b. Ma‘bad
reported on the authority of his grand-father ‘Abd Allah b. Hisham who lived
during the time of the Messenger of Allah
, that his mother Zaynab bint Hamid took him
to the Messenger of Allah
and
said “O Messenger of Allah, take Bay’a from him” upon this the Messenger
of Allah
said “He
is young” and he
wiped
over his head and prayed for him, as narrated by al-Bukhari.
As for the wording of the Bay’a, it is
not restricted to any specific wording, but it should include the commitment
that the Khalifah acts according to the Book of Allah (swt) and the Sunnah
of His Messenger
and
that the person who gives the Bay’a should pledge to obey in that which
they liked and disliked and in ease and hardship. A law will be published that
will determine this wording in accordance with the previous points.
Once the Bay’a is given to the Khalifah,
then the Bay’a becomes a trust on the neck of the one who gave the Bay’a,
where he is not allowed to withdraw it. For it is his right in terms of
appointing the Khalifah until he gives it. But once he gave it, he is
not allowed to withdraw it. Even if he wanted to do so, he is not permitted to
withdraw his Bay’a. Al-Bukhari narrated from Jabir Ibn ‘Abd Allah that a
Bedouin gave the Bay’a to the Messenger of Allah
on
Islam, but he became unwell, so he said: “Relieve me of my Bay’a”, which
the Messenger of Allah
refused. Then he came and said the same, but
the Messenger
rejected. So he left the town. The Messenger
of Allah
said “The
town is like the mason’s bellow (or furnace), it gets rid of (cleans) its
impurity, and its goodness (scent) manifests (shines)”.
Muslim also narrated from Nafi’ on the
authority of ‘Abd Allah b. Umar that he heard the Messenger of Allah
say “Whoever
withdraws a hand from obedience, he would meet Allah on the day of judgement
without having proof for himself”.
Breaking the Bay’a to the Khalifah is
a withdrawal of the hand from the obedience to Allah (swt). However, this is
the case if his Bay’a to the Khalifah was a Bay’a of
contracting, or a Bay’a of obedience to a Khalifah was accepted
and pledged by the Muslims. But if he pledged himself to a Khalifah initially,
and the Bay’a was not completed, then he has the right to relieve
himself from that Bay’a, in view of the fact that the contracting Bay’a
has not been concluded to him from the Muslims. So the prohibition in the
hadith is focused on withdrawing a Bay’a to a Khalifah, not to a
man for whom the Khilafah contract was not completed.
Article 35
The Ummah is the one who appoints the Khalifah. However,
it does not possess the right to remove him once the pledge of allegiance has
been concluded according to the Shari’ah method.
This article has two
halves; the first that the Ummah is the one who holds the right to
appoint the Khalifah; the second being that the Ummah does not
possess the right to remove him.
As for the first
half, the proof for it is the narrations regarding the pledge of allegiance,
since no one possesses the right to undertake the position of the Khilafah
except through the pledge, because the pledge is the method to appoint the Khalifah.
This is established from the pledge of the Muslims to the Messenger
and from the command
of the Messenger
for us regarding the pledge, and that the
righteous Khulafaa’ only undertook the Khilafah through the
pledge of allegiance.
With respect to the
second half, its evidence is the order to obey the Khalifah even if he
commits something reproachable, or is oppressive, as long as it is not a clear
disbelief. It is narrated by Muslim from Ibn ‘Abbas that the Messenger of Allah
said “Whoever sees something from his Amir that he
hates then let him be patient since the one who separates from the group by a
hand-span and then dies, the death is one of jahilliyah”, and the word “his
Amir” is general, and
the Khalifah falls under it since he is the Amir of the believers. And in the narration of Yazid b. Salamah al-Ju’fi in
Tabarani in which he said “O Messenger of Allah, if there were leaders
over us who took the right from us and prevented us from the right, can we
fight them?” He replied “No, they are accountable for what they did and you are
accountable for what you did”.
Al-Bukhari and Muslim
reported (with the wording here from Muslim) through ‘Ubadah b. Samit who said:
The Messenger of Allah
called
us and we took the oath of allegiance to him. Among the injunctions he made
binding upon us was: Listening and obedience (to the Amir) in our pleasure and
displeasure, in our adversity and prosperity, even when somebody is given
preference over us, and without disputing the delegation of powers to a man
duly invested with them (Obedience shall be accorded to him in all
circumstances) He
said:
except when you see clear Kufr/disbelief which you have proof from Allah.
And it is narrated
from Abu Dharr that the Messenger of Allah
said, “O Abu Dharr, how would you act
with those governors who would take sole possession of this booty?” He said “By
the One who sent you with the Truth, I would place my sword over my shoulder
and then fight until I met with you (in other words met his death)”. He
said, “Should I not tell you what
is better than that? Have patience until you meet me” (reported by Ahmed
and authenticated by al-Zain, and it is also reported by Abu Dawud).
In all of these
narrations the Khalifah acted in a way that would mandate his removal
and despite that the Messenger
ordered obedience to him and to be patient
over his oppression, which indicates that the Ummah does not have the
right to remove the Khalifah.
Additionally, the
Messenger
refused to allow the Bedouin to cancel his
pledge of allegiance. It is narrated by Jabir Bin ‘Abd Allah that a Bedouin
gave the pledge of allegiance to the Messenger of Allah
and then became ill
and so said, “Cancel my pledge”, so he
refused. Then he returned and said, “Cancel my
pledge”, so he
refused. So the man left. The Messenger
said “Madinah is like bellows; it rejects its
dirt and purifies its goodness”, which indicates that if the pledge is
given it is binding upon those who gave it and which means they do not have the
right to remove the Khalifah since they do not have the right to cancel
their pledge of allegiance to him. It cannot be argued that the Bedouin wanted
to leave Islam and not just the obedience to the ruler through his cancellation
of the pledge of allegiance. This cannot be justified since if he did that then
his action would have been one of apostasy and the Messenger
would have killed him, because the apostate is
killed. Also, the pledge is not a pledge upon Islam but rather a pledge upon
obedience. Accordingly he wanted to remove himself from the obedience and not
from Islam. Consequently, it is not correct for the Muslims to turn away from
their pledge and so they do not possess the right to remove the Khalifah.
However, the Shari’ah
clarifies at what point the Khalifah removes oneself without a need to
be removed, and when he deserves to be removed, and none of these mean that the
Ummah has the right to remove him. Rather they account him with the
powerful word of truth against oppression and fight against him if he announces
clear disbelief. The power to remove him when he deserves it is held by the Madhalim
court.
Article 36
The Khalifah possesses the following powers:
a. He is the one who
adopts the Shari’ah rules derived by a correct Ijtihad from the
Book of Allah (swt) and the Sunnah of his Messenger
necessary for managing the affairs of the Ummah
so that they become laws (qawanin) which are obligatory to obey, and it
is not permitted to oppose them.
b. He is responsible for
governing the domestic and foreign affairs of the State, and he takes command
of the Army; he has the right to
announce war, to sign peace treaties, truces and all other types of agreements.
c. He is the one who can
accept or reject foreign ambassadors and appoint and remove the Muslim
ambassadors.
d. He is the one who
appoints and removes the assistants and governors. They are all responsible to
him as they are responsible to the Shura council.
e. He is the one who
appoints and removes the head judge and judges with the exception of the Madhalim
judge in the event of his looking into a case regarding the Khalifah, his
assistants or his head judge. He also has the power to appoint and remove the
department managers, the commanders of the army, and its generals. All of these
are responsible to him and not to the Shura council.
f.
He is the one who adopts the Shari’ah laws
according to which the budget of the State is decided, beside the sections of
the budget and the amounts allocated to each aspect, irrespective to whether it
was related to revenue or expenditure.
With respect to the
detailed evidences for the six paragraphs mentioned in the article:
The evidence for
paragraph “a” is the Ijma’ of the companions, since the law (qanun)
is a technical term which means: The command which is issued by the authority
in order to govern the people according to it; and it is also known as “the
collection of rules which the authority imposes upon people to follow in their
relations”, in other words if the authority orders specific rules, these rules
are laws which the people are bound by, and if the authority did not order them
then they are not considered laws and the people are not bound by them. The
Muslims act according to the rules of the Shari’ah and therefore they
act according to the orders and prohibitions of Allah (swt) and not the orders
and prohibitions of the authority. So they act according to the rules of the Shari’ah
and not the orders of the authority. But, these Shari’ah rules were
differed over by the companions, so some of them understood something from the Shari’ah
texts whereas others understood something different from them, and each of
them proceeded according to what they had understood, and their understanding
would be the rule of Allah (swt) for them.
However, there are Shari’ah
rules that the Muslims would all have to proceed according to one opinion in
order to facilitate the management of the affairs of the Ummah, as opposed to each one following their own Ijtihad. This actually happened; Abu
Bakr (ra) thought that the wealth should be distributed amongst the Muslims
equally, since it was their right collectively. As for Umar (ra), he thought
that it was not correct to give the one who had previously fought against the
Messenger of Allah
the same as the ones who had fought alongside
him, or to give the poor the same as the rich. However, Abu Bakr (ra) was the Khalifah
and so ordered the implementation of his opinion, in other words the adoption
of the equal distribution of the wealth. The Muslims followed his opinion and
the judges and governors acted according to it, and Umar (ra) submitted to the
opinion of Abu Bakr (ra) and he acted according to it and implemented it. When
Umar (ra) then became the Khalifah, he adopted an opinion which
contradicted the opinion of Abu Bakr (ra); in other words he ordered his
opinion which was to distribute the wealth according to preference rather than
equally. Therefore he distributed the wealth according to those who embraced
Islam earlier and according to need and the Muslims followed his opinion and
the judges and governors acted according to it. So, there was an Ijma’
of the companions that the Imam could
adopt specific rules and order their enactment, and that it was upon the
Muslims to obey that even if it went against their own Ijtihad, and they had to leave acting according to their own
opinions and Ijtihad. These adopted
rules are the laws. Consequently, the passing of laws is for the Khalifah
alone and no one else possesses that right at all.
As for paragraph “b”,
its proof is the action of the Messenger of Allah
since he was the one who used to appoint the
governors and the judges and account them, and he was the one who used to
monitor the buying and selling, and prohibit cheating, and distribute the
wealth amongst the people. He
was also the one who used to help the one who
was unemployed to find work and used to undertake all the domestic affairs of
the State. In the same way, he
used to address the Kings, meet the messengers
and the delegations, and used to undertake all the foreign affairs of the
State. Additionally, he
used to practically undertake the leadership
of the Army and so in the battles he would personally take leadership of the
fighting. He
was the one who sent the expeditions out and
appointed their leaders. This was to the extent that he appointed Usama Bin
Zaid as a leader over an expedition in order to send it to the land of as-Sham,
even though the companions disapproved due to his young age, but the Messenger
forced them to accept his leadership. This
indicates that the Khalifah is the practical leader of the Army, and not
merely the Commander in Chief alone. Additionally, it was the Messenger
who declared the wars against the Quraysh,
Bani Quraythah, Bani al-Nadir, Bani Qaynuqa’, Khaybar and the Romans. Every war
which occurred was declared by the Messenger
, which indicates
that the declaration of war is only for the Khalifah. He
also contracted treaties with the Jews, and
with Bani Mudlij and their allies from Bani Damrah, and he was the one who
concluded the treaties with Yuhannatu b. Ruba, the companion of Ayla. He
concluded the treaty of Hudaybiyah even though
the Muslims were angry with it, but he did not refer to them and rejected their
opinions and signed the treaty. All of which indicates that the Khalifah
alone is the one who concludes the treaties, irrespective of whether it was a
peace treaty or any other kind of agreement.
As for paragraph “c”, its
evidence is that the Prophet
met the messengers of Musailama, and met Abu
Raafi’ as a messenger from the Quraysh; he
was the one who sent messengers to Heracules,
Caesar, al-Maqawqis (of Egypt), al-Harith al-Ghassani the king of al-Hira,
al-Harith al-Himiari the king of Yemen and to Najashi of the Abyssinians. He
sent ‘Uthman Bin ‘Affan (ra) at Hudaybiyah as
a messenger to the Quraysh. All of this indicates that the Khalifah is
the one who accepts or rejects to meet the ambassadors and is the one who
appoints them.
With respect to
paragraph “d”, the Messenger
used to appoint the governors; he appointed
Mu’adh as a governor over Yemen. He
was the one who used to remove the governors;
he removed al-‘Alaa Bin al-Hadrami from Bahrain. Also, the reason why he
removed al-‘Alaa was due to the complaints of the people about him, which
indicates that the governors are held responsible in front of the people they
are governing in the same way they are held responsible in front of the Khalifah
and in front of the Shura council since it represents all of the
provinces. This is with respect to the governors. As for assistants, the
Prophet
used to have two assistants, Abu Bakr (ra) and
Umar (ra), and he did not remove them nor appoint anyone other than them
throughout his life. So he
was the one who appointed them and did not
remove them. However, since the assistant only takes his authority from the Khalifah,
and he is his representative, then the Khalifah would have the right to
remove him, proven by analogy to the one given proxy, since the one who gave
proxy to someone has the right to remove it, unless there is a narrated text
which prohibits removing him in special circumstances.
The proof for
paragraph “e” is that the Messenger
made Ali (ra) the judge for Yemen and in al-isti’ab
that the Messenger
appointed Mu’ath Bin Jabal as judge over
al-Janad, a province in Yeman.
Umar (ra) used to
appoint and remove the judges; he appointed Shuraih as a judge over Kufa and
Abu Musa as a judge over Basra, while he removed Sharahbeel Bin Hasana from his
governorship over as-Sham, and appointed Mu’awiyah. So Sharahbeel said
to him “Did you remove me due to cowardice, or treachery?” He
replied “Neither of them, but I simply wanted a man more powerful than
the other” as it was reported in the musannaf of Abdul Razzaq.
‘Ali (ra) appointed Abu Aswad and then removed him, and so he asked “Why
did you remove me and I did not betray you nor commit a crime”, so ‘Ali
replied “I saw that you would disregard those who disputed you”.
Both Umar (ra) and ‘Ali (ra) did this within the sight and hearing of the
companions, and none of them rebuked them over this. This is therefore all
evidence that the Khalifah has the right to appoint judges generally,
and in the same way to appoint someone else to appoint the judges, analogous to
appointing a proxy, since he is able to deputise all his mandatory powers to
anyone in the same way that he is permitted to appoint anyone as a proxy for
him in everything that he is permitted to carry out.
As for making an
exception for the removal of the Madhalim judge while investigating a
case raised against the Khalifah or his assistant or his head judge,
this is due to the Shari’a rule “the means to a haram are haram”, since
giving the power to the Khalifah to remove him in this situation means
that there would be an influence on the verdict of the judge, and additionally
it would prevent an Islamic ruling, which is haram. Placing the power to
remove the Madhalim judge in the hands of the Khalifah is a means
to this haram, and especially since this rule relies upon most probably
doubt and not certainty. For that reason the power to remove the Madhalim
judge in this instance is left with the Madhalim court, and in other
circumstances the rule remains on its origin which is that the right to appoint
and remove belongs to the Khalifah.
With respect to the
appointment of the department managers, the Messenger
used to appoint registrars to administer the affairs, and they were equivalent to
department managers. Al-Harith b. ‘Awf was appointed in charge of his
seal; Mu’ayqib b. Abi Fatimah was
appointed as registrar of the war booty; Huthaifa Bin al-Yemaan used to
register the yield of the crops in the Hijaz; al-Zubayr b. al-‘Awwam used to
register the Zakat; and al-Mugheera Bin Shu’ba used to register the
debts and transactions, and so on.
As for the commanders
of the Army, and the standard bearers, the Messenger
appointed Hamza Bin Abdul Muttalib (ra) as a
commander over thirty men in order to impede the Quraysh along the sea shore.
‘Ubaydah Ibn al-Harith (ra) was appointed over sixty men and was sent to the
Raabigh valley to face the Quraysh. Sa’ad Bin Abi Waqqas (ra) was appointed
over twenty men and was then sent in the direction of Makkah. In the same
manner he
used to appoint the commander of the Army, all
of which indicates that the Khalifah is the one who appoints the
commanders and standard bearers.
All of these were
responsible to the Messenger
, and were not
responsible to anyone else, thus indicating that the judges, department
managers, commanders of the Army and the rest of the civil servants are not
responsible except to the Khalifah, and they are not responsible to the Shura
council. No one is responsible to the Shura council except for the
assistants and governors, and in the same way the administrators, since they
are all types of rulers. Other than these, no one else is responsible in front
of the Shura council; rather they are all responsible in front of the Khalifah.
As for paragraph “f”,
the various sections of revenues and expenditure of the budget of the State are
limited by the Shari’ah rules, so no one is given a single dinar unless it is due to them from a Shari’ah
rule, and not a single dinar is spent
except according to the Shari’ah rule. However, the details of the
expenditures, or what is known as the sections of the budget, are decided
according to the opinion and Ijtihad
of the Khalifah, and the same applies to the revenues. For example, he
would decide that the tax from the kharajiyyah land would be x amount, and that the Jizya to
be taken should be y amount, and
similar to these are the sections of the revenues. He is the one who would
decide that x amount should be spent
upon the roads, and y amount upon the
hospitals, and so on across all the sections of the budget. Therefore, it is
referred to the opinion of the Khalifah, and the Khalifah is the
one to decide according to his opinion and Ijtihad.
This is since the Messenger
was the one who took the revenues from the
administrators, and would take charge of how it was spent; some of the
governors were given the permission to collect the revenues such as when Mu’adh
b. Jabal was appointed governor over Yemen. After that, each of the righteously
guided Khulafaa’ individually in their capacity as the Khalifah used
to take the revenues and spend them according to their opinion and Ijtihad, and no one rebuked them over
this. There was no one other than the Khalifah who would act
independently with respect to collecting a single dinar and no one would
spend it unless he had permission from the Khalifah to do so, as what
happened in Umar’s (ra) appointment of Mu’awiyah who was given a general
governorship and so could collect and spend the revenues. All of this indicates
that the sections of the budget of the State are drafted by the Khalifah
alone, or by someone deputised by him.
These are the
detailed evidences regarding the powers of the Khalifah. And all of them
are collected together in what was reported by al-Bukhari from ‘Abd Allah Bin
Umar that he heard the Messenger
say “The Imam is responsible and is questioned over his
responsibility”, and in the narration of Ahmad and
al-Bayhaqi and Abu Awanah from ‘Abd Allah Bin Umar “The Imam is
responsible and is questioned over his responsibility”, in other words
everything that is connected to managing the affairs of the subjects from all
issues is only for the Khalifah and restricted to him alone, and he can
delegate whom he wants, to what he wants, as he wants, by proof that it is
analogous to proxy.
Article 37
The Khalifah’s adoption is restricted by the Shari’ah
rules; he is prohibited to adopt any
rule which is not derived according to a legitimate deduction from the Shari’ah
evidences, and he is restricted with what he adopted of the rules, and by what
he bound himself to with respect to the method of derivation. So he is not
permitted to adopt a rule which has been derived according to a methodology
which contradicts the methodology he adopted, and he cannot give an order which
contradicts the rules that he had adopted.
There are two issues
in this article: the first being that the Khalifah is restricted in the
adoption of rules to adopting from the Shari’ah rules; in other words he
is restricted by the Islamic Shari’ah in legislation and enacting laws.
Therefore, it is not permitted for him to adopt anything which contradicts that
since they would be the rules of Kufr (disbelief); if he adopted rules
from other than the Islamic rules, and he knew that what he had adopted was
something other than the Islamic Shari’ah, then the words of Allah (swt)
“And whosoever rules by other than what Allah has revealed then such are
the disbelievers” (TMQ 5:44) apply to him, so if he believed in the rule
that he had adopted, then he would commit disbelief and apostatise from Islam.
If he did not believe in it, but he took it upon the basis that it did not
contradict Islam, in the same manner that the Ottoman Khulafaa’ acted
during their final days, then it would be forbidden for him but he wouldn’t
commit disbelief. If he had a semblance of an evidence, such as the one who
legislates a rule which has no evidence, due to a benefit that he thinks is
there, and relies upon the rule of Al-Masalih al-Mursalah, or the
“preventing the means” or “the means of the actions” or anything similar, then
if he thought that these rules were Shari’ah rules and evidences, it
wouldn’t be forbidden for him and nor would he commit disbelief. However, he is
mistaken, and what he has derived is considered a Shari’ah rule by all
of the Muslims, and it is obligatory to obey it if the Khalifah adopts
it, since it is a Shari’ah rule, and it would have a semblance of an
evidence even if he was mistaken in the evidence, since he is like the one who
is mistaken in the deduction from the evidences. In any case, it is obligatory
for the Khalifah to restrict his adoption to the Islamic Shari’ah,
and to restrict himself to adoption of Shari’ah rules derived by a
correct deduction from the Shari’ah evidences. The evidence for this:
Firstly: What Allah (swt) obligated upon every Muslim, whether they were the Khalifah
or not, to conduct all of their actions according to the Shari’ah
rules; Allah (swt) says “But no by
your Lord they can have no faith until they make you (Muhammad
) judge in all disputes between
them” (TMQ 4:65). Conducting the actions according to the Shari’ah
rules necessitates the adoption of a specific rule when there are a number of
understandings of the address of the Legislator; in other words, when the Shari’ah
rule is numerous. So adoption of a specific rule in those issues where
there are a number of opinions is obligatory upon the Muslim when he wants to
undertake the action, in other words, when he wants to apply the rule, and so
it is obligatory upon the Khalifah when he wants to carry out his action
and that is the rule.
Secondly: The text of the pledge of allegiance which the Khalifah is
contracted upon, obliges him to adhere to the Islamic Shari’ah, since it
is a pledge upon the Book and the Sunnah, and so it is not permitted for
him to leave these two - rather whoever intentionally goes outside these two
commits disbelief and if it was unintentional then he would be sinful.
Thirdly: The Khalifah is appointed in order to implement the Shari’ah,
and so it is not permitted for him to implement anything from outside the Shari’ah
upon the Muslims, since the Shari’ah prohibits such an action in a
decisive manner which reaches the level whereby the one who implements other
than Islam has their Iman negated, which is an indication for it being
decisively prohibited. This means that the Khalifah is restricted in his
adoption of the rules, in other words, in his drafting of the laws according to
the Shari’ah rules alone, and if he drafts any laws based upon anything
else, then he will commit disbelief if he believes in it, and will be sinful if
he doesn’t.
These three evidences are the proof for the first issue in this article.
As for the second issue of the article which is that the Khalifah is
restricted by what he has adopted and by what he adheres to in terms of a
method of deduction, the proof for this is that the Shari’ah rule which
the Khalifah implements is the Shari’ah rule for him, and not for
others; in other words, the Shari’ah rule which he adopted in order for
his actions to proceed in accordance with and not any Shari’ah rule. So
if the Khalifah deduced a rule, or followed someone else in it, that Shari’ah
rule would be the rule of Allah (swt) for him, and he would be restricted by
this Shari’ah rule in his adoption of it for the Muslims. It would not
be permitted for him to adopt anything different to it, since it would not be
considered to be the rule of Allah (swt) for him, because it would not be a Shari’ah
rule with respect to him, and accordingly it would not be a Shari’ah rule
with respect to the Muslims. Therefore, his orders that he issued for the sake
of the subjects would be restricted according to this Shari’ah rule
which he had adopted, and it is not permitted for him to issue orders which
contradict whatever he had adopted from the rules. This is because that order
which he issued would not be considered the rule of Allah (swt) for him, and so
would not be considered a Shari’ah rule with respect to him, and then it
would not be a Shari’ah rule in respect to the Muslims, in which case,
it would be as though he had issued an order which was not based upon the Shari’ah
rule. Due to this, it is not permitted for him to issue any order which
contradicts what he adopted from the rules.
Also, the method of deduction causes a change in the understanding of the
Shari’ah rule, so if the Khalifah considered the Illah to
be a Shari’ah Illah if it is derived from a Shari’ah text, and he
does not think that maslahah is a Shari’ah Illah, and he does not
consider Al-Masalih Al-Mursalah to be a Shari’ah evidence, then
it means that he has specified a method of deduction for himself. In which
case, it would be obligatory for him to be restricted by it, and it would not
be correct for him to adopt a rule whose evidence was based upon Al-Masalih
Al-Mursalah, or to take an analogy based upon an Illah which was not
derived from a Shari’ah text, since that rule would not be considered a Shari’ah
rule for him as he does not recognise its evidence as a Shari’ah evidence,
in which case in his view, it would not be a Shari’ah rule. As long as
it is not considered to be a Shari’ah rule for the Khalifah, then
it would not be a Shari’ah rule for the Muslims and so it would be as if
he adopted a rule from other than the Shari’ah rules, which is
prohibited for him. If the Khalifah was a Muqallid (someone who
follows another person’s Ijtihad), or
a Mujtahid in an issue and not a Mujtahid mutlaq or Mujtahid
madhhab, and he did not have a specific method of deduction, then he would be permitted to adopt any Shari’ah rule
as long as it has an evidence, as long as that evidence is a semblance of an
evidence; he would not be restricted by anything in his adoption of the rules
but rather he would only be restricted by what he issued in terms of orders
such that they should not be issued except according to what he had adopted from
the rules.
Article 38
The Khalifah has the complete right to govern the affairs of the
subjects according to his opinion and Ijtihad.
He can adopt anything of the permitted issues that he needs to run the affairs
of the State and to manage the peoples’ affairs and he is not permitted to
contradict any Shari’ah rule for the sake of benefit. For example, he
cannot prohibit the single family from having more than one child on the
pretext of shortageof foodstuffs, or fix prices on the pretext of preventing exploitation, or appoint a
non-Muslim or a woman as a governor on the pretext of looking after the affairs
or benefit, nor anything else which contradicts the Shari’ah rules. It
is not permitted for him to prohibit a permitted matter and nor to allow a
prohibitedmatter.
The Khalifah has
the complete right to govern the affairs of the subjects according to his
opinion and Ijtihad, but he is not
permitted to contradict any Shari’ah rule using benefit as the proof –
so he cannot prevent the subjects from importing goods for the sake of
protecting the State’s industry, unless it would damage the State’s economy, or
fix prices for the sake of preventing exploitation, or force the owner to rent
his property for the sake of easing housing, unless there was a pressing
emergency for that, nor anything else which contradicts the Shari’ah rules.
It is not permitted for him to prohibit something permitted and to make
something prohibited permitted.
The proof for this is
the words of the Prophet
“The Imam is responsible and he is questioned over his
responsibility” reported by al-Bukhari through ’Abd Allah Bin
Umar, and also that the rules which the Shari’ah gives to the Khalifah
such as his independence of action according to his opinion and Ijtihad in the wealth of the commissioned Bayt al-Mal (state
treasury), and such as the coercion of the people to follow a specific opinion
in the single issue, and whatever else is similar. This narration gives the Khalifah
the complete right in governing the affairs of the subjects without any
restriction, and the rules of the Bayt al-Mal, adoption, preparation of
the Army, appointing the governors, and whatever else which has been given to
the Khalifah was given to him in an absolute manner without any
restriction, which is proof that he can carry out the governing of the affairs
according to how he views without any restriction, and to obey him is
obligatory while disobeying him is a sin. However, the undertaking of this
governing must be done according to the rules of the Shari’ah; in other words, according to the Shari’ah texts. So the mandatory power, even if it has been given to him
absolutely, is restricted by the Shari’ah; in
other words, according to the rules of the Shari’ah. For example, he has
been granted the power to appoint the governors as he pleases, but it is not correct to appoint the disbeliever, or child,
or woman as a governor, since it has been prohibited by the Shari’ah.
Another example is that he may permit the opening of embassies of the
disbelieving countries in the lands which are under his authority, and he
is allowed to do that without any restriction, however it
is not correct to permit the opening of embassies for a disbelieving country
that wants to use the embassy as a tool for control over the Islamic lands,
since the Shari’ah prohibited that. Likewise, he may draft the sections
of the budget, and the necessary amounts for each section, but he may not draft
a section in the budget for building a dam whose cost is beyond the revenues of
the Bayt al-Mal on the basis that he will collect taxes to pay for it.
This is because it is not permitted from the Shari’ah to raise taxes for
the sake of something which is not vital such as this dam. In this manner,
though he has absolute power in governing the affairs which have been given to
him by the Shari’ah, but this absoluteness can only operate according to
the rules of the Shari’ah. Additionally, what is meant by the absolute
right in the governing of the affairs is not that he can draft laws which he
sees as necessary for the governing of the affairs of the lands, but rather the
meaning is that he has been given the independence of action to act according
to his opinion of how the affairs should be carried out in those issues that
have been permitted to him, at which point he drafts the laws in those issues
which he has been permitted to undertake according to his opinions, and then it
becomes obligatory for the people to obey him since the Shari’ah gave
him the independence of action to apply his opinion in those issues and ordered
us to obey him. So he may make this opinion into a law which people are obliged
by. For example, he has been given the right to manage the affairs of the Bayt
al-Mal according to his opinion and Ijtihad,
and order the people to obey him accordingly, so he can draft financial laws
for the Bayt al-Mal at which point it becomes obligatory to obey these
laws. Likewise, he has been given the leadership of the Army and the management
of its affairs according to his opinion and Ijtihad,
and the people are ordered to obey him accordingly. So he may draft laws
regarding the leadership of the Army and for its administration at which point
it becomes obligatory to obey those laws. Likewise, he has been given the right
to manage the interests of the subjects according to his opinion and Ijtihad, and to appoint people to manage
the interests and work with them according to his opinion and Ijtihad, and the people have been
ordered to obey him accordingly. So he may draft laws for the Administration of
the Affairs, and he may draft laws regarding the civil servants at which point
it becomes obligatory to obey those laws. He
may draft laws for every issue that has been left to the opinion and Ijtihad of the Khalifah in the issues which he has the
mandatory powers, and it would be obligatory to obey those laws.
It cannot be argued that these laws are
styles, and that the styles are from the permitted issues, and so they are
permitted for all the Muslims in which case it is not permitted for the Khalifah
to specify specific styles and make them obligatory, since it is making it
obligatory to act upon something permitted, and to obligate an act upon
something permitted is making the mubah (permitted) fard (obligatory),
and making the mubah (permitted) haram (prohibited) by
prohibiting anything other than these styles, and this is not allowed. This
cannot be argued, since the permitted are styles from the angle that they are
styles, as for the styles of administrating the Bayt al-Mal, they are
permitted for the Khalifah and not every person, and the styles of the
leadership of the Army are permitted for the Khalifah and not every
person, and the styles of the management of the interests of the subjects are
permitted for the Khalifah and not all the people. Therefore, the
obligation of acting according to this permitted issue which the Khalifah
decided upon, does not make that mubah (permitted) into a fard (obligation),
rather it only makes obeying the Khalifah obligatory according to what
the Shari’ah gave to him from the right to act independently according
to his opinion and Ijtihad or in other words, in what he decided from opinion and Ijtihad in order to govern the issues. Since although it was originally
permitted, the Khalifah made it mandatory and prohibited anything else,
but it is permitted for the Khalifah to govern according to it, since
the governing is his issue, and it is not permitted for any other person since
this governing is not their issue. Therefore, it is not obligatory to adhere to
what the Khalifah adopted from the permitted actions in order to govern
the affairs; in other words, what the Shari’ah gave to the Khalifah
to act independently in according to his opinion and Ijtihad, from the angle that the Khalifah made something mubah
(permitted) into fard (obligatory), and made the mubah into
haram (prohibited), but rather from the angle that the obedience to the Khalifah
is obligatory in whatever the Shari’ah gave to the Khalifah to
act independently in according to his opinion and Ijtihad. So, every mubah (permitted issue) that the Khalifah
made binding in order to facilitate the governing of the issues becomes
obligatory upon every individual from the subjects to adhere to. Based upon
this, Umar bin al-Khattab (ra) registered the departments, and based upon this,
the Khulafaa’ laid down specific arrangements for their administrators
and for the subjects, and obliged them to work according to these arrangements
and prohibited them to work in any other way. Based
upon this, it is permitted to draft administrative laws and the remaining laws
which are from this type, and obedience to them is obligatory in the same
manner as obedience to the rest of the laws, since the obedience is to the Khalifah
according to what he orders, from what the Shari’ah has given him in
terms of rights and independence to act.
However, this is only in the permitted issues
which are for the governing of the affairs, in other words, what has been given
to the Khalifah to act independently in according to his opinion and Ijtihad, such as the organisation of the administrations, arranging the soldiers and
similar, and not in all the permitted issues but rather only what is permitted
for the Khalifah in his capacity as a Khalifah. As for the rest
of the rules from the fard (obligation), mandub (recommended), makruh
(disliked), haram (prohibited) and the mubah (permitted) for all
the people, then the Khalifah is restricted in those according to the Shari’ah
rule. He is not permitted to stray outside of these at all, due to the
words of the Prophet
“Whoever
does an action which is not based upon our order then it is rejected”,
which is general encompassing both the Khalifah and anyone else.
With regards to that which has not been given
to the Khalifah to run according to his opinion and Ijtihad but instead was permitted for all of the people – it is not
permitted for him to legislate laws which force people upon it; for example,
the techniques of leading the Army are run according to his opinion and Ijtihad, but the people are permitted to
wear the clothes that they like according to the appearance they like and so it
is not permitted to draft laws which would limit the appearance of their clothes.
And they are permitted to build their houses according to any architectural
style they like, and so it is not permitted for the Khalifah to draft
laws which would limit the styles for their houses, since this is a mubah (permitted)
issue for all the people, so any forcing of the people upon a specific thing in
this type of mubah (permitted) issue at the expense of others, is
equivalent to obligating and prohibiting the mubah, and this is not
permitted for the Khalifah. If he did it, obedience to him would not be
obligatory and the issue would be raised to the court of the Madhalim
(injustices). Rather, his adoption is limited to a single area, which is that
in which he has been given the independence to act according to his opinion and
Ijtihad. It is permitted for him to
make the people adhere to a specific opinion and Ijtihad, and obedience to him
is obligatory; in other words, it is permitted for him to draft laws in these
issues, in other words those issues which are permitted for the Khalifah
and not for the general people such as the styles of leading the Army and so
on. In such issues, he can obligate people to follow his specific opinion and Ijtihad, and it would be obligatory upon
them to obey him, in other words, it is permitted for him to draft laws in such
issue, while it is not permitted for him to do so at all in anything other than
these issues.
Accordingly, it is not permitted for the Khalifah
to make prohibited what has been permitted or to make permitted what has been
prohibited with the justification that it is for the governing of the affairs.
So it is not permitted for him to say that it is not permitted to sell wool to
outside of these lands with the justification that it is for the sake of
governing the affairs; this is since trade is mubah (permitted). It is
not permitted to make it haram (prohibited) or to prevent it. But, if
selling wool or weapons or anything from amongst the mubah (permitted)
things is confirmed to cause a harm, then selling that thing alone becomes haram
(prohibited) because it leads to a harm, while the object itself remains mubah
(permitted); this is according to the principle taken from when the Prophet
prohibited the Army from drinking from the
wells of Thamud.
Article 39
The Khalifah does not have a fixed term of office; as long as the
Khalifah preserves the Shari’ah and he implements its rules, and
is capable of carrying out the affairs of the State, he remains as a Khalifah
as long as his situation does not change to one that would remove him from the
leadership of the State. If his state changes in this manner, then it is
obligatory to remove him from his position at that time.
The proof for this is
that the text of the pledge of allegiance mentioned in the narrations came in
an absolute form and was not restricted by any specific period. Additionally,
the righteously guided Khulafaa’ were each contracted upon a pledge in
an absolute form, which was the pledge mentioned in the narrations, and their
terms were not fixed. So each one of them undertook the Khilafah from
the time they were contracted until they died, which is an Ijma’ of the
companions that the Khilafah does not have a fixed term, rather it is
absolute, and if someone is contracted, they remain as Khalifah until
they die. This is the case unless something occurs to the Khalifah which
would remove him, or make it necessary to remove him at that time. But this is
not a limit upon the term of the Khilafah, rather it would be something
that occurred which led to a deficiency in the conditions of the Khilafah,
since the form of the pledge of allegiance which has been determined by the Shari’ah
texts and the Ijma’ of the companions made the Khilafah an
indeterminate term. However, it is limited by the undertaking of what he was contracted
upon, which was the Book and the Sunnah, in other words, the
implementation of the Shari’ah; if he did not protect the Shari’ah
or did not implement it, then he would display open disbelief which would make
resistance against him obligatory upon the Ummah due to the narration “Unless
you witness an open Kufr” (agreed upon narration from ’Ubadah b.
al-Samit).
Article 40
The issues which alter the state of the Khalifah and therefore
remove him from the Khilafah are three:
a. If one of the contracting conditionsof the leadership
of the State becomes deficient, such as if he apostatises, or commits flagrant
sin, or becomes mad, or anything similar. This is because these are from the
conditions of contracting, and the conditions of continuation.
b. The incapability to
execute the duties of the Khilafah, for any reason whatsoever.
c. Coercion over him
which makes him unable to independently act in the interests of the Muslims
according to his opinion in agreement with the Shari’ah. So if an
overpowering force could subdue him to the point that he became unable to
govern the affairs of the subjects by his opinion alone according to the Shari’ah
rules, he is considered legally incapable of executing the duties of the
State, in which case he would be removed from the Khilafah. This could
occur in two situations:
The first situation: For an
individual or group of individuals from his advisors to hold sway over him to
the point they began to take full control of running the affairs. If it was
believed that he could be liberated from their influence, he is admonished for
a specific time, and if he does not remove their influence, then he is removed.
And if it was not believed that he could be liberated, he is removed
immediately.
The second situation: For him to become a prisoner in the hands of an
overpowering enemy, either literally or by his submission to the influence of
the enemy. This situation is evaluated – if it was hoped he could be liberated,
then there is a delay until no such hope remains, and if there were no hope in
his liberation, then he is removed; if there was no hope in his liberation,
then he is removed immediately.
The proof for this is
the texts that have been related in regards to the conditions of the Khalifah,
since these texts indicate that these conditions are conditions for
continuation and not simply conditions for taking the position alone. When the
Messenger
said “Any
people who appoint a woman as their leader will never succeed” (reported by al-Bukhari from
Abu Bakrah), his words included
the ruling, so as long as the person is a leader, he could not be a woman; so
if a man who was a ruler became a woman, due to any reason, then he would have
lost this condition and it would be obligatory to remove him immediately. In
the same manner, when Allah (swt) said “O you who believe, obey Allah and obey the Messenger and the people
of authority amongst you” (TMQ
4:59), His (swt) words “Amongst you” next to “People of authority”
clearly means that the person of authority must be an adherent of Islam as long
as he is a person of authority. So if the person of authority became someone
not from amongst us, in other words became a disbeliever, then this
characteristic which the Quran stipulated for the person of authority would be
lost - the loss of the condition of being Muslim - at which point he becomes
removed from this position of authority since it is not correct for him to be a
person of authority while he is not from amongst us, in other words not a
Muslim. And the same applies to all the texts which have been related in
regards to the conditions of the Khalifah; they are comprehensive texts
which encompass the perpetual characteristics that are necessary for the one
described, which indicates that they are conditions of continuation and not
simply conditions for taking the position alone. Based upon that, the
conditions for the contracting of the Khilafah are also the conditions
for removing him, since their presence is a condition for the contracting of
the Khilafah, and a condition for its continuation due to the generality
of the text, and their loss means the loss of its continuation, and so it is
prohibited for the person to remain in their position. This is the proof for paragraph
“a” of the article.
As for paragraph “b”, its evidence is that the contract of the Khilafah
is over the execution of its duties; so if he becomes incapable to execute what
he was contracted upon, it becomes obligatory to remove him since he has become
like one who in reality is not there. Additionally, due to his inability to
execute the actions which are commissioned to him as Khalifah, the
issues of the Deen and the interests
of the Muslims would be suspended, and this is an evil that must be removed,
and it cannot be removed except by his removal so as to be replaced by someone
else. His removal in this situation would become mandatory. It should be known
that this is not linked to a specific reason; rather anything which afflicted
him leading to his incapacity in executing his actions necessitates his
removal. If it does not make him incapable, then he is not removed, and for
this reason it cannot be said that losing limbs from his body necessitates
removal or not, in the same way, it cannot be said that if he is afflicted by a
specific illness, it necessitates his removal or not. This is since there is no
text regarding this at all; rather the Shari’ah rule is that the one
incapable of executing the actions which they have been commissioned for necessitates
his removal, whatever the reason for this incapacity. This is not specific for the Khalifah,
rather it is general and applies to everyone who is commissioned to an action,
irrespective of whether he was appointed as a ruler such as a governor or as an
employee such as a department manager; his incapacity necessitates his removal.
The proof for paragraph “c” is the same as the proof for paragraph “b”.
That is because the incapacity to execute the actions that have been
commissioned to him as the Khalifah is of two types: literal incapacity
and legal incapacity. Literal incapacity is when he is physically incapable, in
other words, the loss of the physical capability to execute the actions, and
this is what was discussed in paragraph “b”. Legal incapacity is when he is
physically able to execute the actions, but he is incapable of freely acting to
undertake the actions, and so the rule of literal incapacity would apply to
him, since he is unable to undertake the execution of the actions which have been
commissioned to him by himself, due to his incapability of freely acting in the
affairs by himself, and so he becomes like the one who is absent; for this
reason, it is necessary to remove him. This has two situations: the first is
being confined, and the second is being overpowered.
As for the situation of confinement, it is when someone from his
assistants takes control over him, and takes full control of implementing the
issues while preventing him from dealing with them, and the one in control is the
one who deals with the position of the Khilafah, and so the Khalifah
in this situation is considered to be like the one who is confined and is
prevented from freely speaking. Since the contract of the Khilafah only
proceeds upon the person of the Khalifah, and therefore it is obligatory
to attend to the Khilafah himself, this confinement over him or the full
control of his assistants means that he has lost the ability to execute the
actions that have been commissioned to him; accordingly, he has become like the
one who is absent and must be removed. However, this situation will be
evaluated; if there was some hope that the influence of the one who took
control over the Khalifah could be removed and that his confinement
could be broken, then his removal is delayed; if the confinement is not broken,
then he is removed.
As for the situation of being overpowered, such as when he becomes a
prisoner in the hand of the overpowering enemy and is unable to liberate
himself from them, then he is prevented from the contract of the leadership
given to him due to his incapability of looking into the affairs of the
Muslims. This is the case whether the enemy was from amongst the disbelievers
or rebellious Muslims. In this situation, it is obligatory upon all the Ummah
to save him either through fighting or paying a ransom, and if there was no
hope of this happening, then if he was a prisoner in the hands of the
disbelievers, he would be removed immediately. If, however, he was a prisoner
of the rebels, the situation would be evaluated; if they had an Imam, and they lost hope in recovering
the Khalifah, then he would be removed at the time, and if they did not
have an Imam, then he would be
considered as the one who is in the situation of confinement, in other words,
they would delay for a period, and if his imprisonment was not ended, he would
be removed.
These are the proofs for the three paragraphs and in totality, they are
the proofs for the conditions of the Khilafah. So, in the same manner,
the ability to carry out what has been commissioned to him is a condition.
Thus, his incapacity to carry out what he has been commissioned to do entails
the loss of this condition. However, it should be noticed that the loss of some
of these conditions remove him from the Khilafah, in other words, annul
the contract instantly, and the loss of some of them does not remove him from
the Khilafah but would mandate his removal. The three situations of
apostasy from Islam, being completely mad and becoming a physical prisoner in
the hands of the disbelievers with no hope of releasing him, remove him from
the Khilafah and he has deposed himself immediately even if his removal
was not ruled upon. Therefore, it would mean that it is not obligatory to obey
him, and his orders are not implemented and the contract of the Khilafah
with him is annulled.
As for if his just character is damaged by the appearance of clear sin,
or changing his sex to female or someone whose gender is not clear, or if he
became afflicted by temporary madness, or he became literally incapable of
carrying out the Khilafah, or he is confined through being influenced by
an individual or group from his advisors who take full control of executing the
affairs, or he becomes a physical prisoner with the hope of being able to be
liberated, or he falls under the influence of the disbelievers who control him;
in these seven circumstances, it is obligatory for him to be removed, however,
he is not removed except by a judge’s verdict. In all of these seven
circumstances, it is obligatory to obey him and execute his orders until the
order to remove him is issued; this is because none of these situations results
in the automatic annulment of the contract of the Khilafah but rather
relies upon the verdict of a judge. The difference between the conditions which
if lost result in his removal from the Khilafah and those conditions
whose loss does not remove him from the Khilafah but rather mean that he
is deserving of being removed, is that those conditions whose loss makes the
contract invalid from its origin and quality, in that they return to the
contract or are one of its pillars, then the contract would be invalid in this
case since if they were not present at the time of the contracting of the Khilafah,
then the contract would be invalid and would not have been concluded. If they
appear during the period of the Khilafah, the contract would be invalid,
and would be void as well. This would occur with conditions such as the
condition of Islam, sanity and the capability to carry out the actions
individually. As for the conditions whose loss does not make the contract
invalid, but rather its basis remains legitimate, but it makes it invalid from
its properties, since it does not return to the contract itself, nor to one of
its pillars, but rather to a property attached to it. In this case, the
contract is not invalid but rather is imperfect. So if all these conditions
were not present at the time of contracting the Khilafah, the Khilafah
is contracted but it would be imperfect and its annulment would rely upon the
verdict of a judge. In the same manner, if they appear during the period of the
Khilafah, then the contract would become imperfect, but it would not
void itself. Rather, its annulment would rely upon the verdict of a judge.
Examples of this would be like the condition of being male, just and whatever
is similar. It is from this explanation, that the difference between the
changing of the condition of the Khalifah which removes him from the Khilafah,
and the changing of condition which does not remove him from the Khilafah
but rather makes him deserving of being removed has been arrived at.
Article 41
The court of the Madhalim (injustices) is the only authority that
can decide whether the change in the situation of the Khalifah removes
him from the leadership or not, and it is the only authority that has the power
to remove or warn him.
The evidence is that
the occurrence of any issue from the issues that the Khalifah is removed
for and those for which his removal is deserved, is a complaint from the
injustices, and so it must be removed. And in the same manner it is one of the
issues that require confirmation, and so it is imperative to be established in
front of a judge. Since the court of Madhalim (injustices) is the one
which rules to remove the injustices, and its judge is the one who has the
power to confirm the injustice and rule upon it, accordingly the court of Madhalim
decides whether any of the previous ten circumstances have occurred or not, and
whether the Khalifah is removed.
However, if the Khalifah
is afflicted by any of the circumstances and removes himself, then the issue is
closed, and if the Muslims see that it is necessary for him to be removed due
to this situation occurring and he disagrees with them, then the issue is
referred to judgement due to the words of Allah (swt) “And if you differ in anything amongst
yourselves, then refer it to Allah and His Messenger” (TMQ 4:59); in other words, if you and the people of authority disagreed, and this
is a disagreement between the person of authority and the Ummah, and to
refer it to Allah (swt) and His Messenger (saw) is to refer it to judgement, or
in other words the court of the Madhalim.
The Madhalim court has the power to limit the period of notice to
remove the mastery over him, or the period of grace for freeing him from
imprisonment, during which the temporary leader would work, and after if the Khalifah
then could carry out his powers without being under the mastery of others or
imprisoned, then the work of the temporary leader would end. If the mastery over
him or imprisonment did not end, then the court would rule to remove him, and
the temporary leader would begin the process of appointing the new Khalifah.
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