We gather from these two Ahadith that adherence to the Jama‘ah (the community) and to the Sultan (authority) is obligatory.
The non-Muslims have no right in the Bai’ah nor it is a duty upon them.This is because it is a Bai’ah on Islam, on the Book of Allah (SWT) and on the Sunnah of His Messenger (saw). It necessitates Iman (belief) in Islam, in the Book and the Sunnah. The non-Muslims can’t be in the ruling nor can they elect the ruler, because there is no way (power) for them over the Muslims, and they have no say in the Bai’ah.
Who appoints the Khaleefah?
The Legislator (Al-Shari’) has given the authority to the Ummah, and made the appointment of the Khaleefah by all Muslims. He (SWT) has not confined it to a particular group to the exclusion of another group, nor to a particular section to the exclusion of another section, thus the Bai’ah is an obligation on all Muslims: “Whoever dies while there was no allegiance (Bai’ah) on his neck he dies a death of the days of ignorance (Jahiliyyah)” as reported by Muslim from ‘Abdullah Ibn Omer. This applies to every Muslim. It therefore, follows that the prominent figures are not the only people eligible to appoint the Khaleefah to the exclusion of other Muslims. Those eligible to appoint the Khaleefah are not specific people, rather this right belongs to all Muslims without exception, even hypocrites and also wrongdoer, so long as they are mature Muslims. This is because the relevant texts are general in form, nothing else has been reported to specify them except the rejection of the Bai’ah of the child who is under the age of maturity, therefore they remain general in their form.
However, it is not a condition for all the Muslims to exercise this right, because it is their right. And although it is an obligation on them, since the Bai’ah is obligatory, the obligation is one of sufficiency (Fard Kifaya) and not an individual obligation (Fard ‘Ayn). Accordingly, if some of the Muslims performed it the rest of the Ummah would be exempted. Nevertheless, the whole of the Ummah should be enabled to exercise their right of appointing the Khaleefah, regardless of whether they utilised this right or not. In other words, every Muslim should be able to participate in appointing the Khaleefah, by genuinely enabling him to do so. Therefore, the point at issue is in enabling the Muslims to perform that which Allah (SWT) has ordained upon them of appointing the Khaleefah in a way which would exempt them of this duty and not the actual exercise of that duty by all the Muslims. This is because the obligation which Allah (SWT) ordained on them is to appoint the Khaleefah by the Muslims and by their consent, and not all Muslims have to appoint him. Two issues could actually arise from this matter: One, is that the consent of all the Muslims of his appointment was realised; the other is that the consent of all the Muslims of this appointment was not achieved, although, in both cases, the Muslims were genuinely enabled to exercise this right.
As far as the first issue is concerned, it is not stipulated to have a specific number of those who appoint the Khaleefah. Actually any number of Muslims who give their Bai’ah to the Khaleefah, whereby the consent of the Muslims is achieved by their remaining silent, or by pledging allegiance and obedience to him, or by any other similar sign which indicates their approval, can appoint the Khaleefah. Thereupon, the appointed Khaleefah becomes the Khaleefah of all the Muslims and he would be the lawful Khaleefah according to the Shari’ah, even if only five people appointed him. This is because they would be regarded as a valid group able to appoint a Khaleefah. Consent would be achieved through the Muslims remaining silent and pledging obedience or the like, on condition that this should be carried out with absolute flexibility of choice and with the necessary steps taken to enable everyone to voice his (or her) opinion should they wish to do so. If the consent of all the Muslims was not achieved then the appointment of the Khaleefah would not take place unless a group of Muslims undertook the task of appointing him and in so doing the populace’s consent was achieved, i.e. the majority, regardless of the number of that group. In this context, some learned scholars have concluded that: The appointment of the Khaleefah can be carried out if he is given the Bai’ah by the Ahlul Hall Wal Aqd because they - the scholars - regard them as being the group which represents the opinion of the Muslims at large, and those who are able to give the Bai’ah to any man who satisfies the contractual conditions. However, the Bai’ah of the Ahlul Hall Wal ‘Aqd does not actually make the appointment of the Khaleefah a forgone conclusion. Their Bai’ah is by no means a precondition making the appointment of the Khaleefah lawful. The Bai’ah is merely a sign indicating that the consent of the Muslims would be achieved, since they are regarded as the representatives of the Muslims. Any indication that the consent of the Muslims would be realised by the Bai’ah of a Khaleefah makes the appointment legal and binding.
Therefore, the Shar’ia verdict is executed if a group of people appointed a Khaleefah and in doing so the consent of the Muslims was achieved by any indication. It could also be by the Bai’ah of the majority of the Ahlul Hall Wal-‘Aqd or by themselves being the representatives of the Muslims, or by the silence of the Muslims about the Bai’ah of the Khaleefah whom they had given the Bai’ah to. It could also be by the Muslims rushing to pledge allegiance and obedience on the strength of such a Bai’ah, or by any other means or indications so long as they had been fully enabled to voice their opinion. The Shari’ah verdict does not contain any provisions maintaining that such an indication must be arrived at through the Ahlul Hall Wal‘Aqd or that they should constitute five or 500 people or more or less, nor that they need be the inhabitants of the capital or the provinces. The Shari’ah rule merely states that with their Bai’ah the consent of the majority of the Muslims is achieved according to any indication which reflects such consent, and with the allowance for being able to vote guaranteed to everyone in order for them to voice their opinion.
In this context, “all the Muslims” means those Muslims living in that country under the rule of the Islamic State, i.e. those who were the subjects of the previous Khaleefah, if the Khilafah was (already) established, or those through whom the Islamic State would be re-established, and by whose Bai’ah the Khilafah would be contracted if the Islamic State was not established and they had worked towards establishing it so as to resume the Islamic way of life. The Bai’ah of the other Muslims would not be considered as a condition, nor would their consent be considered as such. This is because they would either be outside the authority of Islam, or living in Dar-ul Kufr and unable to join Dar-ul Islam. In either case, they would not have the right to give the Bai’ah of contract but they should give the Bai’ah of obedience. Those who do not submit to the authority of Islam would be considered rebels (Bughat). Those living in Dar-ul Kufr were thus evidently unable to achieve the establishment of the Islamic authority and therefore they cannot now establish it practically or join it immediately. Thus, the Muslims who possess the right to excercise the Bai’ah of contract and those whose consent is conditional for the Khaleefah to be lawfully appointed are the ones through whom the authority of Islam effectively gains its establishment. It would be wrong to say that this is an intellectual matter which has no Shari’ah evidence to back it up with. One cannot say this because this is related to the subject of the verdict (Manat-ul Hukm) and not the verdict itself. Therefore, it is necessary to explain its reality, rather than bring a Shari’ah evidence for it. For instance, the eating of carrion meat is forbidden, now that is the verdict (Hukm). To investigate and realise what constitutes carrion meat would be the subject of the verdict, i.e. the Manat or the subject which the verdict is related to. Thus the Muslims have to establish a Khaleefah constitutes the Shari’ah verdict, and this appointment has to be carried out by consent and choice would be the verdict too, these are what require evidence. Whereas, if we were to ask who constitutes the Muslims by whom the appointment would be carried out and what constitutes the matter which makes consent and choice achievable these would constitute the subject of the verdict (Manat-ul Hukm), i.e. the subject for which the ‘Hukm’ (verdict) had come to deal with. The conformity of the Shari’ah verdict with the subject makes the verdict achievable and accomplished. So the subject which the Shari’ah verdict came for, should be investigated by explaing its reality.
It would be wrong to say that the Manat-ul Hukm is the reason behind the Hukm (I’llatul Hukm) and therefore an evidence is required. This cannot be said because the subject (Manat) of the verdict is different from the reason (I’lla) of the verdict, in fact there is a big difference between the subject and the reason. The reason is what induces the verdict to be initiated, i.e. it is the thing that indicates the intention of the Legislator behind the verdict. This, without any doubt, requires a Shari’ah evidence to indicate it clearly so that it is understood that it is the intention of the Legislator for initiating the verdict. As for the subject of the verdict, this is the subject upon which the verdict applies or to which the verdict is related. In other words, it is the issue which the verdict conforms and not its evidence nor its reason (Illa). It therefore, follows that the Manat is the thing which the verdict is attached to, i.e. the verdict is brought to deal with it, or solve it. It is not true to say that the verdict is brought because of it, so as to say that it is the reason behind the verdict. Thus, the Manat of the verdict is the non-textual aspect of the Shari’ah verdict. To realise it would be other than to realise the reason, for realising the reason would be to understand the text which had come to justify the reason, and this is to actually understand the text (Naqlyyat). This is not the Manat either, because the Manat is completely different from the Naqlyyat, as it (ie. the Manat) is the reality to which the Shari’ah verdict conforms.
The Bai’ah is an obligation upon all Muslims and it is also the right of every Muslim, male and female. The evidences concerning the Bai’ah being an obligation are numerous; of these is the speech of the Messenger of Allah (saw) :
"Whoever dies while there was no allegiance on his neck dies a death of the days of ignorance (Jahiliyyah)” (narrated by Muslim)
The fact that the Bai’ah itself indicates that it is the right of the Muslims, is understood from the Bai’ah itself, for it is from the Muslims to the Khaleefah, and not from the Khaleefah to the Muslims. The Bai’ah of the Muslims to the Messenger of Allah (saw) has been confirmed in many sound Ahadith listed as Sahih. In Al-Bukhari, it has been reported that Ubadah Ibnus Samit said: ‘We pledged ourselves in complete obedience to the Messenger of Allah, in weal and woe, and that we would not dispute the matter (authority) with its people, that we would speak or stand the truth at all times wherever we were and that in Allah’s service we would fear the censure of no one.’ In Bukhari, it has been narrated on the authority of Ayyub from Hafsa that Umm Atyya said: ‘We gave our Bai’ah to the Messenger of Allah (saw), so He (saw) recited to us "they should associate none with Allah" and he forbade us from wailing. A woman among us withdrew her hand saying: “so and so woman has made me happy and I want to reward her”, he (saw) said nothing, the woman went then came back.’
Abu Hurayra reported that the Messenger of Allah (saw) said:
"There are three types of people whom Allah would not talk to nor would He praise or purify them on the Day of Judgement, and they will be subjected to severe punishment: A man who has water to spare and would not give it to the wayfarer, and a man who gives his Bai’ah to an Imam for his own good, if he gave him what he wanted he would be loyal to him, otherwise he would not, and a man who offers another man goods for sale after Asr prayer, swearing by Allah that he was given so much price for it, and so he believed him and took the goods, while he was not given that price for it." (narrated by Bukhari and Muslim)
Al-Bukhari and Muslim narrated from Abdullah Ibnu Umar , he said:
‘When we gave our Bai’ah to the Messenger of Allah (saw), to hear and to obey, he (saw) used to say to us: "As much as you can."’
Al-Bukhari narrated from Jarir Ibnu Abdullah, he said:
‘I gave my Bai’ah to the Messenger of Allah (saw) to hear and to obey, so he dictated to me: "As much as you can, and to give advice to every Muslim."’
Junada Ibnu Aby Umayya said :
‘We entered Ubadah Ibnus Samit’s home while he was ill and said to him: "May Allah cure you, won’t you tell us a Hadith that Allah my reward you for, which you heard from the Messenger of Allah (saw)?" He said: "The Messenger of Allah (saw) called us and we gave him our Bai’ah, and said: of what he took from us that we pledged to hear and obey, in weal and woe, in ease and hardship and in preference to ourselves and that we would not dispute the matter (authority) with its people, unless we witness a flagrant act of disbelief which we have proof about from Allah (SWT),’ narrated by al-Bukhari and Muslim.
Thus the Bai’ah for a Khaleefah is in the hands of the Muslims, it is their right and they are the ones who give the Bai’ah and their Bai’ah is the one that makes the Khilafah convened to the Khaleefah. The Bai’ah is given by a handshake, but it could also be given in writing. Abdullah Ibnu Dinar said: "I witnessed Ibnu Umar when people agreed on Abdul Malik ibn Marwan, he said: ‘I write herewith that I agree to hear and obey the servant of Allah, Abdul Malik, the Ameer of Believers, according to the Book of Allah and the Sunnah of His Messenger, and to the best of my ability.’ The Bai’ah can also be given by any other means.
However, the Bai’ah should only be taken from the adult as the Bai’ah of the minor is not valid. Abu Aqeel Zahrah Ibnu Ma‘abad reported on the authority of his grand-father Abdullah Ibnu Hisham who lived during the time of the Messenger of Allah (saw), that his mother Zainab Ibnatu Hamid took him to the Messenger of Allah (saw) and said: ‘O Messenger of Allah, take a Bai’ah from him; upon this the Messenger of Allah (saw) said:
"He is young," he (saw) wiped over his head and prayed for him. (narrated by Bukhari)
As for the wording of the Bai’ah, this may vary; it is not restricted to any specific wording. It should, however include the commitment that the Khaleefah acts according to the Book of Allah and the Sunnah of His Messenger; and that the person who gives the Bai’ah should pledge to obey in weal and woe and in ease and hardship. Once the Bai’ah was given to the Khaleefah or the Khilafah was contracted to the Khaleefah by the Bai’ah of the Muslims to him, then the Bai’ah becomes a trust on the neck of the one who gave Bai’ah, where he is not allowed to withdraw it. For it is right (to the Muslim), in terms of convening the Khilafah, to withdraw his Bai’ah till he gives it, and once he gave it, he is not allowed to withdraw it. If he wanted to do so, it is not allowed to him. Al Bukhari narrated from Jabir ibn Abdullah (ra) that a bedouin gave Bai’ah to the Messenger of Allah (saw) on Islam, but he became ill, so he said: "Relieve me of my Bai’ah", the Messenger of Allah (saw) 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 Naf’i, he said: Abdullah ibn ‘Omar said to me: I heard the Messenger of Allah (saw) say: "Whoever withdraws a hand from obedience, he would meet Allah on the day of judgement without having proof for himself". So breaking the Bai’ah to the Khaleefah is a withdrawal of the hand from the obedience to Allah. However, this is the case if his Bai’ah to the Khaleefah was a Bai’ah of contract, or a Bai’ah of obedience to a Khaleefah accepted and pledged by the Muslims. But if he pledged himself to a Khaleefah initially, and the Bai’ah was not completed to him (the Khaleefah), then he has the right to relieve himself from that Bai’ah, in view of the fact that the Muslims, as a whole, did not accept him. So the prohibition in the Hadith is focused on withdrawing a Bai’ah to a Khaleefah, not to a man for whom the Khilafah contract was not completed.
Seeking the Khilafah
Seeking of the Khilafah post and competing over it is lawful to all the Muslims and it is not Makruh; no text has ever been listed indicating the prohibition of competing for Khilafah. It has been confirmed that the Muslims competed for it in the hall of Banu Sa’ida while the Messenger of Allah (saw) was lying on his bed still unburied. It has also been confirmed that the six members of the Shura council who were all senior Sahabahs competed over the post, in the presence of the Sahabah and no one had actually reproached them but rather consented to this competition. This demonstrates that a consensus of the Sahabah has been established about the permissibility of competing for the Khilafah post and the permissibility of applying for the post and campaigning for it by putting forward the arguments and opinions, proposals etc for the aim of achieving that goal. As for the forbidding of seeking the Imarah (authority) that came in the Ahadith, it is forbidding the weak persons, like Abu Dharr, who are not apt for it. But those who are suitable for the Imarah, they are permitted to seek for it. Amru Ibnul A‘as asked for it and the Messenger of Allah (saw) appointed him. Therefore, the mentioned Ahadith are specific to those who are not qualified for the post, whether it was Imarah or Khilafah, but the one who is qualified for it, the Messenger of Allah (saw) did not reproach him, and he appointed the one who asked for it. Since the Messenger (saw) appointed the Imarah to the one who asked for it, and he (saw) forbade the seeking of Imarah then the forbidding was regarding the one who seeks for it from those who are not suitable. Thus it was not an absolute forbidding.
The Method of Appointing the Khaleefah
When Shar’a made it incumbent upon the Ummah to appoint a Khaleefah on her, it determined to her the method by which the Khaleefah is appointed. This method is proved in the Book, the Sunnah and the ‘Ijma’a of the Sahabah. This method is the pledge of allegiance (Bai’ah). So the appointing of the Khaleefah is drawn by the Bai’ah of the Muslims to him in accordance with the Book of Allah and Sunnah of Rasul Allah (saw). The fact that this method is the Bai’ah, is proved from the Bai’ah of the Muslims to the Prophet (saw), and from the order of the Messenger to us to pledge Bai’ah to the Imam. However, the Bai’ah of Muslims to the Messenger (saw) was not a Bai’ah on Prophethood, but a Bai’ah over ruling, for it was regarding action not belief. Therefore, Rasul Allah (saw) was pledged an allegiance as a ruler, and not as a Prophet or a Messenger. This is because acknowledging the Prophethood and Messengership is belief (Iman), and not a Bai’ah, so the Bai’ah to him (saw) was only in his capacity as the head of the state.
The Bai’ah was mentioned in the Qur’an and Hadith. Allah (SWT) says:
"O Prophet! If the believers come to you to take the oath (Bai’ah) that they will not associate (in worship) anything whatever with Allah, that they will not steal, that they will not commit adultery, that they will not kill their children, that they will not utter slander, intentionally forging falsehood, and they will not disobey you in any just matter (Ma’roof), then receive their oath (Bai’ah)." – [TMQ:60:12]
In another verse Allah (SWT) says:
"Verily those who pledge their allegiance to you do no less than pledge their allegiance to Allah: The Hand of Allah is over their hands." - [ TMQ:48:10; ].
‘Ismail told us, Malek told on the authority of Yahya bin Sa‘eed who said: Ubadah bin Alwaleed told me, that my father told me on the authority of Ubadah bin-us-Samit who said: "We have pledged allegiance to the Messenger of Allah to listen and obey in ease and in hardship and that we do not dispute the matter (authority) with its people and that we stand for or speak the truth wherever we were and that in the service of Allah we would fear the blame of no one’
Al-Bukhari also narrated:
Ali bin Abdullah told us, Abdullah bin Yazid, Saeed bin Abi Ayyoub said: Abu Aqeel Zahrah bin Ma'bad on the authority of his grandfather Abdullah bin Hisham who has seen the Prophet, his mother Zainab daughter of Humaid took him to Rasul Allah and said:; O Messenger of Allah take his Bai’ah, the Prophet (saw) said:"He is young”, and he stroked over his head and prayed for him."
Al-Bukhari also narrated:
Abdan told us on the authority of Abi Hamza, from Ala‘mash, from Abi Saleh, that Abu Hurayra said: The Prophet (saw) said:"There are three types of people whom Allah would not talk to nor would He praise or purify them on the Day of Judgement, and they will be subjected to severe punishment: A man who has water to spare and would not give it to the wayfarer, and a man who gives his Bai’ah to an Imam for his own good, if he gave him what he wanted he would be loyal to him, otherwise he would not, and a man who offers another man goods for sale after Asr prayer, swearing by Allah that he was given so much price for it, and so he believed him and took the goods, while he was not given that price for it." (narrated by Bukhari and Muslim)
These three Hadith are explicit that the Bai’ah is the method of appointing the Khaleefah. In the Hadith of Ubadah, the Messenger (saw) took the Bai’ah to listen and obey, this is with respect to the ruler. In the Hadith of Abdullah b. Hisham he refused his Bai’ah because he was still a child, which confirms that it is a Bai’ah over ruling. The Hadith of Abu Hurayra is explicit that it was a pledge of allegiance to an Imam, and the word was mentioned without "The" to indicate any Imam. There are other Ahadith that refer to the Bai’ah of an Imam. In Muslim, the Messenger of Allah (saw) said:
"Whosoever pledges allegiance to an Imam by giving him the clasp of his hand, let him obey him if he is able to do so, but if another comes along to dispute with him, then kill the other."
Also in Muslim, Abu Saeed Al-Khudri said: The Messenger of Allah (saw) said:
“If two Khulafa’a were pledged allegiance, then kill the latter of them."
Muslim narrated on the authority of Abi Hazim who said:
I accompanied Abu Hurayra five years and I heard him talk about the Prophet (saw) saying:"Banu Israel used to be governed by Prophets, every time a Prophet died, another came after him, and there is not Prophet after me. There will be Khulafa’a and they will number many". They said: "What would you order us to do?" He (saw) said: "Fulfill the Bai’ah to them one after the other, and give them their due right, surely Allah will account them for that which He entrusted them with".
The texts are explicit in the Book and Sunnah, that the method of appointing a Khaleefah is by the Bai’ah. This was understood and practiced by all of the Sahabah. Abu Bakr was pledged a special Bai’ah in the hall of Bani Sa’idah, and a public Bai’ah in the mosque. Then others who were absent from the Masjid like ‘Ali b. Abi Talib (ra) gave him the Bai’ah later on. Umar was also pledged a Bai’ah from the Muslims, as were Uthman and ‘Ali. So the Bai’ah is the only legitimate method of appointing a Khaleefah for the Muslims.
The practical forms of the procedure of this Bai’ah are clear from the appointment of the four Khulafa’a, who succeeded after the death of the Prophet (saw) directly, namely: Abu Bakr, Umar, Uthman, and ‘Ali may Allah (SWT) be pleased with them. All of the Sahabah remained silent about this and vouched for it, otherwise, who could have accepted it if it was against the Shar’a. This is because it is related to a vital matter upon which relies the stature of the Muslims and the preservation of the rule by Islam. If we follow the development of the appointment of those Khulafa’a, we find that some Muslims had discussions in the hall (Saqeefah) of Banu Saidah, and those who were proposed to rule were Sa‘ad, Abu Ubaydah, Umar, Abu Bakr and none other. As a result of the debate, the Bai’ah was taken for Abu Bakr. The next day the Muslims were called to the Masjid and in turn pledged their Bai’ah. So the Bai’ah of the Saqeefah was a Bai’ah of appointment, by which he became Khaleefah for the Muslims. However, the second Bai’ah in the Masjid in the next day was a Bai’ah of obedience. When Abu Bakr felt that his illness carried with it death, he invited the Muslims and consulted them with regards to who could be a Khaleefah for the Muslims after him. The opinion during those consultations was focused on ‘Ali and Umar and no-one else. He continued in making these consultations for three months. When they were complete and he knew the opinion of the majority of the Muslims, he announced to them that Umar would be the Khaleefah to succeed him. Upon his death directly, the Muslims came to the Masjid and pledged their allegiance to Umar for Khilafah. So with this Bai’ah Umar became the Khaleefah for the Muslims, and not with the consultations, nor with the announcement of Abu Bakr. When Umar was stabbed, the Muslims asked him to nominate a Khaleefah, but he refused. They insisted upon him until he nominated six. After his death the nominees delegated one of them, namely Abdul Rahman b. ‘Awf and he referred back to the Muslims to consult with them. They chose Uthman and he became the new Khaleefah, not by the choosing of Umar nor by the announcement of Abdul Rahman. When Uthman was murdered, following which the whole of the Muslims pledged allegiance to ‘Ali in Madina and Kufa, so he became Khaleefah with the Bai’ah of the Muslims.
So from this, it is clear that the only method, which Islam determined to appoint a Khaleefah is the Bai’ah with the consent and selection of the Muslims.
In terms of the practical measures, by which the process of appointing a Khaleefah is completed before he is pledged allegiance, they may take different styles, as was the case with the rightly-guided Khulafa’a, where no particular style was adhered to. Each Khaleefah was chosen in a style different from the others. This was witnessed by the Sahabah, may Allah be pleased with them, and was by their consent, which represents consensus (Ijma’a) from them. It indicated that it is not incumbent to adhere to a specific style for the appointment process, rather the appointment process may be completed in various styles, such as:
1. A multitude from the people in the centre (capital) of the Khilafah state, or the influential people there, or those who represent the majority of the Muslims, or the best prominent people qualified for the post of the Khilafah. They may meet after the death of the Khaleefah or his resignation or dismissal, and nominate one or more persons exclusively for the position of Khilafah, then they choose one of them, in any style they see fitting. Afterwards they give him a pledge of contract to listen and obey in accordance with the Book of Allah (SWT) and the Sunnah of Rasul Allah (saw). Upon completion of this Bai’ah of contract, the Khaleefah, or whoever represents him, sits down to receive the Bai’ah of obedience from the Muslims. This is like what happened with Abu Bakr after the death of the Prophet (saw). Al-Ansar met at the Saqeefah (a hall) of Banu Sa’idah to pledge allegiance to their leader Sa'd b. Ubadah, then Abu Bakr, Umar, and Abu Ubaydah arrived before the Bai’ah to Sa'd was concluded. Serious discussion took place between them and Al-Ansar, which reached the level of a heated debate. After fair exchanges, the matter turned towards Abu Bakr’s favour so he was pledged unanimously by all those in attendance at the Saqeefa, except Sa'd b. Ubadah who abstained. By this Bai’ah to Abu Bakr in the Saqeefah, he was appointed as Khaleefah. The following are the events that took place in the Saqeefah:
Ibn Ishaq said, as Ibn Hisham reported in his book of in his book of Seerah: (the News of saqeefah when the Ansar met there is tat Abdullah bin Abu Bakr told me from the way of Abdullah bin Abbas that he said:
“Omer said that “…from our news when Allah took His prophet (SAW) to deat , that the Ansar disagreed with us. Thus they met with their leadersin the saqeefah of Banu Sa’idah. Ali bin Aby Talib, Zubair bin al-Awwam and others did not join us. The Muhajiroon gathered to Abu Bakr, so I said to Abu Bakr: “Let us rush to these- our brothers from the Ansar.” So we rushed to them … until he said “Until we came to them in the Saqeefah of Banu Sa’idah. All of a sudden there was amongst them a cloacked man. I asked “Who is this?” They replied “Sa’d bin Ubadah”. I then asked “What is the matter with him?” They said “He is not well”. When we sat down, their speaker said the Shahadah, then praised Allah and said “After all, we are the Ansar of Allah, and the batallion of Islam, and you, the people of the Muhajiroon , are part of us. A group of your people rushed”. He said: Suddenly they wanted to possess us from our origin and usurp the matter (power) from us. When he stopped speaking, I wanted to speak, and I prepared in my mind a word which I liked, and wished to present it before Abu Bakr, and I was hiding from him some anger. Abu Bakr said: “Oh Omer, wait a little”, so I hated to anger him. He spoke and he was more knowledgeable than me and more respected. By Allah, he did not leave a word I liked in my preperation, save he said it or the like of it, or better than it, by his nature until he finished. He said: “As regards what you said of good (khair) in you, you are worthy of it. The arabs would not acknowledge this matter (power)except to this tribe from Quraish. They are in the middle/heart of Arabs in terms lineage and place. I accepted to you one of these two men, so give bai’ah to whom you like from them.” He took my hand and the hand of Abu Ubaidahbin al-Jarrah while he was sitting between us. I did not hate of what he said except that, by Allah, to be submitted so that I might be killed, without becoming sinful, is more beloved to me than to be an ameerover a people, Abu Bakr is one of them. Some speaker from the Ansar said “I am the one who is most fit and most experienced for it. One ameer from us and one Ameer from you Oh people of Quraish”. He said : “noise increased and voices rose until I feared that disagreement occurs. So I said: “Extend your hand O Abu Bakr”. He extended his hand so I gave him the Bay’ah, then the Muhajiroon gave him the Bay’ah, then the Ansar gave him the Bay’ah. We leapt over Sa’d bin Ubadah. One of them said “You killed Sa’d ibn Ubaydah. He said : “I said, may Allah kill Sa’d bin Ubaydah”).
Ibn Katheer narrated in the prophetic seerah similar to that.
“That Abu Ubaidah bin al-Jarrah had intervened in the matter (discussion) at the crucial moment. So he stood up and spoke to the Ansar and said: “O people of the Ansar, you were the first of those who helped and supported, so do not be the first of those who have changed and reverted”. When Al-Ansar heard these words from Abu Ubaydah they were moved. So Bashir b. Sa'd from the leaders of Al-Khazraj stood up and said: "By Allah, even if we were of great advantage in the Jihad against the Mushrikeen, and the precedent in this Deen, all we only wanted from that was the pleasure of our Lord, the obedience of our Prophet, and to strive for ourselves. It is not fitting that we be insolent in this over the people, and we do not seek the pleasure of this world, for Allah is the Provider of this honour to us. Nonetheless, Muhammad (saw) is from Quraysh, and his tribe are more appropriate and deserving, and by Allah, I do not want Allah to see me ever dispute with them in this matter. So fear Allah, and do not disagree or contest with them."
This word of Bashir was a serenity, and Al-Khazraj were convinced by it.
At this moment, Abu Bakr took by the hands of Umar and Abu Ubaydah, as he was sitting between them, and said to the Ansar: "This is Umar, and this is Abu Ubaydah, you can pledge allegiance to whoever one of them you wish," and he called them to stick together, and warned them against dissent.
Umar here, witnessing the argument and fearing of the disagreement, raised his voice calling: "Stretch out your hand Abu Bakr" Abu Bakr stretched out his hand, and Umar pledged allegiance to him, saying: "Did not the Prophet order that you lead, O Abu Bakr, the Muslims in prayer, so you are the Khaleefah of Rasul Allah. We are pledging allegiance to you so as to pledge allegiance to the best beloved person by Rasul Allah of us all''. Then Abu Ubaydah stretched out his hand and pledged allegiance to Abu Bakr, saying: "You are the best of Al-Muhajireen, and the only and second companion in the cave, and the Khaleefah of Rasul Allah in prayer, the best of the Muslims in Deen. Who else is supposed to come before you, or take care of this matter over you?"
Al-Bashir b. Sa'd rushed and pledged his allegiance to Abu Bakr. Usaid b. Hudhayr, head of Al-Aws, looked up to his people who witnessed what Bashir b. Sa'd had done, and said to them: "By Allah if Al-Khazraj were to be appointed once, they will still have with this the advantage over you, and they would not make to you any share in it with them at all. So stand up and pledge allegiance to Abu Bakr". The Al-Aws stood up and did so. Then people rushed and pledged allegiance to Abu Bakr, until the place of the Saqeefah was overflowing with the crowds.
The Bai’ah of the Saqeefah (hall) was concluded, and the body of Allah's Messenger (saw) was still laid on his bed unburied. Once the Bai’ah was concluded, people dispersed from the hall. The next day, Abu Bakr sat in the mosque, and Umar stood up and addressed the people, apologising for what he uttered that the Messenger of Allah (saw) had not died, then he went on to say "And verily Allah has left you His Book by which He guided His Messenger, so if you held on to it, Allah would guide you as He did with His Messenger, and verily Allah has united your affairs (authority) over the guardianship of the best man amongst you, the companion of Allah's Messenger (saw) and the second man in the cave, so get up and give your Bai’ah." Then all the people did so, and the Bai’ah was concluded. Abu Bakr then stood up and addressed the people; it was his first Khutba as Khaleefah, He said: "O people, I have been appointed upon you as your leader and I am not the best amongst you, so if I do right help me, and if do wrong correct me. Truth is a trust and lying is treason, the weak amongst you is strong before me till I return to him his right, Allah willing, and the strong amongst you is weak before me till I take the right from him Allah willing. Any people who abandon Jihad in the way of Allah, Allah will strike them with humiliation. If indecency spread amongst any people, Allah would subject them to great tribulations. Do obey me as long as I obey Allah and His Messenger. If I ever disobeyed Allah and His Messenger, I am not entitled for your obedience to me. Get up for prayer, may Allah send His mercy upon you".
This is briefly how Abu Bakr was elected for the Khilafah, and how the Bai’ah was given to him. The difference between the Ansar and the Muhajireen over the Khilafah post was sort of nomination for that post from both sides. After Abu Ubaydah and Bashir Ibnu Sa'ad gave their speeches, the scale of the Muhajireen tipped over, then Abu Bakr emerged as favourite and was given the Bai’ah by those present in the Saqeefah except Sa'ad b. Ubadah. Thus the first Bai’ah of the Saqeefah was the Bai’ah of contract, while the Bai’ah of the mosque, in the next day, was that of confirmation and obedience.
In this style/form of appointing Abu Bakr, it is noticed that a multitude of the people of the Noble Madinah, which is the state capital, met and discussed and debated harshly. Some people were nominated for the Khilafah post, limited to Sa’ad, Abu Bakr, Umar and Abu Ubaydah. Then the opinion turned to the advantage of Abu Bakr so he was given the Bai’ah.
2. That the Khaleefah by his own initiative or by the request from the people, resorts to consult the people or the influential people or their leaders and chiefs, when he feels that his life will shortly end, as to whom they want to be a Khaleefah over them after him. Then, the Khaleefah, recommends to them a person to be Khaleefah over them after his death. After the death of the Khaleefah, the Muslims give their Bai’ah to the nominated person, so as to be Khaleefah over them. By their Bai’ah to him, the Khilafah is contracted to him. Thus he becomes Khaleefah over them with this Bai’ah and not through nominating him by the previous Khaleefah.
This is like what happened with Abu Bakr when he nominated Umar. When Abu Bakr was seriously ill and he thought he was going to die, he spoke to all the people and said: "Verily Allah has sent upon me what you yourselves can perceive (of death), and I do not see anything other than death approaching me because of my disease. So Allah has freed you from your oaths which you gave in the pledge to me, and dissolved my knot binded upon you. He (SWT) has returned the matter of your leadership to you, so appoint over yourselves whoever person you like. This is because if you appointed (somebody) while I am alive it would be more appropriate, so that you do not differ after me.
The people could not agree as to who should succeed Abu Bakr. They returned to him and said: " Our opinion, O Successor to the Messenger of Allah (saw), is your opinion." Abu Bakr said: " Perhaps you will disagree (with my decision) ?", They said: "No (we will not)". So he said: "Then will you swear by Allah to accept my decision ?" They replied: "Yes." Then he said: " Give me time to see what is best for Allah, His Deen, and His servants."
This was a clear authorisation from the Muslims for Abu Bakr to select a Khaleefah for them. It was Abu Bakr who understood what was circulating in the minds of the most senior companions, and because he felt that it was the wish of every one of them to be Khaleefah, he took the oath from them.
With this authorisation, Abu Bakr made numerous consultations with the senior companions. He consulted in confidence with Abdul Rahman b. Awf, Uthman b. Affan, Saeed b. Zayd, Usayd bin Hudhyr. The choice which revolved in his mind was for either Umar or Ali. However, later on his opinion settled on Umar and he consulted the people in an open consultation. He looked over to the people from his house, while his wife and daughter held him and he addressed the people saying: "Do you accept whom I appoint for you ? For by Allah, I have not spared any effort regarding my opinion, nor have I appointed a relation." They said: "Yes." He continued saying: " I appoint Umar ibn al-Khattab to succeed me, so listen to him and obey him." Then the people replied “We heard and we will obey”. Upon hearing that Abu Bakr raised his hands to the sky and said " O my Lord ! I did not want by that choice except their interest, and I feared that they might fall in Fitna, so You know better about what I have done to them. I have exerted my opinion for them and appointed upon them the strongest and most concerned of them about what is best for them." The people heard his prayer, so they felt more assured about what he did. After the death of Abu Bakr, Umar went to the mosque and the people came to him in large numbers to give their Bai’ah, and no one stayed back except Talha. Umar remained in the mosque from the morning until Zuhr time, and the number of people who came to give their Bai’ah increased, until at Zuhr time the mosque was completely full. Umar stepped up onto the Minbar, one step below the one which Abu Bakr used to stand on, praised Allah, sent blessings to His Prophet, and mentioned Abu Bakr and his points of excellence. He then said: " O people, I am but a man from amongst you, and if it wasn’t because I disliked disobeying the request of the successor of the Messenger of Allah (Abu Bakr), I would not have taken charge over you." He then turned his eyes to the sky and said: " O my Lord !, I am harsh, so make me soft. O my Lord !, I am weak so make me strong. O Lord, I am miserly so make me generous." Then he stopped for a while and said: "Verily Allah is testing you with me, and testing me with you, and he has left me with you after taking away my companions. By Allah (SWT) would not authorise anybody (to dispose) of any of your affairs that reaches to me nor would spare any effort to authorise the efficient and the reliable in any affair that is far from me. If they (the authorised people) did well I would do well with them, and if they did bad I would punish them. Then he rose up, and lead the people in prayer. This was the Bai’ah for Umar ibn al-Khattab from the people in the mosque, and it was this which contracted the Khilafah to him, and it was this Bai’ah which made it obligatory upon the people to obey him.
As for his choice by Abu Bakr it was only nomination for him to the Khilafah post, and limiting the nomination to Umar alone. Khilafah was not convened to Umar by this nomination, nor was obedience obliged to him. He did not become Khaleefah except after the Bai’ah of the people was given to him in the mosque.
Following up the proceedings of this style/form, by which Umar b. Al–Khattab became Khaleefah to the Muslims, we see that it is different from the style by which Abu Bakr was appointed as a successor to the Messenger of Allah (saw) over the Muslims.
3. While he is dying, by his own initiative or by request from the Muslims, the Khaleefah recommends some people, who are qualified for the position of Khilafah, to select after his death, one from amongst themselves by consultation, to be Khaleefah over the Muslims after him, within an assigned period of time that does not exceed three days. After this, the group selects one man from amongst themselves to be Khaleefah, by the style they agree upon. The name of the Khaleefah then is declared to the Muslims, and the Bai’ah is taken for him from them, This person becomes Khaleefah of the Muslims by this Bai’ah, and not by the selection of that small group, which was recommended by the previous Khaleefah.
This is similar to what happened with Umar b. al-Khattab when he was stabbed, and died later from that stab. The Muslims came to him and requested him to assign a Khaleefah after him. He said: "Whom should I make Khaleefah ? If Abu Ubaydah b. Al-Jarrah was alive I would have recommended him to be a Khaleefah. If my Lord asked me why, I would say: I heard your prophet say: ‘He (Abu Ubaydah) is the secretary of this Ummah’. If Salim, servant of Abu Huzayfah was alive, I would have recommended him. If my Lord asked me why, I would say: I heard Your prophet say: “Salim’s love to Allah is great.” One of the Muslims said to him: "Recommend your son Abdullah." He said: "May Allah fight you, by Allah you did not seek Allah’s pleasure by this opinion. Woe to you ! How can I recommend a man who was unable to divorce his wife ? There is no desire for us (Aal Al-Khattab) in your affairs. I did not praise it (Khilafah) so as to like it to be for anyone from my family. If this matter (of Khilafah) was good then we have got our share. If it was bad then it is enough for Aal Umar that one person from them be accounted and be asked about the affairs of the Ummah of Muhammad. Really, I exerted myself and I deprived my family. If I managed to save myself sufficiently without sin and without reward, then I am happy." The Muslims went out from his room and left him to think. Then they referred to him again and asked him to recommend somebody, out of concern for the interest of the Muslims. He said to them: "You have this group whom, when the Messenger of Allah (saw) died, he was pleased with them, and he said about them: They are the people of paradise: Ali b. Talib, Uthman b. Affan, Sa’ad b. Abi Waqqas, Abdur Rahman ibn Awf, Az- Zubayr b. Al Awwam, and Talha b. Ubaydullah. Let Abdullah ibn Umar be with them, but let him have only an opinion without having anything in the matter of Khilafah." Umar advised these six people to select a Khaleefah, and appointed to them a three day time limit. After a long talk with them he said: "When I die, consult for three days, and let Suhaib (in these days) lead the Muslims in prayer. Do not let the fourth day come without having an Ameer upon you." He also appointed Abu Talha Al-Ansari to protect the gathering and to encourage them in their task, and he said to him: "O Abu Talha, Allah (SWT) has helped Islam by you (i.e. the Ansar) so select fifty men from the Ansar, and urge these (six) people to select one from amongst them." He asked Al-Muqdad ibn Al-Aswad to select the place of the meeting and said to him : "After you put me in my grave, gather these (six) people in a house till they select one man from themselves." Then he asked Suhaib to monitor the meeting and said to him: "Lead the people in prayer three days, and let Ali, Uthman, Az-Zubayr, Sa’ad, Abdul Rahman b. Awf, and Talha, if he came back (from his travel) and bring in Abdullah b. Umar, without allowing him any personal interest in the matter, and stand at their heads (i.e. supervise them). If five agreed and accepted one man, while one man rejected, then hit his head with the sword. If four consented and agreed on one man, and two disagreed, then kill the dissenters with the sword. If three agreed on one man and three disagreed then let Abdullah bin Umar arbitrate. The group which Abdullah b. Umar judged for, let them select one from them. If they did not accept the judgement of Abdullah b. Umar, then be (all of you) with the group in which is Abdul Rahman b. Awf, and kill the rest if they declined to accept what the people agreed upon." Then he asked them to leave the discussion about the Khilafah until he died.
After Umar's death and his burial, the group which Umar had nominated gathered except for Talha who was in travel. It is reported that their meeting took place in A’isha’s house, and Abdullah b. Umar was with them. They asked Abu Talha Al Ansari to shield them. Once they settled, Abdul-Rahman b. Awf said: " Who would take himself out of it (the Khilafah) and preside over the meeting on condition that he gives it to the best among you?" That is, who would renounce his right to the Khilafah, on condition that everyone makes him judge (arbitrator), to choose by himself a Khaleefah from amongst them as he deemed fit." Having said this, Abdul-Rahman b. Awf waited for an answer but no one answered him, so he went on saying: I myself renounce my right to the Khilafah. Upon this Uthman said: "I am the first to accept, for I heard the Messenger of Allah (saw) say: “A trustee on earth is a trustee in the heveans,” Al-Zubayr and Sa’ad also said: "We agree". Ali kept silent; so Abdul-Rahman asked him: "What do you say O Abul Hassan!" Ali replied: "Give me an Oath that you would prefer the truth and not to follow the whims and not to favour any member of your family and not neglect the interest of the Ummah". Abdul-Rahman replied: "Give me (all of you) your Oaths that you would stand with me against whoever changes, and that you would accept whoever I choose for you (on your behalf) and I give you my Oath that By Allah, I shall not favour a relative nor shall I neglect the interest of the Ummah." He took an Oath from them and gave them an Oath himself. Then he started to consult each one of them individually saying: "Apart from yourself, who do you think is worthy of this authority from among this group?" or words to that effect. Ali said: "Uthman." Uthman said: "Ali." Sa’ad said: "Uthman," so did Al-Zubayr. Then Abdul-Rahman sought the opinion of the prominent figures in Madina, and asked all the Muslims in Madina one by one, men and women. He left no one without asking him about whom, he or she, would like to be the Khaleefah from amongst that group. A group of them chose Uthman and another group chose Ali. Abdul-Rahman found that opinion was split between Uthman and Ali, and that the Qurayshis sided with Uthman.
Once Abdul-Rahman completed his fact finding mission and consulted all the people, men and women, he summoned the Muslims to the mosque and went up the Minbar (podium) with his sword on and his "Amama" (head-dress) which the Messenger of Allah (saw) gave him: He stood for a long while then spoke:
"O people! I have asked you openly and secretly about your Imam, and I found that you cannot place anyone on the same level as these two men: Ali and Uthman". Then he turned to Ali and said to him. "Come to me O Ali!" Ali stood and walked to the Minbar until he came underneath it. Abdul-Rahman took his hand and said: Would you give me your Bai’ah according to the Book of Allah and the Sunnah of His Messenger and the (actions) of Abu Bakr and Umar?" Ali replied: By Allah no, but on my own exertion of that and my knowledge" - i.e. I would give you my Bai’ah according to the Book of Allah and the Sunnah of His Messenger according to my own exertion of that and my knowledge of them. As for the actions of Abu Bakr and Umar, I do not adhere myself to them but exert my own opinion." Abdul-Rahman then released his hand and called: "Come to me O Uthman!" He took his hand as he stood on the spot where Ali stood earlier and said to him: "Would you give me your Bai’ah according to the Book of Allah and the Sunnah of His Messenger as well as the actions of Abu Bakr and Umar?" Uthman replied, "By Allah yes. Upon this Abdul-Rahman looked up to the roof of the mosque with his hand clutching that of Uthman and said:- "O Allah! Hear and witness; O Allah, I have put what was in my neck of that (matter) in the neck of Uthman". Then people rushed to give their Bai’ah to Uthman until they overwhelmed him. Then Ali came pushing his way through to reach Uthman and gave him his Bai’ah. Thus Bai’ah was concluded to Uthman.
If we examine closely this style by which Uthman was appointed to the post of Khilafah, we can realise that it differs from the two previous styles by which Abu Bakr and Umar were appointed.
4 - Once the Khaleefah dies, a multitude of Muslims or the influential people (Ahlul Hall Wal ‘Aqd) amongst them, or a group from the people of power (e.g. armed forces) approach a person, who is qualified for the post of Khilafah. They ask him to take over the post so he agrees to them once he realised the consent of the majority of the Muslims, and takes the Bai’ah openly from them. He then becomes Khaleefah through this open Bai’ah from the Muslims and accordingly they become obliged to obey him.
Those who request him to become Khaleefah are merely putting him forward as a sole candidate for the post Khilafah. However, Khilafah is not contracted to him based on this request, but by the Bai’ah of the people, given to him.
This is exactly what happened with Ali b. Abi Talib, when Khaleefah Uthman b. Affan was killed by the rebels. Madina remained without a Khaleefah for five days after him. Its Ameer during that time was Al-Ghafiqi b. Harb, one of the rebel's leaders. Those leaders requested Ali b. Abi Talib to take over the post of Khilafah. He used to avoid them, then the companions of the Messenger of Allah (saw) came to him and said: "This man - meaning Uthman - has been killed and people must have an Imam and nowadays we do not see anybody more worthy of the post than yourself, no one is of more precedence than you and no one is nearer than you to the Messenger of Allah". He said, "Do not put me forward for this post, for I would be a better assistant than an Ameer". So they said, "No, by Allah we should not do this until we give you our Bai’ah". He said, "Then this has to take place in the mosque, for I do not wish for my Bai’ah to be secret, nor to be taken except with the consent of the Muslims". Abdullah b. Abbas later commented: "I was apprehensive about him coming to the mosque for I feared that some people would stir up trouble, but he insisted to go to the mosque. When he entered the mosque, the Muhajireen and the Ansar followed him in and gave him their Bai’ah. Then the people gave him also their Bai’ah as well as the majority of the Muslims despite the absence of Banu Umayyah and some of the Sahabah.
Thus the Khilafah was contracted to Ali b. Abi Talib through this open Bai’ah of the Sahabah and the Muslims, and it became obligatory upon the Muslims to obey him by this Bai’ah.
If we examine closely the proceedings of this style by which the appointment of Ali b. Abi Talib in the post of Khilafah was concluded, we can understand that it differs from the previous three styles by which the three previous Khulafa’a had been appointed.
5 - When there is a Khilafah state and there is a council representing the Ummah in Shura (consultation) and in accounting the rulers, the Muslim members of the council can nominate exclusive candidates for the Khilafah from among the persons who are qualified for the post and who satisfy all the conditions necessary for contracting the Khilafah.
Once those candidates have been short listed by the council's members, their names would be announced to the Muslims. A date would then be set to elect one of them to become the Khaleefah. The election would be either carried out by the Ummah or by the Muslim members of the Ummah's council, according to what is adopted in the constitution of the the Khilafah state. The candidate who gets the largest number of votes, whether from the Ummah, if voting was carried by the Ummah, or from the council, if the voting was carried by the council only, would be Khaleefah. His name would then be announced, and would then get the Bai’ah of contract from the Ummah's council, followed by the general Bai’ah from the Ummah, as a Bai’ah of obedience.
The five styles listed above, which the Muslims are permitted to use for appointing the Khaleefah over them, only take place after the death of the Khaleefah, when the Muslims have a Khilafah state, and when Islam is the only system implemented on them.
If however the Muslims do not have a Khilafah state, nor a Khaleefah, and Kufr systems and rules are implemented on them - as is the case with the Muslims today since the Khilafah state was destroyed in 1924, then Muslims, or a group from amongst them, or the people of power from amongst them, in one or more of the Muslims countries, can seize power in that country and remove the ruler who governs by the systems and rules of kufr, for the purpose of resuming the Islamic way of life and restoring the ruling by that which Allah brought down (ie. Islam). In this case, it is allowed for those who seized power to recommend one man from the Muslims who is qualified to hold authority and who meets all the conditions required for the Khilafah post. They would gather the influential people in that country or the majority of them, and request of them to give their pledge (Bai’ah) to that person whom they recommended to be a Khaleefah. The influential people would then give him the Bai’ah with consent and selection, on the Book of Allah and the Sunnah of His Messenger. This Khilafah would be convened to him by such Bai’ah. Then the Muslims in that country would give him a general Bai’ah of consent and obedience. After that he embarks immediately on the implementation of Islam completely and without any delay.
Thus, the Khilafah state would return back to life, and the implementation of the rules and systems would start again, and the household in that country would be transformed into an Islamic one (Dar Al-Islam).
Designation or Appointing of a Crown Prince
The Khilafah is not contracted by a designation or by being named as a crown prince, for it is a contract between the Muslims and the Khaleefah. In order to be contracted it is stipulated that the Muslims should give the Bai’ah, and the person they gave their Bai’ah should accept it. Designation or appointing of a crown prince does not fulfill that so Khilafah cannot be contracted by that. Accordingly, the contract of Khilafah is not contracted if a Khaleefah nominated another Khaleefah to succeed him, for he does not have the right to contract it. Khilafah is also the right of the Muslims and not of the Khaleefah, thus the Muslims contract it to whomsoever they wish. Therefore it is wrong as well for the Khaleefah to designate someone else, i.e. to promise him the post. For it would be giving him something he does not own; which legally forbidden. So if the Khaleefah designated another Khaleefah, whether he was his son or his relative or any other, this would be forbidden and the Khilafah would never be contracted to him. This is because it was not convened by those who own the contract; therefore it would be an uncommisioned contract and thus invalid.
As for the claims that Abu Bakr had designated Umar and that Umar had designated the "Six" and that the Sahabah did not object and kept silent, indicating general consensus. These claims do not in fact indicate the permissibility of designating or appointing of a crown prince. This is because Abu Bakr had not designated a Khaleefah but merely consulted the Muslims as regards whom they wanted to be their Khaleefah, and Ali and Umar were nominated as candidates. The Muslims then chose Umar by a majority during the last three months of Abu Bakr's Khilafah. After his death, the Muslims came and gave their Bai’ah to Umar; only then the Khilafah was contracted to him. For up to that moment, i.e. before the Bai’ah, he was not a Khaleefah and the Khilafah had not yet been contracted to him, neither by Abu Bakr’s nomination, nor by the Muslims choice. It was contracted only when they gave him their Bai’ah and when he accepted it. As for Umar’s designation of the "six", this was merely a nomination for them in response to the Muslims request. Then Abdul-Rahman b. Awf consulted the Muslims as to which of the six they wanted to become their Khaleefah. So most of them chose Ali if he adhered to Abu Bakr and Umar’s actions, otherwise Uthman. When Ali declined to follow the actions of Abu Bakr and Umar’, Abdul Rahman gave his Bai’ah to Uthman and then the Muslims gave him their Bai’ah.
Therefore, the Khilafah was contracted to Uthman by the people’s Bai’ah and not by Umar's nomination, nor by the people's choice. For if people had not given him their Bai’ah and if he had not accepted the post, the Khilafah. This would not have been contracted. Therefore, the Bai’ah of the Muslims to the Khaleefah is fundamental, and it is forbidden to contract Khilafah by appointing a crown prince or by designation, for it is a contract of authority (Wilayah) that should fulfill the rules of contracts.
Succession to the Throne ("Wilayatul A'hd")
The system of appointing a crown prince for ruling is considered to be a "Munkar" (evil act) in the Islamic ruling system and it completely contradicts Islam. This is because the authority belongs to the Ummah and not to the Khaleefah. If the Khaleefah represents the Ummah in authority, which remains always hers, how could he give this authority to someone else? What Abu Bakr did for Umar was not appointing a crown prince, but merely a selection by the Ummah during the lifetime of the Khaleefah, then the Bai’ah took place after his death.
Despite all this, Abu Bakr took a great deal of care in his speech to make it clear that it was not a succession; so he made it dependant on the people's consent. He addressed the people once his mind was made up about who is going to nominate and he said: "Do you accept the one I designate for you? For by Allah (SWT) have not spared any effort and I have not chosen a relative." On this same basis, Umar nominated his son Abdullah with the "Six" whom he considered to have the right of selecting a Khaleefah, and stipulated that his son would not have a say in the matter (of Khilafah) whatsoever, but would merely voice his opinion, thus making sure that there was not the slightest doubt that it was not an appointment of a crown prince. This was contrary to what Mu’awiya did by appointing of a crown prince which contradicts the Islamic system. The reasons that led Mu'awiya to innovate this "Munkar" were:
1 - He used to understand the state leadership as monarchy and not Khilafah. This was clearly demonstrated in his speech to the people of Al-Kufa once peace was established. He said: "O people of Al-Kufa! Do you think I fought you over the prayer, Zakat and Hajj, when I knew all along that you do pray, give the Zakat and perform the Hajj? No, I fought against you because I wanted to preside over you and over your necks; and Allah has given me that though you disliked it. Beware, any money and blood which has flowed in this Fitna will go unavenged, and every condition I stipulated (before peace was reached) is under my two feet (i.e. have no value)".
Ibn Aby Sheebah also narrated in his book (Musannaf) from the way of Said bin Suwaid, he said:
Mu’awiyah prayed the juma’ah for us in the nakheelah, then he gave us khutbah (preach)…
Al-Bukhari also narrated that in the Great History.
Look at him when he admits that he himself contradicts Islam; where he said that he fought people to preside over them and over their necks. He went beyond that to that which is more offensive and grevious by saying to the people that every condition he agreed to had come under his two feet. Whereas Allah (SWT) says: "Fulfill your oaths, Verily you are responsible for them." [TMQ 17:34] From this statement, you can see that he declares that he does not abide by Islam. The manner by which Yazid was elected even clearly demonstrates that he deliberately intended to contradict Islam, for the sake of making him the crown prince according to his own understanding. This is because he sought the opinion of all the people, but nobody agreed with him. He used money, and still nobody responded except those who had no place in society and carry no weight in the Muslims' eyes. Then he resorted to the sword. The historians like Ibn Kathir and Ibn al-Athir narrated that after his Walis (governers) had failed to take the Bai’ah to Yazid in Hijaz, Mu’awiya went there himself accompanied by the army and loaded with money. He summoned the prominent figures and said to them: "You have known my conduct towards you and my family ties with you, Yazid is your brother and your cousin. I wanted you to propose Yazid for the Khilafah, so that you would be the ones who remove and appoint, who put people in authority and collect and distribute the funds. Abdullah b. Al-Zubayr replied to him that he should either choose what the Messenger of Allah (saw) did, when he (saw) did not designate anyone, or what Abu Bakr did, or what Umar did? Mu’awiya became angry and he asked the rest of the people, and their reply was the same as Ibnul-Zubayr. Upon this Mu’awiya said: "You have been warned! I am going to speak a word, and I swear by Allah that if any of you replied to me by uttering a word on that occasion, he would not utter another word before the sword had reached his neck. So every man has only to spare himself." Then he ordered the chief of his guards to place two men behind every prominent person of Hijaz and every opponent, with the instructions that if any of them answered him back with agreement or disagreement, to strike his neck with their swords.
He then climbed up to the Minbar (podium) and said: "This group of people are the leaders and the best among the Muslims and no decision is taken without them, and no matter is settled without their consultation. They have consented and given the Bai’ah. So, do give your Bai’ah in the name of Allah."
This is the basis on which Mu’awiya established the system of appointing a crown prince, a basis that Islam has nothing to do with whatsoever. ‘Umar described it by saying: "If a man gave authority to someone because of a relationship or a friendship between them while there were among the Muslims men better qualified than him, he would betray Allah, His Messenger and the believers."
2 - Mu’awiya manipulated the Shari’ah texts and misinterpreted them. Islam has left the right of choosing the Khaleefah in the hands of the Muslims. The Messenger of Allah (saw), did so, and he left the matter to the Muslims to choose who was best to run their affairs. Mu’awiya was influenced by the system prevailing at that time in the Byzantines and the Sasan states where the ruling used to be hereditary. So, he made Yazid his crown prince, and manipulated that by taking the Bai’ah for him during his life time.
3 - Mu’awiya’s method of Ijtihad in political matters used to be based on benefit. Therefore, he made the Shari’ah laws conform with the issuse of discussion and not treat it, so he interpreted the rules to conform with that issuse. He should have followed the Islamic method of Ijtihad by making the Book of Allah (SWT) and the Sunnah of His Messenger (saw) the basis of his Ijtihad and not taking the material benefit as a basis. He should have taken the Islamic laws to solve the problems of his time and not take the problems of his time to treat the Islamic laws, by twisting,changing and violating these laws.
The Time Term of the Khaleefah:
The time term of the Khaleefah in office is not determined with a certain period. As long as the Khaleefah is abiding by the Shar’a, executing its laws and able to perform the duties of the state and the responsibilities of the Khilafah, he remains in office. This is because the texts concerning the Bai’ah came as indefinite (Mutlaq) and not restricted to any specific period of time. Anas b. Malik reported that the Messenger of Allah (saw) said: "Do hear and Obey, even if you were ruled by an Abyssinian slave, whose hair is like the raisin". In another narration He (saw) said: "As long as he leads you by the Book of Allah". Besides, all the Khulafa’a Rashideen were given an indefinite(Mutlaq) Bai’ah which is the one mentioned in the Ahadith. They were not of a limted period (in office). Each one of them assumed the post of Khilafah until he died; and this represents a general consensus from the Sahabah (r.a.), confirming that the Khilafah is not of a limited term of office but one unrestricted. Thus if a Khaleefah is given a Bai’ah, he remains in office until he dies.
However, if the Khaleefah underwent a change that made him unfit for the post, or necessitated his removal, his term would be terminated and he would be removed. Though this cannot be interpreted as a limitation to his Khilafah term, but merely to indicate that a breach of the Khilafah’s conditions has occurred. The wording of the Bai’ah, confirmed in the Shari’ah texts and the general consensus of the Sahabah makes the Khilafah of an unlimited term of office. It is rather restricted in terms of the Khaleefah’s undertaking of what he was given the Bai’ah for, i.e. to rule by the Book and the Sunnah and execute their laws. If he did not uphold the Shar’a or did not implement it, then he must be removed.
The Time Limit given to the Muslims to Appoint a Khaleefah
The time limit allowed for the Muslims to appoint a Khaleefah is two nights and three days. It is forbidden for a Muslim to spend more than two nights without having a Bai’ah on his neck. As for allowing a maximum of two nights, this is because appointing of a Khaleefah becomes compulsory from the very moment the former Khaleefah dies or is removed. However, it is allowed to delay the appointment as long as the Muslims are involved with the task at hand for two nights and three days. If the limit exceeds two nights and a Khaleefah is not appointed by that time the matter should be examined: If the Muslims were involved in the appointment of a Khaleefah and failed to do so within two nights for compelling reasons beyond their control and ability, then the sin would fall from their necks. This is because they were endeavouring in their task to perform this duty and were compelled against their will to delay the execution of that duty. Ibn Habban and Ibn Majah narrated from Ibn ‘Abbas, he said: The Messenger of Allah (saw) said "Allah had forgiven my Ummah for the mistake and forgetfulness and that which they were compelled of". But if they were not involved in the task, they would all be sinful until such time that a Khaleefah was appointed. Only then would the sin fall from their necks. As for the sin they had committed by neglecting the duty of appointing a Khaleefah this would not fall from them. It rather remains, and Allah (SWT) would punish them as he would punish for any sin committed by a Muslim for not performing a duty.
As for the fact that the time limit allowed for the Muslims to appoint a Khaleefah is two nights and three days, its evidence is that the Sahabah held their meeting in the Saqeefah (hall) to debate the appointment of a successor to the Messenger of Allah (saw) the moment the news of his death reached them. However, they remained in discussion in the Saqeefah and in the next day they summoned the people in the mosque for the Bai’ah and it took them two nights and three days to complete that. Besides, when Umar felt that his death was imminent he delegated the people of the Shura to appoint a Khaleefah giving them a time limit of three days and instructing them to kill anyone who disagreed with the group once the three days had lapsed. He assigned the execution of such instruction, i.e. killing the one who might disagree, to fifty people from the Muslims despite the fact that the group was of the Shura people and the senior Sahabah. This took place in the presence of the Sahabah and no one has objected or condemned such instruction. This became a general consensus of the Sahabah stating that it is forbidden for Muslims to remain without a Khaleefah for more than two nights and three days. The consensus of the Sahabah is a Shari’ah evidence just like the Book and the Sunnah.
The Unity of the Khilafah
The Muslims are obliged to live in one state, and be ruled by one Khaleefah. It is forbidden for the Muslims in the world to have more than one state and more than one Khaleefah.
It is also necessary that the ruling system in the Khilafah State be a system of unity, and forbidden to be a system of union.
This is due to what Muslim narrated that ‘Abdullah b. ‘Amru b. al-‘A'as said that he heard the Messenger of Allah (saw) say: "Whoever pledged allegiance to an Imam giving him the clasp of his hand and the fruit of his heart, he should obey him as long as he can, and if another comes to dispute with him, you must strike the neck of the latter".
It has also been narrated by muslim that Arfajah said: I heard the Messenger of Allah (saw) say:
"Whoever comes to you while your affair has been united over one man, intending to divide your power or dissolve your unity, kill him."
It has also been reported by Muslim from Abu S’aid Al Khudri that the Messenger of Allah (saw) said: "If Oath of Allegiance (Bai’ah) has been taken for two Khulafa’a, kill the latter of them."
Muslim reported that Abu Hazim said: I accompanied Abu Hurayra for five years and heard him talking about the Messenger of Allah (saw), he said:
"The children of Israel have been governed by Prophets; whenever a Prophet died another Prophet succeeded him; but there will be no prophet after me. There will soon be Khulafa’a and they will number many; they asked: What then do you order us? He (saw) said: Fulfil allegiance to them one after the other, and give them their dues; for verily Allah will ask them about what he entrusted them with".
The first Hadith demonstrates that if the Imamah (Khilafah) has been given to someone he should be obeyed, and if another man comes to dispute his authority, he should be fought and killed if he did not renounce the dispute.
The second Hadith demonstrates that when the Muslims are united under the leadership of one Ameer, and a person comes along with intent to divide their power and dissolve their unity, his killing becomes compulsory. The two Hadiths clearly indicate prohibition of dismembering the state, and strong warning against its division, and preventing any breakaway attempt even by using the sword (force).
The third Hadith indicates that in the case of absence of a Khaleefah, due to his death, removal or resignation, then if the Bai’ah has been taken for two Khulafa’a, the latter of them should be killed, and the more so if they were more than two. This clearly demonstrates that the dismembering of the state is forbidden, which means that turning it into many states is forbidden, rather it must remain one single state.
The fourth Hadith indicates that the Khulafa’a would number many after the Messenger of Allah (saw). When the Sahabah asked him about what he ordered them to do when the Khulafa’a numbered many, he replied that they should fulfil their allegiance to the Khulafa’a one after the other. They start by the first one they gave their Bai’ah to, for he would be the legitimate one and he alone should be obeyed. As for the others, they are not to be obeyed for their Bai’ah is void and null and unlawful. This is because it is forbidden for another Khaleefah to be given a Bai’ah while there exists a Khaleefah already in office. This Hadith also indicates that obedience to a single Khaleefah is obligatory. Therefore it is forbidden for the Muslims to have more than one Khaleefah and more than one single state.
The Mandatory Powers of the Khaleefah:
The Khaleefah is the state. He possesses all of the mandatory powers of the state, and they are:
A - It is he who makes the divine rules (ahkam shariah) once he adopted them as binding; they would then become laws that have to be obeyed and their violation would not be allowed.
B - He is responsible for the domestic and foreign policies of the state. He is the supreme commander in chief of all the armed forces and he has full powers to declare war, concludes peace treaties, truces and all other treaties.
C - He has the power to accept (foreign) ambassadors and to refuse them, as well as the powers to appoint Muslim ambassadors and to remove them.
D - It is the Khaleefah who appoints and removes the assistants and Walis. They are all responsible before him and before the council of the Ummah.
E - It is he who appoints and removes the supreme judge (Qadhil-Qudhat), as well as district administrators, army commanders, chiefs of staff, and the commanders in chief. They are all answerable to him and not to the Council of the Ummah
F - It is he who adopts the divine rules, in the light of which the State’s budget is drafted, and he decides the details of the budget and the allotted funds required for each department, whether concerning revenues or expenses.
Evidence of these mandatory powers is the fact that the Khilafah as a general ruling over all the Muslims worldwide, with the objective of implementing the Deen’s rules and carrying the Message of Islam to the world, and this in itself is an evidence. However, the word state is a technical term, whose meaning differs according to the views of the nations. The West considers the state as the land, inhabitants and the rulers, for the state in their view is defined within borders which they call the country. Sovereignty, in their view, belongs to the people, while the ruling, i.e. the authority is collective and not individualistic. Thus the concept of the state became known as the total of the country, the inhabitants and the rulers. Therefore, they have a head of state, i.e. head of rulers, the people, the country (land) and a prime minister. However, in Islam, there are no permanent borders, for the Message of Islam has to be carried to the whole world. Therefore frontiers move with the movement of the authority of Islam to other countries. The term country means the place where a person resides permanently i.e. his home and town, no more and no less. Sovereignty belongs to the Shar’a, not to the people. Thus the rulers are controlled by the will of the Shar’a. The Ummah is also controlled by the will of the Shar’a. The ruling i.e. authority is for individuals and it is not collective. The Messenger of Allah (saw) said: "If three of you were in a journey, let them appoint one of them as an Ameer", narrated by Al-Bazzar from ibn ‘Umar. He (saw) also said: "If three of you went out on a journey, let them appoint one of them as an Ameer", narrated by Abu Dawood from Abu S’aid al-Khudri. Muslim narrated from Abu S’aid al-Khudri from the Messenger of Allah (saw), that He (saw) said: "If a Bai’ah has been taken for two Khulafa’a, kill the latter of them." Therefore, the meaning of the state in Islam differs from that in other systems. The state in Islam means the authority and ruling, and its mandatory powers are that of the Sultan. Since the Khaleefah is the one who holds the authority, he is then the state.
However, when the Messenger of Allah (saw) established the Islamic State in Madina he was the head of state and he held the authority. Thus all the authority was in his hands, and all of the powers related to the ruling were his. This was as much during all of his lifetime until He (saw) died. Then after him came the Khulafa’a Al-Rashidoon, and each one of them enjoyed the full authority and possessed all the mandatory powers related to the ruling. This also serves as an evidence that the Khaleefah is the state. Besides, when the Messenger of Allah (saw) warned against rebellion and disobedience to the Ameer, he expressed it as being a rebellion against the authority (Sultan). He (saw) said: "If anyone sees in his Ameer something that displeases him, let him remain patient, for behold! He who separates himself from the Sultan (authority of Islam) by even so much as a hand span and dies thereupon he has died the death of Jahiliyyah." The Khilafah is the leadership over the believers. The Khaleefah is therefore the authority, and he has all the mandatory powers, i.e. he is the state and possesses all the powers given to the state. This is the general evidence about these mandatory powers. As for the listing of these powers enjoyed by the Khaleefah, this is in fact the listing of the powers which exist in the state, so as to explain the detailed rules of these powers.
As for the detailed evidences of the six sections mentioned above, the evidence about section "A" is the general consensus of the Sahabah. Qanoon (law) is a technical term that means the order which the ruler (Sultan) issues so that people abide by it. People of Qanoon (law) define it as "the host of principles which the Sultan (ruler) compels people to follow in their relations". So if the Sultan issues certain rules, then these rules become law and people have to abide by them. If the Sultan does not issue them, then they do not become law and people are not obliged to abide by them. The Muslims follow the rules of Shar’a, so they abide by Allah’s (SWT) commands and prohibitions. What they abide by are the commands and prohibitions of Allah, not those of the Sultan. Thus they follow the divine rules and not the orders of the Sultan. However, the Sahabah have differed regarding the Sharia’ah rules. Some of them understood from the divine texts matters different to what the others understood. Each one of them complied by what he understood and that represented the rule of Allah on his behalf. However, there are some divine rules related to managing the affairs of the Ummah that all the Muslims should abide by according to one single opinion, and not each one proceeds according to his own Ijtihad. This indeed took place in the past. Abu Bakr, for instance, considered it fit to distribute the funds equally among all Muslims for it was their equal right. ‘Umar deemed it wrong to give to those who had fought against the Messenger of Allah (saw) the same as to those who fought alongside him, or to give to the needy equal to that is given to the wealthy. However when Abu Bakr was the Khaleefah, he forced people to follow his opinion and the judges and Walis executed his opinion and ‘Umar submitted to Abu Bakr’s opinion and executed it. When ‘Umar became Khaleefah he enforced his own opinion which differed from that of Abu Bakr. So he ordered the funds to be distributed preferentially and not equally, thus the Muslims were given according to the length of time they had been Muslims and according to their needs. Muslims abided by this rule, and the judges and Walis executed it. Therefore, a general consensus of the Sahabah was established stating that the Imam has the right to adopt specific rules and enforce their implementation. Muslims have to abide by such rules even if they disagreed with their own Ijtihad, and they must abandon their own opinions and Ijtihad. These adopted rules are in fact laws (Canons). Thus enacting of laws belongs to the Khaleefah alone and no one else has such a right.
As for section "B", its evidence is derived from the actions of the Messenger of Allah’s (saw). He (saw) used to appoint the Walis and judges and hold them accountable to him. He (saw) used to control trading and prohibit fraud and cheating. He (saw) used to distribute the funds among the people, and help the unemployed find work. He (saw) used to run all the state’s internal affairs. He (saw) as well used to address the kings and meet with the envoys and receive the delegates. He (saw) also carried out all the foreign affairs of the state. He (saw) used to effectively take command of the armed forces during the raids and he (saw) used to lead the battles. He (saw) used to send all the expeditions and appoint their leaders. In one instance he (saw) appointed Usama b. Zayd at the head of an expedition to Ash-Sham; the Sahabah were not pleased with this due to Usama’s young age, but the Messenger of Allah (saw) forced them to accept his leadership. This proves that he effectively was the commander of the armed forces and not just its supreme Commander in Chief. It was he (saw) who declared war on Quraysh, and on Banu Qurayzah, Banu Nazir, Banu Qaynuqa’, Khayber and the Romans. All the wars that took place were declared by him (saw). This proves that the Khaleefah only has the right to declare war. It was also the Messenger of Allah (saw) who signed the treaties with Banu Madlij and their allies of Banu Dhumra. He (saw) signed a treaty with Yuhanna (Jonathan) b. Ru’ba, the leader of Ayla, and he (saw) also signed the treaty of Al-Hudaybiyah. The Muslims on that occasion were outraged but he (saw) ignored their opinion and dismissed their pleas, and went ahead and signed the treaty. This proves that the Khaleefah only has the mandatory power to sign treaties, whether these were peace treaties or any other.
As for the section "C", its evidence is that it was the Messenger of Allah (saw) himself who received the two envoys of Musaylama, and it was he (saw) who received Abu Rafi’i, an envoy from Quraysh. It was also he (saw) who sent envoys to Heraclius, Khosroes, Al Muqawqis, Al-Harith Al-Ghassani, King of Al-Heera, Al Harith Al-Himiary, King of Yemen, the Negus of Abyssania (Al-Habashi), and he sent ‘Uthman Ibnu ‘Affan to Quraysh during the Hudaybiyah affair. This proves that the Khaleefah is the one who accepts the ambassadors (envoys) and refuses them and it is he who appoints the ambassadors.
As for section "D", its evidence is that it was the Messenger of Allah (saw) himself who used to appoint the Walis. He (saw) appointed Mu’az as Wali over Yemen. He (saw) used also to remove them; he removed Al-A’la’ b. Al-Hadhrami from his post as Wali of Bahrain after its people complained about him. This indicates that the Walis are responsible before the people of the Wilayah (district), and before the Khaleefah, as well as the council of the Ummah, for it represents all the Wilayahs. This is concerning the Walis. As for the assistants, the Messenger of Allah (saw) had two assistants; Abu Bakr and ‘Umar. He did not remove them and appoint others to replace them during his lifetime. However, the assistant derives his authority from the Khaleefah, and since he acts in the capacity of his deputy, the Khaleefah therefore has the right to remove him, by analogy with the representative (agent), for the person has the right to dismiss his representative (agent).
As for the section "E", its evidence is derived from the fact that the Messenger of Allah (saw) appointed ‘Ali as judge over Yemen. Ahmad narrated from ‘Amru b. al-‘Ass, he said: "Two men disputing with each other came to the Messenger of Allah (saw) (seeking justice), so he (saw) said to me: "Judge between them." I said: "You are better and more worthy of that." He (saw) said: "Even though!" So I said: "What shall I have if I judged?" He (saw) said: "If you judged and you were right, you would get ten rewards and if you get it wrong you would get one reward."
‘Umar (may Allah be pleased with him) used to appoint and remove judges. He appointed Sharih as a judge over Kufa and Abu Musa as a judge over Basra. He also removed Shurahbeel b. Hasna from his post as Wali over Ash-Sham and appointed Mu’awiya instead. Shurahbeel said to him: "Is it because of an act of disobedience or treason that you removed me?" ‘Umar replied: "Neither, but I wanted to appoint a man who is stronger." ‘Ali, on one occasion appointed Abu al-Aswad and then he removed him. Abu al-Aswad asked him: "Why did you remove me. I never cheated or committed a crime?" ‘Ali said: "I noticed that your voice rose above the disputing men." ‘Umar and ‘Ali did this before the Sahabah and none of them disapproved or censured their actions. This proves that the Khaleefah reserves the right to appoint the judges in principle. He can also delegate someone to appoint the judges on his behalf, in analogy with representation (Wakalah), This is because he reserves the right to assign a deputy for him in any of his mandatory powers as he is allowed to appoint someone to represent him in any of his dispositions.
As for the directors of the state’s departments, the Messenger of Allah (saw) appointed secretaries for the various departments of the state. They were considered to be directors of those departments. He (saw) appointed Al-Mu’ayqeeb b. Abi Fatimah Ad-Dooci in charge of his stamp and the booty. He (saw) appointed Huzayfah b. Al Yaman to assess the harvest of Al-Hijaz, and Zubayr b. Al-‘Awwam to record the funds of the Sadaqah. He (saw) appointed Al-Mughira b. Shu’ba in charge of registering the debts and various transactions, and so on.
As for the army commanders and chief commanders, the Messenger of Allah (saw) appointed Hamza b. ‘Abdul Muttalib as commander of an army of thirty riders to confront Quraysh on the sea shore. He appointed Muhummad b. ‘Ubaydah b. Al-Harith at the head of sixty fighters and instructed him to confront Quraysh in the Wadi of Rabigh. He (saw) also appointed Sa’ad b. Abi Waqqas at the head of an expedition numbering twenty riders and dispatched him towards Makkah. It can be seen therefore, that he (saw) used to appoint the army commanders, which proves that the Khaleefah is the onewho appoints the commanders and the army chiefs of staff.
All these posts were answerable to the Messenger of Allah (saw) and nobody else. This indicates that the judges, directors of departments, army commanders, chiefs of staff and various senior officials are answerable to none but the Khaleefah, they are not answerable to the council of the Ummah. Only the delegated assistants, the Walis and the ‘Amils are responsible before the council of the Ummah for they are rulers. Nobody else is responsible before the council, rather everyone has to report back to the Khaleefah.
As for section "F", the state budget in terms of the revenues and the expenses is controlled by the Shari’ah rules. Not a single pence (penny) is levied except according to a divine rule, nor any single pence is spent except according to a divine rule. However, the details of the expenditure or what is known as the budget sections, it is left to the Khaleefah according to his Ijtihad, as are the details of revenues. It is the Khaleefah, for instance, who decides the amount of the Kharaj of land, and the Jizya as well as any other levies and revenues. It is the Khaleefah who decides the expenditures allotted for the road works, and hospitals and other sorts of expenditures. All such matters are left to the Khaleefah, and he decides that according to his own Ijtihad and opinion. This is because the Messenger of Allah (saw) used to receive the revenues from the ‘Amils, and spend them. It was he (saw) who authorised the Walis on some occasions to receive funds and spend them; this was the case when he (saw) appointed Mu’az over Yemen. The Khulafa’a Rashideen then did the same, each one of them collected the revenues and spent them according to his opinion and own Ijtihad in his capacity as Khaleefah. None of the Sahabah ever disapproved, and nobody ever spent a single pence without the Khaleefah’s consent. When ‘Umar appointed Mu’awiya as Wali, he gave him a general Wilayah whereby he had powers to collect and spend the funds. All this proves that the different sections of the budget are decided by the Khaleefah or anyone acting on his behalf.
These are the detailed evidences regarding the Khaleefah’s mandatory powers. These are confirmed by the Hadith narrated by Ahmad and Al-Bukhari from Abdullah b ‘Umar that he heard the Messenger of Allah (saw) say "The Imam is a guardian, and he is responsible over his subjects." This means that all the matters related to the management of the subjects’ affairs is the responsibility of the Khaleefah. He, however reserves the right to delegate anyone with whatever task he deems fit, in analogy with Wakala (representation).
The Khaleefah’s Method of Looking after the Subjects’ Affairs
The Khaleefah has the absolute authority to manage the citizens’ affairs according to his own opinion and Ijtihad. However, he is forbidden from violating any Shari’ah rule under the pretext of benefit (Maslaha). For instance he cannot prevent the subjects from importing goods under the pretext of protecting the local industry unless it actually harms the economics of the country. He cannot also set prices for the people under the pretext of preventing exploitation. He also cannot force landlords to rent their properties under the pretext of easing housing, unless there was a pressing need for that, or any other policy that violates the Shari’ah rules. He is, therefore, forbidden from prohibiting a Mubah action, or allowing a forbidden one.
This is because of what the Messenger of Allah (saw) said: "The Imam is a guardian and he is responsible about his subjects". It is also because of the rules that the Shar’a gave to the Khaleefah, like his managing of the funds of Bait-ul-Mal according to his own opinion and Ijtihad, and like forcing of the people to abide by one specific opinion in one matter, and the like. This Hadith gives him the right of exercising his total authority without any restriction whatsoever. The management of the treasury, the adoption of laws, the organising and training of the armed forces and the appointing of Walis and other powers given to the Khaleefah, all these powers are not subject to any restriction. This proves that the Khaleefah looks after the affairs of the subjects as he deems fit without any restrictions, and obedience to him in all such matters is compulsory and disobedience to him is a sin. However, running of the subjects’ affairs has to be performed according to the Shar’a rules, namely according to the Shari’ah texts. The powers, although they are absolute, but are restricted by Shar’a only, that is to be according to the Shari’ah rules. For instance, although the Khaleefah has the powers to appoint the Walis as he deems, he cannot appoint a disbeliever or a child or a woman as Wali for Shar’a has forbidden this. He also, for instance, has the powers to allow the opening of embassies of disbelieving countries in territories under his authority and this power is unrestricted. It would however be wrong for him to allow the opening of an embassy of a disbelieving state which intends to use the embassy as a tool to dominate the Islamic lands, for Shar’a forbids this. He also for instance has a free hand in deciding the details of the budget and the amounts needed for each section. However, he cannot endorse a project of building a dam while the revenues of the treasury are not enough for it, under the pretext that he collects taxes to build the dam. This is because if the dam is not indispensable, then it is wrong according to Shari’ah to impose taxes to build it. The Khaleefah is thus given a free hand by the Shar’a in governing the Ummah’s affairs according to what Shar’a allows him. However, this freedom of management is conducted according to the Shar’a rules. Furthermore, having unrestricted powers in running the government does not mean that the Khaleefah can enact laws which he wants to manage the affairs of the state. Rather, it means that what is left for his disposition it is "Mubah" for him to dispose of it according to his opinion, in whatever way he deems fit. So he can adopt the rule in the matter in which he is allowed to act according to his own opinion, and obedience to him in this rule becomes compulsory. This is because the Shar’a gives him the authority to act according to his own opinion, and commands us to obey him. Thus he has the right to enact such adopted opinion as a law by which people must abide. He, for instance is allowed to manage the treasury according to his own opinion and Ijtihad, and people are commanded to obey him in that. He, therefore, has the right to enact the laws of the treasury which, accordingly, must be obeyed. He also has the power to head the armed forces and to run the matters of the army, and according to his own opinion and Ijtihad, and people must obey him in that. Thus he has the right to enact laws for the army leadership, and for administering the army accordingly, and obedience to such laws becomes binding. The Khaleefah has the right to run the affairs of the citizens according to his own opinion and Ijtihad, and to appoint those who run these affairs according to his own opinion and Ijtihad, and people have to obey him in that. So he has the right to enact laws to administer the departments and laws for the employees. Accordingly, these laws must be obeyed. Therefore, everything that is left to the Khaleefah to act upon according to his own opinion and Ijtihad, and is part of his mandatory powers, he has the right to adopt and enact laws for such matters; and compliance with such laws is compulsory. It would be wrong to say that these laws are styles, and the style is classified as part of the Mubah matters, which are Mubah for all Muslims. So the Khaleefah is forbidden from specifying a particular style and making it compulsory, for this would be considered as making the Mubah action compulsory, since forcing the execution of the Mubah is equivalent to making the Mubah compulsory, and making the Mubah Haram by preventing the other styles, a matter which is not allowed. It would be wrong to say this because although Mubah is a style in essence, the styles of managing the treasury are Mubah for the Khaleefah only and not to other people. Similarly the styles of running the treasury of Bait-ul-Mal are Mubah to the Khaleefah only and not Mubah for all the people. Likewise, the styles of running the armed forces are Mubah for the Khaleefah only and not for the people. The same is true with running the affairs of the citizens affairs. These are exclusively Mubah for the Khaleefah and not for all the people. Therefore, the obligation of abiding by the Mubahaat which the Khaleefah has adopted for governing the people’s affairs in the matters which the Shar’a has given him powers to conduct according to his own opinion and Ijtihad, is not considered as if the Khaleefah had made the Mubah as Fard and the Mubah as Haram. It is rather making obedience compulsory in the matters which the Shar’a has allowed the Khaleefah to enact according to his own opinion and Ijtihad. Every Mubah the Khaleefah enacted in running the affairs, becomes compulsory upon every citizen to abide by. It is on this basis that ‘Umar b. al-Khattab decided to record the account books of the Diwans. Based on the same principle, the Khulafa’a enacted certain regulations for their ‘Amils and for the subjects and they obliged them to act upon such regulations and execute them exclusively. Therefore, it is allowed for the Khaleefah to draw up the administrative laws and all the other laws of such nature. His obedience in such laws is compulsory, for it is an obedience to the Khaleefah in whatever he orders in matters which are within the mandate given to him by Shar’a.
However, this only concerns the Mubah relating to looking after the affairs, namely in whatever matter the Khaleefah is allowed to conduct according to his own opinion and Ijtihad. This is in matters such as organising the administration of the state's departments, the organising of the armed forces and other similar matters. It does not apply to all Mubah matters, but only in what has been made Mubah to the Khaleefah, in his capacity as a Khaleefah. As for the other rules like the obligation (Fard), Mandub, Makruh, Haram and Mubah which relate to all the people, the Khaleefah is restricted by the Shar’a rules regarding them, and he is absolutely forbidden from violating them. For Al-Bukhari and Muslim narrated from Aiesha (r.a.) that the Messenger of Allah (saw) said: "Whoever inserted anything in this our matter (Deen) that is not part of it, it is rejected." This is a general text that includes the Khaleefah and others.
The Khaleefah is Restricted in Adoption by the Divine Rules
The Khaleefah is restricted in the adoption by the divine rules. He is thus forbidden from adopting a rule that has not been correctly extracted from the divine evidences. He is also obliged to restrict himself to the rules he has adopted, and to the method of Ijtihad (extracting rules) he committed himself to. Therefore, he is forbidden from adopting a rule that has been extracted by a method contrary to the one he had adopted, nor to issue an order that contradicts the rules which he has adopted.
There are two issues here that need closer examination. The first is the restriction of the Khaleefah in adopting of rules by the Shari’ah rules, thus restricting him, in legislation and enacting laws, with the Islamic Shari’ah. He is forbidden from adopting any law contradicting Shari’ah, for any law that contradicts Shari’ah is regarded as Kufr law. If he adopted a rule not derived from Shari’ah knowingly, then it has to be examined. If he believed in the rule which he adopted, he would become a disbeliever. If he did not believe in it but took it, understanding that it did not contradict Islam, as the Khulafa’a of Banu ‘Uthman did in their last days, then it would be Haram for him to do so, and he would not become a disbeliever. However, if he has a probable evidence (Shuabhat Daleel), as is the case for the one who puts a law that has no evidence, but only due to an interest (Maslahah) he conceives, referring to the principle of "Al-Masalih Al Mursala" the undefined interests or the principle of “Maalat Al-Afa’al” (the consequences of the actions) or the principle of Sadd Ath-Thara’i "averting the pretext" or the like. If he deems these as divine principles and evidences, then it would not be prohibited for him and he would not become a disbeliever, but simply mistaken. Accordingly, what he extracted would be regarded a divine rule by all the Muslims, and they should abide by it if it was adopted by the Khaleefah. This is because it is a divine rule which had a probable evidence, though he was mistaken in the Daleel (evidence) for he is like the one who is mistaken in the extraction from the evidence (Istinbat). However, the Khaleefah must restrict himself in the adoption by the Islamic Shari’ah, and he should be restricted in the adoption from the Shari’ah by the divine rules which are correctly extracted from the Shari’ah evidences. The evidence on that is:
Firstly ; Allah (SWT) has obliged every Muslim, including the Khaleefah to conduct his actions according to the divine rules. Allah (SWT) says:
"But no, by your lord, they will not believe (truly) until they make you judge of what is in dispute between them." [TMQ 4-65]
Conducting actions according to the divine rules obliges the Muslim to adopt a specific rule when the understanding of the Legislator’s speech varies i.e. when the divine rule varies. So adopting a specific rule from amongst various rules becomes obligatory upon the Muslim, when he wants to carry out an action, i.e. when he wants to implement the rule. This is obligatory upon the Khaleefah as well, when he performs his duty which is the ruling.
Secondly; The content of the text of the Bai’ah which the Khaleefah is given obliges him to abide by the Islamic Shari’ah, for it is a Bai’ah on the Book and the Sunnah. He is thus forbidden from violating it and would even commit an act of disbelief if he did so with conviction, while he would be disobedient, a wrongdoer and a rebel if he violated the Shari’ah without conviction.
Thirdly; The Khaleefah is appointed to implement the Shar’a, therefore he is forbidden to refer to anything other than Shar’a in ruling the Muslims. This is because Shar’a has made this decisively unlawful, to the point where belief is denied of anyone who rules by other than Islam, a matter which is a connotation of decisiveness. This means that the Khaleefah is restricted in his adoption of the rules, namely in his enacting of laws, solely by the divine rules. If he enacts any law from other than Shar’a, he would commit an act of disbelief if he did so with conviction, and an act of disobedience, wrongdoing and rebellion, if he did not believe in that.
These three evidences are evidences of the first matter. As for the second matter, the Khaleefah is restricted to the rules that he adopted, and to the method of deduction he committed himself to. The evidence for this, is that the divine rule that the Khaleefah executes is the divine rule that is upon his neck, and not anybody. In other words it is the divine (Shara’i) rule that he adopted to conduct his affairs and not just any divine rule. This means that if the Khaleefah extracted a rule or imitated in a rule, this divine rule would become Allah’s rule on his neck. He would be restricted also in adopting this rule for all the Muslims, and forbidden from adopting any other rule. This is because any other rule would not be Allah’s rule upon his neck, and it would not thus be a divine (Shara’i) rule to him, and accordingly it would not be a divine (Shara’i) rule to the Muslims. Therefore, he is restricted in the orders which he decrees to the subjects by the divine (Shara’i) rule, which he adopted. He is forbidden from issuing an order that conflicts with what he had adopted in terms of divine (Shara’i) rules, because such an order would not be considered as Allah’s rule on his neck (does not apply to him). Therefore, it would not be a divine (Shara’i) rule for him, and thus not a divine (Shari’ah) rule to the Muslims. In such a case it would be as if he issued an order contrary to the divine (Shari’ah) rule, hence, he is forbidden to issue an order conflicting with what he had adopted in terms of divine (Shar’ai) rules.
The understanding of the divine (Shar’ai) rule varies according to the method of "Istinbat" (extraction). If the Khaleefah considers that the "‘Illah" (reason) of the rule is considered a divine reason if taken from a divine (Shari’ah) text, and he does not consider that the interest (Maslaha) as a divine reason, nor consider the "Masalih Mursala" (undefined interests) as being a divine (Shar’ai) evidence, then he would have defined for himself the method of "Istinbat". Accordingly, he must restrict himself to it, and it would be wrong for him to adopt a rule that had its evidence as "Masalih Mursala", or to use an analogy (Qiyas) based on an ‘Illah (reason) that was not extracted from a divine (Shar’ai) text. For such a rule would not be considered a divine Shari’ah rule upon his neck, because he considers its evidence as not a divine (Shari’ah) evidence, therefore it would not in his view be a divine Shar’ai rule. Since such a rule is not considered a divine rule regarding the Khaleefah, it would not also be a divine rule regarding the Muslims. This would be as if the Khaleefah has adopted a rule alien to the Shari’ah rules and this is forbidden. If the Khaleefah is a "Muqallid" (imitator) or a "Mujtahid Mas’ala" (Jurisprudent in a single matter), and has no specific method of Istinbat, in this case, he is allowed to adopt any divine (Shar’ai) rule whatever its evidence, as long as he has a probable evidence, and he has not been restricted by any method in adopting the rules. He is only them restricted, when he issues orders, not to issue them except in accordance with the rules he has adopted.
The Removal of the Khaleefah
The Khaleefah is removed (immediately) if his status changed in a way that takes him out from the post of the Khilafah. The Khaleefah must be removed if his status changes in a way that does not take him out from the post of the Khilafah, but he is not allowed by Shar’a to continue in his post.
The difference between the case that takes the Khaleefah out from the post of the Khilafah, and the case in which he must be removed is that in the first case, obedience is not compulsory as soon as his status changes. While in the second case, where he must be removed, his obedience remains compulsory until he is effectively removed.
There are three cases which take the Khaleefah out from the post of the Khilafah:
Firstly - If he becomes a "Murtad" (apostate). This is because one of the conditions of contracting the Khilafah is Islam. This is an initial condition and a condition of continuity. Whoever rejects Islam (commits apostasy) he becomes a disbeliever and he should be killed if he does not renounce his apostasy. It is forbidden for a Kafir to rule over the Muslims, or to have any authority over them, for Allah (SWT) says:
"And Allah will never allow for the Kafirs to have a way (authority) over the believers"
Allah (SWT) also says:
"O you who believe, obey Allah and obey the Messenger and those in authority from amongst you." [TMQ 4-59]
" From amongst you" (Minkum) in the verse, clearly indicates that those in authority must be Muslims. If the person in authority becomes a disbeliever then he is not from amongst us. Thus the characteristic which the Qur’an laid down as a condition for the person in authority, namely Islam, would be absent. The Khaleefah will therefore be taken out of the post of the Khilafah if he commits apostasy. He will then no longer become a Khaleefah of the Muslims, nor will they be obliged to obey him.
Secondly - If the Khaleefah becomes irreversibly insane. This is because sanity is one of the conditions of contracting the Khilafah and it is a condition of its continuity. For the Messenger of Allah (saw) said: "Accountability is lifted in three instances...” to the point where he (saw) said: “the insane until he regains his senses”. In another narration. "The mad until he is cured." Whoever is not accountable cannot look after himself, therefore by greater reason, he cannot remain a Khaleefah, looking after peoples’ affairs.
Thirdly - If the Khaleefah is imprisoned by a formidable enemy, and can’t free himself from them, and there is no hope of doing so. In this case he should be removed, for his imprisonment makes him completely unable to look after the Muslims affairs, and he would be as if he does not exist.
In these three cases the Khaleefah is taken out of his post of the Khilafah and he should immediately be removed, even if there was no verdict of his removal issued. He is not to be obeyed, and his orders should not be executed by whoever has a proof that the Khaleefah is under any of these three conditions. However, it is necessary to prove if any of these cases happened to him. The proof should be established by the "complaints tribunal" (Mazalim), which would issue its verdict stating that the Khaleefah had been taken out of the post of the Khilafah and that he should be removed, thus allowing the Muslims to contract the post of Khilafah to someone else.
As to the matters where the Khaleefah is no longer permitted to continue in office but which do not take him immediately out of his post of the Khilafah, these are five:
Firstly. If his justness is invalidated by showing manifest signs of Fisq (wrongdoing). For justness (’Adaala) is one of the conditions for contracting the Khilafah and for its continuity. So if Allah (SWT) stipulated the justice (’Adaala) in the witness then, for greater reason , it is stipulated in the Khaleefah.
Secondly. If the Khaleefah becomes a female or effeminate. This is because being a man is a contractual condition and a condition of continuity of the Khalifah. This is due to the saying of the Messenger of Allah (saw) who said: "Any people who appoint a woman over their affairs shall never succeed", narrated by Al-Bukhari from Aby Bakrah.
Thirdly. If the Khaleefah suffers from a disorderly mental condition, by losing his mind at times and regain it at others. This is because the mind is one of the contracting and the continuity conditions of the Khilafah, due to what Allah’s Messenger (saw) said:
"Three types of people are exempted from accountability”... to the point where he (saw) said: “...and the mad until he regains his sanity." The insane cannot conduct and manage his own affairs, then by greater reason, he cannot manage the people’s affairs. In this case it is forbidden to appoint a caretaker (trustee) or a deputy for him, since the contract of Khilafah has been concluded upon his person, therefore no one else can act on his behalf.
Fourthly. If the Khaleefah is unable to carry out his duties of Khilafah for any reason, whether because of a disability or because of a chronic (incurable) disease which prevents him from performing his functions. The point at issue in this case is his inability to carry out his duties.
This is because the contract of Khilafah is based on performing its tasks. If the Khaleefah was unable to fulfil the contract his removal becomes compulsory as he would be as if he didn’t exist. If he also could not perform the duties for which he had been appointed as Khaleefah, the affairs of the Deen and the Muslims’ interests would become stalled resulting in an evil (Munkar) that has to be removed. This can not be acheived except by dismissing the Khaleefah and then the Muslims can appoint another Khaleefah in his place. His removal in this case becomes compulsory.
Fifthly. If the Khaleefah becomes subjugated or coerced in a manner which leaves him unable to conduct the affairs of the Muslims with his own opinion according to the Shar’a. If this had happened to him he would then be considered virtually unable to fulfil the duties of Khilafah. This situation would necessitate his removal. The foregoing scenario has been considered to apply in two cases:
The first case is when a member or members of his entourage or family gain power over him so that they execute the matters arbitrarily and they become high-handed so that they overpower him such that he cannot disagree with them and he is forced to follow their opinion. In this case the matter should be examined. If their coercion could be eliminated within a short period of time he would be allowed to remain in office, so as to remove them and free himself of their influence. If he did this and his ability was restored he would be allowed to remain in office, otherwise he should be removed. He would be subject to immediate removal if there was no hope of freeing himself from such coercion.
The second case is when the Khaleefah falls prisoner to a formidable enemy, either physically or by being under his enemy’s dominance. In this case the matter should be examined. If there is any hope of freeing himself of the enemy he would be given time to do so and restore his authority, otherwise he would be removed. If no hope was in sight, he should be removed immediately.
In both cases he would be virtually unable to fulfil the tasks of the Khilafah by himself according to the Shar’a rules. He would be as if he didn’t exist and unable to carry out the functions over which the Khilafah contract was convened.
In both cases, however, if there was hope of freeing himself he should be given time until freeing himself becomes hopleless, after which he should be removed. If, however, there was no hope at all in the first instance, he should be removed at once.
The Khaleefah should thus be removed whenever any of the five cases listed above occurs. However, he cannot be removed except when a verdict (concerning the situation at hand) has been issued. In all five cases the Khaleefah should always be obeyed and his orders executed until a verdict of his removal has been issued. In each one of these cases the Khilafah contract is not automatically nullified. It rather needs a verdict issued by a judge.
The Ummah does not Reserve the Right to Remove the Khaleefah
Although the Ummah is the one who appoints the Khaleefah and gives him the Bai’ah, yet once the Bai’ah has been convened according to Shar’a, the Ummah does not have the right to remove him (from office).
This is because of the sound (Sahih) Ahadith which order the Muslims to obey the Khaleefah even if he committed Munkar (mischief), committed an act of oppression or even withheld people’s rights, so long as he did not order them of an act of disobedience (Ma’asiyah), nor show flagrant disbelief. Al-Bukhari narrated from Ibnu ’Abbas who said that the Messenger of Allah (saw) said:
"If anyone sees in his Ameer (Ameerihi) something that displeases him let him remain patient, for behold! He who separates himself from the Sultan (authority) by even so much as a hand span and dies thereupon, he has died the death of Jahiliyyah."
The phrase "Ameerihi" is general in this Hadith, so it includes the Khaleefah because he is the Ameer of the believers. Muslim narrated from Abu Hurayra who said that the Messenger of Allah (saw) said:
"The Prophets ruled over the children of Israel. Whenever a Prophet died, another Prophet succeeded him, but there will be no Prophet after me. There will be Khulafa’a, and they will number many." They asked: "What then do you order us?" He (saw) said: "Fulfill allegiance to them one after the other, and give them their dues. Verily Allah will ask them about what He entrusted them with."
Muslim reported that Salama b. Yazid Al-Ja‘afi asked the Messenger of Allah (saw):
"O Prophet of Allah, if we were to be ruled by Ameers who ask us for their dues and deny us our dues, what do you order us to do then?" The Messenger of Allah(saw) turned his face away; he asked him again and Allah’s Messenger (saw) avoided him; then he asked for the second or the third time and he (saw) was pulled by Al-Ash‘aath b. Qays, so the Messenger of Allah (saw) said: "Hear and obey, for they shall be accountable for their actions and you shall be accountable for yours."
Muslim reported from ‘Auf b. Malik who reported: I heard the Messenger of Allah (saw) say:
"The best of your Imams are those whom you love and they love you and you pray for them and they pray for you; and the worst of your Imams are those whom you hate and they hate you and you curse them and they curse you." We asked: "O Messenger of Allah, shall we not then declare war on them?" He (saw) said: "No! As long as they establish prayer among you. Behold if anyone was ruled by a Wali and saw him committing a sin, let him hate the sin committed against Allah, but let him not withdraw his hand from obedience."
Muslim narrated from Huzayfah b. al-Yamaan that the Messenger of Allah (saw) said:
"There will be Imams after me who will not be guided by my guidance, nor will they act according to my Sunnah; some men will rise amongst you with satans’ hearts in human bodies." Huzayfah asked: "What shall I do, if I were to reach that time?" He (saw) said: "You should hear and obey the Ameer even if he whipped your back and took your money; do hear and obey."
Ahmad and Abu Dawood reported that the Messenger of Allah (saw) said:
"O Abu Dharr, what would you do if some Walis possessed the booty and deprived you of it?" He said: "By He Who sent you with the Truth, I would raise my sword and fight until I join you." Upon this he (saw) said: "Let me tell you something that would be better for you than that. Remain patient and bear it until you join me."
All these Ahadith demonstrate that the Khaleefah could act against the Shar’a rules. Yet despite this, the Messenger of Allah (saw) ordered us to obey him (the Khaleefah), to be patient towards his injustice and to persevere. This clearly proves that the Ummah does not reserve the right to remove the Khaleefah. Besides, the Messenger of Allah (saw) refused on one occasion, to relieve a Bedouin from his Bai’ah. Al-Bukhari narrated from Jabir b. ‘Abdullah who reported that:
… a Bedouin gave his Bai’ah of Islam to the Messenger of Allah (saw). Soon after he felt a malaise, so he said to the Messenger of Allah (saw): "Would you relieve me of my Bai’ah!" The Messenger of Allah (saw) refused; he then came back and said: "Relieve me of my Bai’ah!" He (saw) refused, so the man left. Upon this the Messenger of Allah (saw) said: "Al-Madina is like the bellows, she banishes her bad odours and manifests her sweet scent."
This proves that once the Bai’ah has been taken, those who gave it must be committed to it. This means that they have no right to remove the Khaleefah, because they have no right to take back the Bai’ah they gave to him. It would be wrong to claim that the Bedouin wanted to leave Islam by seeking relief from his Bai’ah rather than the obedience to the Head of State. This is because if this had been the case, his act would have been considered as apostasy and the Messenger of Allah (saw) would most certainly have killed him, since the punishment for the apostate is killing. The Bai’ah itself is not a Bai’ah for Islam (belief) but for obedience. Therefore, the Bedouin wanted to rid himself from his oath of obedience, not to apostasise. Muslims have thus no right to renounce their Bai’ah and they do not reserve the right to remove the Khaleefah. Shar’a has defined and demonstrated when the Khaleefah must be removed automatically and when his removal becomes necessary. This does not however, imply that the Ummah reserves the right of removing him.
The Court of Unjust Acts (Mahkamat ul-Mazalim) is the Only Body that can Legitimately Remove the Khaleefah
‘Mahkamat ul-Mazalim’ alone decides whether the situation of the Khaleefah had changed in a way which had taken him out of the post of Khilafah or not. It is the only body with mandatory power to remove or caution him.
Any matter for which the Khaleefah has to be removed or his removal becomes necessary is known as a ‘Mazlema’ (an act of injustice) and it should be removed. The matter, however, should be investigated and evidence provided as the ‘Mazlema’ must be proved before a judge.
The court of unjust acts (Mahkamat ul-Mazalim) is the body which rules over any complaints (Mazalim) received. Its judge is the person entitled to prove its occurrence and to decide upon it. However, if such a situation did arise and as a result the Khaleefah stepped down, this would be the end of the matter. If, however, the Muslims thought that he should be removed and the Khaleefah disputed with them, the matter would be referred to the judiciary to be settled, for Allah (SWT) says:
"If you dispute together about any matter, refer it to Allah and His Messenger" [TMQ 4: 59]
In other words, if the Ummah disputed with those in authority, this dispute would be between the ruler and the Ummah. Referring the dispute to Allah and the Messenger, means referring it to the judiciary, that is to the court of unjust acts.
The Khilafah State is a Human State not a Theological State
The Islamic State is the Khilafah, for the one who holds its post would possess all the mandatory powers of ruling, authority and legislation without any exception. It is the supreme leadership over all the Muslims worldwide so as to implement the rules of the Islamic Shar’a using the concepts that Islam has brought and the rules which it has legislated; and to convey the Islamic Message to the world. The Message is conveyed by introducing Islam to people and calling on them to embrace it and performing Jihad in the way of Allah. Khilafah is also known as Imama or Imaratul-Mu‘mineen (leadership of the believers). It is a temporal post and not a post relating to the Hereafter. The Khilafah exists to implement Islam on people and to spread it to mankind. It is different to the Prophethood, for the Prophethood and the Messengership are posts whereby a Prophet or a Messenger receives the Shar’a from Allah (SWT), through revelation, to convey it to people regardless of its implementation. Allah (SWT) says:
"The Messenger’s duty is only to preach the clear Message." [TMQ 24 :54 ]
He (SWT) also says:
"Your duty is to convey the Message" [TMQ 3:20]
Allah (SWT) says:
"The Messenger’s duty is only to proclaim the Message" [TMQ 5:99]
This is therefore, different from the Khilafah, which is the implementation of the Shar’a of Allah (SWT) on mankind. It is not conditional for a Prophet or a Messenger to implement what was revealed to him from Allah (SWT) in order to become a Messenger. Rather, it is conditional for him to receive Shar’a from Allah (SWT) and to be ordered to proclaim it. For example, Sayyiduna Musa, ‘Isa and Ibrahim were all Prophets and Messengers, but they did not themselves implement the Shari’ah which they brought, and were not rulers.
It can be seen, therefore, that the posts of Prophethood and Divine Messengership are different from the post of Khilafah, because Prophethood is theological, which Allah (SWT) gives to whoever He wishes. The Khilafah on the other hand, is a human post whereby the Muslims give their Bai’ah to whoever they wish and appoint over them as Khaleefah whomever they like from among the Muslims. Our Messenger Muhammad (saw), was a ruler who implemented the Shari’ah which he had received from Allah. So he (saw) held the Prophethood and the Messengership and at the same time also assumed the post of presiding over the Muslims in establishing the rules of Islam. Allah (SWT) thus, commanded him to rule as well as to convey the Message. He (SWT) ordered him:
"And judge between them by that which Allah has revealed" [TMQ 5:49]
He (SWT) also says:
"We have sent down to you the Book in truth so that you judge between people by that which Allah has shown you" [TMQ 4:105]
Allah (SWT) also says:
"O Messenger! Proclaim the (Message) which has been sent to you from your Lord" [TMQ 5:67]
"This Qur’an has been revealed to me by inspiration so that I may warn you and all whom it reaches." [TMQ 6:19]
"O you wrapped up. Arise and deliver warning." [TMQ 74:1,2]
However, when he (saw) conveyed the Message by words, such as proclaiming the saying of Allah (SWT):
"And Allah has made trading lawful and has forbidden usury." [TMQ 2:275]
Or he proclaimed it through his actions, like the treaty of Hudaybiyah, he did so without hesitation. He (saw) would decisively order his followers to execute those orders without consulting anyone. He (saw) would even reject an opinion outright if anyone suggested it to him and it was contrary to the revelation. If he (saw) was asked about a rule which had not yet been revealed to him, he would remain silent until such a rule was revealed. However, when he (saw) implemented the rules which had been revealed to him and he had proclaimed them to the people, he would sometimes consult his companions and in certain cases adopt the majority’s opinion even if it was different from his own opinion. In such cases, he never confirmed that what he decreed fitted the incident accurately, but would state that it was fitting according to the evidences before him. When the Surah of Bara‘ah was revealed, he (saw) ordered ‘Ali b. Abi Talib to catch up with Abu Bakr in order to call on the people and to proclaim the Surah to them during the Hajj season. So ‘Ali (ra) recited the Surah to them on ‘Arafat and went about them until he had proclaimed it. When the Messenger of Allah (saw) signed the treaty of Hudaybiyah, he rejected all the opinions of the Sahabah and forced his own opinion upon them because it was revelation from Allah (SWT). When Jabir asked him what to do with his wealth, he (saw) did not answer him until the rule was revealed. Bukhari narrates a Hadith on the authority of Mohammed b. al-Munkadir who said:
I heard Jabir b. ‘Abdullah say: ‘I had fallen ill so the Messenger of Allah (saw) came walking to visit me with Abu Bakr. He got there while I was unconscious. So he (saw) performed Wudhu then poured that water over me so I regained conscience, then I said: “O Messenger of Allah, what should I do with my wealth? How shall I act with regard to my wealth?” He did not answer me until the verse of ‘al-Meerath’ (inheritance) was revealed.
This was with regard to the task of Prophethood, Messengership and the conveying (Tableegh) of the Message to the people. As for executing the task of government and ruling, the Messenger of Allah (saw) followed a different course. At the battle of Uhud the Messenger of Allah (saw) gathered the Muslims inside the Masjid and consulted them about whether to fight inside al-Madinah or outside it. The majority opted to fight outside while he (saw) preferred to fight inside Madinah, however, he (saw) chose to go along with the majority and to fight outside al-Madinah.
Furthermore, when he (saw) judged between people he warned them that he might have judged in their favour at the expense of others. Al-Bukhari reports on the authority of Umm Salama that the Messenger of Allah (saw) overheard a dispute outside his doorstep, so he came out to the disputing parties and said:
“I am only human and sometimes disputing parties come to me, some of you may be more eloquent than others, so I believe him and I judge in his favour. Whoever I judged in his favour at the expense of another Muslim’s right it would be for him like a piece from the Hell-fire, it is up to him to take it or leave it.”
Ahmad narrated from Anas that the Messenger of Allah (saw) said:
“...I verily would wish to meet Allah ‘Azza wa Jall’ without anyone claiming from me for an act of injustice I had committed against him be it blood or money.”
This clearly indicates that he (saw) held two posts: Prophethood, together with Messengership and the leadership over all the Muslims in the world in order to establish the Shari’ah of Allah which He (SWT) revealed to him (saw). He (saw) performed each task in accordance with that which the task itself required, acting differently in each role. He (saw) took the Bai’ah to rule upon the Muslims in ruling. He took it from men and women but not from children who had not yet reached puberty. This only confirms that it was a Bai’ah over ruling and not over Prophethood. We therefore find that Allah (SWT) has never rebuked him (saw) concerning the conveyance of the Message and the execution of its tasks. Instead He (SWT) asked him not to be disheartened by the lack of response from the people during the conveyance of the Message. Allah (SWT) says:
‘Let not your soul be vested in regret for them.’ [TMQ 35:8]
He (SWT) also says:
‘Nor grieve over them and distress not yourself because of their plots. [TMQ 16:127]
He (SWT) also says:
‘Your duty is but to convey the Message.’[TMQ 42:48]
However, Allah (SWT) did mildly rebuke him when he (saw) performed such duties as those which were associated with ruling. This was in conjunction with the actions which he performed whilst executing the rules which had already been revealed and conveyed. Allah (SWT) in those cases reproached him for acting contrary to the things which He (SWT) considered more appropriate. Allah (SWT) says:
‘It is not fitting for a Prophet that he should have prisoners of war until he had thoroughly subdued the land.’ [TMQ 8:67]
He (SWT) also says:
‘God give you grace! Why did you grant them exemption.’ [TMQ 9:43]
All this clearly demonstrates that the post of leadership and ruling over the Muslims is different from the post of Prophethood. It is also clear that the post of Khilafah is a temporal post and not one related to the Hereafter. We therefore, conclude from the preceding evidences that the Khilafah, which is a post of supreme leadership over all the Muslims in the world, is a human post and not a theological one. It is the post of ruling, which the Messenger of Allah (saw) held. He (saw) left that post with orders that a Muslim should succeed him in that post of ruling and not that of Prophethood. It is thus a post of succession to the Messenger of Allah (saw) with regards to the leadership of the Muslims, for the implementation of rules of Islam and conveying its Da’wah, and not with regards to receiving revelation and the taking of the Shari’ah from Allah (SWT).
As for the infallibility (‘Isma) of the Messenger of Allah (saw), this results from the fact that he is a Prophet and not from being a ruler. This is because infallibility is an attribute of all the Prophets and Messengers, regardless of whether they themselves ruled people with their Shari’ah and implemented it or whether they just conveyed their Shari’ah without holding the post of ruler or managing its implementation. Musa, ‘Isa and Ibrahim (AS) were all infallible, as was Muhammad (saw). Therefore, infallibility is for Prophethood and the Messengership, not for ruling. The fact that the Messenger of Allah (saw) never committed a forbidden act (Haram) nor neglected a duty (Wajib) whilst executing the functions of ruling resulted from the fact that he was infallible with respect to Prophethood and Messengership not because he was a ruler. Thus his execution of ruling does not require infallibility as such, but in reality he (saw) was infallible because he was a Prophet and a Messenger. He (saw), therefore, assumed his duties as a ruler just as any other human being, who rules over other humans, does. The Qur’an has clearly stated this, Allah (SWT) says:
‘Say, verily I am but a man like yourselves.’ [TMQ 18:110]
The difference between him (saw) and other humans is outlined by Allah (SWT) saying in the same verse:
‘(but) the inspiration has come to me.’ [TMQ 18:110].
The distinction, therefore, lies in the fact that he (saw) received revelation, namely the Prophethood. Other than that he (saw) was a man like any other man. Therefore, in ruling he (saw) was human, and undoubtedly his successors (Khulafa’a) would also be humans just like any other human, because they would only be successors to him in ruling, not Prophethood and Messengership. Infallibility does not therefore apply to the Khaleefah, as this is not required in ruling but it is a requirement of Prophethood. The Khaleefah is only a ruler no more, so the condition of infallibility is irrelevant to those who take up this post. It is even forbidden to stipulate infallibility as a precondition incumbent upon whoever takes up the post of Khilafah. This is because infallibility is restricted to the Prophets and it is forbidden to claim it on behalf of anyone other than a Prophet. The conveyance (Tableegh) of a Shari’ah requires the existence of infallibility in the Prophet and Messenger alone, so it is an infallibility in the conveyance of the divine Message. Its realisation in the shape of not committing any sins follows the infallibility in conveyance (Tableegh). This is because the infallibility in him would not be complete without the infallibility from committing the forbidden things. Thus infallibility is necessary for conveying of the Message and not for the people to believe or not in him or for the occurrence or not of error in the actions. Rather what requires the infallibility is the conveyance of the Message and no more. If Allah had not made the Prophet or Messenger infallible it would then have been possible for him to hide the Message or to add to it, or take away from it, or fabricate things which Allah did not say, or make a mistake by proclaiming other than what he has been ordered to convey. All these matters contradict with the conveyance of a Message from Allah (SWT), and for being a Messenger, who must be believed in. Therefore, it was necessary that the Messenger be characterised by infallibility (‘Isma) in proclaiming the Message, and accordingly his infallibility from committing sins follows. Therefore the scholars differed over the infallibility (‘Isma) of the Prophets in the issue of committing the forbidden things (Al-muharramaat). Some of them said he is infallible from committing the major sins (Al-kabaa’ir) only and it is possible that he commits minor sins (As-saghaa’ir). Some of them said that he is infallible with regards to both major and minor sins. They said that because the perfection of proclamation depends on the actions. If the perfection of the proclamation depends on the actions, then the infallibility in the proclamation will include the actions. Accordingly, the Prophet will be infallible from committing sins, since the proclamation will not be perfected unless he is infallible in the actions. But if the perfection of the proclamation does not depend on the actions, then the infallibility does not include them. Thus, he will not be infallible from them, because the proclamation would then be perfected without them. This is why there is no difference amongst the Muslims that the Prophet (saw) was not infallible from doing actions other than those that Allah considered more appropriate, because the perfection of proclamation definitely does not depend upon these actions. Thereupon, the infallibility (‘Isma) is only specific to the proclamation, and thus it does not exist except for the Messengers and the Prophets and it is not allowed to be for other than them absolutely. However, the evidence of the infallibility is rational and not textual. This is because it did not come in the Shari’ah texts. Neither the Qur’an nor the Hadith indicates the infallibility of anyone, whether the Prophets or Messengers or others. Thus, it is the mind that necessitates that the Prophets and Messengers be infallible in the conveyance of the Message. For being a Messenger or a Prophet requires it, otherwise he would not be a Messenger or a Prophet. It is also through the use of the mind that the one who is not commanded to propagate a Message from Allah is not allowed to be infallible, because he is a human being. By the nature which Allah made innate in him he is subject to error and forgetfulness. Since he is not commanded with a Message from Allah there is no cause that requires him to be infallible. If a person claims he is infallible then this implies that he is commanded with a Message from Allah, something which is not allowed, because there is no Prophet after Muhammad (saw). Allah (SWT) says:
‘He is the Messenger of Allah and the seal of the Prophets.’ [TMQ 33:40]
Hence, a claim of infallibility is in fact claim of a Messengership. This is because the Messenger is conveying a Message from Allah, and being a human has the capacity to make mistakes and err in the Message from Allah, infallibility is required to prevent the Message of Allah from change or alteration. Thus, the Messenger must be infallible to protect him from falling into error or making mistakes. It is for this reason alone that infallibility is one of the characteristics of the Messengers and Prophets and it is only they who require this infallibility. If infallibility is claimed by anybody other than a Messenger then it means that this person claims the purpose and the cause of infallibility, which is the conveyance of the Message i.e. he would claim that he is commanded with conveying a Message from Allah. Therefore, it is not allowed to stipulate infallibility to the Khaleefah, because making infallibility a condition upon him implies that he is commanded to proclaim a Message from Allah that makes it necessary for him to be infallible, a matter which is not allowed.
From this, we deduce that the Khaleefah is a human being and it is accepted that he might make mistakes, be absent minded, forgetful as well as lie, betray, commit sin and other things. This is because he is not a Prophet or a Messenger, but just a normal human being. The Messenger of Allah (saw) has informed us that the Imam may make a mistake and he informed that the Imam may do things which people hate and curse him for, like oppression, disobedience and other things. He informed us that open Kufr may appear from the Imam. Muslim reported on the authority of Abu Hurayra that the Messenger of Allah (saw) said:
“Verily the Imam is but a shield from behind which the people fight and by which they protect themselves. So if he ordered to observe the Taqwa of Allah and he was just he would have equal to these (actions) in reward, and if ordered other than that it would be against him equal to that.”
This means that it is possible that the Imam may command with other than the fear of Allah. Muslim also narrated from ‘Abdullah who said: The Messenger of Allah (saw) said:
“There would be after me selfishness and matters which you hate.’ They said: ‘O Messenger of Allah, how do you order the one of us who would witness that?’ He (saw) said ‘You should offer the right due upon you, and you ask Allah the thing which is due to you.”
Muslim narrated from ‘Auf b. Maalik that the Messenger of Allah (saw) said:
“The best of your Imams are those whom you love and they love you and who pray for you and you pray for them, and the worst of your Imams are those whom you hate and they hate you and you curse them and they curse you.’ We asked: ‘O Messenger of Allah, shall we not then declare war on them?’ He said: ‘No, as long as they establish prayer among you. And if you see something which you hate in your rulers then hate the action and do not withdraw your allegiance of obedience.”
Al-Bukhari narrated on the authority of Junada b. abi Umayyah who said:
We went to ‘Ubadah b. as-Samit when he was sick and we said: May Allah (SWT) guide you. Inform us of a Hadith from the Messenger of Allah (saw) so Allah may benefit you from it. He said, the Messenger of Allah (saw) called upon us and we gave him the Bai’ah, and he said, of that which he had taken from us, that we should give him the pledge to listen and obey, in what we like and dislike, in our hardship and ease, and that we should not dispute the authority of its people unless we saw open Kufr upon which we had a proof from Allah.
‘A’iesha narrates that the Messenger of Allah (saw) said:
“Avert the punishments from the Muslims as much as you can, so if the accused has any way out let him go free, because it is better for the Imam to make a mistake in forgiving than to make a mistake in imposing the punishment”- Narrated by at-Tirmithi.
These Ahadith clearly make the point that it is possible for the Imam to make a mistake, forget or disobey. Despite this, the Messenger of Allah (saw) has ordered the obedience to him as long as he governed by Islam and no open Kufr occurred from him and he did not command with sin. So, is there anything to be said after the news of the Messenger of Allah (saw) about the Khulafa’a that there would be from them things which Muslims deny despite the fact that he commanded Muslims to obey them? It is possible after this to say that the Khaleefah has to be infallible and he has not to be like other human beings? It is clear that the Khilafah State is a human state and not a theocratic state.
Leadership in Islam is Singular and not Collective
Leadership, presidency and ‘Imarah’ (emirate) are all of the same meaning. The leader, president and Ameer have the same meaning as well. However, the Khilafah, though it is a general leadership of all the Muslims in the world, is more specific than emirate (Imarah) and the Khaleefah is more specific than the Ameer. This is because the emirate can be the Khilafah and other than the Khilafah, like the emirate of an army and the emirate of the Wilayah and the emirate of the group. Thus the emirate is more general than the Khilafah. The Ameer could be the Khaleefah, the Ameer of a Wilayah, an Ameer of an army, an Ameer of a group, or an Ameer of travel. Hence, the Ameer is more general than the Khaleefah. Thus the word Khilafah is specific to the well-known post, while the word emirate is general for every Ameer.
Islam obliges that the leader, the president and the Ameer be one person, over the same matter and it does not allow that there should be more than one person in the same post. Therefore, Islam does not recognise what is called the collective leadership and does not recognise the collective presidency, rather the leadership in Islam is solely singular. So the leader, the president and the Ameer must be singular, and it is not allowed for there to be more than one person. The evidence on this matter is the traditions and actions of the Prophet (saw). Ahmad narrated on the authority of ‘Abdullah b. ‘Umru that the Messenger of Allah (saw) said:
“It is not allowed for three persons (to be) without appointing one of them as an Ameer.”
Abu Dawood narrated from Abi Sa’id that the Messenger of Allah (saw) said:
“If three people went out on a journey, let them appoint one of them as an Ameer.”
Al-Bazzaar narrated from the tradition of ‘Umar b. Al-Khattab that the Prophet (saw) said:
“If there are three persons in a journey, let them appoint one (Ahad) of them as an Ameer.”
All these traditions state that the Ameer should be one, as understood from the Ahadeeth.
“...without appointing one (Ahad) of them as an Ameer.’ ‘Let them appoint one of them as an Ameer.”
The word one ‘Ahad’ is equivalent to the word ‘wahid’ which indicates the number one and not more. This is understood from the opposite meaning (Mafhoom al-Mukhalafah). The Mafhoom al-Mukhalafah for numbers and description (Wasf) can be acted upon without the need of text.
As Allah (SWT) says:
‘Say: Allah is One’ [TMQ 112:1 ]
which means that there is not a second to him. Mafhoom al-Mukhalafah (the opposite concept) is not annulled unless there is a text that does so. Like the saying of Allah(SWT):
‘Don’t force your (servant) girls on prostitution if they (wanted) marriage.’ [TMQ 24:33]
The Mafhoom al-Mukhalafah of this verse (Ayah) means that if they did not want marriage then they are forced into prostitution. But this Mafhoom al-Mukhalafah is annulled by the saying of Allah:
‘Don’t come close to adultery, it is an abomination and an evil way.’ [TMQ 17:32]
Hence, if there is no text to nullify the Mafhoom al-Mukhalafah then it has to be acted upon. Similarly, the saying of Allah (SWT):
‘The adulterer, male and female, strike every one of them with one hundred lashes.’ [TMQ 24:2]
The lashing in this verse is limited to a certain number, which is one hundred lashes. The fact that it has given this specific number means that it is not allowed to increase over the hundred lashes. Therefore, the saying of the Messenger (saw) in these Ahadith: ‘Let them appoint one from them (Ahadahum) as an Ameer’ indicates, by use of Mafhoom al-Mukhalafah, that it is not allowed to appoint more than one Ameer. Thereupon the emirate (Imarah), leadership and presidency is for one person only, and it is not allowed absolutely, from the text and meaning of these Ahadith, to be for more than one person. This is also supported by the action of the Prophet (saw), as he, in all the situations in which he appointed an Ameer, he appointed only one person and no more. And he absolutely did not appoint more than one person in the same place.
With regards to the Hadith narrated from the Messenger (saw) that he sent Mu’az and Abu Musa to Yemen, and he said to them: “Make it easy and not difficult, give good tidings and not bad news, and co-operate with eachother.” In this incident the Prophet (saw) sent each one of them to a different part of the Yemen and not to the same place. This Hadith was narrated by Al-Bukhari in two different texts. In one of them he states that they were sent to two places, where he said: Musa narrated to us that Abu ‘Owanah narrated that ‘Abdul Malik narrated from Abi Burdah who said that the Messenger of Allah (saw) sent Abu Musa and Mu’az b. Jabal to Yemen and he sent each of them to a province and said: “Yemen is of two places.” Then he said “Make it easy not difficult. Give good news and not bad.” Each one of them set out for his job… Therefore, there must not be two chiefs for the same matter, nor two presidents for the same place, rather the president, the leader and Ameer must be only one and it is forbidden for there to be more than one.
In regards to what has spread in Muslims’ countries with regard to the establishment of a collective leadership in the form of a council, or a committee, or an administrative association and the like, that have the functions of leadership, all this disagrees with the divine rule, if leadership is given to the association, council or committee. This is because leadership would be given to a group, which is Haram according to the texts of the Ahadith. However, if the committee, the council or the association were to carry out tasks, or discuss matters and make consultation, then all this is allowed and is from Islam, because the Muslims are praised for having consultation amongst themselves. The opinion of these committees would be binding once reached by the majority if it is related to executing certain actions. It would be only for the purpose of Shura regarding the divine rules and opinions which lead to thought, and in technical opinions and definitions.
Al-Mu’awinun (Assistants of the Khaleefah)
The assistants are the Wazirs whom the Khaleefah appoints to assist him in discharging the burdens and responsibilities of the Khilafah. There are numerous burdens in the Khilafah, especially when the state is growing and expanding, and these would be a heavy burden for the Khaleefah alone. Hence, he needs people to help him in carrying this burden and discharging these responsibilities. The appointment of such assistants is one of the Mubah matters.
The assistants whom the Khaleefah appoints to help him in carrying the burden of the Khilafah are of two types: the delegated assistants and the executive assistants.
The Delegated Assistant ( Mu’awin at-Tafweed )
The delegated assistant is the Wazir whom the Khaleefah appoints to bear with him the responsibilities of ruling and authority. The Khaleefah delegates to him the running of the state’s affairs according to his opinion and executing them according to his Ijtihad in compliance with the Shar’a rules.
The appointment of the Mu’awin is one of the Mubah matters which means the Khaleefah is allowed to appoint a delegated assistant to him who helps him in his responsibilities and tasks. Al-Haakim and at-Tirmithi reported from Abi Sa’id al-Khudri, he said that the Messenger of Allah (saw) said: ‘My two ministers (Wazirs) from the heavens are Jibra’il and Mika’il and on the earth are Abu Bakr and ‘Umar.’ The word ‘Wazir’ in the Hadith means the helper and the assistant, which is the linguistic meaning. It has been used in the Qur’an with such a meaning; Allah (SWT) says:
‘Give me a minister (Wazir) from my family.’ [TMQ 20:29].
The word Wazir in the Hadith is unrestricted (Mutlaq) which includes any help or assistance in any matter; therefore he can assist the Khaleefah in the functions and the tasks of the Khilafah. The Hadith of Abi Sa’id al-Khudri is not specific to the assistance in the matter of ruling, because Jibra’il and Mika’il, the two Wazirs of the Messenger of Allah (saw) from the heaven, have no relationship in helping him in the responsibilities and functions of ruling. Therefore, the word Wazirai (my two Wazirs) in the Hadith does not indicate other than the linguistic meaning, which is my two assistants. Taking anyone as an assistant or as a helper is of the Mubah matters, likewise appointing the Wazir is of the Mubah matters. The Messenger’s appointment of Abu Bakr and ‘Umar as Wazirs does not go out of the bounds of the linguistic meaning, since it does not appear that they carried along with the Messenger of Allah (saw) the tasks of ruling. However appointing them as two Wazirs to him gives them the mandatory powers of assisting him in every matter without restricting that in the matters and tasks of ruling and the government. Appointing them as Wazirs indicates that it is allowed for the Khaleefah to take as a Wazir a person who assists him and helps him in the matters and tasks of ruling. After Abu Bakr became the Khaleefah, he appointed ‘Umar b. al-Khattab as an assistant to him. His assistance was so evident to the point that some of the Sahabah said to Abu Bakr: ‘We cannot tell whether the Khaleefah is yourself or ‘Umar’. Once ‘Umar held the post of the Khilafah, ‘Uthman and ‘Ali were ‘Umar’s assistants, but they did not appear to carry out any assistant role to ‘Umar in the matters of ruling. Their situation was similar to that of Abu Bakr and ‘Umar with the Messenger of Allah (saw). At the time of ‘Uthman, ‘Ali and Marwan b. al-Hakam were his two assistants. However ‘Ali was unhappy about some affairs, so he remained distant. However, Marwan’s ‘Wizara’ was quite evident in assisting ‘Uthman in the tasks of ruling.
If the Khaleefah appointed someone to be his assistant in the matters of ruling, he delegates to him the administration of the affairs, in general terms, as a deputy to him. By such delegation, the delegated person becomes a Wazir and a delegated assistant to the Khaleefah and, he has responsibilities like those of the Khaleefah. However, he does not possess his powers by himself like the Khaleefah, rather through the assignment of the wizara’ to him by the Khaleefah as a deputy to him. Therefore, if the Khaleefah declares I have appointed so and so person as my delegated Wazir, or as my delegated assistant, or if he said to someone: ‘Be my deputy in what is assigned to me’ or any other wording to that effect, then the designated person would thereafter enjoy all the mandatory powers of the Khaleefah as deputy to him. Al-Mawardi, in his book Al Ahkam Al-Sultaniyya called this post ‘Wizarat-ut-Tafweed, and he described it as follows: ‘As for the delegated Wizarah, it means that the Imam appoints a Wazir, for whom he delegates the running of the affairs according to his own opinion and executing them according to his own Ijtihad.’
This is the reality of the delegated assistant. He is an assistant to the Khaleefah in all the Khilafah functions. He has a mandate to perform any task related to the Khilafah, whether the Khaleefah delegated that particular task to him or not, for he has been given a general delegation. However, he should report back to the Khaleefah for every task he performs, for he is an assistant and not a Khaleefah. Thus he cannot be independent of the Khaleefah but must report to him about every action he undertakes no matter how big or small. This is because the running of the ruling affairs is commissioned to the Khaleefah.
This reality of the assistant or the Wazir in Shari’ah terms is totally different to the reality of the ministry in the democratic system. This is because the ministry in the democratic system is the government; which is a group of individuals who, in their capacity as a particular group, carry out the ruling. This is because ruling, in their view, belongs to the group not to the individual. In other words, the Imarah is collective and not singular. Thus, the actual ruler who enjoys all the mandatory powers to rule is the government i.e. a group of ministers as a minister and none of them enjoys the absolute mandate to rule, but the mandate to rule is shared amongst the whole cabinet. As for the single minister, he is assigned to one area of ruling in which he would posses mandatory powers which the government as a whole assigns to him. As for the areas not been assigned to him, they remain in the hands of the government as a cabinet and not to him in person. For instance, the minister of justice enjoys some mandatory powers within his ministry and there are other matters over which he has no mandate, rather they are decided and run by the government as a whole. This is the reality of the government in the democratic system. From it we notice a marked difference between it and the Wizara of the Islamic system and we can also see a wide difference in meaning between the word Wazir i.e. assistant in Islam and the word Wazir i.e., minister in the democratic system. Therefore, the Wazir and the Wizara (minister and ministry) in the Islamic system means the Khaleefah’s assistant in all his duties without exception, wherein he performs such duties and reports back to the Khaleefah. The wizara is a singular position run by one person, and if it were given to more than one person each one of them would enjoy the same mandatory powers that the Khaleefah possesses. The Wizara (ministry) in the democratic system, on the other hand, is in fact a group, and not an individual, where each minister has powers only over a specific area of ruling. He does not enjoy full powers rather limited ones. The above clearly illustrates the difference between the concepts of the Wazir and the Wizara in Islam and their concepts in the democratic system. Nevertheless, the meanings of the Wazir and the Wizara as portrayed by the democratic system are the meanings that are predominant and widespread; and once mentioned, they are the meanings that immediately spring to people’s minds. Therefore, to remove any confusion and to determine the exact Shari’ah meaning to the exclusion of all other meanings, it would be invalid to call the Khaleefah’s assistants Wazirs and use the term Wizara without restriction. Rather, he should be called assistant (Mu’awin) and that would be the true meaning. On the other hand, some form of restriction should be laid down when using the words Wazir and Wizara to dismiss the democratic meaning and indicate the Islamic meaning alone. We gather from all this that the Mu’awin is the person whose delegation includes the whole of the state’s functions in the whole of the state’s territories. Therefore, it is said: ‘the Khaleefah delegates to the assistant a general delegation as a deputy to himself.’ Thus, the reality of the Mu’awin’s job is that it is a deputyship for the Khaleefah; this deputyship should be general, including all the affairs of the state, i.e. he is an assistant ruler.
The Conditions of the Delegated Assistant
The delegated assistant should meet the conditions required in the Khaleefah i.e. to be male, free, Muslim, mature, sane and just. In addition to this, the assistant should be from the people of competence in what is assigned to him in terms of duties delegated to him.
Evidences of these conditions are the same as those of the conditions of the Khaleefah post. Therefore, the assistant should be male, for the Messenger of Allah (saw) said: “People who appoint a woman to run their affairs shall never succeed,” narrated by al-Bukhari on the authority of Abi Bakra. He must also be free, for the slave does not have authority over his own affairs, thus he cannot run other people’s affairs. He should also be mature, for the Messenger of Allah (saw) said: “Three types of people are exempted from accountability, the one who sleeps until he wakes up, a child until he reaches the age of puberty and the insane until he is cured”, narrated by Abu Dawood. He also should be sane, for in the same Hadith, the Messenger of Allah (saw) said: “and the insane until he is cured.” In another narration the Hadith states “..about the one whose mind is overpowered until he regains his mind.” Mu’awin should also be just for Allah (SWT) has made it a condition in testimony. He (SWT) says:
‘Let two just people from amongst you bear witness,’ [TMQ 2:282]
Therefore, there is more reason to require justice in the assistant of the Khaleefah. The Mu’awin should also be from the competent people in the duties of ruling, in order to be able to assist the Khaleefah in shouldering the tasks of the Khilafah and the responsibility of ruling and authority.
The Conditions Required in the Appointing of the Delegated Assistant
The appointing of the delegated assistant requires two conditions: The first is that he is given general supervision and the second is that he is a deputy. Therefore, the Khaleefah should say to him: ‘I assign to you what is to me so as to perform on my behalf,’ or any other words to that effect which include general supervision and deputation. If the assignment is not on these grounds, he would not become a Mu’awin and he would not enjoy the mandatory powers of Mu’awin until his appointment were to be made on these grounds.
The evidence for this is the reality of the assistant’s function, which is deputyship of the Khaleefah. Deputisation, in this context, is a contract (‘Aqd), and contracts will not be valid except through explicit words. Therefore, it is conditional in appointing the assistant, that this appointment is carried out in terms that make of him a deputy to the Khaleefah. Furthermore, the reality of the assistant is that he possesses all the mandatory powers, which the Khaleefah enjoys in ruling. Hence, the appointment must be general in everything, i.e. it must include a term that indicates the general consideration of matters. In other words, appointment should include a term which indicates that the assistant enjoys all the mandatory powers of ruling. This is done by saying to him for example: ‘ I assigned to you what is to me so as to act on my behalf,’ or to say ‘ I took you as a Wazir depending on your action on behalf of me’ or the like. However, giving him the general consideration without stating ‘on behalf of me’ means to become an heir apparent (Wilayatul-‘Ahd) not a contract of Wizara, and the heir apparent (Wilayatul-‘Ahd) post is invalid, so such a contract would be invalid as well. If the assignment was limited to deputisation, without explicitly mentioning its general consideration, then it would become an ambiguous deputisation in terms of generality or specification, execution or delegation and accordingly the Wizara would not be convened. If the Khaleefah also said to him ‘represent me in judicial matters, or in the matters of policing, education or the like.’ the Wizara would not be convened and he would not be a delegated assistant. This is because it is necessary in appointing the delegated assistant to use words or terms that indicate the reality of the assistant, which is the deputyship of the Khaleefah and the possession of his mandatory powers. In other words, in order that the contract of the Wizara be convened for the delegated assistant, it should include a term that indicates two conditions: the general delegation and the deputisation. If the term did not clearly cover these two conditions, the Wizara would not be convened to the delegated assistant. Since the assignment of the assistants is one of the Mubah matters, then the Khaleefah is allowed to appoint one or more assistants. However, since the reality of the delegated assistant’s task is that he possess all the mandatory powers which the Khaleefah enjoys in ruling, then this would require that the delegated assistant be one person, though it is allowed to appoint more than one person. If the Khaleefah appointed more than one Mu’awin, then each of them would be given the same general consideration which the Khaleefah has. It would not be allowed for the Khaleefah to appoint two Mu’awins who would share collectively the same general supervision, since the Wilayah of ruling is singular. Therefore, if he did so, then the assignment of both would not be allowed and void, for it is an appointment of an Ameer and this could only be to one individual. This is because the Messenger of Allah (saw) said “Let them appoint one from among themselves.” He (saw) also said: “..without appointing one of them as an Ameer on them”. This singular appointment is therefore a condition in the validity of the Imara.
The Task of the Delegated Assistant
The task of the delegated assistant is to submit to the Khaleefah all the work he intends to perform. He then reports to the Khaleefah what he has executed in terms of decisions and what he has discharged in terms of management and appointment, so that the assistant would not become like the Khaleefah in his powers. Therefore, his job is to submit his review and then execute it, unless the Khaleefah stops him from doing so.
Evidence for this is the reality of the Mu’awin as a deputy of the Khaleefah. A deputy acts on behalf of the person who appointed him as his deputy. Thus he does not become independent from the Khaleefah, but rather reviews with him every action exactly as ‘Umar used to do when he was Wazir to Abu Bakr, where he used to review with Abu Bakr what he intended to perform, then executed it accordingly. Reviewing with the Khaleefah does not necessarily mean that he needs to ask for his permission in every single detail, for this contradicts the reality of the Mu’awin. Rather, reviewing with the Khaleefah means to discuss the matter with him, like for example to appoint a capable Wali to one of the provinces, or remove the complaints of people in terms of food shortages in the market, or any other state affairs. He may also submit a matter to him, in the form of a presentation, which would be sufficient for the Mu’awin in the future to carry out the matter with all its details, without the need for permission to act. However, if the Khaleefah issues orders to stop the carrying out of any issue, then it should not be executed. Hence, the presentation is simply putting forward of a proposal and the consultation with the Khaleefah about it, and it does not mean seeking permission to carry out the task. The Mu’awin can execute the task in question as long as the Khaleefah does not stop him from doing so.
The Khaleefah should review the actions of the Mu’awin and his management of affairs, in order to approve what is right and redress what is wrong. This is because the management of the Ummah’s affairs is commissioned to the Khaleefah and discharged according to his own Ijtihad.
The evidence for this is the Hadith of responsibility over the subjects where the Messenger of Allah (saw) said “The Imam is a guardian and he is responsible over his subjects.” Therefore, the Khaleefah is entitled to the task of government and he is responsible over his subjects, whereas the delegated Mu’awin is not responsible over subjects, but he is merely responsible for his own actions. Thus, responsibility about the subjects is confined to the Khaleefah alone. Therefore, the Khaleefah is obliged to review the actions of the Mu’awin and his performance in order to fulfil his duty towards his subjects. Besides, the delegated assistant can sometimes make errors, and the Khaleefah has to redress such errors, so he has to review all the assistant’s actions. Therefore, it is for these two reasons: fulfilling responsibility towards his subjects and redressing potential errors made by the delegated assistant, that the Khaleefah is obliged to review all of the Mu’awin’s actions.
If the delegated assistant decided a matter and the Khaleefah approved of it, the Mu’awin could then execute it without any alterations. If the Khaleefah objected to what the Mu’awin had executed, then in this case the matter would be examined. If the Mu’awin had correctly carried out a verdict or if he had spent some funds in the right areas or in certain projects, then the Mu’awin’s opinion comes into force, for, in principle, it is the Khaleefah’s opinion, and the Khaleefah has no right to redress what the Mu’awin had executed in terms of rules or funds he had spent. However, if the Mu’awin had performed other types of actions, such as the appointing of a Wali or the preparation of an army, the Khaleefah has the right to reverse the Mu’awin’s decision and enforce his own and nullify the Mu’awin’s actions. This is because the Khaleefah has the right to redress his own actions so he has the right to redress the actions of his assistant.
This is a description of the way which the Mu’awin follows in performing his actions and of the way which the Khaleefah follows in reviewing the Mu’awin’s actions. It is derived from what sort of actions the Khaleefah is allowed to redress and what actions he is not allowed to redress. This is because the actions of the delegated Mu’awin are considered as actions of the Khaleefah. As an explanation for this, it is allowed for the delegated assistant to rule by himself and to appoint rulers as it is allowed for the Khaleefah. This is because the conditions of ruling have been conferred to him. He is also entitled to investigate complaints or to deputise someone to do so, because the conditions of complaints have been verified for him. He is also entitled to take charge of Jihad by himself, or appoint someone to do so, for the conditions of war have been verified for him. He is entitled to execute orders he has decided upon or to deputise someone to execute them on his behalf, for the conditions of voicing an opinion and management are conferred to him. However, this does not mean that whatever the Mu’awin performed can’t be reversed by the Khaleefah as long as he had been briefed about it. It means rather that he possesses the same powers as the Khaleefah, but he acts on his behalf and not independent of him. Therefore, the Khaleefah is entitled to disagree with the Mu’awin and redress what has been executed or reverse any of his actions, bearing in mind that this applies only to the sort of actions which the Khaleefah could redress of his own actions. If the Mu’awin had executed a rule correctly or spent funds in the right areas, then the Khaleefah’s objections would carry no weight and the Mu’awin’s decision would be executed. This is because in principle, it is the Khaleefah’s own decision and in such cases he himself could not reverse his decision or nullify what he himself had executed, hence, he could not reverse his Mu’awin’s action. However, if the Mu’awin had appointed a Wali, an administrator, an army commander or any other appointee or if he had laid down an economic strategy, a military plan or an industrial programme or any similar undertaking, then the Khaleefah is allowed to nullify it. This is because, although they are considered as being the Khaleefah’s opinions, they fall under the category of decisions which the Khaleefah is entitled to redress even when done by himself. Accordingly, he could do likewise with his Mu’awin’s decisions. So in this category, it is allowed for the Khaleefah to nullify the actions of the Mu’awin. The basic rule concerning this would be as follows: Any action that the Khaleefah is allowed to redress of his own actions, he is entitled to redress in a like manner if performed by his Mu’awin; and every action the Khaleefah cannot redress of his own actions, he is not allowed to redress if performed by his Mu’awin.
The delegated Mu’awin is not designated to a particular department, like the education department for example; nor a particular action, like the preparation of an army and its weaponry systems, because his appointment is general. He also does not carry out administrative matters, but he has like the Khaleefah, a general supervision over them. If he had been appointed as such then the Wizara (the assistantship) would not be conferred to him by this appointment nor will he be assistant to the Khaleefah in the matter in which he was appointed. This is because such a contract is specific and thus does not include general supervision, which is a condition in appointing the delegated assistant. As for the appointment of the Supreme Judge, this is not considered an appointment of an assistant to the Khaleefah in the Judiciary, but an appointment of a Wali with a specific Wilayah; like the Imarah of the army, or the Imarah of the Sadaqat and the like. Such posts would be convened like those of the Wilayahs, not like the appointment of the Mu’awin-ut-Tafweedh. Hence the supreme judge is an Ameer, with a mandate to appoint Judges and to examine the Judicial matters, and to judge between people, but he is not an assistant. Therefore, it would be wrong to confine the delegated assistant to a particular department. If he were confined to a particular department, his contract would be null and void. In order for the appointment of the delegated assistant to be valid, it must be a contract i.e. it should be expressed in clear wording that contains two conditions: one would be its generality and the second is the deputyship. By limiting him to a certain department would make him miss one of the two conditions of his contract, and accordingly the contract of his employment would be nullified. In addition to this, he is not allowed to practice the administrative matters, this is because those who practice administrative matters are civil servants not rulers. Since the delegated assistant is a ruler, not a civil servant, and his (assistants’) functions are to look after the affairs, he is not to perform the functions which the civil servants are employed to perform.
This is the reason why he does not run the administrative matters. It does not mean, however, that he is prevented from carrying out any administrative action, rather he is not confined to administrative functions, but is given a general responsibility.
The Executive Assistant (Mu’awin-un-Tanfeedh)
Mu’awin-un-Tanfeedh is the Wazir whom the Khaleefah appoints to be his assistant in the execution and follow up and performance of his orders. He is the intermediary between the Khaleefah and the state’s various departments, the subjects and the foreign office on the other side. He conveys messages, on the one hand, from the Khaleefah and on the other hand to him. As a result, he is an assistant in executing orders and not a ruler over people, nor is he entrusted with them. His work is therefore administrative and not ruling, and his department is a tool used to execute what the Khaleefah issues to the domestic and foreign offices, and to submit to him all that comes to him from these offices. His department acts as an intermediary between the Khaleefah and others, where it conveys to them on his behalf and conveys to him from them.
The Khaleefah is a ruler, whose duties include ruling, execution, and looking after people’s affairs. Carrying out of ruling, execution and guardianship require administrative actions. This necessitates the setting up of a special department that works closely with the Khaleefah to manage tasks that help him carry out the Khilafah’s duties. Thus, an executive assistant is required to be appointed by the Khaleefah to run administrative affairs not the affairs of ruling. He does not perform any ruling duties like the delegated assistant. He is not allowed, for example, to appoint a Wali or an ‘Amil, nor he manages people’s affairs. His duties are merely administrative, i.e. to execute the ruling orders and the administrative tasks issued by the Khaleefah or the delegated assistant. This is why he is known as the executive assistant. Jurists used to call him ‘Wazir Tanfeedh’ which simply means Mu’awin-un-Tanfeedh, on the basis that the word Wazir is linguistically used to mean ‘the assistant.’ They said that this Wazir is an intermediary between the Khaleefah, the subjects and the Walis, conveying the orders issued by him, and executing his orders and rules. He, therefore informs all parties concerned about the appointment of Walis, and about the preparation of task forces and armies stationed at the frontiers. He also submits to the Khaleefah whatever comes from such offices and informs him of all new matters that may arise so that he can implement whatever the Khaleefah may order him to. This makes him an assistant in executing commands, and not a ruler over them neither is he entrusted with them. The executive assistant is linked directly to the Khaleefah just like the delegated assistant. Since he is part of the Khaleefah’s entourage and connected to ruling, although his job is only administrative, the executive assistant cannot be a woman, for women are not allowed to partake in ruling and anything linked to ruling. This is because of the Hadith of Allah’s Messenger (saw): “People who appoint a woman to run their affairs will never succeed” as narrated by Bukhari on the authority of Abi Bakrah. The executive assistant also cannot be a disbeliever; and must be a Muslim, for he is part of the Khaleefah’s entourage. This is because Allah (SWT) says:
‘O ye who believe! Do not take for entourage or court other than your own folk, who would spare no pains to ruin you; they love to hamper you. Hatred is revealed by (the utterance of) their mouths, but that which their breasts hide is greater.’ [TMQ 3: 118]
The prohibition of taking a non-Muslim as part of the Khaleefah’s entourage is very clear in the verse. Therefore the executive assistant cannot be a Kafir but must be Muslim for he is directly connected to the Khaleefah and not separate from him, just like the delegated assistant. The executive assistants can also number more than one according to the needs of the ruling.
As for the areas in which the Mu’awin-ut-Tanfeedh acts as an intermediary between the Khaleefah and others, these are four:
1) The state’s departments
2) The armed forces.
3) The Ummah
4) International affairs
These are the types of duties which the executive assistant carries out. Since he is an intermediary between the Khaleefah and others, he would be considered as a liaison department for the Khaleefah. By acting as such, he follows up what is required of the state departments’ actions.
The Khaleefah is the actual ruler. He is the one who deals with ruling, execution and the management of people’s affairs by himself. Therefore, he is in constant contact with the ruling apparatus, international affairs and the Ummah. He enacts the laws, takes decisions, carries out actions of caring and looks at the performance of the ruling apparatus and whatever obstacles it may face and whatever needs it requires. He is also informed of any demands, complaints and matters that come from the Ummah, and he follows international activities as well. Therefore, based on the reality of these actions, the Mu’awin-ut-Tanfeedh acts as an intermediary relating to these matters, i.e. he conveys messages to the Khaleefah and conveys orders from him. Since what is issued by the Khaleefah to the different departments and what comes to him from them needs following up in order to be implemented, the executive assistant needs to carry out this follow up in order that the execution is satisfactorily completed. He would carry out a follow up with the Khaleefah and with the state departments and would not stop from carrying out this follow up, unless the Khaleefah specifically demanded so. In this case he has to obey his orders and stop the follow up, because the Khaleefah is the ruler and his order has to be implemented.
As regarding the matters related to the army and the international relations, these are generally confidential and they are specific to the Khaleefah. Therefore, the executive assistant does not follow up the execution of these matters nor pursue their execution, unless the Khaleefah requests him to do so; in which case he will follow up only the matters which the Khaleefah demanded and not any others.
With regards to the Ummah; in matters of looking after her affairs, fulfilling her demands and removing unjust actions from her, these matters are for the Khaleefah to deal with the one who is appointed as a deputy to him. They are not a mandate for the executive assistant, so he does not follow up them except those which he Khaleefah may ask him to do so. His action in their regard is simply execution and not following up. All this depends on the nature of the actions which the Khaleefah carries out and accordingly the nature of the Mu’awin-ut-Tanfeedh actions.
Ameer of Jihad
The Ameer of Jihad is the person whom the Khaleefah appoints as an Ameer over matters of foreign affairs, military affairs, internal security and industry in order to supervise and administer.
He is named the Ameer of Jihad, although he supervises these four departments, because all these departments are linked to Jihad. Hence foreign affairs, whether at time of peace or war, are run according to the requirements of Jihad. The military department is linked to the armies that fight Jihad, in its formation, preparation and armament. Internal security is linked to the preservation and protection of the state as well as the preservation of security inside the state, e.g. in dealing with rebels, highway robbery through the use of the police force which is part of the army that is prepared for Jihad. The industrial department involves itself in supplying arms and equipment to the army for the purpose of Jihad. Thus since all these issues are linked to Jihad, accordingly he was called Ameer of Jihad.
He is called the Ameer of Jihad, though he is not a ruler is due to the frequent orders he issues, because of his wide area of responsibility. For the term Ameer is in the form of ‘Fa’eel’ which is a superlative adjective of the noun participle Aamir the commander. This is due to the numerous orders, which he issues at day and night. This is similar to the word ‘Raheem’ –merciful, the superlative adjective of noun participle ‘Raahim’, due to the infinite mercy that He (SWT) grants.
The directorate of the Ameer of Jihad consists of four departments, which are:
1. Foreign Affairs Department
2. War Department
3. Internal Security Department
4. Industrial Affairs Department
These departments are supervised and administered by the Ameer of Jihad.
Jihad is the method defined by Islam to convey the Message of Islam to the world. Conveying the Islamic Da’wa is considered the main function of the Islamic state after implementing the rules of Islam internally. Therefore, the rules of Jihad include the rules of war, peace, cease-fire and treaties. They also include foreign relations with other states and entities, as well as the rules of the army, its preparation, training and choosing its commanders, banners and flags. They also include the weaponry systems of the army and the necessity to be supplied by military-orientated industry through which the preparation would be completed in such a way that it achieves the intimidation of the apparent and hidden enemy. They also include the rules of forcing the law inside the state, as well as the prevention of any rebellion against the state, dealing with revolts, highway robbery, fiddling with the internal security and crimes against her citizens.
The Messenger (SAW) used to run all the affairs of Jihad by himself, and after him his Khulafa’a followed suit. The Messenger (SAW) and the Khulafa’a used to appoint certain people to carry out some or all the actions of Jihad, whether the preparation of the army, carrying out the actual fighting, concluding peace and cease-fires, the foreign communications, or fighting the rebels and apostates.
Whatever the Khaleefah can perform by himself, he is allowed to delegate someone else to perform on his behalf. Thus the appointment of the Ameer of Jihad and the establishment of his directorate can be made.
Since his directorate is related to Jihad and its rules, this means that foreign affairs must be included because all foreign affairs are based on carrying the Islamic call. It also includes military affairs because Jihad is the fight to raise the word of Allah high. Fighting requires formation of an army and as well as the preparation and appointment of commanders, staff and soldiers, in addition to training, provisions and supplies.
The army needs weapons which, in turn, are dependent on the existence of industry. Hence possessing an industry is a requirement of the army of Jihad. Thus all factories within the state should be based upon war industry, and accordingly industry should follow Jihad and the Ameer of Jihad.
As the army performs Jihad to carry the Da’wa to the world, it also guards the state and protects it. Therefore, fighting against rebels, outlaws and highway robbers is one of the duties of the army. Thus, internal security depends on Jihad, the Ameer of Jihad and his directorate. This is the proof that the directorate of Jihad should have four departments, which are the foreign affairs, military affairs, internal security and industry.
Foreign affairs Department
The foreign affairs department undertakes the responsibility of all foreign affairs, pertaining to the relations of the Khilafah state with the foreign states, whatever these affairs and relations may be. Whether they are related to the political aspect and what it entails like the forming of pacts, peace treaties, cease-fires, negotiations, appointing ambassadors, sending messengers and delegates, and establishing embassies and consulates. It also includes relations which are related to economical, agricultural, and trading matters as well as postal communications or wire and wireless communications etc. All these matters are run by the foreign affairs department, because they are concerned with the relations of the Khilafah state with other states.
The Messenger (SAW) used to establish foreign relations with other states and entities. He sent ‘Uthman b. ‘Affan to negotiate with Quraysh just as he negotiated with the delegates of Quraysh. He sent delegates to Kings and he received the delegates of Kings and Ameers. He also concluded pacts and peace treaties. Similarly after him, his Khulafa’a used to establish political relations with other states and entities. They used to appoint people to carry out these actions on their behalf, on the basis that whatever an action a person can perform by himself, he can delegate it to some other person to carry out it on his behalf.
The War Department undertakes all issues related to the armed forces, whether they are the army, police, weapons equipment, war material, ammunitions or similar issues. They also include the military academies, military missions and whatever is needed of Islamic culture and general culture necessary for the army as well as anything else related to the war and preparation for it.
All this is undertaken and supervised by the War Department. Its name is connected with warfare and fighting. Warfare requires an army and the army requires preparation and formation including its commanders staff, officers and soldiers.
The army has it’s flags, banners and it’s formation requires training, both physical and technical, which includes training in the fighting techniques using various weapons, according to current advancement in technology. Therefore, it is imperative for the army to undertake military and technical study and to acquire training in fighting tactics, and the use of all types of the latest various weapons.
Since the army is an Islamic army and since it is the army of the Khilafah state which carries the Islamic Da’wa to the world, it is therefore imperative for the armed forces to acquire Islamic culture in general, and the specific Islamic culture related to the rules of fighting, peace, truces, treaties, agreements including all the details. Therefore, all military academies at various levels and military missions all fall under the mandate of the Department of War.
The armed forces include also a division which is in charge of internal security i.e. the police. Both the armed forces and the police, should have all the weapons, equipment, supplies and the necessary provisions they need to carry out their duty. This is why all these tasks fall under the Department of War.
Internal Security Department
The Department of Internal security is responsible for anything pertaining to security. It undertakes to maintain security within the country by the use of the armed forces. The police are, in fact, the main body responsible for maintaining security. The Internal Security Department can use the police anytime they see it fit and their order is immediately binding. If the police require the help of the armed forces, it can, in fact, submit a request to the Khaleefah. He can order the army to help the internal security department or to provide it with a military force to help it in maintaining the security, or he can issue any order he sees it fit. He is also entitled to refuse such requests and demand that the police carry out the task themselves.
The Internal Security Department is the body responsible for maintaining the security of the state. The actions that could lead to a breach of internal security are apostasy from Islam, rebellion against the state manifested in destructive activities and actions of sabotage e.g. like strikes or the occupation of vital centres of the state, as well as aggression against private, public, or state property. Rebellion against the state can also take the form of using arms to fight against it.
Other actions which undermine internal security include the attack on the property of people by theft, looting, robbery, misappropriations, as well as attacks on people through assault, injuring and killing in addition to attacks on their honour through lying, slandering and raping. These are the actions that can lead to threat of internal security.
The department of internal security protects the state and the people from all these actions. Therefore, whoever is declared an apostate and sentenced to death if he does not repent, he is dealt with by this department which executes the death sentence against him. If those who declare apostasy are a group, then they have to be asked to return to Islam, and the state should not punish them. If however, they insist on apostasy then they are fought against. If they are small in number and the police force alone is able to fight against them then it has to do so. But if they are large in number and the police force is unable to fight against them then they have to request the Khaleefah to provide them with a military force to help them. If this military force is not sufficient, then they have to ask the Khaleefah to order the army to provide assistance. This is concerning apostates.
With regards to people who rebel against the state, if they do not use arms and limit themselves to destruction and sabotage by strikes, demonstrations, occupation of vital centres of the state or aggression against private, public and state properties through demolition, then the internal security department restricts itself to using the police force in order to prevent such destructive actions. If it is not able to prevent the aggression it requests the Khaleefah to provide it with a military force in order to stop the destruction and sabotage.
However, if the people who rebel against the state used weapons and were able to establish themselves in an area and became a force which the department of internal security was unable to subdue through the use of the police force alone, then it requests the Khaleefah to provide it with a military force or an army force; according to the need, to face the rebels. Before it fights against them, the department should communicate with them to see what complaints they may have. It should ask them to return to obedience and the Jama’ah and to surrender their arms. If they responded favourably and returned back, then the state should restrain itself from fighting them. If they rejected and insisted on rebelling, then it would fight against them in order to discipline them and not to annihilate and destroy them. It fights against them so that they return back to obedience and give up rebellion and surrender their arms. An example of this is the way Imam ‘Ali b. Abi Talib fought against the Khawarij. He called them to surrender first and if they left the rebellion he would not fight against them, but if they insisted on rebelling he fought against them to discipline them so that they might return to obedience, stop the rebellion and surrender their arms.
In regards to the fighters, such as the highway robbers, who attack people, forcibly obstruct the highways, steal property and kill, the department of internal security will despatch a police force to chase them and impose the punishment on them, which is either killing and crucifying, killing, amputating their opposite limbs, or deporting them to another place, according to the Ayah:
"The punishment of those who fight against Allah’s Messenger and who walk in the land with corruption is that they should be killed or crucified, or their opposite hands and legs should be amputated, or they should be deported from the land" [TMQ Maidah:33]
The fighting against these people is not like fighting against rebels who fight against the state. Fighting against the rebels is to discipline them, while fighting against the highway robbers is to kill and crucify, so they are fought against when they fight and when they turn back. They are treated as outlined in the Ayah. Whoever killed and took property, he is killed and crucified; and whoever killed and did not take property, he is killed but not crucified; and whoever took property without killing, his hand and leg will be amputated from opposite sides without killing; and whoever raised arms and scared the people and did not kill or take property he is only exiled from his area to another place.
The department of internal security restricts itself to using the police force in maintaining security. It does not use other than the police force except when the police force is unable to maintain internal security. In that case it requests the Khaleefah to provide it with a military force or an army, according to what the need requires.
In regards to aggression against property by stealing, misappropriation, robbing or looting; or aggression against lives by assault, injury or killing; or aggression against honour by lying, slandering, or raping; the department of internal security prevents these things by its vigilance, guards and patrols, also by implementing the verdicts of the judges against those who perform aggression against the property, lives and honour. All this requires the use of the police force alone.
The Department of Industry
The department of industry controls all the affairs related to industry, whether they pertain to heavy industry like manufacturing of motors, engines, vehicles, materials, electrical equipment, or light industry. Whether those factories are public property, or individual property which has a relationship with military industries, all of them have to be based on the war policy.
Jihad and fighting require an army. In order that the army can fight it requires weapons. In order that these weapons be of the highest level and fully available, it is necessary to have industry within the state. Therefore, the military industry has a strong relation with Jihad and is closely linked to it.
In order that the state be independent of other countries and not influenced by anyone of them, it should carry out the manufacture and development of its own weapons by itself. This makes it independent and in continuous possession of the most advanced and strongest weaponry, regardless of the level of development and advancement of weapons. It would also have at its disposal, all that it needs of weapons to intimidate every apparent and potential enemy as Allah (SWT) says:
"Make ready for them all you can of (armed) force and of horses tethered, that thereby you may dismay the enemy of Allah and your enemy, and others beside them whom you know not. Allah knows them." [TMQ 8:60]
As such, the state would have its own will, produce the weapons that it needs and develop them continuously so that it owns the strongest and most developed weapons in order to terrify all the apparent and potential enemies. Therefore, it is a duty upon the state to manufacture weapons by itself and it is not allowed to depend upon other states, because this allows other states to control it, its will, its weapons and its fighting.
The states which sell weapons to other states do not usually sell every weapon, particularly the most developed weapons. They do not even sell weapons except with certain conditions that include their utilisation. They will not sell them except in certain quantities that they, rather than the purchasing countries, decide. This gives the state which sells arms, authority and influence over the state which buys the arms enabling it to enforce its own will upon the purchasing state, particularly if it was involved in a war. In that case it would need more arms, spare parts, and ammunition, which would increase its dependence on the state which exports its arms and increase its submission to its demands. This allows the state which exports arms to control it and its will, especially in times of war and in times of great need for arms and spare parts. Hence, such a state would make itself, its will and its entity hostage to the state that exports arms to it.
Therefore, for all these reasons, the state has to carry out by itself the manufacture of its own arms and everything it requires for its war machine and spare parts. This can’t be achieved unless the state possessed heavy industry and started to build factories which produce heavy industry, both the military and the non-military alike. Thus it is necessary that the state have factories for producing all types of atomic bombs, rockets, satellites, aeroplanes, tanks, spacecraft, mortars, naval ships, armoured vehicles, and all types of heavy and light weapons. It is necessary that it has factories which produce machines, motors, materials, and electronics and factories which have relation with public property and light factories which have relation with the military or war industries. All this is required by the duty of preparation which is obliged upon the Muslims by the saying of Allah (SWT):
" Make ready for them all that you can of (armed) force" [TMQ 8:60]
Since the Islamic state conveys the message of Islam by Da’wa and Jihad, it should be a state which should be continually ready to carry out Jihad. This requires the existence of heavy and light industry built upon the basis of war policy. This is because, at any time it requires to transform these factories for military purposes, it is easily done. Therefore, all the industry in the Khilafah state should be based on war policy, and all the factories, which produce the light and heavy industries, should be based on this policy, so that it becomes easy to transform their production to military production at any time the state requires.
Allah (SWT) has honoured the Muslims by making them the conveyors of the Message of Islam to the whole world and He (SWT) has determined for them the method of carrying its Message by means of D’awa and Jihad. He (SWT) made Jihad compulsory upon them and thus military training is an obligation.
Therefore, every male Muslim, who reaches the age of fifteen should begin military training in readiness for Jihad. As for the military conscription, this in fact is a collective duty. Evidence of this is reflected in Allah’s (SWT) saying: “And fight them on until there is no persecution and Deen (submission in its entirety) becomes to Allah” [TMQ 8:39] and the Hadith of the Prophet of Allah (saw): “Do perform Jihad against the Mushriks with your wealth, hands and tongues.” narrated by Abu Dawood on the authority of Anas. In order to be carried out according to the way determined by Shari’ah, fighting with the aim of beating the enemy and conquering the land, necessitates military training. Thus military training is compulsory like Jihad, in accordance with the Shar’ai principle that states: "That which is necessary to accomplish a duty is itself a duty". The soliciting of fighting falls within the order “and fight them” which came in general form. When Allah (SWT) says: “And fight them.” This is an order to fight and an order to perform any task that makes the fighting possible. Besides that, Allah (SWT) says “Make ready for them all that (of armed force) you can”. [TMQ 8:60] Training and high military expertise form part of the preparation of fighting power, for they have to be readily available in order to make the fighting possible. Thus training forms part of the force that must be obtained such as military hardware and military missions etc. As for the military conscription, that is the assignment of people to permanently be part of the armed forces, i.e. to have Mujahideen performing effective Jihad and whatever the duty of Jihad entails, this is compulsory, for performing of Jihad is a continuous duty whether the enemy attacked us or not, which is why military conscription is a collective duty.
The Divisions of the Army
The army is divided into two parts:
1. The Reserves: They consist of all the Muslims who are able to perform the military tasks.
2. The Regulars: They are permanent conscripts in the armed forces who receive salaries from the State’s funds just like any other employees.
This is derived from the obligation of Jihad, for verily every Muslim is commanded to perform his duty of Jihad, and obliged to train for it. Therefore all the Muslims represent the (army) reserves. As for making part of them into the army, this is based on the Shara’ai principle which states: "That which is necessary to accomplish a duty is itself a duty."This is because the duty of Jihad cannot be constantly carried out and Islam and Muslims cannot be protected from the Kuffar, except with the presence of a permanent army. The Imam is, therefore, obliged to have a regular army at his disposal.
As for the allocation of salaries for the armed forces, it is just like other employees, which is evident. A non-Muslim is not required to perform Jihad, but if he did it would be acceptable from him, then it would be permitted to pay him for it and to allocate funds for him.
This is due to what At-Tirmithi narrated from Az-Zuhri that the Messenger of Allah (saw) allocated shares to some of the Jews who fought with him. Also Ibn Hisham narrated that Safwan b. Umayya went on an expedition with the Messenger of Allah (saw) to Hunain whilst he was still a mushrik, so the Prophet (saw) gave to him like he gave to the Mu’allafati Qulubuhum’s (newly Muslims) from the spoils of Hunain. It was also narrated in the Seerah of b. Hisham "There was amongst us a strange man, nobody knew who he was, it is said that he was Kuzman. The Messenger of Allah (saw) said when his name was mentioned to him," indeed he is of the people of fire". He said "at the day of Uhud, Kuzman fought so strongly that he alone killed seven to eight of the mushrikeen…" This is in addition to what was reported about Safwan. These evidences indicate that a Kafir can be with the Islamic army and be given property or money for his service. The definition of ‘Ijara’ or hiring as being a contract over a benefit, means that hiring is allowed for every benefit which the hiring person can receive from the hired person. So the hiring of a person for the army and fighting is allowed because it is a benefit. Thus, the general evidence of hiring over any benefit or benefits is valid for allowing hiring of a Kafir for the Army, or for fighting. This is with regards to non muslims. As for the muslims, even though Jihad is an act of worship, it is allowed to hire muslims for the army and to fight because of the general evidence of hiring where hiring is allowed for carrying out the Ibadah if its benefit extends to more than the one who carries it out. This is due to the saying of the prophet (saw) "The most worthy thing to take a wage on is teaching the Book of Allah" narrated by Bukhari on the authority of Ibn Abbaas. Teaching the book of Allah is a worship and since it is allowed to hire a Muslim to teach Qur'an, lead the prayer, or give Azaan, which are all acts of worship, it is also allowed to hire a Muslim to do Jihad and be in the army. Moreover, there is evidence on the hiring of Muslims for Jihad even though it is a duty upon them. Abu Dawood narrated that Abdullah b. Umar said that the Prophet (saw) said:
“Al-Ghazi has his own Ajr and Al-Ja’il has his own Ajr and the Ajr of the Al-Ghazi”.
Al-Ghazi is a person who fights for himself. Al-Ja’il is the one who has someone else to fight on his behalf in return for a wage he pays to him. It is indicated in the dictionary of Al-Muheet, that Al-Ja’ala is the amount given to someone doing an action and what is assigned to a Mujahid (Ghazi) if he made Jihad on your behalf with a wage. Ajr is both the wage (Ujrah) and reward (Thawab). As for what is well known among people that ‘Ajr always means the reward which comes from Allah (SWT) to His servant for doing a good deed and that ‘Ijara’ is the reward for an action from one person to another which includes ‘Ajeer’ or labour. In fact, there is no support for this differentiation. Rather what the language stated is that the Ajr is the reward for an action. It came in the dictionary Al-Muheet that Al-‘ajr is the reward on the action, like the Ijara. The meaning of the Hadith is that Al-Ghazi the (fighter) has his own reward while the Ja’il has his own reward and the reward of the one whom he hired to fight on his behalf. Here the word Ghazi, (the fighter) indicates that what is meant by Ajr is reward (Thawab), and the word Al-Ja’il indicates that Ajr means reward (Thawab) as well, because these two words (Ghazi and Ja’il ) are both the connotation (Quareena) that decides the intended meaning. Al-Bayhaqi narrated on the authority of Jubayr b. Nufayr who said: "The Messenger (SAW) said, 'Those of my Ummah who fight and take wages, and strengthen themselves against their enemy are like the mother of Moses who breastfed her son and got her reward (Ajr).' Ajr here means the wage. Furthermore, performing Jihad is not limited to those who seek nearness to Allah (SWT) (Ahl-ul-Qurba), so it is proper to employ people to do Jihad, and pay them salaries like other employees.
The armed forces are one entity which is the army. Special divisions which are specially organised and given a particular culture are selected from amongst the army, and they are called the police force.
It is confirmed that the Messenger of Allah (SAW) used the army as his armed forces, and he (SAW) selected a section or a division to perform the duties of the police. So he (SAW) prepared the army, led it, also appointed Ameers to be in the command of the army. Al-Bukhari narrated from Anas that he said: "Qays Ibnu Sa'ad used to be to the Messenger of Allah (SAW) like the man of Shurta (police) to the Ameer," This refers to Sa'ad Ibnu Ubadah Al-Ansari Al-Khazraji. Al-Tirmithi narrated the Hadith as "Qays Ibnu Sa'sd was to the Messenger of Allah (SAW) like the man of Shurta (police) to the Ameer." Al-Ansari said: "It means that he takes charge of the affairs of the Ameer.’’ Ibnu Hayyan interpreted this Hadith by saying: "This was a precaution from the Messenger (SAW) against the Mushriks in case they entered his court." The Shurta (police) is also that which comes ahead of the army. Al-Azhari said: "The Shurta of something would be the best part of it, and the Shurta are the elite of the army. It is also said that they are the group who come ahead of the army, and they were called the Shurta because of the distinctive signs they had and the uniforms they wore." This meaning is chosen by Al-Asm'i. All this serves as evidence that the Shurta (Police) are part of the armed forces, and that it is the Khaleefah who appoints the chief of police as he appoints the Ameer of the army, and that the Shurta (police) is part of the army. Whether the police are to be a part of the army, or to be left independent from it is a matter left to the Khaleefah to decide. It is, however, understood from the Hadith that the chief of police is appointed to deal with that which comes to the Imam, similar to that of the ruler. He would be in charge of forming an armed force, ready to execute the orders of the Imam or the ruler in whatever matter they need to be executed and to prevent any danger that may affect or undermine the safety of the Imam. It is understood linguistically as well, that the Shurta (police) is an army division with its own emblem that comes ahead of the army. As for the Shurta that comes ahead of the army which is known as the military police, this is undoubtedly part of the army. While the police which is at the disposal of the ruler, there is no indication that they are part of the army as their function is to be at the disposal of the ruler. There are indications that they are part of the armed forces of the State. Therefore, the Khaleefah is allowed to make it part of the army or a force separate from it. Nevertheless, since the armed forces were considered as a single entity in terms of their appointment by the Khaleefah, their link with him and in the receiving of their orders, then dividing them into an army and a police force would weaken their access to the same weaponry and military equipment by keeping the police constantly preoccupied with the ordinary issues facing the ruler. Therefore, it would be better for the armed forces to be a single entity so that access to the same weaponry remains strong for all the armed forces, by following the same regulations regarding the preparation for Jihad. Therefore, the armed forces are the army from which some units would be selected to perform the task of policing, whilst remaining part of the army. These units would then be replaced by other units after a while. This would ensure that the ability of all the armed forces to perform Jihad remains the same and ready at all times.
The Shurta are charged to keep order, supervise internal security and carry out all executive matters. This is due to the Hadith of Anas mentioned before saying that the Messenger (SAW) had taken Qays b. Sa'ad before him in his capacity as the leader of the police. This indicates that the Shurta or the Police usually work before the ruler i.e., they carry out or implement what the ruler requires, e.g., implementing Shari'ah , maintaining order, providing security, carrying out patrols at night to chase away thieves, arrest corrupt people and those with evil intentions in society. 'Abdullah b. Mas'ood used to be the Ameer of the patrols by night at the time of Abu Bakr. 'Umar b. al-Khattab used to carry night patrols by himself, and he used to have in his company his servant and sometimes 'Abdul Rahman b. 'Awf. Therefore, what is done in some Islamic countries where people have to appoint guards for their homes and shops to guard them at night, or when the State appoints guards at the cost of the people is wrong. This is because it is basically night patrol which is the duty of the State and the function of the police, so the people should not take charge of that nor bear its expenses.
The Islamic army is one army, consisting of many contingents which can be given numbers such as the first, second etc, or they can be named after the name of provinces or the districts, for example the army of Ash-Sham, the army of Egypt or the army of Sana'a.
The Islamic army is stationed in special camps, and in every camp there is placed a group of soldiers in one complete unit or part of a unit, or many units. These camps have to be put in all provinces and some of them have to be put in military bases. Some of them would be mobile camps which would be in constant movement and would be massive forces. A name is given to each of these camps like the camp of Habbaniyah and for each camp there is a special banner.
These arrangements may be of the Mubah such as naming the armies after the names of the Wilayaat or giving them special numbers, so it is left to the opinion of the Khaleefah and his Ijtihad. There may also be matters that are necessary to protect the country and to strengthen the army such as placing the armies in camps, putting some of these camps in all the Wilayaat and placing them in strategic places to protect the country.
'Umar b. Al-Khattab distributed the camps of the army over all the Wilayaat so he made Palestine as one unit and Al-Mosul as one unit. He used to keep one army unit in the centre of the State and he used to keep one army unit ready to fight at a moment's notice.
The Flags and Banners of the Army
Flags (Alwiyah) and banners (Rayaat) are assigned to the army. The Khaleefah gives the flag (Liwa'a) to the one whom he appoints over the army but the banners (Rayaat) are presented by the chiefs of the Alwiyah (Flags).
The evidence for this is the action of the Prophet (SAW) because he assigned flags (Alwiyah) and banners ( Rayaat) to the army. Ibnu Maja narrated on the authority of Ibnu Abbas that the banner of the Prophet (SAW) was black and that his flag was white. Tirmithi narrated from Bara b. 'Azib, that when he was asked about the Rayah of the Messenger of Allah (SAW), he said that the banner of the Prophetr was black, square and made of Namerah, (a woollen cloth which has white and black stripes or a woollen piece of cloth like the one that bedouins wear), which is explained in the dictionary of Al-Muheet. For the Prophet (SAW) there was a banner called Al-'Uqab which was made of black wool. Ahmad and Ibnu Majah narrated from Al-Harith b. Hassaan b. Al-Bakri who said: "We came to Madinah and we saw the Prophet (SAW) on the Minbar, with Bilal standing in front of him wearing his sword, and there were black banners in front of the Messenger (SAW). I said 'What are these banners?' They said: 'It is 'Amr b. 'Al-'Aas who has just arrived from an expedition.'" Al-Tirmidhi narrated it with the following wording: "I came to Madinah, entered the Mosque and found it crowded with people and there were black banners swaying and Bilal was wearing a sword in front of the Prophet (SAW), I said 'what is the matter?' They said: 'He (SAW) wants to send 'Amr b. 'Al-'Aas to a certain area.'" Ibn Majah narrated from Jabir that the Prophet (SAW) entered Makkah on the day of its conquest and his flag was white. It was also narrated from Anas in An-Nasai that Ibnu Umm Maktoum had with him a black banner in some of the battles of the Prophet (SAW). It was also narrated from Anas that when the Prophet (SAW) appointed Usamah b. Zayd as an Ameer of the army to attack the Romans he tied to him his flag by his hand. The banner is different from the flag. Abu Bakr Al-'Arabi said "the flag is tied at the end of the spear and is wrapped around it whilst the banner is tied to the spear but is left for the winds to blow". Al-Tirmithi also inclined to differentiate between them and when he wrote about the flags he brought the Hadith of Jabir mentioned previously as well as commented on the banner, and brought the Hadith of Al-Bara'a which was also mentioned previously. The banner (Rayah) was used during the war and by the leader of the battle as narrated in the Hadith of the battle of Mu'ta, when Zayd was killed and Ja'afar took the banner. With regards to the flag, (Liwa'a) it used to be placed over the camp of the army as a sign for it, and it used to be held for the Ameer of that army as it came in the Hadith of sending Usamah to Ash-Sham "and that the Messenger (SAW) tied his (Usamah's) flag with his hand" i.e. when he appointed him an Ameer over the army. The difference between the banner and flag is that the flag is tied to the end of the spear and it was called "’Alam" which is bigger than the banner and it is assigned to the place of the leader of the army. It goes wherever he goes. Whereas the banner is tied to the spear and left for the winds to blow. The leader of the war looks after it. The banner is called the 'mother of the war', so for each army there is usually one banner, but for its divisions, brigades and battalions there are special banners.
It is written on the black banner (rayah) “La ilaha illa Allah, Mohammad ur-Rasool ul-Allah” in white, and written on the white banner (rayah) “La ilaha illa Allah, Mohammad ur-Rasool ul-Allah” in black.
The first flag that was tied in Islam was the flag of 'Abdullah b. Jahsh. A black banner which had a white crescent was tied to Sa'ad ibn Malik Al-Azdi. This indicates that there must be flags and banners for the army and the Khaleefah ties the flag or the banner to whomsoever he appoints over the army. With regards to the Rayah it is allowed for the Khaleefah to allocate it or it can be left to the commanders of brigades. Regarding the fact that it is allowed for the Khaleefah to distribute the flags, it is due to what Muslim and Al-Bukhari narrated from Salamah b. Akwa'a that the Prophet (SAW) said: "I will give the Rayah to a man, or the one who will take the Rayah tomorrow is a man whom Allah and His Messenger love." Or he said "He loves Allah and His Messenger... Allah will open up to him." All of a sudden, Ali (ra) was there, where we did not expect him. So they said, "This is Ali, so the Messenger of Allah (SAW) gave him the Rayah and thus Allah opened up to him." As regards to the leader of the brigade distributing the flags, it is understood from the Hadith of Al-Harith b. Al-Haassan Al-Bakri which came before in both narrations, which stated that there were black banners: "...suddenly there were black banners" which means that there were many Rayat with the army, though its Ameer was only one, who was 'Amr ibnu Al-'Ass, whether he was coming back from a Ghazwa or going out to a Ghazwa. This indicates that these Rayat were with the leaders of the battalions and there was no evidence that the Messenger (SAW) was the one who gave them these Rayat. However, it is allowed for the Khaleefah to allow the Ameers of the brigades to give the banners to the battalion commanders, and this is much more proper for organisation, although it is allowed (Mubah).
The Khaleefah is the Leader of the Army
The Khaleefah is the leader of the army and he is the one who appoints the Chief of Staff and an Ameer to every brigade, and a commander to every division. With regards to the other posts in the army they are appointed by the commanders of the brigades. Appointing a person to the staff has to be according to his military culture and he is appointed by the Chief of Staff.
This is because the Khilafah is the general leadership of all the Muslims in the world, and is responsible for establishing the Shar'a rules and for conveying the Message to the world. The way of conveying the Message to the world is Jihad. Therefore the Khaleefah should take charge of the Jihad because the Khilafah contract has been convened upon him alone, so it is not allowed for any other person to carry it out other than him. Thus the Khaleefah takes responsibility for Jihad himself. It is not allowed for anyone other than him to undertake it, although every Muslim carries out Jihad. Hence carrying out Jihad is one matter and holding of its responsibility is another. Jihad is a duty upon every Muslim, but holding of its responsibility is only for the Khaleefah. Regarding the fact that the Khaleefah may appoint another person on his behalf to carry out his duty, this is allowed under his own observation and supervision and it is not allowed for this person to be independent, rather under the Khaleefah's observation and supervision. This type of delegation is not the same as the work of an assistant to the Khaleefah. Reporting to the Khaleefah in this context means that the one who carries out Jihad on his behalf should be under his supervision. Leadership of the army with this restriction i.e. under the Khaleefah's observation and supervision, is allowed to be given to whomever he wishes. However, to take charge of the army without his observation and supervision, leaving the Khaleefah only as a figurehead, is not allowed. This is because the Khilafah contract has been convened upon him, so he has to take the responsibility for the matters of Jihad. Therefore, what is usually said in the non-Islamic systems that the Head of State is the supreme leader of the army, meaning he is a formal leader only, while another leader runs the army independently, this is considered invalid in the view of Islam. It is a matter which does not agree with the Shar'a. However, for other types of leadership issues like the administrative and technical matters, the Khaleefah is allowed to appoint someone on his behalf to carry them out independently as he appoints the Governors who do not necessarily have to be under his supervision or observation. The Messenger (SAW) also used to undertake the leadership of the army himself, undertake the leadership of the battles and he also appointed leaders of the divisions of the army which went out for fighting without him, namely the expeditions. For every expedition he used to appoint a commander and in some cases he used to take the precaution of naming who should succeed the commander in case he was killed as happened in the expedition of Mu'ta. Al-Bukhari narrated on the authority of Abdullah b. 'Umar who said: 'The Messenger of Allah (SAW) appointed Zaid B. Harith as an Ameer in the battle of Mu'ta. The Messenger of Allah (SAW) said "if Zaid is killed, then it will be Ja'afar ( as the Ameer) and if Ja'afar is killed then it will be Abdullah b. Rawaha (as the Ameer )."' So the Khaleefah is the one who appoints the leaders of the armies, its commanders, ties for them the flags and appoints the leaders of the divisions. The army which was sent to Syria like the Army of Mu'ta and the army of Usama, was one brigade because the evidence for this is that the Prophet (SAW) had tied the flag to Usama. The expeditions which fought in the Arabian Peninsula and returned back to Madinah, such as the expedition of Sa'ad bin Waqqas which he (SAW) sent towards Makkah, were all in the form of divisions. This indicates that the Ameers of the brigades and the commanders of the divisions are appointed by the Khaleefah. This was indicated by the fact that the Prophet (SAW) used to remain in close contact with the sergeants and commanders in his expeditions and he used to know the conditions of the army i.e. the soldiers through their sergeants and captains. The Prophet (SAW) was not proved to have appointed other than leaders of the armies and the commanders of the expeditions. This indicates that their appointment in the Ghazawat was left to their leaders. As regards the Chief of Staff who is responsible for the technical matters, he is like the army leader in terms of being appointed by the Khaleefah and he can be made independent and carry out his duties without being directly supervised by the Khaleefah, although he has to be under his command.
Culturing the Army in Military and Islam
The highest level of military education has to be available to the army. The intellectual level in the army has to be raised as much as possible. In addition to that every individual in the army has to attain Islamic culture which enables him to be aware about Islam even if in a general form.
However, military education becomes very necessary for every army and it is not possible for an army to carry out the war without it, nor can it engage in a battle unless it has been educated. Therefore, it becomes Wajib according to the principle: 'That without which a duty can not be performed is itself a duty.' As regards the Islamic culture, learning of what is necessary to perform the functions of Islam is a duty for every Muslim, while attaining further Islamic knowledge is Fard Kifaya. This is due to what Al-Bukhari and Muslim narrated on the authority of Muawiyah when he said: "I heard the Prophet (SAW) say: 'The one for whom Allah wants good, he gives him knowledge in the Deen....'" This applies to the army that conquers countries to convey the Da'wah, as it does for every Muslim, though for the army it is of more importance. Regarding raising its intellectual level, this is a kind of awareness which is necessary to understand the Deen and life's affairs. Perhaps the saying of the Prophet (SAW) "The one to whom the knowledge is conveyed may be of more awareness than the one who heard the message in the beginning", is an indication of encouragement. Also the Qur'an says: "For people who contemplate”, and He (SWT) says “they have hearts (minds) by which they understand." All this indicate the status of thought.
In every army camp there should be an ample number of staff who have high military knowledge and experience in drawing plans and in running the battles. It is generally necessary that these staff be provided for the army in the highest possible number.
This is due to the principle 'That without which a duty can not be performed is itself a duty.' So where military education is not digested theoretically by learning, and practically by continuous training and practical application, then it will not produce experience which enables one to engage in battles and to draw up plans. Therefore providing high military education is a duty. Continuous study and training is also a duty so that the army continues to prepare for Jihad and also for engaging in battles at every moment. Since the army exists in many camps and every one of its camps has to be able to engage in battle immediately, there should be an ample number of staff in each camp according to the principle, 'What is necessary to perform a duty is itself a duty.'
There must also be available to the army, weapons, equipment, facilities and other requirements, which enable it to carry out its duty in its capacity as an Islamic army.
This is due to the saying of Allah (SWT):
"Make ready, against them, your strength to the utmost of your power, including steeds of war, to strike terror into (the hearts of) the enemies of Allah and your enemies, and others besides, whom you may not know, but whom Allah does know." [Al-Anfal: 60]
So the preparation for fighting is a duty and this preparation should be open so as to intimidate the enemies and the hypocrites from within the citizens. His (SWT) saying "to strike terror" is the reason (' Illah) for preparation. The preparation will not be complete unless the reason for which this legislation came has been achieved, which is intimidating the enemies and the hypocrites. Hence came the duty of making available all the arms and equipment for the army in order that intimidation is produced. It is also all the more reason for the army, so that it is able to carry out its duty which is Jihad to convey the message of Islam. Allah (SWT) addressed us about preparation. He stated that the reason ('Illah) for preparation is intimidating the open enemies and enemies who are not apparent.
"Make ready, against them, your strength to the utmost of your power, including steeds of war, to strike terror into (the hearts of) the enemies of Allah and your enemies, and others besides, whom you may not know, but whom Allah does know." [Al-Anfal: 60]
The utmost accuracy in the Ayah has to be noticed, where Allah (SWT) did not order Muslims to make preparation for the purpose of fighting but for the purpose of intimidation, which is more profound. This is because knowledge of the enemy about the force of the Muslims deters it from attacking them or confronting them. This is one of the greatest styles which can be used to win a war and attain victory.
The Islamic State is in a Continuous State of Jihad
The Islamic State is in a continous state of Jihad. The Islamic Ummah understands that war between her and other peoples and nations is possible at any time. Therefore, its’ war installations, whether industrial or the military must be at a level higher than the instillations of the other nations. The changes in its industrial and military capabilities should be realised continuously. Beside that, it should be in progressing financial position and in a constant state of readiness.
The Islamic State is the State that is based on the Islamic ’Aqeedah and implements the rules of Islam. The rules of Islam oblige the Islamic State to carry the Islamic Message to the whole world as her fundamental duty after implementing Islam internally. It has responsibility over the whole world, and it is its responsibility to carry the message and to convey it all over the world. For the Message of Islam is universal, and it is addressed to all humankind. Allah (SWT) says:
"And We have not sent you but as a carrier to good tidings and a warner to all mankind." [Saba: 28]
And He (SWT) also says:
"We have not sent you but as a mercy for all creatures" [Al-Anbiya: 107].
And Allah (SWT) also says:
"Say: O men I am sent to you all as the Messenger of Allah" [Al-A'raf: 158].
The Messenger of Allah (SAW) said:
"Every Messenger was sent to his own people, and I have been sent to all mankind",
narrated by Al-Bukhari and Muslim on the authority of Jabir b. Abdullah. Therefore the Islamic State must carry the Message and convey it to all mankind. Islam has made Jihad the method of carrying the Message, and made disbelief as being the reason for which the disbelievers and the Mushriks are fought. Allah (SWT) says:
"Fight those who believe not in Allah and the Last Day, nor hold that forbidden which has been forbidden by Allah and His Messenger, nor acknowledge the Deen of truth, from among the people of the Book, until they pay the Jizya with willing submission, and feel themselves subdued" [At-Tauba: 29]
And He (SWT) also says:
"O Prophet ! Strive hard against the disbelievers and the hypocrites and be firm against them" [At-Tauba: 73]
He (SWT) also says:
"So fight against the friends of Satan" [An-Nisa: 76]
He (SWT) says:
"O you who believe! Fight the unbelievers who are near to you" [At-Tauba: 123]
And He (SWT) says:
"And fight the Mushrikeen" [At-Tauba: 36].
Islam has decreed Jihad as being compulsory by the texts of the Holy Qur'an and the Ahadith. Allah (SWT) says:
"Fighting has been prescribed upon you"[Al-Baqarah: 216]
He (SWT) also says:
"Go you forth, (whether equipped) lightly or heavily, and strive and struggle, with your goods and your persons" [At-Tauba: 41]
He (SWT) also says:
"O you who believe! Fight the disbelievers who are near to you" [At-Tauba: 123]
He (SWT) also says:
"Unless you go forth, He will punish you with a grievous penalty" [At-Tauba: 39]
Anas reported that the Messenger of Allah (SAW) said: "Perform Jihad against the Mushrikeen with your wealth, hands and tongues," Narrated by Abu Dawood.
Therefore, the Islamic State will always remain in a state of constant Jihad, for its duty, on earth, is to constantly carry the Message to the world; this necessitates Jihad until Islam prevails over the whole world. Al-Bukhari and Muslim narrated on the authority of 'Abdullah b. 'Umar that the Messenger of Allah (SAW) said: "I have been ordered to fight people until they utter "there is no God but Allah, and Muhammed is the Messenger of Allah", establish the prayer and offer the Zakat. If they do so they would protect from me their blood and wealth, except for the right of Islam. And their account is with Allah."
Abu Dawood narrated on the authority of Anas b. Malik he said: The Messenger of Allah (SAW) said ".....and the Jihad is continuous from the moment Allah has sent me till the last person of my Ummah fights against the Dajjal;" and he (SAW) said "neither the oppression of the oppressor, nor the justice of the just (ruler) will abolish it....." It also came in the saying of Allah (SWT) "and fight against them until there remains no Fitna." (TMQ 2:193) He (SWT) also said:
"And fight the Pagans altogether as they fight you altogether" [At-Tauba: 36]
The Messenger of Allah (SAW) spent his life, once he had established the State in Madinah, in a constant state of Jihad. Even when he (SAW) was ill and nearing his death he urged his companions not to delay the army of Usama which he had prepared and equipped before he fell ill to raid the Romans. It must be made clear, however, that Jihad and fighting would not take place until the disbelievers are informed about the Islamic Message, and until they are invited to embrace Islam. If they refused, they would be asked to submit to the authority of the Islamic State and to pay the Jizya to the State. If they refused to embrace Islam and refused to pay the Jizya and refused to submit to the authority of the Islamic State, then they would be fought. It was reported in the Hadith of Sulayman ibn Burayda on the authority of his father who said: "Whenever the Messenger of Allah (SAW) appointed an Ameer to head an army or an expedition, he would command him to fear Allah and be good to those who are with him; then he (SAW) would say: Raid in the Name of Allah! Fight whoever disbelieved in Allah! Raid but do not abuse, do not betray, do not maim or mutilate and do not kill any newborn. If you encounter your enemies, the mushriks, call them to observe three qualities or dispositions, and whichever of these they accept then accept it from them, and do not fight them. Call them to Islam, and if they accepted it, do accept this from them and refrain from fighting them..." He (SAW) went on: "If they refused, ask them to pay the Jizya, and if they accepted this, then take it from them and refrain from fighting them, and if they refused, seek the help of Allah and fight them," narrated by Muslim. Therefore, the call to Islam should precede the fight, and the call to the submitting to the Islamic State and the paying of the Jizya should also precede the fight, thus the fight would come as the third and final option.
Therefore, the Islamic State should be in a constant state of Jihad. The Islamic Ummah realises only too well that Allah (SWT) has entrusted her with conveying the Message to the world, and with fighting against the disbelievers for their disbelief, and for continuing that fight until they declare that there is no god but Allah and that Muhammed (SAW) is the Messenger of Allah, or until they pay the Jizya with submission. The Ummah also realises that disbelief and the disbelievers are enemies of Islam and of the Islamic Ummah, and that they carry hatred and animosity towards Islam and the Islamic Ummah, and that they would fight the Muslims if given the opportunity. This would make the Ummah realise that war between her and the disbelieving nations is possible at any moment.
This is because the carrying of the Da’wah, and the enmity of the kuffar to Islam and the Islamic Ummah requires the break out of the war. Since the Islamic state would be in a state of continuous Jihad, and the Islamic Ummah understands the war between her and other peoples and nations is possible at any moment. Thus, the State and the Ummah must be on alert at all times, and make the state of war their way of life. This is what the Messenger of Allah (SAW), his companions and the Khaleefahs who came after him did. This makes it necessary that all of the State's installations and industries, be they military or otherwise, should at all times be in a better state than those of other nations and superpowers. The number of academic colleges should multiply in order to educate thousands of engineers, inventors, technicians and industrialists. Advancement and progress must be constant, so that the preparation of its task force becomes formidable, to intimidate the enemy of Allah and its known and potential enemies, as commanded by Allah (SWT):
"Make ready, against them, your strength to the utmost of your power, including steeds of war, to strike terror into (the hearts of) the enemies of Allah and your enemies, and others besides, whom you may not know, but whom Allah does know." [Al-Anfal: 60]
This requires from the Ummah to live with an economy of war, and to have an ever improving financial situation in order to provide the funds for the war effort which requires the latest technology in warfare for a State that aims at being the leading State in the world.
The Wolat (Walis) Governors
The Wali (governor) is the person whom the Khaleefah appoints as ruler and Ameer over a Wilayah (province) of the Khilafah State.
The territories which the Islamic State rules over would be divided into provinces and each province would be known as Wilayah. The Wilayah would in turn be divided into districts and each district would be known as I'mala. The person appointed over the Wilayah would be known as the Wali,or an Ameer, and the person appointed over the I'mala would be known as the 'Amil or the Hakim (ruler).
The Wali is therefore a ruler, for the Wilayah means the ruling. In the dictionary Al-Muhit , it has been defined as being the Imarah (leadership) and the authority. It requires an appointment by the Khaleefah or by whoever is delegated to do so on his behalf. Therefore, the Wali can only be appointed by the Khaleefah. The origin of the post of Wilayah or the Imarah i.e. the Walis or the Ameers goes back to the actions of the Messenger of Allah r. It has been confirmed that he (SAW) appointed Walis over the countries and that he gave them the right to rule over their provinces. He (SAW) appointed Mu'az Ibnu Jabal over Al-Janad, Zyad Ibnu Labeed over Hadhramawt and Abu Moussa Al-Ash'ari over Zabeed and Aden.
The Wali is the deputy of the Khaleefah; he performs what the Khaleefah authorises him to do on his behalf. According to Shar'a , the Wilayah has no specific limit, thus any body appointed by the Khaleefah to act on his behalf over any matter of ruling would be a Wali in that matter in accordance with the terms the Khaleefah used in his appointment. However, the Wilayah over countries is geographically specified, because the Messenger of Allah (SAW) used to specify the area over which he appointed the Wali, i.e. where he invests the Ameer with the Imara.
There are two types of Wilayah: general and specific. The general one includes all the ruling matters within the Wilayah. Appointing someone to that Wilayah would mean that the Khaleefah delegates to the Wali the Imarah of a country or a province, as a Wilayah over all its people for supervising all the normal functions. Thus he would have a general responsibility of supervision. As for the specific Imara, this means that the Ameer would be restricted to running the armed forces, governing the citizens, protecting the territories, or defending the women and children in that country or province. He does not have a say in the judiciary or the collecting of Kharaj and Sadaqah. The Messenger of Allah (SAW) appointed Walis with general responsibilities (Wilayah 'Amma) , such as when he appoimted 'Amru b.Hazm over Yemen. He also appointed Walis with specific functions (Wilayah Khassa), such as when he appointed Ali b. Abi Talib over the judiciary in Yemen. The Khulafa'a followed in the Messenger of Allah's (SAW) footsteps. 'Umar Ibnul-Khattab appointed Mu'aiwya b. Abi Sufyan as general Wali over Ash-Sham, while Ali b.Abi Talib appointed Abdullah b.Abbas over Basra with restrictive powers (Wilayah Khassa) to run all the affairs except for the funds, which was assigned to Ziad
There used to be two types of Wilayah in the early times: The Wilayah of Salah and the Wilayah of Kharaj. Therefore we find that history books use two terms in their reference to the Wilayah of Ameers: The first is the Imarah over the Salah and the other the Imarah over the Salah and the Kharaj. In other words the Ameer could either be appointed over both the Salah and the Kharaj, or over the Salah only. The word Salah, in the context of the Wilayah or the Imara, does not mean only leading the people in their prayer, but it means governing all their affairs except the funds. This is because the word Salah is used to mean ruling except for the levy of funds. Therefore, if the Wali had combined both the Salah and the Kharaj, his Wilayah would then be general (Wilayah 'Ammah). If his Wilayah had been restricted to the Salah or the Kharaj, his Wilayah would then be specific (Wilayah Khassah). Either way, this would be left to the Khaleefah's own arrangements, as he reserves the right to restrict the Wilayah to the Kharaj, or to the judiciary, or he could confine the Wilayah to other than the Kharaj, the judiciary and the army. He could do what he deems best for the running of the province or the Wilayah. This is because Shar'a has not determined for the Wali certain duties, and it is not obliged that he should perform all the duties of ruling. It has, however, determined that the Wali's or the Ameer's duties be ruling and authority, and that he is the deputy of the Khaleefah, and he should be an Ameer over a specific area. All this is derived from the actions of the Messenger of Allah (SAW). However Shar'a entitles the Khaleefah to appoint a Wali as either a general Wilayah ('Ammah) or a specific one (Khassah) according to his own discretion, and all this is reflected in the actions of the Messenger of Allah (SAW).
It was mentioned in the Seerah of ibn Hisham that the Messenger of Allah (SAW) appointed Farwa b. Musayk over the tribes of Murad, Zubair and Mizhaj. He sent Khalid b. Sa'eed b. Al-'Ass with him as Wali over the Sadaqah. It also mentioned that the Messenger of Allah (SAW) sent Ziad b. Labeed Al-Ansari as a Wali over Hadhramawt and its Sadaqah. He also sent 'Ali b. Abi Talib to Najran to collect their Sadaqah and their Jizya. He also sent him, as a judge over Yemen ,as reported by Al-Haakim. In the book of Isti'aab it is mentioned that the Messenger of Allah (SAW) sent Mu'az b. Jabal to Al-Janad to teach the people about the Quran, the laws of Islam and to judge between them. He authorised him as well to collect the Sadaqah from the 'Amils in Yemen. The Seerah of ibn Hisham also reports that the Messenger of Allah (SAW) appointed ibn Umm Maktum over the salah in Al-Madinah when he went out for Uhud.
The Appointment and Dismissal of the Governors
The Walis are appointed by the Khaleefah, whereas the 'Amils are appointed by the Khaleefah and by the Walis if they are delegated to do so. The conditions required for the Walis and 'Amils are the same as those of the Assistants, ie. they should be Muslim, male, free, mature, sane and just, as well as competent in their task, and they should be chosen from among the pious and the influential Muslims.
It was the Messenger of Allah (SAW) who used to appoint the Walis and the Ameers of the countries. He (SAW) used to appoint them over a whole Wilayah as in the case of Amr Ibnu Hazm when he appointed him over the whole of Yemen. In some cases, he (SAW) used to appoint a Wali over a part of the Wilayah as was the case with Mu'az b. Jabal and Abu Moussa. He (SAW) sent each one of them to a different part of Yemen, each part independent of the other, and he said to them: "Be gentle and do not be harsh, bring glad tidings and do not drive people away and do help each other," narrated by Al-Bukhari. In other narration, he (SAW) added: "and co-operate with each other." As for the evidence regarding the fact that the Wali is permitted to appoint the 'Amils within his Wilayah, this is taken from the fact that the Khaleefah reserves the right to delegate the appoinment of 'Amils to the Wali.
Regarding the evidence about the conditions required for the Wali's post being the same as those for the delegated Assistant, this is extracted from the fact that the Wali is like the Mu'awin (the Assistant) he is a deputy to the Khaleefah in ruling matters. Therefore, he is a ruler and he should fulfil the same requirement of the Khaleefah. He should be male, for the Messenger of Allah (SAW) said: "People who appoint a woman to have a Wilayah over their Amr (affairs) shall never succeed", as narrated by Al-Bukhari on the authority of Abi Bakra. Here the word Wilayah means ruling; and the word Amr, when used in the context of Wilayah, means ruling and authority. He should also be a free man, for the slave does not own himself, thus he cannot be a ruler over others. He should also be Muslim, for Allah (SWT) says:
"Allah will never allow authority to the disbelievers over the believers." [An-Nisa’a: 141]
He should also be mature and sane, for the Messenger of Allah (SAW) said: "Three types of people are exempt from punishment..." and they include "the child until he is mature and the insane until he is cured", as narrated by Abu Dawood. Whoever is not punishable cannot be accountable, and if punishment is lifted so is his accountability, therefore he cannot take the responsibilty of executing rules i.e. take the authority. Another condition is that the Wali must be just, for Allah (SWT) has made it a condition for the witness, and there is more reason for it to be a condition required for the ruler, because Allah (SWT) says:
"O you who believe, if a Fasiq (sinner) came to you with some news then do verify it."
So verification has been ordered when a Fasiq comes with the news, and the ruler's verdict should be taken without verification. Therefore, it would be forbidden to have a ruler from among those whose word is not accepted in the first place and needs checking or proof. It is also a condition for the Wali to be competent and able to perform the ruling tasks that have been assigned to him. This is because the Messenger of Allah (SAW) said to Abu Dharr when he requested appointment over a Wilayah: "I think you are weak." Another narration says: "O Abu Dharr! You are weak and this post is a trust." Both are narrated on the authority of Muslim on the authority of Abu Dharr. This serves as evidence that he who is weak, i.e. incompetent is not fit to be a Wali.
The Messenger of Allah (SAW) used to select his Walis from among the good people, and those who had knowledge and were known for their piety. He used to select them from among those who were experts in their field, and who would fill people's hearts with Iman and respect for the State. Sulayman Ibnu Barida reported on the authority of his father that he said: "Whenever the Messenger of Allah (SAW) appointed an Ameer over an army or an expedition, he used to advise him to fear Allah and to be good to the Muslims who accompany him", narrated by Muslim. Since the Wali is, in fact, an Ameer over his Wilayah, the Hadith would then apply to him as well.
As for the dismissal of the Wali, this would be up to the Khaleefah, or if the majority of people in his Wilayah or their representatives showed discontent towards him. It is the Khaleefah who removes him. This is because the Messenger of Allah (SAW) dismissed Mu'az b. Jabal from Yemen without any reason, and he (SAW) removed Al-Ala' Ibnul-Hadhrami, his 'Amil over Bahrain, because the delegation of Abdu Qays complained about him. 'Umar b.Al-Khattab used to dismiss the Walis with or without reason. He dismissed Ziad Ibnu Abi Sufyan without giving a reason, and he dismissed Sa'ad Ibnu Abi Waqqas because the people complained about him, and then said: "I did not remove him because of incompetence or betrayal." This proves that the Khaleefah reserves the right to remove the Wali whenever he wished if the people living in his Wilayah filed a complaint against him.
The Mandatory Powers of the of the Governor
The Wali has a mandate to rule and to supervise the activities of the various departments within his Wilayah, and this is done on behalf of the Khaleefah. So the Wali enjoys in his Wilayah, all the power given to the Mu'awin (Assistant) within the State. He has the Imarah over the people in his Wilayah and is responsible for supervising all matters relating to the Wilayah except the funds, the judiciary, and the armed forces. However the police would be under his command in terms of the execution only and not in terms of the administration.
This is because the Wali is a deputy of the Khaleefah in the place where he appoints him. He has the same mandatory powers that the Khaleefah has, and he is like the Mu'awin in terms of general supervision (Wilayah 'Amma) if his Wilayah were general, i.e. if he was given general supervision in that place. He would have a specific supervisory role, and in matters related to those for which he was appointed, if his Wilayah was specific (Wilayah Khassa); then in such a case he would have no mandate to examine other matters. The Messenger of Allah (SAW) used to appoint some people in an unrestricted Wilayah over ruling, others in a general Wilayah (Wilayah 'Amma) covering everything, and others to a specific area and with a specific Wilayah. He (saws) sent Mu’az to Yemen and taught him how to procced. Al-Bayhaqqi, Ahmad and Abu Dawood narrated on the authority of Mu'az that the Messenger of Allah (SAW) said to him, when he (SAW) sent him to Yemen: "How would you rule if a case was presented to you?" He said: 'By the Book of Allah." He (SAW) said: "What if you do not find it (the verdict) there?" He replied: "I would judge by the Sunnah of Allah's Messenger."And he (SAW) said: "What if you do not find it there?" He said: "I would exert an opinion (perform Ijtihad), saving no effort." Upon this the Messenger of Allah (SAW) put his hand on my chest and said: "Praise be to Allah Who has guided the messenger of the Messenger of Allah (SAW) to what Allah and His Messenger love." He (SAW) also sent Ali b. Abi Talib to Yemen without instructing him, because he was confident about his knowledge and competence. When he (SAW) appointed Mu'az he assigned the Salah and the Sadaqah to him. He (SAW) appointed Farwa b. Sahl as an 'Amil over Murad, Muzhij and Zabeed and he sent with him Khalid b. Sa'eed in charge of the Sadaqah. All this demonstrates that the Wali has all the mandatory powers of ruling, as is evident by the instructions given to Mu'az and not given to 'Ali. It also demonstrates that the Messenger of Allah (SAW) gave some Walis general Wilayah over the Salah and the Sadaqah, while he gave others a specific Wilayah covering the Salah only, or the Sadaqah only.
However, although the Khaleefah is permitted to appoint a Wali in a general Wilayah, or in a specific one, it has also been confirmed from the general Wilayah given to Mu'awiya that he managed to become independent of the Khaleefah during the days of 'Uthman, and 'Uthman's authority over him was not apparent. In the wake of 'Uthman's death he caused the Fitna (civil strife) due to the mandatory ruling powers given to him over everything in Ash-Sham. This was also the case during the decline of the Abbassid Khaleefahs where the Wilayahs became independent and the Khaleefah's authority over them was reduced to having Dua'a (supplications) performed for him and the currency engraved with his name. Therefore, giving a general Wilayah causes harm to the Islamic State. Thus, the Wali should be given a restricted Wilayah in a way that would prevent him from becoming independent of the Khaleefah. Since the main factors contributing to a breakaway would be the armed forces, funds and the judiciary, because the armed forces represent the power, the funds represent the "life blood" and the judiciary demonstrates the safeguarding of the rights and the execution of the penal codes. Therefore the Walis should be given a specific (Khassa) Wilayah that excludes the judiciary, the armed forces and the funds, Delegating these to the Wali would encourage a potential breakaway and this would undermine the State's authority. However, because the Wali is a ruler, and because he ought to have the executive power, the police would be under his command, and his Imarah would cover the police force as well as all other domains within the Wilayah, except for the three departments mentioned above. Since the police force is part of the armed forces, its administration should remain under the army command. Nevertheless it would be at the Wali's disposal in terms of execution.
The Wali is not obliged to report back to the Khaleefah on the tasks he performs according to his Imarah unless if he chooses to do so. If an unusual matter were to arise, he should inform the Khaleefah and await for his instructions, and then execute what the Khaleefah ordered. If he felt that the matter could not wait and needed immediate action, he should deal with the matter immediately, and then inform the Khaleefah stating his reasons for not consulting him before taking action.
Regarding the difference between the delegated assistant and the Wali in terms of the necessity that the assistant reports to the Khaleefah on every action he performs, while the Wali needs not to do so, this is because the delegated assistant is a deputy of the Khaleefah himself and a Representative (Wakeel) for him, and he performs the Khaleefah's actions. Hence if the Khaleefah were to pass away the assistant would be removed. This does not apply to the Wali, because the Wali is neither his representative (Wakeel) nor his deputy nor does he perform his actions. Therefore, he is not removed once the Khaleefah passes away.
The Messenger of Allah (SAW) appointed his Walis without asking them to report back to him about the duties they performed, and they did not report back to him. They performed their duties on their own initiatives, each one of them ruling over his Imarah as they deemed fit. That was the case with Mu'az, 'Attab Ibnu Usayd, Al-Ala' Ibnul-Hadhrami and all his other Walis. This demonstrates that the Wali does not have to report back to the Khaleefah about any of his duties. In this aspect, he differs from the Mu'awin, as the Mu'awin must report back and consult the Khaleefah in every task he performs, whereas the Wali is not obliged to do so. The Khaleefah in turn must examine every action undertaken by the Mu'awin, but he is not obliged to do the same with the Wali, although he enquires about the situation of the Walis and review information about them. Therefore, the Wali has an unrestricted course of action within his Wilayah. This is why Mu'az said to the Messenger of Allah (SAW) when he was sent to Yemen: "I will exert my own opinion." This serves as a proof that the Wali does not need to report back nor consult the Khaleefah, but exerts his own opinion. He can consult the Khaleefah and ask for his opinion on important matters, but when it comes to matters that are not important, he would not consult him lest people's affairs were delayed. If an unusual matter were to arise, he should refer it to the Khaleefah, because the appointment of the Wilayah is that the Khaleefah delegates to the Wali the Imarah of a country or province over all its people to carry out the ordinary duties. If an inordinary matter were to arise, he should report to the Khaleefah, unless he feared that some mischief may occur due to the delay in dealing with the matter, in which case he should act at once and then notify the Khaleefah of that matter.
The time period of Wilayah for the person should not be a lengthy period. It would be best to relieve him if he became established or if people became attracted to his personality.
The Messenger of Allah (SAW) used to appoint Walis for a period of time and relieve them, and no Wali remained at his Wilayah during the whole era of the Messenger of Allah r. This indicates that the Wali should never be appointed permanently, but only for a short spell after which he is removed. However, evidence about the length of this period i.e. whether it should be long or short, has not been determined by the actions of the Messenger of Allah r. All that is related to this matter is that the Messenger of Allah (SAW) did not keep a Wali at his post during the whole of his life. What has been established as a fact is that he (SAW) used to appoint the Walis and then relieve them. However, the civil strife (Fitna) that shook the Ummah was caused by the lengthy period of Mu'awiya's Wilayah over Ash-Sham during the times of 'Umar and 'Uthman. This leads us to the conclusion that a lengthy period of Wilayah could harm the Muslims and the State. This is why the period of Wilayah should not be long.
The Wali should not be transferred from one Wilayah to another, because although his appointment is of a general nature, it is over a specific area. Thus, he should be relieved first and then reappointed.
This was clear from the actions of the Messenger of Allah (SAW), where he used to remove the Walis. It has not been reported that he used to transfer a Wali from one place to another. Besides, the Wilayah is one of the types of contracts that is convened with explicit words. So within the contract of Wilayah over a province or a country, the area over which the Wali is to govern must be determined, and he would have the mandate of ruling as long as he is not removed by the Khaleefah. If he were not removed from that area he would remain a Wali over it. However if he were transferred to another place this would not remove him from his first position nor would it make him a Wali over the new place. This is because his removal from the first place requires a clear word stating that he was removed from the Wilayah there. Appointing him over the place where he had been transferred requires a new contract of appointment as a Wali specific to that place. This is why the Wali is not transferred from one place to another, but is relieved of his duties from one place and then given a new Wilayah over the new place.
The Khaleefah should make enquiries about the works of the Governors.
The Khaleefah should inquire about the actions of the Wali and he should monitor them closely. He should appoint someone, who would check their state of affairs and carry out inspections. The Khaleefah should also meet with all of them or some of them from time to time and listen to the complaints of the subjects against them.
It has been confirmed that the Messenger of Allah (SAW) used to examine the Walis when appointing them, as he did with Mu'az and Abu Moussa. He used to explain to them how they should conduct their duties, as he did with 'Amr b. Hazm. He also drew their attention to some important matters as he did with Aban b. Sa'id when he appointed him Wali over Bahrain and said to him: "Look after Abd Qays and honour their leaders". Likewise it has also been confirmed that he (SAW) used to hold the Walis accountable, inspect their situation and listen to news brought to him about them. He (SAW) used to ask the Walis to account for the revenues and expenses spent. Al-Bukhari and Muslim narrated on the authority of Abu Humaid Al-Sa'idi who said:
"The Messenger of Allah (SAW) appointed Ibnul-Utbiyya as 'Amil in charge of Sadaqat of Banu Saleem. When he returned back to the Prophet (SAW) and he accounted him, he said: 'This is for you and (this is a gift) that was presented to me.' So the Messenger of Allah (SAW) said 'Why did you not remain in your father's and mother's home so that your gift comes to you if you said the truth.' Then the Messenger of Allah (SAW) stood on the pulpit, addressed the people praised, Allah (SWT) and said: 'What about a State official whom I give an assignment and who comes and says: 'This is for you and this has been presented to me as a gift?' Why didn't he remain in the house of his father or the house of his mother so that his gift be presented to him if he is truthful? By Allah, any one of you will not take anything from it (Sadaqah) unlawfully but will bring it on the Day of Judgment, carrying on his neck a camel that will be growling, or a cow that will be bellowing or a sheep that will be bleating.' Then he raised his hands so that I could see the whiteness of his armpits. Then he said twice: 'O Allah, I have conveyed your command.'"
'Umar used to closely monitor the Walis, and he appointed Muhammed Ibnu Maslama to examine their state of affairs and inspect them. 'Umar used to gather the Walis during the Hajj season to review their performance and to listen to the complaints of the subjects about them, and he also used to discuss with them the affairs of the Wilayah's and ask about their own conditions. It has been reported that 'Umar once said to people around him:
"Would you say that my duty would be fulfilled if I appointed over you the best from amongst you, and ordered him to be just?" They said: "Yes." He said: "No. Not until I had checked his performance, and seen whether or not he did what I had ordered him to do." 'Umar was known to be strict when accounting the Walis and the 'Amils. He would even remove some of them on just a suspicion without conclusive evidence. He even used to remove a Wali on the slightest doubt that did not even reach the level of suspicion. He was asked about this one day and he said: "It is easy to swap an Ameer for another so as to amend the people's affairs."
However, despite his strictness with them he used to give them a free hand and safeguarded their reputation in ruling. He used to listen to them and consider their argument. If he liked an argument he was not shy of showing his approval and conviction of it and of showering the 'Amil with praise afterwards. One day news reached him about his 'Amil Umayr Ibnu Sa'ad who had said while over the pulpit of Homs: "Islam will remain formidable as long as the authority is strong. And the strength of the authority does not come about with the killing by the sword or the lashing by the whip, but with the judging by the truth and the upholding of justice." Upon hearing this 'Umar said: "I wish I had a man like Umayr Ibnu Sa'ad to help me with the Muslims' affairs."
The Judiciary is responsible for delivering the verdict for the purpose of enforcing it. It settles disputes between people, prevents whatever may harm the rights of the community and also settles the disputes between people and any person who is part of the ruling structure, whether they are rulers or civil servants, the Khaleefah or any other person.
The origin of the judicial system and its validity is the Book and the Sunnah. As for the Book, Allah (SWT) says:
"And judge between them by that which Allah has revealed." [Al-Mai'dah: 49]
And He (SWT) also says:
"And if they were invited to Allah and His Messenger to judge between them..." [An-Nur: 48]
As for the Sunnah, the Messenger of Allah (SAW) was himself in charge of the Judiciary and he judged between people. Al-Bukhari narrated about 'A'isha, wife of the Messenger of Allah (SAW), that she said:
"Utba Ibnu Abi Waqqas told his brother Sa'ad b. Abi Waqqas that the child of Zuma'a belongs to him, so keep him with you. In the year of the conquest, Sa'ad took him and said 'The child is my nephew, and he (his brother) has entrusted him to me' Abd ibn Zuma'a stopped and said 'He is my brother, the son born to my father, and he was born on his bed.’ So they both rushed to the Messenger of Allah (SAW) and Sa'ad said 'O Messenger of Allah! He is my nephew and my brother has entrusted him to me.' And 'Abd b. Zuma'a said 'He is my brother and a son born to my father on his bed.' The Messenger of Allah (SAW) said 'The child is for the bed and for the fornicator is stoning.'"
The Messenger of Allah (SAW) used to appoint the judges. He appointed 'Ali as judge over Yemen and he gave him instructions about how to judge by saying: "If two disputing men come to you do not give a judgement for one of them until you have heard what the other has had to say."
He (SAW) also appointed Mu'az as a judge over Al-Janad. This indicates the legacy of the judiciary. As for the method of judicature carried out by the Messenger (saw), it can be deduced from the Hadith of A'iesha that Sa'ad and Abd Ibnu Zuma'a disputed over the son of Zuma'a. Each one claimed that he was his. The Messenger of Allah (SAW) informed them of the divine rule that the son of Zuma'a was the brother of Abd Ibnu Zuma'a, and that the child belongs to the one on whose bed it is born. Therefore, his (SAW) judgement was information about the divine rule and then he enforced it upon them, and thus 'Abd Ibnu Zuma'a took the child. This is the evidence which gives the definition of the Judiciary and this definition serves as a description of the reality. However, since it is a divine reality, and since the divine definition is in fact a divine rule, it therefore requires an evidence from which it is to be deduced, and this Hadith serves as an evidence for the definition of the judiciary.
Some people defined the functions of the judiciary as being the 'settling of disputes between people'. However this definition is deficient on the one hand, and on the other hand it is not a description of the reality of the judiciary as reflected in the Messenger of Allah's actions and sayings. This definition is merely a manifestation of what may or may not arise from the judiciary. For the judge may render a judgement on the case without necessarily settling the dispute between the parties. Therefore, the comprehensive and exclusive definition would be the one mentioned at the beginning of this chapter i.e. the one deduced from the Ahadith.
Moreover, this definition includes the judgement between people, and this is mentioned in the Hadith of 'A'eisha. It also includes the Hisba (public order) which means: 'Conveying the divine rule for the purpose of enforcing it regarding that which causes harm to the rights of the community.' This is highlighted in the Hadith of the heap of food. It has been reported in Sahih Muslim on the authority of Abu Hurayra that the Messenger of Allah (SAW) passed by a heap of food. As he put his hand inside it his fingers got wet, so he said to the vendor: "What is this?" He said: "It was dampened by the rain O Messenger of Allah." He (SAW) said: "Why don't you put it on the top so that people can see it? He who cheats does not belong to me." It also includes the Mazalim (unjust acts), because they are part of the judiciary and not part of the ruling, since they are complaints against the ruler. The Mazalim would be defined as: 'Delivering of the divine rule by way of compulsion with regards to the dispute that may arise between the citizens and the Khaleefah or any of his Walis or employees, or any conflict between the Muslims about the interpretation of any of the Shar'a texts used in order to judge by them and to rule according to them.' The Mazalim (unjust acts) were mentioned in the Hadith of the Messenger of Allah (SAW) regarding the fixing of prices where he said: "And verily I hope that I will meet Allah Azza wa Jall without having anyone claiming against me a Mazlama (complaint) I inflicted on him, be it of blood or funds" as narrated by Ahmad on the authority of Anas. This indicates that complaints against the ruler, or the Wali or the civil servants should be submitted to the judge of Mazalim, and the Judge of Mazalim would deliver the divine rule by way of enforcement. Therefore the definition would include the three areas of judiciary reflected in the Ahadith and actions of the Messenger of Allah r. These are: settling disputes between people, preventing whatever may harm the right of the community and the settling of the disputes between the citizens and the rulers, or between the citizens and the civil servants within their duties.
Types of Judges
There are three types of judges: One is the Qadhi, and he is in charge of settling the disputes between people over transactions and penal codes. The second is the Muhtasib, who is in charge of settling any breach of law that may harm the right of the community. The third is the judge of Mazalim, who is in charge of settling disputes between the people and the State.
These are the three types of judges. The evidence about the judge who settles disputes between people, is derived from the actions of the Messenger of Allah (SAW), and from his appointment of Mu'az Ibnu Jabal over an area of Yemen. The evidence of the judiciary regarding the settling of disputes which endanger the rights of the community, where the judge is known as the Muhtasib, this is confirmed by the action and saying of the Messenger of Allah (SAW), for he said: "He who cheats us is not one of me" part of a Hadith narrated by Ahmad on the authority of Abu Huraira. He (SAW) used to challenge the cheaters and punish them. Qays Ibnu Abi Gharza Al Kanani reported:
"We used to buy cargo in Madinah and we would call ourselves brokers, so the Messenger of Allah (SAW) came out to us and called us with a better name, he (SAW) said: 'O traders, verily the selling entails foolish talk and the taking of oaths, so do mix it with Sadaqah'".
Ahmad narrated from Abi Minhal that Zayd Ibnu Arqam and Al-Bara' Ibnu Azib were partners, so they both bought some silver with cash on the spot and by credit. This news reached the Messenger of Allah (SAW), so he ordered:
"…the deal settled on the spot there is no harm, and where it is sold on loan it must be rejected."
All this is the judicial remit of the Hisba. Calling the judiciary that settles the disputes that may harm the right of the community as Hisba is in fact a technical term referring to a specific task carried out in the Islamic State, ie. controlling the traders and skilled workers lest they cheat in their trade, or their work or their products, or forcing them to use the rights weights and measures, or any other type of action that may harm the community. These are the very types of actions that the Messenger of Allah (SAW) demonstrated, ordered to be observed, and personally applied judgement upon, as mentioned in the Hadith of Al-Bara' Ibnu Azib, where he ordered both parties to abstain from selling silver by credit. Therefore, the evidence about the Hisba is from the Sunnah. However, the Messenger of Allah (SAW) did not appoint a particular judge over the Hisba, nor did the Khulafaa Al-Rashideen after him, except 'Umar b. Al-Khattab who appointed Al-Shifa, a woman from his clan, as a market judge (inspector) i.e. a judge of Hisba. He himself used to also deal with the judiciary of the Hisba, just like the Messenger of Allah r. The Khulafaa went on dealing with the Hisba until the days of Al-Rasheed, for he was the first to appoint a Muhtasib (judge of Hisba) to go around the markets, checking the weights and measures, and to look into the traders' transactions. Then when the Al-Mahdi came he established a special department for the Hisba, making it thus one of the branches of the judiciary structure.
The evidence for the judge of Mazalim (unjust acts), is derived from Allah (SWT) saying:
"If you dispute about something refer it to Allah and the Messenger." [An-Nisa: 59]
This came immediately after Allah’s (SWT) saying:
"O you who believe obey Allah and obey the Messenger and those in authority from amongst you." [An-Nisa’a: 59]
Therefore, any dispute between the citizens and the people in authority should be referred to Allah and His Messenger i.e. to the rule of Allah. This necessitates the presence of a judge to give judgement on this dispute, and this is the judge of Mazalim. This is because part of what is included in te definition of the Mazalim (unjust acts) judiciary is the dispute between the people and the Khaleefah. So the evidence on the judiciary of the Mazalim is the action and words of the Messenger(SAW). However, the Messenger of Allah (SAW) did not appoint a specific judge for the Mazalim over the whole State, nor did the Khulafa’a Al- Rashideen after him, for they used to undertake the Mazalim themselves as was the case with Ali Ibnu Abi Talib. He did not however have a specific time or a special method for the Mazalim, he simply dealt with a Mazlama (an unjust act case) as it happened, so it was just part of his general duties. This approach remained the same until the days of Abdul Malik Ibnu Marwan; he was the first Khaleefah to introduce a specific time for the Mazalim. When he could not deal with a matter himself, he used to refer it to his judge to deal with it. Then the Khaleefah began to appoint deputies to look into people's complaints, and a special system was then introduced for the Mazalim, which was known as the "House of Justice" (Dar ul-'Adl). It is permissible to have a special judge for Mazalim, because anything that falls under the mandatory powers of the Khaleefah, he is allowed to appoint deputies to perform that duty on his behalf. It is also permissible to have a specific time and a specific style, because all this falls under the Mubah (permissible).
The Conditions Required for the Post of Judges
Anyone taking up the post of a judge must be a Muslim, free, mature, sane, just a Faqih (learned scholar), and aware of how to apply the rules to the events. The person who takes up the judiciary of Mazalim, in addition to the conditions mentioned, must also be male and a Mujtahid (jurist), just like the supreme judge (Qadhi-ul-Qadhah). This is because this post is in fact judiciary and ruling, for he judges over the ruler and executes the Shari'ah upon him. Therefore he must be male in addition to the other conditions for the judge post, one of which is to be a Faqih. Furthermore, he has to be a Mujtahid, because as part of the Mazalim he may be required to look into whether the ruler has ruled by other than that which Allah has revealed, i.e. ruled by a law that has no Shar'a evidence to back it, or in case the evidence he used does not relate to the event. It is only the Mujtahid who can deal with such Mazlama. Therefore if he were not a Mujtahid, he would be judging on something he knows little about or has no knowledge at all, and that is forbidden. Therefore, in addition to the conditions of the ruler and those of the judge, he should also be a Mujtahid.
The Appointment of Judges
It is permitted to appoint the judge, the Muhtasib (judge of public rights) and the Muzalim on a general capacity, to judge on all matters all over the State. It is also permitted to appoint them in a specific capacity, whether geographic or according to a certain type of judiciary. This would be in accordance with the action of the Messenger of Allah r. He (SAW) appointed Ali Ibnu Abi Talib as judge over Yemen, and Mu'az Ibnu Jabal as judge over an area of Yemen, and he also appointed Amr Ibn ul- A'as as judge in one specific matter.
The Forming of Tribunal Courts
It is forbidden to have more than one judge presiding over a tribunal and having power to render judgement. It is permitted for one or more judges to be present with him but they would not have the right to judge. They attend so as to be consulted or to voice an opinion, and their opinion would not be binding.
This is because the Messenger of Allah (SAW) never appointed two judges to deal with one matter, rather he (SAW) appointed one judge for one matter. Besides, the judiciary is the pronouncing of the Shari'ah rule by way of compulsion, and the Shari'ah rule concerning the same Muslim person cannot vary, for it is the rule of Allah, and the rule of Allah is one. It is true that its interpretation may vary, but concerning the Muslim from the practical side it remains one and it never varies. His interpretation would be the rule of Allah as far as he is concerned, and any other interpretation is not the rule of Allah (SWT) that would apply to him, although in his opinion it is considered a Shari'ah rule. Whatever imitation (Taqleed) he adopts and acts upon is considered to be the rule of Allah (SWT) as far as he is concerned, while any other Taqleed would not apply to him. When the judge pronounces the rule of Allah in the matter at hand by way of compulsion, this pronouncing must be one, for it is the pronouncing of the rule of Allah (SWT) by way of compulsion. Thus it would be acting upon the rule of Allah I, and the rule of Allah (SWT) from a practical point of view does not vary, even if the understanding does vary. Therefore, it is forbidden to have more than one judge, for it is impossible for the rule of Allah (SWT) to vary. This is as far as the individual case is concerned, i.e. the tribunal or court. As for the country, it is permitted to have two separate courts dealing in all types of cases in one area, because the judiciary is delegated by the Khaleefah, so it is like the deputyship where plurality is permitted, thus it would be permitted to have several judges in one area. If the disputing parties could not agree on which tribunal they should take their case to or which judge should look into their case, the choice of the plaintiff would outweigh that of the defendant and the case would be given to the judge of his choice, as he would be seeking his right and this outweighs the defendant.
The judge can only rule in a judicial court, and the evidence and the oath can only be considered in the judicial court.
This is because it has been reported on the authority of Abdullah Ibnuz-Zubayr who said: "The Messenger of Allah has ordered that the two disputing parties should sit before the judge." as narrated by Abu Dawood and Ahmed. This Hadith demonstrates the form in which the judicial process should be conducted, and it is a lawful form in itself, i.e. there must be a specific form in which the judicial process is to be conducted, which is for the two disputing parties to sit before the judge, and this would be the judicial court. Therefore, this is a condition for the validity of the judicial procedure, i.e. that there ought to be a special place where the judgement is to be conducted for it to qualify as a legitimate judgement, and this would be for the two disputing parties to sit before a judge. This is backed by the Hadith of Ali (ra) when the Messenger of Allah (SAW) said to him: "O Ali, if two disputing parties sat before you, do not judge for in favour of either of them until you hear what the other party has to say as you have heard the first one." It also indicates a special form where he (SAW) said: "If two disputing parties sat before you." Therefore, the judicial court is a must if the judgement is to be valid, and is also a must for the oath to be considered. This is because the Messenger of Allah (SAW) said: "The oath must be given by the defendant," as narrated by Al-Bukhari on the authority of Ibnu Abbas. He would not be considered as defendant except in a judicial court. The same applies for the evidence. It cannot be considered except before a judicial court, for the Messenger of Allah (SAW) said:
"It is the plaintiff who should provide the evidence, and the oath is due on the one who disapproves". - as narrated by Al-Baihaqi.
He also cannot be considered a plaintiff except before a judicial court.
It is permitted to have various levels of courts according to the type of cases. Thus it would be permitted to have some judges confined to dealing with specific cases to a certain extent, and to refer other cases to other courts.
This is because the judiciary is delegated by the Khaleefah and it is just like the deputyship, with no difference at all. In fact, the judiciary is one form of deputyship, which can be general and can also be specific. Therefore, it would be permitted to have a judge appointed to deal in specific cases only, in which case he would not be allowed to deal with cases other than those cases specified. It is also permitted to appoint another judge to look into all sorts of cases including those mentioned, even in the same location, or to look into cases other than those mentioned. Therefore, it is permitted to have various levels of tribunal, and Muslims had this in the past. Al-Mawirdi wrote in his book entitled Al- Ahkam As-Sultaniyya: "Abu Abdullah Az-Zubayri said: 'For sometime, the Ameers here in Basra used to appoint a judge at the central mosque (Al-Masjid Al-Jami'), and they called him the judge of the mosque. He used to judge in disputes involving sums not exceeding twenty Dinars and two hundred Dirhams, and he used to impose maintenances (Nafaqah). He would not exceed his boundaries nor the duties entrusted to him.'" The Messenger of Allah (SAW) delegated others on his behalf in the judiciary; he (SAW) appointed Amr Ibnul-A'as to look into one case, and he appointed Ali Ibnu- Abi Talib over the judiciary in Yemen with powers to look into any case. This indicates that it is permitted to have a specific and general judiciary.
There are no courts of appeal and there are no courts of cassation, so the judiciary, as far as the method by which the cases are treated, is one and the same. If the judge pronounced a sentence, it would become binding, and the sentence of another judge would not under any circumstances reverse it. This is the case unless the sentence disagreed with a definite text from the book of Allah, or the Sunnah of His messenger or the Ijma’a of as-Sahabah.
Thus the sentence of the judge cannot be reversed by himself, nor by any other judge if it (the original judgement) is taken from a probable (Zanni) evidence from the book, or the Sunnah. Evidence about the fact that the sentence of the judge derived from a probable (Zanni) evidence cannot be reversed is the general consensus of the Sahabah. This is because Abu Bakr judged in some cases according to his own Ijtihad while 'Umar did not agree with him, and he did not reverse his sentences. Ali disagreed with 'Umar's Ijtihad but did not reverse his sentences; Ali differed with Abu Bakr and 'Umar but their sentencing were never reversed. The people of Najran came to Ali and said to him: "O Ameer of the believers, your book is in your own hands and your pardon is with your own tongue." He said: "Woe to you, 'Umar was rightly guided and I will not reverse a judgement pronounced by 'Umar." It has been reported that 'Umar judged in the "Musharraka" (shared inheritance) to abrogate the rights of brothers from the father's side. He then ordered that they have a share, and then said: "That sentence applies to that case and this sentence applies to this one", and he executed both sentences despite the contradiction. He also judged differently in relation to the grandfather and he never reversed any of the earlier sentences. As for what has been reported about Sharih having judged in the case of two paternal cousins, one of them was one of the mother's brother, that the estate should go to the brother, this was referred to Ali so he said: Bring me the man. When he came he said to him: "Where in the Book of Allah did you find this?" He said: Allah (SWT) says:
"But kindered by blood have prior rights against each other." [Al-Anfal: 75]
Ali said to him: Allah (SWT) also says:
"If the man or woman whose inheritance is in question has left neither ascendants or dependants, but has left a brother or sister, each one of the two gets a sixth" [An-Nisa’a: 12],
he then reversed his sentence. Ibn Qudamah replied on that in his book “Al Mughni” in the subject of “al-Qada’a” (Judiciary), page 56, chapter nine by saying:
“It has not been proved, in our view, that Ali reversed his sentence. Even if it was proved that he did so, then Ali (RA) possibly thought that Sharih disagreed with the text of the Book in the Ayah wich he mentioned, so he reversed it.”
What has been confirmed is that the Sahabah had on some occasions judged in some matters according to their own Ijtihad, and the Khaleefah used to disagree with them. This happened in the times of Abu Bakr, 'Umar and Ali, and never did any of them reverse the others' judgement. What has also been confirmed is that 'Umar passed contradictory and different sentences in relation to one single issue, and he executed all the sentences and never reversed the first judgement by the second one despite the difference between the two. It has been confirmed that 'Umar said about this: "That judgement was for that case and this judgement is for this one." This serves as evidence that the sentence of the judges should not be reversed. Ibnu Qudama wrote in Al-Mughni: "And if his Ijtihad has changed without contradicting a text or a general consensus, or if his Ijtihad differed from the Ijtihad of those before him, he should not reverse it just because it is different, for the Sahabah have in fact consented on this course of action. However, if he changed his Ijtihad before pronouncing the verdict, then he judges with the new Ijtihad."
Furthermore, the evidence about the prohibition of the plurality of judges, also serves as evidence about the prohibition of reversing the judge's sentence. This is because the rule of Allah is one and does not vary, and the rule of Allah regarding one matter, once enacted means that it has been executed, so it would be wrong to reverse it. When the judge passes a verdict on a case, he would be putting the rule of Allah into application, then its execution becomes compulsory. Therefore, it should never be reversed, as this would mean the reversal of Allah's rule and that is forbidden. Thus the judge cannot reverse his own judgement, nor can anyone else reverse his judgement, for the rule of Allah does not vary, and its reversal would be, in addition to being the reversal of the rule of Allah, a variation of the rule of Allah (SWT) and that is forbidden.
As for the report concerning the letter of 'Umar b. Al-Khattab which he sent to Abu Moussa in which he wrote: "Do not allow a senence you passed yesterday, which you reviewed and gained the right guidance, prevent you from returning to the truth, for the truth is old, and to return to the truth is better than to continue with the falsehood." Supposing that the letter were genuine, it would represent the word of 'Umar, and it is not a Shari'ah evidence. It would be wrong to say that the Sahabah kept silent about this and that this indicates that a general consensus took place, for the silence can only be considered to be a general consensus if the event was well known, related to a rule that concerns all the people, and which the Sahabah would have knowledge of, and also the like of which is usually rejected by Shari'ah for they do not remain silent over a Munkar. However, this type of letter was addressed to a specific judge and it was not a general address. Although it became famous afterwards, it was not a famous event known to the Sahabah at that time. Besides, it did not contain anything that is usually rejected, because it contained nothing that Shar'a condemns. Furthermore, what 'Umar meant in his letter was: If you passed a judgement yesterday and then realised that it was wrong, do not let this stop you from changing it and passing a different judgement in another case. It does not mean that you should reverse yesterday's judgement. That is why 'Umar wrote: "To return to the truth." and he did not write to reverse your judgement. To return to the truth means to abandon the wrong opinion and adopt the right one. Therefore, the letter does not serve as evidence that the judgement can lawfully be reversed. This is why in Islam there is nothing called judicial precedent, i.e. in such and such case the sentence was so and so. If a certain verdict was passed on a particular case, that verdict does not oblige anyone else to judge accordingly. It is rather permitted to pass a different judgement on a similar case by a different judge and even by the same judge. As for the case itself, the rule of Allah would have been applied to it, therefore the judge would be forbidden from reversing that rule or changing it. This is why there are no courts of appeal in Islam, nor are there any courts of cassation. The judiciary, from the adjudication point of view, should be of the same level. The Shari'ah principle states: 'The Ijtihad does not reverse another Ijtihad.' So no Mujtahid could serve as an authoritative source for another Mujtahid, thus it would be forbidden to have Tribunals that reverse the sentences of other Tribunals.
However, if the judge abandons ruling by the Shari'ah and judged according to a rule of disbelief, or if he judged by a rule that contradicts a definite (qatai) text form the Book and Sunnah or the Ijma'a of the Sahabah, or he issued a verdict that contradicts with the reality, such as if he judged on somebody as a deliberate killer, then the real killer appeared. In such cases, the verdict of the judge is reversed. This is because the Messenger of Allah (SAW) said:
"Anyone who invented something in our matter (Deen) that which is not from it, it would be rejected," - narrated by Al-Bukhari and Muslim on the authority of ’Aiesha.
It was also narrated by Jabir b. Abdullah:
"…a man committed adultery with a women, so the Prophet (SAW) ordered, that he be lashed. Later on he was informed that he was married, so he ordered that he be stoned."
Malik b. Anas also narrated, that he said:
"I got knowledge that a woman was brought to 'Uthman (ra), where she gave delivery after six months so he ordered her to be stoned, Ali (ra) said to him: 'It is not valid to be stoned, because Allah (SWT) says:
"The carrying of the (child) and his weaning (Fisal) is a period of thirty months" [Al-Ahqaf: 15]
and He (SWT) says:
"The mother shall give suckle to their children for two whole years, for them who desire to complete the term." [Al-Baqarah: 233]
Thus the pregnancy period is six months, so she should not be stoned.' Accordingly 'Uthman (ra) ordered that she be brought back, but he found that she had already been stoned."
Abdur Raziq narated from Al-Imam Ath-Thawri that he said:
"If a judge gave a verdict opposite to the Book of Allah or the Sunnah of the Messenger of Allah (SAW) or anything where there is an Ijma'a over it, then another judge after him may reverse it".
“And the one with the mandatory powers to reverse these sentences is the qadi madhaalim.”
The Muhtasib is the judge that deals in all the cases that concern the public rights and which do not have a plaintiff, as long as these cases do not fall under the penal code (Hudud) and the criminal law (Jinayat). This is the definition of the judge of Hisba, a definition which is deduced from the Hadith relating to the heap of food when the Messenger of Allah (SAW) discovered a dampness in the heap of food, so he ordered that the damp food be displayed on the top so that people could see it. This was a public right on which the Messenger of Allah (SAW) looked into, and judged that the wet food should be displayed at the top to prevent cheating. This applies to all the public rights or interests that are of this nature. It does not include the penal code or the criminal law, for they are not of the same sort, and they are disputes between people in the first place.
The Mandatory Powers of the Muhtasib
The Muhtasib has the power to judge on the offence as soon as he learns about it, and this could take place on the spot and at any location. He does not need to be in a judicial court. He will have at his disposal a number of police staff to execute his orders and to apply the sentence on the spot.
A judicial court would not be required for the Muhtasib to look into the case at hand, He passes the judgement the moment he is sure that the offence took place, and he has the power to judge at any place and at anytime, whether in the market, in the house, while riding or in the car during the day or night. The evidence that confirms the need to have a judicial court in order to deal with a case does not apply to the Muhtasib, because the Hadith which confirmed this condition states:
"If the two disputing parties sat before you."
This is not applicable to the judge of Hisba, as there is no plaintiff and no defendant, rather, there is a public right that has been violated, or a violation of the Shar'a. Besides, when the Messenger of Allah (SAW) looked into the case of the heap of food, he was walking in the market at the time and the food was displayed for sale. He (SAW) did not summon the vendor to him, but as soon as he detected the offence he dealt with it on the spot. This indicates that the cases of Hisba do not require a judicial court.
The Muhtasib has the right to select deputies for himself. They should fulfil the requirements of the Muhtasib, and he is allowed to assign them to different places. Those deputies would have the power to carry out the duties of the Hisba in the areas to which they have been assigned, and in the cases for which they have been delegated.
This depends on whether the appointment of the Muhtasib includes a clause that gives him power to appoint deputies for himself, i.e. to delegate deputies who would act on his behalf. That is the case if the appointment was made by the Khaleefah. If the appointment was however made by the supreme judge, the clause must be approved first, and in addition to this, the appointment of the supreme judge must include a clause that gives him power to allow the judges that he appoints to delegate others to act on their behalf, i.e to give them the right to have deputies. If the supreme judge did not have such power, then he would not be in a position to approve such delegation, thus the Muhtasib would not be allowed to have deputies, i.e. he would not have the right to delegate. The power of the judge to delegate on his behalf, whether it be the Muhtasib, the Qadhi (judge) or the judge of Mazalim, is not in the hands of the judge unless the Khaleefah allows him to do so; or if the permission to recruit judges and to allow those appointed to delegate were given to the Wali of the judiciary, i.e. the supreme judge. This is because the judge is appointed to the judiciary, i.e. a specific type of judiciary, which is the Hisba. Therefore, if he were not given the right to delegate, i.e. the right to appoint a deputy for himself, he would not then possess the mandatory power to appoint anyone. This applies to the Qadhi and the judge of Mazalim, for each of them would be appointed to the judiciary according to the appointment clause. Thus they do not possess any extra power, i.e. they would have no right to appoint judges, unless this formed part of the appointment contract. He would not also have the right to appoint deputies to perform the duties of Hisba on his behalf, unless this was part of his contract. The same applies to the supreme judge. As for the permissibility of appointing deputies, this is derived from the Messenger of Allah's action, for he (SAW) was called upon to look into a case, and he appointed someone to act on his behalf. This was in the incident of the desert Arab who came to the Messenger of Allah (SAW) and informed him that his son was working for a man and he committed adultery with the man's wife, so he asked him for the verdict. The Messenger of Allah (SAW) said at that incident:
"Go O Unays (a man from Aslam) to this man's wife, if she admitted guilt then stone her"-narated by Bukhari and Muslim by way of Abi Hurayrah, Zayd bin Khalid al Juhani.
This indicates that the judge could send a deputy to judge on his behalf in a case he assigns to him. The same applies to the Muhtasib, as he is also a judge. However, the judge must allow his deputy to deal with the case as a whole, i.e. he must be allowed to look into the complaint and pronounce judgement himself if the appointment to deputise were valid. This is because the judiciary is the conveying of the rule by way of compulsion, so in this context it cannot be partitioned, and therefore he cannot appoint him to merely investigate without judging. The appointment must be complete so that he becomes a judge and his judgement becomes valid. However, even if he sometimes did not actually pronounce a judgement, his work would be valid, for it is not a condition for him to act as a judge. A judge could look into a case, and before completing his work and pronouncing his judgement, he could be relieved of his duties, and then the case would be referred to another judge who would pass judgement. The same applies to the judge's deputy. It is not a condition for him to pass judgement, but he must be given the right to investigate and pass judgement when appointed, i.e. he must be appointed as a full judge, holding all the mandatory powers given to a judge. The same applies to the Muhtasib. He appoints deputies with powers to investigate and judge in the cases he assigns for them, or in the areas in which he places them, that is if he has been given the power to appoint deputies. The legal requirements for those whom the judge appoints as his deputies are: They must be Muslims, free men, just, mature and Faqihs (learned scholars) in the matters they are assigned to deal with, i.e. they must have the same requirements of the Muhtasib, because they are also judges like him.
Qadhi of Mazalim
The judge of Mazalim is a judge appointed to remove every Mazlema (unjust act) perpetrated by the State against any person, whether this person were a citizen of the State or a person living under its authority, and whether this Mazlema were perpetrated by the Khaleefah or those working under him, be they rulers or civil servants.
This is the definition of the judge of Mazalim. The origin of the judiciary of Mazalim is derived from reports referred to the Messenger of Allah (SAW), where he described the unjust acts perpetrated by the ruler while ruling over the subjects as being a Mazlema. Anas reported:
"Prices soared during the time of the Messenger of Allah (SAW) so they said to him: 'O Messenger of Allah why don't you introduce pricing?' He said: 'Verily Allah is the Recipient, the Extender of wealth, the Provider, and the Pricer, and I hope that I will meet Allah (SWT) without having anyone accusing me of having perpetrated a Mazlema against him be it in blood or in money.'" – narated by Ahmad.
He (SAW), therefore judged pricing as being a Mazlema, for if he had done it, i.e. introduced pricing, he would have acted without right given to him. He (SAW) also made the issues that affect the public rights which the State organises for the people as part of the Mazalim, such as the irrigation of farming lands by common water in turn. The Messenger of Allah (SAW) looked into the dispute over irrigation that took place between Az-Zubayr Ibnul-'Awwam and a man of the Ansar. He (SAW) witnessed it personally and said to Az-Zubayr: "You irrigate first O Zubayr and then the Ansari." Therefore, any Mazlema that occurs against any person, whether perpetrated by the ruler, or as a result of the State's organisations or orders, would be considered as a Mazlema, as gathered from the two Hadith. The matter would be referred to the Khaleefah to deal with or to whoever the Khaleefah appoints as judge of Mazalim to deal with such matters on his behalf.
The Appointment and the Removal of the Judges
The judge of Mazalim is appointed by the Khaleefah, or by the supreme judge. His removal, accounting, reprimanding or transfer, is carried out by the Khaleefah, or by the court of Mazalim if the Khaleefah gave it such mandatory power. This would be in accordance with the Messenger of Allah's (SAW) actions, where he (SAW) appointed Rashid Ibnu Abdullah as Ameer over the judiciary and the Mazalim, and he gave him the mandate to look into the Mazalim. Furthermore, Mazalim are considered to be Wilayah, and this power is exclusive to the Khaleefah, thus the appointment of the Wali of Mazalim must be by the Khaleefah. Besides, the Mazalim are part of the judiciary, for they are the pronouncement of the Shari'ah rule by way of compulsion. The judge must be appointed by the Khaleefah, a matter which is confirmed by the Messenger of Allah's actions, for he (SAW) used to appoint the judges. All this serves as evidence that it is the Khaleefah who appoints the judge of Mazalim, yet the supreme judge could appoint the judge of Mazalim if the Khaleefah made provisions for this in his appointment clause.
The removal of the judge of Mazalim should, in principle, be the right of the Khaleefah, as it is he who has the right to appoint him. However, he has no right to remove him if there were a case submitted against the khaleefah, the Tafweedh assistants or the chief judge. This is derived from the principle of “The Means to Haram is Haram”. The Messenger of Allah (SAW) used to personally take charge of the judiciary of Mazalim, and it has not been reported that he ever appointed a judge of Mazalim on a general capacity i.e. giving him a general Wilayah over the Mazalim. The four Khulafaa Ar-Rashidoon never appointed anyone over the Mazalim. Ali used to personally be in charge of the Mazalim; and he looked into several cases of Mazalim. When Abdul-Malik Ibnu Marwan became Khaleefah he fixed a particular day for the Mazalim, where he would hold hearings without going into the investigations. If a problem arose and he needed a binding judgement to settle the Mazlema, he would refer it to his judge Abu Idriss Al-Azadi. Abu Idriss would be then the one who looked into the Mazalim, for he was a judge and he dealt with the Mazalim that the Khaleefah Abdul-Malik would refer to him. When the Ameer of the believers 'Umar Ibnu Abdel-Aziz came, he himself dealt with the cases of Mazalim, and put a halt to the Mazalim of Banu Umayya. Midway through the Abbasite era, the Khulafaa used to delegate the cases of Mazalim to a special judge. Since that date the judiciary of Mazalim became separate from the Khaleefah, while before that it was always carried out by the Khaleefah himself. Therefore, the Khaleefah reserves the right to look into the Mazalim himself, and he is allowed to appoint a judge of Mazalim, and to remove him and replace him with another judge, thus it is permitted for the Khaleefah to do so i.e. it is a Mubah action.
It is also the Khaleefah who holds the judge of Mazalim accountable, where he reprimands him and removes him. This is because he is responsible for the Mazalim and for the judge whom he appoints on his behalf to look into the Mazalim. The Khaleefah is allowed to give the (head) judge of Mazalim or to the supreme judge the power to remove the judges of Mazalim, reprimand them , remove them and transfer them. If he did so, they would have the mandatory power to remove, account and reprimand the judges of Mazalim.
Judging of Mazalim is not restricted in one person. The Khaleefah is allowed to appoint a number of judges for the Mazalim according to the need, no matter how many they were. However, when it comes to the judgement, only one judge can pass the judgement. Yet it is permitted for other judges to sit with him during the court proceedings, but they would only have a consultative role, and he would not be obliged to consider their opinion. This is because the Khaleefah is permitted to appoint one or more deputies to act on his behalf. However, if there were several judges of Mazalim, their mandatory power to look into the Mazalim cannot be apportioned, for each one of them would have the right to look into the cases of Mazalim. The Khaleefah is, however, allowed to confine a judge of Mazalim to one province, or to confine him to a certain type of cases, for he has the right to give a general Wilayah over the Mazalim, or a specific Wilayah if he wished. He can also give a Wilayah over the whole of the State or confine it to a specific area or province. As for the fact that, when the judge of Mazalim looks into a case, he should look into it on his own, this is because of what was mentioned earlier, that it is forbidden to have more than one judge looking into a particular case, while it is permitted to have more than one judge in the same area. However, it is permitted for other judges of Mazalim to sit with him in court in a consultative capacity only. He would not be obliged to consider their opinion, and it would be up to him whether he wished them to sit with him or not, for nobody should sit with the judge and distract him while he looks into what has been confined to him. However, he could consult them once he retires from court.
The Mandatory Powers of the Mazalim Judge
The judge of Mazalim has the mandatory power to remove any ruler or civil servant, and he also has the right to remove the Khaleefah.
The judge of Mazalim has the right to remove the rulers, for the ruler is appointed by a contract, known as the contract of assignment which is also called the contract of appointment (Taqleed). The Khaleefah has the right of the Wilayah which is the ruling, and he has the right of appointment, which is the assignment, and the appointment can only be done with clear wording. Thus the removal of the ruler appointed by the Khaleefah would be a termination of that contract, and the Khaleefah undoubtedly reserves that right. This is because the Messenger of Allah (SAW) appointed the Walis and removed them. The Khulafaa Ar-Rashideen also appointed the Walis and removed them; the Khaleefah could also delegate to those whom he appointed the right to appoint and remove. However, the court of Mazalim does not have the right to remove the rulers on behalf of the Khaleefah, for it does not act on his behalf in appointing and removal. it rather acts on his behalf in looking into the Mazalim. So if the presence of that ruler in his Wilayah was a Mazlema, the court has the right to remove that Mazlema i.e. it has the right to remove that ruler from office. Therefore, its power to remove the ruler is not done on behalf of the Khaleefah, but merely to remove the Mazlema. So the one whom it judges to be removed should be removed, even if the Khaleefah does not agree with the judgement. This is because the removal of that ruler would be the removal of a Mazlema, and this applies to everyone, including the Khaleefah, for the judgement of the judge applies to everyone. As for its power to remove the Khaleefah, this would also be by a judgement aimed at removing a Mazlema. This is because if the Khaleefah were in a situation that necessitates his removal, or in a situation as a result of which he should be removed, then his stay in office would be a Mazlema. It is the court of Mazalim that judges the removal of Mazalim, so it would order of his removal. Therefore, the judgement of the court of Mazalim to remove the Khaleefah would be a judgement aimed at removing a Mazlema.
The court of Mazalim has the power to look into any Mazlema, whether the Mazlema were perpetrated by government employees, or related to a contradiction of the Shar'a by the Khaleefah, or related to the meaning of a legislative text in the constitution, the canon or the various Shari'ah rules adopted by the Khaleefah, or related to the imposing of a tax, or any other matter.
This is because the Messenger of Allah (SAW) refused to fix the prices when the Sahabah requested him to do so after the prices had soared, and he (SAW) considered price fixing as a Mazlema. He (SAW) also considered the illegal arrangements of the peoples' turns for irrigation as a Mazlema. This proves that if the action of the ruler contradicted with the truth (Haqq), or violated the Shari'ah rules, it would be considered a Mazlema. The Messenger of Allah (SAW) was a ruler over the Muslims and their Head of State.
Furthermore, if any action that is part of government business, performed by any member of the government, was in contradiction with the truth (Haqq), or if it violated the Shari'ah rules, it would be considered a Mazlema. This is because that person would be representative to the Khaleefah, acting on his behalf in the task assigned to him in the government structure. Therefore, the Hadith about the pricing indicates that the offence committed by the Khaleefah is a Mazlema, and it is the court of justice that has the power to look into the Mazalim.
With regards to examining a text in the constitution or the canon, the constitution is the basic law and the canon is the decree of the Sultan. So examining that is examining the decree of the Sultan, which is also included in the Hadith about the pricing, for it would be like examining the Khaleefah's actions. Furthermore, Allah (SWT) says:
"If you dispute about something refer it to Allah and the Messenger,"[An-Nisa’a: 59] i.e. if you disputed with the people in authority about a matter. If this dispute was about an article in the constitution or an article in the canon of the law, then it would be a dispute between the subjects and those in authority about a rule of Shari'ah , which must be referred to Allah and His Messenger. This would mean referring it to the court of Mazalim, i.e. to the judgement of Allah and His Messenger (SAW) .
As for the mandatory power given to the judge of Mazalim to look into the imposing of a tax, this is derived from the Hadith of the Messenger of Allah (SAW) where he said: "And I hope to meet Allah Azza wa Jall without having anyone claiming a Mazlema against me, whether in blood or money." If the Khaleefah took money from the subjects unlawfully, it would be a Mazlema; and taking money from the subjects that is not approved by the Shar'a is a Mazlema. Therefore, the court of Mazalim has the right to investigate taxes for it is money taken from the subjects. Its investigation of tax affairs would be with the aim of ruling whether that tax is lawfully obliged by Shar'a on the Muslims, such as the money taken to feed the needy, which would not be a Mazlema; or whether that tax is not obliged by the Shar'a, such as the monies taken to build a dam that is not considered essential, which would therefore be a Mazlema that has to be removed. This is why the court of Mazalim has the power to examine the taxes.
In the judiciary of Mazalim, the court sitting is optional, and the summons of the defendant is not necessary, nor is the presence of a plaintiff. The court of Mazalim has the right to look into a Mazlema even if nobody filed a claim. This is with regards to any Mazlema related to the people in the government structure, the Khaleefah's violation of the Shari'ah rules, the meaning of any legislative text, the constitution or the canons within the adoption of the Khaleefah, the imposing of any tax, or related to the State's oppression of its citizens and seizure (properties) from them by force, its transgression in terms of the collected properties (from them) or reducing the salaries of the employees and the army or delaying their payment.
This is because the evidence that confirms the need for a judiciary court to look into a case does not apply to the court of Mazalim for it is not always necessary to have a plaintiff. The court of Mazalim looks into the Mazlema even if nobody filed a claim. It is also not necessary to summon the defendant, because it examines the Mazlema, without the need of his attendance. Therefore, the evidence regarding the necessity of a judicial court does not apply. This is due to what Abu Dawood and Ahmed narrated from Abdullah bin Az-Zubair, he said: "The Messenger of Allah (SAW) ordered that 'the two disputing parties sit before the judge,'" and his (SAW) saying to Ali (ra): "If the two disputing parties sat before you." Therefore, the court of Mazalim reserves the right to look into the Mazlema as it occurs without any restrictions such as time, place or court sitting. However, due to the standing of this court, as far as its mandatory power are concerned, it has always been surrounded by the elements of prestige and grandeur. In the times of the Sultans in Egypt and Ash-Sham, the Council of the Sultan, where the Mazalim used to be dealt with, used to be known as the "House of Justice", where the Sultan used to appoint deputies to act on his behalf, and the judges and the Faqihs also used to attend. Al-Maqreezi mentioned in his book entitled: "Al-Sulook Ila Ma'arifati Douwal Al-Mulook" (The way to know the States of the kings), that the Sultan Al-Malik Al-Salih Ayyub appointed deputies to act on his behalf in the House of Justice. They used to sit there to remove the Mazalim, and to gather the witnesses, judges and the Faqihs. Therefore, there is no harm if the court of Mazalim had a splendid house, for this would be Mubah, especially if this reflected the might of justice.
The Administration System
Running of the government's business and the people's affairs is carried out by offices, departments and administrations, whose task is to ensure the management of the State's business and the discharge of the people's interests. Each office (Maslahah) would be headed by a general manager, and each department (Da'irah) and administration (Idarah) would be headed by a director who would run its affairs and be directly responsible for it. Those directors would be answerable to the general director in charge of their offices, departments or administrations from a professional side, and answerable to the Wali and the 'Amil with regards to abiding by the rules and general regulations.
The Administrative System is a style of Administration, not Ruling
The administrative system is a style used to perform a task, and is also one of its means, so it does not require a specific evidence. It is sufficient for it to have a general evidence that indicates its origin. It would be wrong to say that these styles are human actions, which should therefore be conducted according to the divine rules. This is because the evidence for these actions has come in regards to their origin in a general form. Thus it includes all actions that branch out from that origin, unless there is a divine evidence that relates to a subsidiary action, in which case the action must follow that evidence. For instance Allah (SWT) says:
"And pay out the Zakat" [At-Tauba: 11] which is a general evidence. Then the evidences came regarding the subsidiary actions which branched out from it, such as the amount of Nisab, the Zakat collectors and the categories of things from which Zakat is to be taken. All these are actions derived from "And pay out the Zakat." There are no evidences regarding the manner by which the Zakat collectors have to collect the Zakat. For example, do they go riding or walking? Do they hire other employees to help them or not? Do they have to establish headquarters where they would all meet? Would they have warehouses where they would store everything they had collected? Would these houses be underground or built like grain houses? Would the cash Zakat be collected in bags or coffers? All these actions and the like are, in fact, subsidiary actions originating from "And pay out the Zakat." They are all covered by the general evidence as there are no specific evidences for them; and this is the case with all the styles. Thus, the style is an action subsidiary to an action i.e. to the origin that has a general evidence. Therefore, the style does not require an evidence, because the evidence of its origin serves as evidence for it as well.
As for the establishment of the administration, i.e. the establishment of those who would manage the citizens' interests in every utility that needs an administrative work, this would be categorised as an original action and not a subsidiary one, hence it requires an evidence. Its evidence is deduced from the actions of the Messenger of Allah (SAW) as he (SAW) used to perform the ruling and the administration. He (SAW) conveyed the message, executed it and discharged the Muslims' affairs. With regards to the conveying (Tableegh) this is well known. With regards to the execution, the revelation came and ordered him to collect the Sadaqah, to cut the hand of the thief, to stone the adulterer, to lash the slanderer and to kill the enemy; all of which are executive actions. He (SAW) used to destroy the idols by his own hands which is an execution, and he would also send people to remove them. He (SAW) would kill in the battle-field and take prisoners of war, order people to observe justice and established it, punish all the various wrongdoers and rebels and order people to adhere to all that he brought to them. All of this is execution.
As for his role in managing the affairs, he (SAW) established a system of administration for the various departments and appointed secretaries to run those departments. He (SAW) used to run people's affairs in Madinah and he appointed secretaries to assist him with the running of the various departments. Ali Ibnu Abi Talib used to be the notary of the oaths and treaties, which was an administrative duty and not a ruling post. Al Mu'ayqib ibnu Abi Fatima was in charge of his official stamp, an administrative duty and not a ruling post. Al- Bukhari reported in the history from Muhammed bin Bashaar from his grandfather Mu'ayqib, who said: "The stamp of the Messenger of Allah (SAW) was made of iron covered with silver and it was with me (in my hand). Mu'ayqib was responsible for the stamp of the Messenger of Allah (SAW)". Mu'ayqib Ibnu Abi Fatima was also the secretary in charge of the spoils and booty. Huzayfah Ibnul-Yaman was the collector of fruit levies of Hijaz, and Abdullah Ibnu Arqam was the registrar of tribes and their waters and so on. All this serves as evidence that the Messenger of Allah (SAW) ran the administration in addition to carrying out his role as a ruler. However, he (SAW) had determined for each one of those directors the type of task he had appointed them to do, such as recording the spoils and booty, or the assessment and collection of fruit levies or the like. He (SAW) however, did not specify the subsidiary actions, which the directors would follow to accomplish their tasks. This non-specification meant that those actions are subsidiaries of that origin. Therefore, those people ordered to carry out those tasks would have been free to choose any styles they wished in order to accomplish the tasks assigned to them and discharge the interests in the most effective way.
Discharging of Interests is part of Ruling Affairs
Discharging the interests is part of running the affairs. This is the duty of the Khaleefah, who therefore reserves the right to adopt any administrative style he wishes and make it binding. The Khaleefah has the right to enact the administrative laws and systems and oblige people to implement them. These are subsidiary actions and the Khaleefah is allowed to oblige the people to act in accordance with them. The people must obey his orders, as this is an enforcement of the subsidiaries of a rule that he has adopted. Enforcement of one of them means abandoning others. This is exactly the same as the adoption of divine rules and should be treated in the same manner. It is an error to say that these styles are permitted (Mubah) and any person is entitled to adopt any style he wishes, so if the Khaleefah imposed a Mubah and prohibited another, he would be forbidding the Mubah. This is an error because, by adopting a certain style, the Khaleefah would not be making a Mubah compulsory and forbidding another Mubah, he would merely be acting within the rights given to him by Shar'a. One of these rights is the adoption of divine rules and styles that help to perform them. The mandatory powers that allow him to adopt the rules also allow him to adopt the styles that would help him to perform such rules. He is therefore entitled to adopt them, and his subjects must abide by what he has adopted and not use other styles if he prevented them from doing so. This type of Mubah action is that used to look after people's affairs. It is therefore Mubah for the Khaleefah to adopt it for running people's affairs because the guardianship is his duty. Adopting such styles would not be Mubah for the people at large for they do not have the mandate of guardianship. Thus the obligation of abiding by what the Khaleefah has adopted is because of the obligation of obedience to him and not because of making the Mubah compulsory.
The Administraion Details
This is as far as the administration as a whole is concerned. As for the details of the administration, they are taken from the nature of the administration itself. By examining its nature we find that some actions are performed by the Khaleefah himself or by his assistants, whether these were ruling, such as execution of the Shar'a, or the matters of administration or discharging the people's subsidiary interests which require styles and means. This is why a special structure is needed by the Khaleefah to manage the affairs that help him carry out the duties of Khilafah. The people also have interests that need to be addressed which are related to the subjects. These interests also require styles and means in order to perform them. Therefore a special structure has to be set up in order to discharge the people's interests.
This structure consists of administrations, departments and directorates. The administration is the overall management of any government office, such as education, health, agriculture, industry and others. This administration would undertake the management of its own affairs and all the departments and directorates under its control. The department would run its own affairs and those of the directorates under its control. The directorate would also run its own affairs and the affairs of all the sections and divisions under its control.
The purpose of establishing these administrations, departments and directorates is to manage the State's affairs and to discharge the peoples interests.
In order to guarantee the smooth running of these administrations, departments and directorates, directors must be appointed to take charge of them. For each administration, a general director would be appointed to take direct charge of it and to supervise all the departments and directorates that come under it. For each department and for each directorate a manager is appointed to be directly in charge of his department or directorate and to be responsible for the sections and divisions affiliated to it.
This describes the nature of the management of the administration, or what is called the State's administrations. It represents a general structure for all the subjects and for those who live under the authority of the State, and it has been called the Diwan. The management of the administrations or diwan was not organised in a specific way at the time of the Messenger of Allah (SAW). He (SAW) rather used to appoint for each administration a secretary who would act as the director, the secretary and undertakes all the related actions.
'Umar Ibnu Al-Khattab was the first in the history of Islam to introduce the Diwan. The cause for this was that he once dispatched an army expedition and Al-Harmazan, who was present at the time, said to ''Umar: "This is an expedition in which you ordered funds to be distributed amongst its people, but if anyone of them stayed behind, how would your companions know about him? Why don't you keep a record (register-Diwan) for this?" So 'Umar asked Al-Harmazan about the Diwan and he explained it to him. Abid Ibnu Yahya reported on the authority of Al-Harith Ibnu Nufayl that 'Umar consulted the Muslims about the recording of Dawawin, and Ali Ibnu Abi Talib suggested: "Divide all the funds you collect each year and do not keep any of them." 'Uthman Ibnu 'Affan said: "I see that there are a lot of funds being distributed amongst people, and if they are not counted in order to know who has taken and who has not, I fear that the matter could get out of hand." Upon this Al-Waleed Ibnu Hisham Ibnul-Mughira said: "I was in Ash-Sham and I noticed that its kings had introduced a Diwan and recruited soldiers, so why don't you do the same?' "'Umar took his advice and summoned 'Aqeel Ibnu Abi Talib and Makhrama Ibnu Nufayl and Jubayr Ibnu Mat'am who were young men from Quraysh and said: "Prepare a house to house census."
When Islam reached Iraq, the Diwan of payments and funds collection continued as before. The Diwan of Ash-Sham was in Latin for it had been part of the Roman Empire, and the Diwan of Iraq was in Persian for it had been part of the Persian Empire. In the time of 'Abdul Malik Ibnu Marwan the Diwan of Ash-Sham was transferred to Arabic, ie. in the year 81 AH. Several Dawawin were then set up according to necessity and depending on the need for them in running the people's interests. Dawawin for the armed forces were introduced for registration and grant purposes, and others were introduced to record the fees and claims of all transactions. Another Diwan was introduced for the 'Amils and Walis to record each appointment and each removal and other Dawawin were used in the treasury (Bait-ul-Mal) to record revenues and expenses and so on. The introduction of a Diwan was according to the need for it, and its style varied over the years due to the difference in styles and means.
A chief was appointed for each Diwan along with other employees, and in some cases the chief was allowed to appoint the employees himself. In some other cases employees were appointed to him not by him.
A Diwan would thus be set up according to need, along with the styles and means that would help discharging that need. It is permitted to have different styles and means according to the era, or Wilayah or country.
With regards to the responsibility of such civil servants, they are hired employees and at the same time citizens. At a professional level they are answerable to their own directorate manager, and as citizens they are answerable to the rulers whether these are Walis, the assistants or Khaleefah. They have to abide by the Shari'ah rules and the administrative systems.
The Policy of the Administration of Interests
The policy of the administration of interests is based on the simplicity of the system, speed in processing the tasks and the competence of the administrators. This is taken from the nature of processing the interest, for the person who requires a service needs to have it quickly and efficiently processed. The Messenger of Allah (SAW) said: "Verily Allah has enjoined the perfection to everything; so when you kill, do so in a good way and when you slaughter, slaughter in a good way," narrated by Muslim from Shaddad b. Aws. Therefore, the perfection in executing the actions is ordered by the Shar'a. To achieve this, the administration should observe three qualities. Firstly, the simplicity of the system which would lead to the ease of processing, whereas complication would lead to hardship. Secondly, the speed in processing the transactions would spare people of unnecessary delay. Thirdly, the ability and competence of the employees. This is required to perfect the task and is even required for the performance of the task itself.
Those who are Eligible to be Civil Servants
Anyone who holds citizenship and is competent, man or woman, Muslim or non-Muslim is eligible to be appointed as a director of any administrative department or to be an employee in it. This is taken from the rules of hiring (Ijara) where it is permitted to hire any person whether Muslim or non-Muslim. This is because the evidences for hiring are in general form. Allah (SWT) says:
"And if they suckled for you, do give them their wage." [At-Talaq: 6]
This is a general evidence. Al-Bukhari narrated from Abu Hurairah from the Messenger of Allah (SAW), who said: "Allah (SWT) said: I will challenge three people on the day of Judgement... and a man who employed a labourer, he received from him (the work) but did not give him his wage". This evidence is also general. The Messenger of Allah (SAW) himself once hired a man from Banu Ad-Deel who was a non-Muslim, which indicates that it is permitted to hire a non-Muslim just as it is to hire a Muslim. It is also permitted to hire a woman just as it is to hire a man, following the generality of the evidences. Therefore, it is permitted for a woman to be a director of a government department or to be one of its employees, and it is permitted for a non-Muslim to be a director of a government department or an employee in that department, for they are all hired staff, and the evidences about hiring are general. As for the requirement of citizenship in employment, this is because the citizen is subject to the implementation of the rules, and the rules are not implemented on those who do not hold the citizenship, i.e. those who do not settle in the Islamic land even if they were Muslims. This is because the Messenger of Allah (SAW) said while instructing the Ameer of the armed forces:
"Then ask them to move from their land to the land of the Muhajireen, and inform them that if they did so they would enjoy the same rights as the Muhajireen and would be subject to the same duties." - narrated by Muslim, by way of Buraydah.
This means that if they did not move they would not have the same rights and they would not necessarily have the same duties, even if they were Muslims. The persons referred to here are those upon whom the rules are implemented, otherwise it would have been permitted to hire those who do not hold citizenship due to the generality of the evidence about hiring.
The Civil Servants are State Hired Staff
The State's directors and employees are hired staff who are contracted in accordance with the rules of hiring. Their appointment, removal, transfer and censure would be carried out by those who head their admistrations, directorates or departments and in accordace to the administrative regulations.
This is deduced from the rules concerning hired personnel. The employer and the employee should abide by the contract of hiring, because the contract is binding on both sides according to what has been contracted. For example, it would be, for instance, unlawful to remove an employee before the term of contract had expired.
Abiding by the general administrative rules, forms part of the conditions laid out in the contract and these must be honoured. The Messenger of Allah (SAW) said: "The Muslims are bound by their conditions," as narrated by Abu Dawoud from Abu Hurairah. As for the transfer of personnel from one place to another, this should also be subject to the contract of employment.
The one responsible to hire, transfer, censure and dismiss staff would be the director of the respective department, directorate or administration. This is because he is in charge of the department of their work, and he is the one who has the power according to the responsibility entrusted to him.
The Council of the Ummah
This is a Council formed of individuals representing the opinion of the Muslims at large, to whom the Khaleefah can refer to consult them on various issues. They in turn are the representatives of the Ummah in holding the rulers accountable. This is deduced from the Messenger of Allah's (SAW) nomination of fourteen chiefs (Nuqaba') from the Ansar and the Muhajireen in order to consult with them about matters. It is also deduced from the fact that Abu Bakr (ra) designated some men from the Muhajireen and the Ansar to refer to them seeking their opinion when something happened. The people of the Shura at the time of Abu Bakr (ra) were the Ulama and the people of Fatwa. Ibnu Sa'ad reported from Al-Qasim that when something happened and Abu Bakr wanted to consult the people of opinion and the people of Fiqh, he called from the Muhajireen and the Ansar. 'Umar, 'Uthman, Ali, Abdur Rahman b. Awf, Mu'az b. Jabal, Ubai bin Ka'ab and Zaid b. Thabit. They all used to give their opinion during the Khilafah of Abu Bakr. People would also take their Fatwa. When 'Umar became Khaleefah he would also call these people, while the Fatwa in his time was to 'Uthman, 'Ubai and Zaid. This indicates that it is permitted to set up a special Council that represents the Ummah in holding the rulers accountable, and to participate in the Shura. This is confirmed by texts from the Qur'an and the Sunnah. It is called the Council of the Ummah because it represents the Ummah in accounting and consultation.
It is permitted for non-Muslim citizens to be members of the Council, in order to file complaints against any injustice perpetrated against them by the rulers or against any mis-implementation of Islam upon them.
The Right of the Shura
Shura is a right of all the Muslims which the Khaleefah should fulfil. They are entitled to be consulted and the Khaleefah should refer to them and consult them. Allah (SWT) says:
" And do consult them in the matter, and if you decide (on an action/on an opinion) put your trust in Allah" [Al-’Imran: 159]
The Messenger of Allah (SAW) used to refer to people and consult with them. He (SAW) consulted them on the day of Badr about the location of the battlefield, and he consulted them on the day of Uhud about whether to fight inside or outside Madinah. On the day of Badr he took the advice of Al-Habab Ibnul-Munzir regarding a technical opinion voiced by an expert which he accepted. On the day of Uhud he accepted the opinion of the majority, despite the fact that his personal opinion was different.
'Umar b. Al-Khattab consulted the Muslims regarding the land of Iraq, whether to divide it among the Muslims because it was booty or to leave it in the hands of its people with the condition that they paid its Kharaj while the land remains the property of the Treasury. He then acted according to his own Ijtihad and the majority of the Sahabah approved of it, so he left the land in the hands of its people and ordered them to pay the Kharaj. He also removed Sa'ad Ibnu Abi Waqqas from his Wilayah because of complaints against him and he said: "I did not remove him because of a betrayal or a weakness."
As well as having the right to be consulted by the Khaleefah, the Muslims should also hold the rulers accountable for their actions and conduct. Allah (SWT) has commanded the Muslims to hold the rulers accountable and He (SWT) strongly directed them to be firm with them if they violated the rights of the citizens, if they neglected their duties towards them, if they ignored any of their affairs, disagreed with the ahkam of Islam or governed with other than what Allah brought down. Muslim narrated from Umm Salamah that Rasool Allah (SAW) said:
“There will be ameers, you recognise (something of what they do) and you reject (some). Whosoever recognised, he would be absolved (of sin) and whosoever rejected, he would be safe. But whosoever accepted and followed (what they do, he would not be safe). They (the Sahabah) asked 'Shouldn't we fight them?' He said: 'No, as long as they pray'"
The Sahabah on some occasions did disapprove of some of the Messenger of Allah's (SAW) actions. 'Umar strongly protested against what came in the treaty of Hudaybiyah, namely the part which states: "Any one who comes to Muhammad from Quraysh without the permission of his guardian would be returned to them, and whoever comes to Quraysh from among those who were with Mohammad they would not return him back". This was reported by Ibnu Hisham in the Seerah from Az-Zuhri. The Muslims, especially ''Umar, at first disapproved the action of Abu Bakr when he decided to fight the apostates. Talha and Az-Zubayr also disapproved of his action when they learned that he was to nominate 'Umar after him.
Bilal Ibnu-Rabah, Az-Zubayr and others disapproved the action of 'Umar when he decided not to divide the land of Iraq among the fighters. A woman also challenged 'Umar when he decided to fix the dowries at 400 Dirhams, when she said to him: "O ''Umar, it is not up to you. Did you not hear Allah’s (SWT) saying:
"Even if you gave them (your wives) a whole treasure for dowery, do not take any of it." [An-Nisa’a: 20]
Upon this, 'Umar said: "The woman is right and 'Umar was wrong."
Therefore, the Council of the Ummah has the right to be consulted, and is obliged to hold the rulers accountable.
The Hukm (rule) of Shura
Shura is the verbal noun of the verb 'Shawara', or consulted. It means seeking the opinion from the one who is consulted. When it is said 'Istashara', it would mean that one asked another for advice.
Shura and Mashura have the same meaning. This can be verified from looking in the Arabic dictionaries like "Lisaan al-Arab" and "Mukhtar as-Sihaah".
The validity of Shura is established from the command of Allah (SWT) to His Prophet (SAW) to consult the believers. Where He (SWT) said to him:
"And do consult them in the matter..." [Al-’Imran: 159]
This order of consulting (Mushawarah) is only just a request. The request would be compulsory, recomended or Mubah, according to the connotations.
This order of consulting (Mushawarah) is not linked with an evidence (Qareena) that indicates decisiveness and obligation. It is rather linked with evidences (Qaraain) that dismiss decisiveness and remove obligation from it, as follows:
1. The saying of Allah (SWT) in the previous verse in the matter (Fil-Amr) means consultation in every matter whatever its kind. However since duties (Wajibaat), and prohibitions (Muharramaat) and the divine rules explained by the Shar'a and specifically stated by it, have no place for human opinions about them, there is no scope for consulting about them, Allah (SWT) is the only Legislator (Musharri') and He is the only Ruler, and ruling (i.e. judgement) belongs to Him. He (SWT) said:
"Verily, Ruling is only for Allah" [Yusaf: 40]
He (SWT) also said:
"Follow that which was revealed to you from your Lord" [Al-A'raf: 3]
And He (SWT) said:
"And whatever the Messenger brought to you take it, and whatever he forbade you of leave it." [Al-Hashr: 7]
There are other verses in addition to the above. All this makes the consultation of the people over these matters of no real value and with no scope. This indicates that these rules restrict the general ('Aamm) meaning of the word Al-Amr (the matter) in this verse. This also indicates that the consultation is over other matters, which are Mubah. This represents an evidence that dismisses the decisiveness and obligation away from Shura.
2. The saying of Allah (SWT) in the same verse "And if you decided (on an action/on an opinion) then put your trust in Allah", meaning that the decision is refered to the Messenger (SAW), not to the advisers. This is a second evidence confirming that the order for consultation is not obligatory.
3. The Messenger of Allah (SAW) carried out many actions and decided upon many matters such as appointing governors (Walis), secretaries, generals of expeditions and armies, concluding ceasefire, sending messengers and delegates. All of that without consulting the Sahabah. This is a third qareenah that the command of consultation (Shura) does not indicate decisiveness and obligation. Had it meant decisiveness, then the Messenger of Allah (SAW) would have consulted his Sahabah in these actions which he executed.
As Shura, Mashurah and Istisharah are not obligatory, they are considered as either recommended (Mandub) or permissible (Mubah). By reviewing the evidences, we find the opinion regarding them to be recommended (Mandub). The following are some of the evidences, which indicate that Shura, Mashurah, and Istisharah are preferable (Mandub).
1. Allah (SWT) praised the believers for consultation (Shura) and commanded them that their affair is Shura (consultation) between them. When Allah (SWT) says:
"And their affair is consultation (Shura) between them." [Ash-Shura: 38]
2. The frequent consultation by the Messenger of Allah (SAW) with his Sahabah in matters indicates his concern for it, his interest in it, it's importance and also to teach the Muslims after him to take care in practising Shura. At-Tirmithi narrated from Abu Hurrayrah, who said:
"I never saw a person who consulted his companions more than the Messenger of Allah (SAW) did."
3. The command of Allah (SWT) to His Messenger (SAW) to consult the believers came on the occasion of commanding him to be gentle with them, to forgive them and to pray for them, by saying:
"It is by the mercy of Allah that you deal gently with them. Were you severe or harsh-hearted with them they would have broken away from you. So pass over (their faults) and ask for Allah's forgiveness for them and consult them." [Al-’Imran: 159]
These are evidences (Qaraa'in) which indicate that consultation (Istisharah) is recomended (Mandub).
The recommended (Mandub) consultation (Shura) is undertaken with regards to the permissible (Mubah) actions and matters. However, the divine rules regarding the matters over which there is no explicit text from the Book of Allah and the Sunnah of His Messenger and which need research and investigation so as to conclude them, as well as the definitions and the technical and intellectual matters which require research and scrutiny together with those matters related to opinion, warfare and planning, all of the above matters are referred to the scholars, the specialists and the people of experience. The opinion of the majority or the minority regarding them is of no value. In addition, the opinion of those who are consulted is not binding. This opinion is deduced from the Messenger (SAW) where he referred to the Sahabah consulting them regarding the prisoners of war at Badr in terms of which option he takes from amongst the options of the rule (Hukm) of the prisoners of war which was already revealed. It is also deduced from Abu-Bakr and 'Umar (ra), during the term of their Khilafah, turning to the senior Sahabah and their scholars whenever an event happened or a case for judgement was brought to them, and they did not find a verdict about it in the Book of Allah and the Sunnah of His Messenger's r. It is also taken from the acceptance of the Messenger (SAW) of Al-Hubab b. Al-Munthir's opinion in choosing the place of the battle of Badr.
While consultation (Shura) over the permissible (Mubah) matters is recommended (Mandub), it is allowed for a Khaleefah to bind himself to some or all of these allowed matters. Once he has obliged himself to certain matters, he has to abide by it and is under obligation to carry out the consulted matter. This is derived from the fact that when the post of Khaleefah was offered to 'Uthman bin Affan (ra), he accepted to proceed according to the way of Abu Bakr and 'Umar (ra) in ruling, as it was proposed to him. This happened in the presence of the Sahabah (ra) without any objection from them.
When the Khaleefah consults the Council of the Ummah he has to abide by the majority opinion in practical matters and in those matters which do not require study or scrutiny. This applies to the State domestic matters in ruling, education, health, trading, industry, farming and the like. The same view applies when he is brought to task for actions he actually carried out in these matters. This view is derived from the Messenger's (SAW) abidement of the majority opinion to leave Madinah to confront the Mushrikeen army at the Battle of Uhud, although his opinion and those of senior Sahabah was to stay in Medinah and not to go out. It is also derived from his saying (SAW) to Abu Bakr and 'Umar (ra): "Had you agreed together on a consulted matter I would have not disagreed with you." As narrated by Ahmed from Ibnu Ghanam b. Al-Ash'ari.
If however, the Khaleefah consulted the Council in other matters such as the technical and intellectual issues, which require study and scrutiny, or in matters of warfare and planning, then the majority opinion over such matters is not binding for the Khaleefah and the decision is his to make. This is taken from the acceptance of the Messenger (SAW) of the opinion of Habab b. Al-Munthir in choosing the place of the Battle of Badr without even considering consultation over the matter. It is also derived from the rejection of Abu Bakr (ra) the opinion of most of the Sahabah not to fight against the apostates (Al-Murtadeen) and those who rejected to pay the Zakat when he took the post of Khaleefah. This view applies when the Council takes the Khaleefah to task over what he actually executed of such matters. The majority opinion in this case is also not binding.
With regarding to what the Khaleefah wants to adopt of divine rules and canons, he is allowed to present these to the Council to take its opinion regarding them. However, the opinion of the Council regarding this adoption is not binding for the Khaleefah, regardless of being the opinion of the majority or the minority. The decision over this issue remains his, because the adoption of the divine rules and cannons is his responsibility, as derived from the consensus (Ijma'a) of the Sahabah. It is also taken from the agreement of the Muslims of what 'Umar (ra) made when he consulted them over the issue of the land of Iraq after it was conquered.
Electing the Members of the Council of the Ummah
The members of the Ummah's Council are elected and not appointed. They are representatives of the people in the voicing of opinions, and should be chosen by the people they represent, and should never be imposed upon them. This is because the members of the Ummah's Council are representatives of the people's opinions, whether they are individuals or groups. To know the representative of people in a large area and the uncounted folk does not come about unless this representative is chosen by them. The Messenger of Allah (SAW) did not choose those whom he consulted based on their ability, competence and personalities. He rather chose them on two points: Firstly, because they were chiefs among their folks, regardless of their ability and competence. Secondly, because they represented the Muhajireen and the Ansar. The reason for the presence of the people of the Shura is to represent the people. The tenet therefore upon which the Ummah's Council members are chosen should be the representation of people, as was the case in the deliberate selection of representatives for the Muhajireen and the Ansar. This representation of the groups and individuals who are uncounted cannot be achieved except by election. The members of the Ummah's Council have to therefore be elected. As for the fact that it was the Messenger of Allah (SAW), himself, who chose whom he consulted, this was because the area in question, Madinah, was small and because the Muslims were known to him. In contrast, in the second Bai'ah of Al-Aqaba, the Muslims who gave him the Bai'ah were not known to him and this is why he left the matter of choosing the chiefs to them, by saying: "Choose from among you twelve leaders who will be responsible for themselves and their people." As reported in the Seerah of Ibnu Hisham from Ka'ab b. Malik.
We can thus conclude that the members of the Ummah's Council represent the opinion of the Muslims at large. This is because the reason ('Illah) for which the Council is founded is to represent the individuals and groups in voicing their opinions and in holding the rulers accountable, and since this cannot be achieved if the persons were not known, unless there was a general election. This proves that the members of the Ummah's Council should be elected and not appointed.
The Membership Term of the Council of the Ummah
The term of membership to the Council of the Ummah is limited. This is because Abu Bakr was not restricted to consult those to whom the Messenger of Allah (SAW) used to refer. 'Umar b. Al-Khattab also was not under obligation to consult those whom Abu Bakr used to consult. In the latter years of his rule, 'Umar sought the opinions of persons other than those he had consulted in the first years of his ruling. This indicates that the membership to the Council of the Ummah has to be for a specific period.
Membership of the Council of the Ummah
Any person who holds the citizenship of the State, if he were mature and sane, has the right to be a member of the Council of the Ummah and the right to elect the members of the Council, whether the person was a man or a woman, a Muslim or non-Muslim. This is because the Council of the Ummah is the people's representative in opinion only, and has no mandate to rule and legislate. Since the Council is the representative in voicing opinions, people in the Islamic State have the right to delegate whomever they wish from among those who lawfully qualify as representatives. This is just like the Muslim and the non-Muslim has the right to voice his opinion regarding the way Islam is implemented on him, and regarding any possible unjust act perpetrated against him by the ruler. He therefore has the right to have any representative he wishes and to represent anyone he wishes. Accordingly, the representative and the represented do not have to be Muslims, they can be either Muslims or non-Muslims. This is why it is permitted for non-Muslims, just as it is for Muslims, to elect their representatives to the Council of the Ummah, whether Muslim or non-Muslim, as long as they hold the citizenship of the State.
Beside this, Islam looks upon the subjects under its authority from a purely human viewpoint, regardless of the sect, race, or sex. The ruling policies designed for them would be founded on this basis, so that the ruling is for the benefit of humanity, thereby taking it out of the darkness into the light. The citizens are thus equal in terms of rights and duties related to the human in his capacity as a human, as far as the implementation of the divine rules on everyone is concerned. When the judge settles the disputes and when the rulers rule, they do not differentiate between people, they treat them as equals in their quality as citizens and nothing else. Each citizen therefore has the right to voice his opinion and to choose his representative to express his opinion and those who elected him. This is because Allah (SWT) has addressed all people with Islam in their quality as humans and nothing else. He (SWT) says:
"O you people, a proof has come to you from your Lord, and we have revealed to you a shining light." [An-Nisa’a: 174]
And He (SWT) also says:
"O you people, I am the Messenger of Allah sent to all of you." [Al-A'raf: 158]
The scholars have agreed, especially the scholars of Usul (foundations), that the divine rules are addressed to every sane person able to understand the speech, whether he is Muslim or not, male or female. This is as far as the non-Muslims are concerned. As regards the membership of Women, this is because the Council of the Ummah is not part of ruling and is not subject to the Hadith of the Messenger of Allah (SAW) which relates to the woman's guardianship. It has also been confirmed that when 'Umar had a problem brought to his attention and he wanted to consult the Muslims about it, whether the problem was related to the divine rules (legislation) or related to ruling or any other matter that concerned the State, he would summon the Muslims to the mosque, and he would summon both men and women and ask them all for their opinion. He, on one occasion, reversed his opinion when a woman pointed out to him that it was wrong to fix the Doweries. In the thirteenth year of the Messenger of Allah's (SAW) Prophethood, the year he emigrated, there came to the him (SAW) seventy-five Muslims, among whom were two women, and they all gave him the second Bai'ah of Al-’Aqaba, which was a Bai'ah of war and fighting and a political Bai'ah. Once they had all given their Bai'ah, he said to them: "Bring me twelve Chiefs (Naqeebs) from among you who would be responsible for themselves and their folk." This order was addressed to everyone, to select from among everyone present. He (SAW) did not specify whether they should be men or women and he did not exclude the women, neither in regard to who was to select, nor to who should be selected. The Mutlaq (unrestricted) rule should be taken as such, unless there is evidence that restricts it, and the A'am (general) rule should also be taken as such, unless there is an evidence that specifies it. In this case the speech was unrestricted and general. No evidence of specification or restriction has been reported, which indicates that the Messenger of Allah (SAW) ordered the two women to elect the Naqeebs, and gave them the right to be chosen as Naqeebs from among the Muslims. This bai’ah is also over ruling, because the Qur’an decides that they are believers, and the bai’ah was over not disobeying him in any ma’aroof. The Messenger of Allah (SAW) sat once to take the Bai'ah from the people, with Abu Bakr and 'Umar sitting with him, and both men and women gave him the Bai'ah. This Bai'ah was one on ruling and not on Islam, for the women were already Muslims. After the Bai'ah of the Rudhwan in Hudaybiyah the women gave him their Bai'ah too. Allah (SWT) says:
"O Prophet! When believing women come to you to take the oath that they will not associate in worshipping any other thing whatsoever with Allah, that they will not steal, that they will not commit adultery …
Moreover, the woman has the right to delegate somebody in voicing the opinion, and for somebody to delegate her, because she has the right to voice her opinion, so she can choose her representative over it. It is also because the representation (Wakala) does not necessitate manhood, thus she has the right to represent others.
Despite all this, non-Muslims would not be allowed to voice their opinion in matters related to legislation, because the Islamic legislation emanates from the Islamic Aqeedah. It is a host of practical divine rules deduced from their elaborate evidences, which treat the human's problems according to a specific viewpoint outlined by the Islamic Aqeedah. The non-Muslim embraces a doctrine that is alien and contradictory to the Islamic Aqeedah, and his viewpoint about life contradicts the Islamic viewpoint, so his opinion is not sought in matters of legislation.
The non-Muslim does not have the right to elect the Khaleefah, nor to participate in the short listing of the candidates from whom the Khaleefah is to be elected, for he has no right in the ruling. As for other matters that form part of the Ummah's Council mandatory powers, he is just like the Muslim in these matters and in voicing an opinion regarding them.
The Mandatory Powers of the Council of the Ummah
The Council of the Ummah has mandatory powers and they are:
1. (a): The Khaleefah has to consult the Council and the Council has the right to advise him in the practical matters and actions that do not require investigation and scrutiny such as the matters of ruling, education, health, economy, trading, industry, farming and the like. The opinion of the Council in these matters is binding.
(b): In the intellectual matters that require investigation and scrutiny, the technical and the financial matters together with the affairs of the armed forces and foreign policy, the Khaleefah has the right to refer to the Council for consultation and acquainting of its opinion. However the opinion of the Council is not binding.
2. The Khaleefah has the right to refer to the Council the laws and rules which he wants to adopt. The Muslim members of the Council have the right to debate them and voice their opinions regarding those rules. However, their opinion is not binding.
3. The Council of the Ummah reserves the right to hold the rulers accountable on all matters that take place effectively within the State, whether these are related to domestic affairs, foreign affairs, financial affairs or military matters. The opinion of the Council is binding if the majority's opinion in such matter is binding, and it is not binding if the majority's opinion in such matter is not binding.
If the Council and the Khaleefah differed about the legitimacy of an action that had been already executed, the matter should be referred to the court of Mazalim to settle the question. Its verdict on the matter is binding.
4. The Council of the Ummah reserves the right to express discontent towards the Walis or the 'Aamils. Its opinion in such case would be binding and the Khaleefah should dismiss them at once.
5. The Muslim members of the Council have the right to restrict the nomination of candidates for the Khilafah. Their opinion in such a matter is binding, and candidates other than those put forward by the Council should accordingly not be considered.
These are the mandatory powers of the Council of the Ummah.
The first article is divided into two sections. The evidence for section (a) is derived from Allah’s (SWT) saying:
"And do consult them in the matter," [Al-’Imran: 159]
And His (SWT) saying:
"And their matter is in consultation between them." [Ash-Shura: 38]
So He (SWT) made the Shura general in every matter, for He (SWT) says:
"In the matter," [Al-Imran: 159]
Where the term Al-Amr (the matter) it is a generic noun and defined by Al (the). He (SWT) says:
"And their matter." [Ash-Shura: 38]
Where the term Amruhum (their matter) is generic noun and defined by genetive and both terms are general ('Aam) so they include everything. However, this general term ('Aamm) has been specified in matters other than the divine rules (Ahkaam Shar'iyah). This is because the divine rules are revelation from Allah (SWT) and there is no scope for the people's opinion regarding matters brought down by revelation. For Allah (SWT) alone is the Commander and the Legislator.
As for the evidence of the opinion of the council of the Ummah is the operational action and matters, which does not require scrutiny and investigation, being binding. This is derived/deduced from the acceptance of Rasool Allah (SAW) of the opinion of the majority to go outside Madinah to confront the army of the Mushrikeen in the battle of Uhud. This is despite that his (SAW) opinion and that of the senior Sahabah was to remain in Madinah and not to go out. It is also taken from his (SAW) saying to Abu Bakr and Umar (RA):
“You (both) agreed on a Mashurah, I would not disagree with you”.
As for the evidence for section (b), this is the choice made by the Messenger of Allah (SAW) for the location of the Battle of Badr, based on the proposal of Al-Habab b. Al-Munthir, without consulting his companions over the matter to seek their opinion, let alone committing himself with that proposal. Thus the intellectual and the technical matters together with the finance, army and foreign affairs are referred to the opinions of the experts and the professionals without giving any weight to the opinion of the people whether they were minority or majority.
The fact that the Shura is over the Mubah things is an indication (Qareena) that it is Mandoub. Indeed the Messenger of Allah (SAW) used to refer to the honourable Sahabah over many matters and on many occasions to consult them and seek their opinion. Ahmad has reported from Anas that "the Messenger of Allah (SAW) consulted (people) when he heard the news of the advent of Abu Sufyan." Ahmad narrated from Anas, who said: "The Messenger of Allah (SAW) consulted when he went to Badr. Abu Bakr expressed his opinion to him. Then he consulted 'Umar who expressed to him his opinion. Then he consulted them, so some of the Ansar said: 'The Prophet of Allah (SAW) wants you to speak O folk of Al-Ansar.' Some of the Ansar said: 'Do you consult us O Prophet of Allah? We do not say as the children of Israel said to Musa (as): 'You and your Lord go and fight, but we will stay at home. But, by He who sent you with the Truth, if you were to take us to Bark al-Ghimad, we would follow you.'" Regarding the captives of Badr, Ahmad reported on the authority of 'Umar "...The Messenger of Allah (SAW) consulted Abu Bakr, 'Umar, and Ali..." Ibnu Ishaq reported from Az-Zuhri, who said: "When hardship increased on the people, the Messenger of Allah (SAW) sent to Uyayna b. Husn and Al-Harith b. Awf Al-Murri, the two leaders of Ghatafan, and he (proposed to) give them the third of the Madinah produce on condition that they return together with their folk, leaving (the fight against) him and his companions. Agreement was reached between them to the point that they wrote that in a letter, without calling the witnesses and without the decision of concluding the peace except the negotiation over that. When the Messenger of Allah (SAW) wanted to conclude that he sent to Sa'd b. Mu'az and Sa'd b. Ubadah. He mentioned the matter to them and consulted them..." Also, the Messenger of Allah (SAW) consulted his companions in the Battle of Uhud, whether to leave Madinah or stay in it. This is in addition to other consultations. Likewise Abu Bakr used to refer to the leaders of Al-Muhajireen and Al-Ansar and to their scholars to consult them. He consulted them over the issue of fighting against the apostates, those who refused to pay the Zakat and in the matter of invading the Romans besides other matters. 'Umar and the Khulafaa after him, also used to refer to the people for their consultation and opinion.
People sometimes used opinions based on their own initiative, to advise the Khaleefah over some matters. This happened with Abu Bakr after he became Khaleefah and wanted to dispatch Usama with his army, when most of the Arabs apostasised from Islam. 'Umar, 'Uthman, Abu Ubaydah, Sa'd b. Waqqas and Sai'd b. Zaid called on him to advise him not to send Usama, but he rejected their request. These incidents practiced by the Messenger of Allah (SAW) and the guided Khulafaa after him occurred in front of the Sahabah. They indicate that Shura and referring to the people to consult them and seeking their opinion is Mandoub. Thereupon, it is Mandoub for the Khaleefah to return to the Council of the Ummah to consult it and seek its opinion over the various matters and actions.
When the Khaleefah refers to the Council of the Ummah to seek its opinion over the practical matters and the actions, he must commit himself to the opinion of the majority. This is based on the compliance of the Messenger of Allah (SAW) with the opinion of the majority in the Battle of Uhud, though his opinion and that of the Sahabah was different to that of the majority. He (SAW) gave up his opinion and that of the Sahabah and complied with the opinion of the majority. This indicates that in such an incident, which is the type of action that does not need study and scrutiny, the opinion of the majority of Muslims is adopted. It is also taken from the saying of the Messenger of Allah (SAW) to Abu Bakr and 'Umar as narrated by Ahmad from Ibnu Ghanam al-Asha'ri "Had you agreed together in a Mashura I would not disagree with you." The Mashura in this Hadith is itself Shura, which covers consultation in any practical matter or an action.
This is with regard to the part (a) from the first section. As for part (b) if the Khaleefah refers to the Council to seek its opinion in the matters of this part , its opinion is not binding. Originally, the Khaleefah takes the opinion of the scholars, experts and professionals in the matters of this part as it occurred with the Messenger of Allah (SAW) when he adopted the opinion of the Habab b. Al-Munthir regarding the selection of the place of the Battle of Badr. It was narrated in the Seerah of Ibnu Hisham that, when he (SAW) camped at the near side of the water of Badr, Al-Habab b. Al-Munthir was not happy with this place. He said to the Messenger r: "O Messenger of Allah! Did Allah make you camp in this place where we can't depart from it, or is it the opinion, war and strategy?" He (SAW) said: "It is rather the opinion, war and strategy." Al-Habab b. Al-Munthir said: "O Messenger of Allah, this is not the (right) place. Move the people till we come to the side of the water near to the people (enemy), we camp there, then we seep away the water from the other part, we build a basin on top of it, we fill it with water. Then we fight against the people where we drink and they do not." The Messenger of Allah (SAW) said: "You gave the (right) opinion." So the Messenger of Allah (SAW) and the Muslims stood up and walked till they reached the near side of the water from the enemy and camped there. Then he (SAW) ordered that the water be seeped away which was done. He (SAW) built a basin on top of the seeped wells, where it it was filled with water and they threw in their (water) pots." So the Messenger of Allah (SAW) agreed with the opinion of al-Habab and followed it.
In this incident, which has to do with the opinion, war and strategy, the views of the people have no weight in taking the decision. Rather the view of the expert is what is considered. Similar to this are the technical matters and the thoughts which require study and scrutiny, together with the definitions. In all of such matters, reference is made to the experts and professionals and not to the ordinary peoples' opinion. There is no weight to the majority for such matters, but rather to those with knowledge, experience and specialisation.
This also applies to the financial matters, because the Shar'a has determined the types of funds which must be collected, and the areas over which they need to be spent. The Shar'a has also determined the cases when taxes are imposed, therefore there is no point in seeking the opinion of the people in the collection and allocation of the funds. Similar to this is the army, the Shari'ah has left to the Khaleefah the right of managing the army's affairs, and it determined the rules of Jihad. There is no validity in the opinion of the people over matters decided by the Shar'a. This also applies to the relationship of the State with other States, because this is of the thought that requires study and deep insight and is related to Jihad. Furthermore, it is a part of the opinion, war and strategy. Therefore, there is no point in the opinion of the people in this matter whether it is the majority or minority. However, the Khaleefah is allowed to present these matters to the Council of the Ummah for its consultation and opinion, because such presentation is of the Mubah, and the opinion of the Council in these matters is not binding as in the incident of Badr.
With regard to the second section, although what the Khaleefah wants to adopt of rules and Canons is of his duties, and the opinion of the council regarding these matters is not binding, the Khaleefah has the right to refer to the Council of the Ummah to ascertain their opinion over the divine rules and canons which he wants to adopt. This is similar what 'Umar b. Al-Khattab (ra) did when he referred to the Muslims over the divine rules, which the Sahabah did not object to, as in the incident of the conquered lands of Iraq, when the Muslims asked him to divide the lands amongst the fighters who opened them. Hence 'Umar asked the people, but his opinion settled on keeping the land with its landlords on condition that they pay a known Kharaj over it in addition to paying the Jizya over their persons. The reference of 'Umar and Abu Bakr before him to the Sahabah for their opinion over the divine rules without an objection from the Sahabah to this, indicates their Ijma'a. This is an evidence that the Khaleefah has the right to refer to the Muslims to seek their opinion over the divine rules when he does not find texts about them in the Book of Allah and the Sunnah of His Messenger, or he finds them difficult to understand or when he wants to adopt them. Their opinion in all of these matters is not binding to the Khaleefah.
The non-Muslim members of the Council do not have the right to look into what the Khaleefah wants to adopt of rules and canons because of their disbelief in Islam. Their right is in voicing their opinion of the injustice of the rulers towards them, not in expressing of their opinion over the divine rules and canons.
With regard to the third section, its evidence is the general meaning of the texts related to bringing the rulers to task. Ahmad narrated from Ibnu 'Umar, who said "The Messenger of Allah (SAW) said 'There will be Ameers over you who order you of things they do not do. Whoever believed them in their lies and helped them in their injustice he would not belong to me nor I belong to him, and he will not join me on the Hawdh (basin).'" Ahmad narrated from Abu Said al-Khudri, who said: "The Messenger of Allah (SAW) said: "...The best of Jihad is (to say) a word of truth before an oppressor ruler"." Al-Haakim narrated from Jaber from the Prophet (SAW) who said: "The master of martyrs is Hamza b. Abdul-Muttalib and a man who stood to an oppressor ruler where he ordered him and forbade him so he (the ruler) killed him." Muslim narrated on the authority of Awf b. Malik al-Ashja'i that the Messenger of Allah (SAW) said: "Beware! Whoever gets a Wali over him and he saw him (the Wali) commit some sin (disobedience to Allah), he has to hate that sin but must not withdraw his hand from obedience." Muslim narrated from Umm Salamah that the Messenger of Allah (SAW) said: "There will be Ameers Appointed over you, you recognise some of what they do and deny some. Whoever recognised he is absolved from blame. Whoever disapproved (of their bad deeds) he is safe. But whoever consented and followed them (he is doomed)." These texts are general in their wording and indicate that accounting is over any action. When the Messenger (SAW), was opposed by the Sahabah over the Hudaibiya treaty contract, they contested with him severely but he (SAW) did not rebuke them for their disagreement. He (SAW) rather rejected their opinion and concluded the peace contract, because what he did was revelation from Allah (SWT) and there is no weight for the peoples opinion in such matters. He (SAW) rebuked them because they did not obey his order when he asked them to slaughter the sacrificed animals (Al-Hadi) and shave their heads and break their Ihram. The Messenger (SAW) did not also rebuke al-Habab b. Al-Munthir in Badr when he objected to the place of camping chosen by the Messenger (SAW), rather he (SAW) followed his opinion. This accounting by the Council to the Khaleefah and other assistants, governors and 'A'mils would be over an action which has been actually executed whether this action disagreed with the divine rule, was wrong or harmful to Muslims, or was unjust or complacent toward the citizens in looking after their affairs. The Khaleefah must respond to this accounting and the objections by showing his view and evidence regarding the words, actions and tasks he undertook so that the Council can be assured of the good performance, the sincerity and honesty of the Khaleefah. If however the Council does not accept the view of the Khaleefah and rejects his argument, this must be examined. If this matter was of the issues over which the majority opinion is binding then the opinion of the Council is binding, otherwise it would not be.
It is not correct to ask: "What is the value of accounting the Khaleefah when he is not obliged to act according to this accounting?" This is because accounting is a divine rule which has to be performed, and it is a duty of sufficiency. Furthermore the nature of accounting is that it reveals information about the opinion, and clarifies it. It also warns the public opinion and arouses it, for the public opinion is more powerful than the armies, and the rulers everywhere fear it. Therefore, accounting is of great value.
If those who account differed with the rulers over any matter from the legal point of view, the matter is referred to the court of unjust acts (Al-Mazalim) by a request from the Council, due to what Allah (SWT) says:
"O you who believe obey Allah and obey the Messenger and those in authority from amongst you. If you disputed over a matter refer it to Allah and the Messenger." [An-Nisa’a: 59]
This means that if the Muslims dispute with the people of authority over a matter, they should refer it to Allah and to the Messenger, that is to arbitrate with the Shar'a. This means to refer to Judiciary, that is to the court of unjust acts and its opinion is binding.
With regards to the fourth section, its evidence is that the Messenger of Allah (SAW) removed al-'Ala'a bin Al-Hadhrami, his A'mil over Bahrain, because the delegate of Abd Qais complained about him to the Messenger r. Ibnu Sa'ad narrated on the authority of Muhammad b. 'Umar: "That the Messenger of Allah wrote to al-Ala'a b. Al-Hadhrami to come to him with twenty men from Abd Qais. He reached him with twenty men headed by Abdullah b.Awf al-Ashajj, and appointed after him Al-Munthir b. Sawa. The delegate complained of al-Ala'a b. Al-Hadhrami so the Messenger of Allah (SAW) removed him and appointed Iban b. Said b. Al-A'ass and said to him: 'Take care of Abd Al-Qais and respect their chiefs.'" Also 'Umar b. Al-Khattab removed Sa'ad b. Abi Waqqas from the Wilayah just because of the complaint of the people against him, and he said: "I did not remove him because of deficiency or treason", This indicates that the people of the Wilayah have the right to express their anger and discontent of their Walis and Ameers, and the Khaleefah thus has to remove them. Likewise, the Council of the Ummah is allowed, as a representative of all Muslims in the State, to express its anger and discontent of the Walis and 'A'mils and the Khaleefah has to remove them immediately.
With regards to the fifth section, the proof is that the Muslims asked 'Umar, when he was stabbed and was close to death, to appoint somebody after him, but he rejected. They repeated the request, so he nominated six persons. This was a consent (Ijma'a) by silence (agreement), which is an evidence that Muslim members of the Council of the Ummah have the right to shortlist the nominees for the post of Khilafah, and their opinion in this matter is binding. It was proved that 'Umar assigned fifty men to watch the six men he nominated, and he ordered them to kill anyone of them who opposed the chosen successor. He also assigned to the six three days, a matter which indicates obligation. As for non-Muslim members, they have no right in shortlisting the nominees, because the Bai'ah is specific to Muslims.
The Right of speech and expression of opinion
Every member of the Council of the Ummah has the right to speak and voice an opinion as he wishes without any pressure and within the limits allowed by Shari'ah . The member would be a representative of the Muslims with responsibility for voicing opinions and in holding the rulers accountable. His job would be to study closely the activities of the Khaleefah or any ruler in the State or any civil servant in any of the State's departments and offices. He holds all of them accountable, giving them advice, voicing opinions and presenting suggestions, and entering with them in debates, together with objecting to all the wrong actions performed by the State. He would do all this on behalf of the Muslims who are obliged to enjoin what is good and forbid what is evil, and to hold the rulers accountable, giving them advice and suggestions, because this is their duty upon the Muslims. Allah (SWT) says:
"You are the best of peoples, raised up for mankind, enjoining what is right and forbidding what is wrong." [Al-’Imran: 110]
And He (SWT) says:
"They are those who, if we establish them in the land, establish regular prayers and give Zakat, enjoin the right and forbid the wrong." [Al-Hajj: 41]
Allah (SWT) also says:
"And let there arise from amongst you a band of people inviting to all that is good, enjoining what is right and forbidding what is wrong." [Al-Imran: 104]
Many Ahadith have been reported that indicate the obligation of enjoining the Ma'aruf and forbidding the Munkar, such as Prophet Muhammed's (SAW) saying: "By He Who owns my soul, you must enjoin the Ma'aruf and forbid the Munkar, or Allah may inflict upon you a punishment from Him, you would then supplicate to Him and your supplication would go unanswered", as narrated by Ahmad on the authority of Huzayfah. He (SAW) also said: "If anyone among you sees a Munkar, let him change it with his hand; if he could not, let him then change it with his tongue; and if he could not, then with his heart, and that is the least of Iman", narrated by Muslim on the authority of Abu Sa'id.
These verses and Ahadith command the Muslims to enjoin the Ma'aruf and forbid the Munkar. Holding the rulers accountable is part of enjoining of the Ma'aruf and forbidding of the Munkar. Some Ahadith in fact specifically order the holding of the rulers accountable, this highlights the importance of such a duty. Umm 'Atyya reported on the authority of Abu Sa'id that the Messenger of Allah (SAW) said: "The best of Jihad is a word of truth before a tyrant ruler." This is a text regarding the censure of the ruler and the obligation of uttering the word of truth in his face, considering it as the best form of Jihad. Allah's Messenger (SAW) exhorted this type of Jihad and made it very desirable even if it led to the loss of life, as mentioned in the sound ( Sahih) Hadith, where he (SAW) said: "The master of martyrs is Hamza, and a man who stood up to a tyrant ruler to advise him, and was killed."
The Sahabah, may Allah be pleased with them, did hold the Messenger of Allah (SAW) accountable, and they held the Khulafaa Ar-Rashideen accountable too. The Messenger of Allah (SAW) did not censure them for holding him accountable nor did the Khulafaa Ar-Rashideen. The Messenger of Allah (SAW) took the advice of Habab b. Munthir in the battle of Badr. At Uhud, he (SAW) went along with the opinion of the majority who suggested that they should confront Quraysh outside Madinah, despite the fact that he (SAW) saw otherwise. On the day of Hudaybiyah, the Muslims objected strongly, especially 'Umar, and at Hunayn, where the Ansar were angered by the fact that the Messenger of Allah (SAW) handed out the booties to the new Muslims whom he wanted to win over their hearts to Islam, without allocating a share for them.
The Sahabah held 'Umar accountable while he was standing on the pulpit because of the way he divided the Yemeni cloaks. A woman challenged him when he tried to fix the doweries and the Sahabah also objected to his refusal to divide the lands of 'Iraq, Ash-Sham and Egypt after they had been conquered. Bilal and Az-Zubayr where among the main objectors and 'Umar debated with them and consulted other Sahabah until they were convinced.
Any member of the Council of the Ummah, as a representative of the Muslims at large, has the right to speak in the Council as he pleases, and to voice his opinion as he wishes, without any hindrance or pressure. He has the right to hold the Khaleefah accountable, as well as the Mu'awin, the Wali and any civil servant. They are obliged to answer him as long as he is abiding by the rules of Shar'a in his role of holding the rulers accountable and of voicing his opinion.
Islam Must be Implemented as a Whole! Gradual Implementation is Haram
The Holy Qur'an was revealed to the Messenger of Allah (SAW) in parts according to the events and incidents, and each time a verse was revealed, he (SAW) would convey it at once. If the verse contained a command, he (SAW) and the Muslims would execute it at once and if the verse contained a prohibition, he (SAW) and the Muslims would at once refrain and abstain from doing it. The implementation of the rules used to take immediate effect after their revelation, without any delay. The rule that was revealed would become due for implementation and execution the moment it is revealed, whatever the rule was, until Allah (SWT) completed this Deen and revealed His (SWT) saying:
"Today I have completed your Deen for you completed My favour upon you and have chosen for you Islam as your Deen." [Al-Ma'idah: 3]
After the revelation of this verse, the Muslims became under the total obligation to implement and execute all the rules of Islam. Whether these were related to the Aqa'id (doctrines), the Ibadat (worships), the Akhlaq (morals), or the Mu'amalat (transactions). Whether these transactions were between the Muslims themselves, or between the Muslims and the ruler who rules over them, or between the Muslims and other peoples, nations and States. Whether these rules were related to the ruling, the economy, the social matters, or the foreign policy in peace and at war.
Allah (SWT) says:
"Whatever the Messenger brought you take it; and whatever he forbids you abstain from it. And fear Allah, for Allah's punishment is very severe." [Al-Hashr: 7]
This means take and act by whatever the Messenger of Allahr has brought to you, and abstain and keep away from whatever the Messenger of Allah (SAW) has forbidden you. This is because the relative pronoun whatever "Ma" in the verse, is of a general form. It therefore, contains the obligation to perform all the duties, and to abstain and avoid all the prohibitions. This command mentioned in the verse is a decisive request, thus it is obligatory. This is deduced from the following command to observe piety and the threat of the severe punishment for he who does not take whatever the Messenger of Allah (SAW) brought and does not abstain from whatever he forbade. Allah (SWT) also says:
"And judge between them according to what Allah has revealed, and do not follow their whims, and beware of them lest they tempt you away from some of that which Allah has revealed to you." [Al-’Imran: 49]
This is a decisive command from Allah to His Messenger (SAW), and to the Muslim rulers after him (SAW), confirming the obligation of ruling by all the rules that Allah (SWT) has revealed, whether they were orders or prohibitions. This is because the word "Ma" (whatever) is of a general form, meaning that it includes all the revealed rules.
Allah (SWT) had prohibited His Messenger (SAW) and the Muslim rulers after him from following people's whims and from yielding to their desires, for He (SWT) said:
"And do not follow their whims." [Al-’Imran: 49]
Allah (SWT) also warned His Messenger (SAW) and the Muslim rulers after him against falling prey to people's temptations and from being lured away from the implementation of some of the rules which Allah (SWT) has revealed. He (SAW) was commanded to implement all the rules which Allah (SWT) has revealed to him, whether they were orders or prohibitions, without paying attention to what the people want, for He (SWT) says:
"And beware lest they tempt you away from some of that which Allah has revealed to you." [Al-Ma'idah: 49]
Allah (SWT) also says:
"And those who rule by other than that which Allah has revealed, they are the disbelievers." [Al-Mai'dah: 44]
In another verse He (SWT) says:
"...They are the wrongdoers." [Al-Mai'dah: 45]
And in a third verse He (SWT) says:
"...They are the rebels." [Al-Mai'dah: 47]
Allah (SWT) has labelled in these three verses those who do not rule by all the rules He (SWT) has revealed as being disbelievers, wrongdoers and rebels. This is because "Ma" in the verses is of a general form, so it includes all the Shari'ah rules which Allah (SWT) has revealed, whether they were commands or prohibitions.
Everything mentioned so far indicates clearly and conclusively, without a shadow of a doubt, that all the Muslims, whether they were individuals, groups or a State, are obliged to implement the rules of Islam as a whole as Allah (SWT) ordered, without any delay, postponement or graduation. It also indicates that no individual, group, or a State has any excuse for not implementing the rules of Islam.
The implementation must be complete, comprehensive and simultaneous, and not gradual. The gradual implementation contradicts the rules of Islam totally, and it renders those who implement some of the rules and abandon some of the rules, sinful before Allah, whether they were individuals, groups or a State.
The duty is always and remains a duty and it must be executed, and the prohibition is always and remains a prohibition and it must be avoided. The Messenger of Allah (SAW) rejected the proposal of Thaqeef when they sent a delegation and offered to embrace Islam on condition that they could keep their idol Al-Lat for three years, and would be exempted from Salah. He (SAW) completely rejected this, and insisted that the idol should be destroyed at once and that they should observe Salah without any delay.
Allah (SWT) has made the ruler who does not implement all the rules of Islam, or the one who implements some of them and ignores others, a disbeliever if he did not believe in the validity of Islam, or if he did not believe in the validity of some of the rules of Islam. He (SWT) also made him a wrongdoer (Zaalim) and a rebel (Fasiq) if he did not implement all the rules of Islam, or if he did not implement some of them without denying the validity of Islam for implementation.
The Messenger of Allah (SAW) ordered the fighting and confronting of the ruler with force if he committed an act of flagrant disbelief. In other words, if he were to rule by the laws of disbelief of which there was no doubt, no matter how numerous or little these rules were. This treatment would be as mentioned in the Hadith of 'Ubadah Ibnus-Samit: ".... And not to dispute with the people in authority, unless you witness a flagrant act of disbelief about which you have proof from Allah."
There should be no complacency in the implementation of the Shari'ah rules, nor should there be any gradual implementation of the rules of Islam, for there is no difference between a duty and another duty, nor between a prohibition and another prohibition, nor between a rule and another rule. All the rules of Allah are equal, they must be implemented and executed without any delay, postponement or graduation, otherwise the saying of Allah (SWT) would apply to us when He (SWT) says:
"Then it is only a part of the Book that you believe in and do you reject the rest? But what is the reward for those among you who believe like this but disgrace in this life and on the day of judgement they shall be consigned to the most grievest chastisement."
There is no excuse whatsoever therefore for any State in the Islamic world today to not implement Islam under the pretext that it could not implement it, or claiming that the situation is not favourable for its implementation, or that the world opinion would not accept its implementation, or that the superpowers would not allow it, or any other excuses and weak arguments that carry no weight at all. Whoever hides behind such excuses should know that Allah would not accept these from him.
Police Ruling is forbidden in Islam
Ruling and authority in Islam mean running the affairs of the people by applying the Shari'ah rules. This is not the same as doing this by force, for force within the State is not designed to look after people, nor to manage their affairs. Force is not the authority, although its existence, formation, administration and preparation do not come about without authority. Force is a physical entity that manifests itself in the shape of the armed forces- including the police force- with which the authority executes the rules, defeats the criminals and the rebels, oppresses the outlaws, curbs the aggressors and uses it as a tool to protect the authority and the concepts and thoughts on which it is founded and to convey them to the world.
This clearly demonstrates that the authority is not the same as force, although the authority could not survive without it. It also demonstrates that the force is other than the authority, although it can not exist without it.
It is therefore unlawful for the authority to become a force, for if authority turned into force, its management of people's affairs would be badly affected. This is because its concepts and criteria would become the concepts and criteria of coercion, oppression and dominance, and not the concepts and criteria of looking after the people's affairs. Ruling would then turn into an oppressive rule that knows nothing but terror, dominance, oppression, coercion and blood shedding.
Similarly force should not turn into authority, because it would rule people by the concept of force, and it would run people's affairs by the concepts of military rule and the criteria of suppression and coercion. In both cases, this would bring disaster and ruin and cause fear, terror and horror. It would lead the Ummah to the abyss, causing it great harm.
The military rule in the Arab and Islamic countries offer a clear example of this.
Islam Forbids Harming the Muslims and Spying on them
Islam has forbidden the torturing and harming of people. Muslim narrated from Hisham b. Hakeem, who said: "I bear witness that I heard the Messenger of Allah (SAW) say: 'Allah will punish those who punish the people in the Dunya.'" He (SAW) also said: "There are two types of the people of Hellfire I have not seen yet: some people who have whips like the tails of oxes by which they flog the people", narrated by Muslim from Abu Hurairah.
Islam has also forbidden the violation of people's sanctities, dignity, funds and honour, and the dishonouring of the sanctity of their homes. The Messenger of Allah (SAW) said: "All things of a Muslim are inviolable for his brother in belief: his blood, his wealth and his honour", from a Hadith narrated by Muslim on the authority of Abu Hurairah. He (SAW) also said while making Tawaf around the Ka'aba:
"How splendid you look, and how sweet is your scent. How grand you are and how grand is your sanctity. By Whom in Whose Hand is the soul of Muhammad, the sanctity of the believer is greater to Allah than yours, (that is) his wealth and his blood, and not to think of him except good", - narrated by Ibnu Majah on the authority of Ubaidullah b. Amru.
He (SAW) also said:
"Abusing the Muslim is an aggression and fighting him is disbelief", narrated by Al-Bukhari and Muslim on the authority of Abdullah b. Mas'ood.
He (SAW) said regarding the sanctity of the houses:
"If a person were to cast a glance in your house without permission and you hit him with a stone and thus gouged out his eyes, there would be no blame on you", narrated by Muslim from Abu Hurairah.
It has been reported on the authority of Sahl Ibnu Sa'ad Al-Sa'idi that a man once peeped through the hole of the door of the Messenger of Allah (SAW), the Messenger of Allah (SAW) was at the time scratching his head with a fork. He (SAW) said: "If I were to know that you had been peeping through the door, I would have thrust this into your eyes. Indeed seeking permission was made to protect against the glance", narrated by Al-Bukhari and Muslim.
He (SAW) also said: "He who peeps into some people's house without their permission, it is allowed for them to gouge out his eye", narrated by Ahmed from Abu Hurairah.
Islam has also forbidden spying on the Muslims, watching them, chasing them and looking into their confidential and personal news. It has also forbidden the Muslim from being a spy on other Muslims. Allah (SWT) says:
"O you who believe, avoid suspicion as much as possible, for suspicion in some cases is a sin, and do not spy on each other." [Al-Hujurat: 12]
The Messenger of Allah (SAW) said:
"Avoid suspicion, for suspicion is the gravest lie in talk, and do not be inquisitive about one another and do not spy on one another, and do not turn one's back to each other, do not hate each other, and be servants to Allah and be brothers", narrated by Al-Bukhari and Muslim from Abu Hurairah. And he (SAW) also said:
"O you people who believed with your tongue, and Iman has not yet entered your hearts, do not backbite the Muslims, and do not search for their weaknesses. For he who sought the Awras (the effects) of the Muslims Allah would follow his, and he whom Allah follows his Awra (defect), He would also expose him even in his own home", narrated by Ahmad from Abu Barza Al-Aslami.
The verse and the Ahadith forbid the Muslims from spying against the Muslims and from following their Awras (defects).They warn that he who follows the Awras (defects) of the Muslims, Allah will follow his Awrah (defects) and will expose him. Other Ahadith have been reported forbidding the Muslims from working for the intelligence agencies to spy on the Muslims. Al-Miswar reported that the Messenger of Allah (SAW) said: "Whoever ate something by harming a Muslim, Allah will indeed feed him the like of it from Jahannam. And whoever clothed himself with a dress by harming a Muslim, indeed Allah will clothe him a dress similar to it in Jahannam," narrated by Abu Dawood and Ahmad.
It is similarly forbidden to spy on the citizens from the people of the Zimmah, for they are equal to the Muslims in terms of dealing and being dealt with fairly. The Messenger of Allah (SAW) ordered that the Zimmies should be treated nicely and he forbade harming them, he (SAW) said: "He who harms a person under covenant, or charged him more than he can, I will argue against him on the Day of Judgement", narrated by Yahya b. Adam in the book of Al-Kharaaj. 'Umar said: "I recommend to the Khaleefah after me to be good with those who are under the protection of the Messenger of Allah (SAW), he has to fulfil to them their covenant (oath), to fight for protecting them and to not be charged more than they can afford", reported by Yahya b. Adam. The verse and the Ahadith, although they are general about the unlawfulness of spying, exclude the spying against the belligerent disbelievers, whether they were actually or potentially belligerent. There are other Ahadith which specify the prohibition of spying to other than the belligerent disbelievers. Spying against the belligerent disbelievers is not forbidden, rather it is an obligation, so the Islamic State must do that. This is because the Messenger of Allah (SAW) sent 'Abdullah b. Jahsh with eight bands of people from the Muhajireen, to Nakhla between Al-Taif and Makkah to monitor the movements of Quraysh and gather news about them. Spying against the disbelieving enemy is a matter which the Islamic armed forces and the Islamic State cannot do without.
Spying against the disbelieving enemies is a duty that the Islamic State must perform. It is also its duty to have a counter intelligence service to combat any spying it is subjected to by the disbelievers. This is because Al- Bukhari reported on the authority of Salama Ibnu Akwa', who said:
"The Messenger of Allah (SAW) encountered a spy while on a journey; the spy sat among some of the Prophet's companions talking and then he sneaked away. Upon this the Messenger of Allah (SAW) said: 'Go after him and kill him.' So I beat everyone to him and I killed him, so the Messenger of Allah (SAW) gave me the booty of that spy.'" Ahmed narrated the incident from Furat Ibnu Hayyan, who said that "the Messenger of Allah (SAW) ordered his killing. He was a spy, and an ally for Abu Sufyan and he passed by a circle of theAnsar and said: 'I am a Muslim.' A man from the Ansar said: 'O Messenger of Allah he says that he is a Muslim.' The Messenger of Allah (SAW) replied: 'There are men among you whom we entrust to their belief, and Furat Ibnu Hayyan is one of them."'
Al- Bukhari reported on the authority of 'Ali b. Abi Talib (ra), who said:
"The Messenger of Allah (SAW) sent me together with Az-Zubair and Al-Miqdad b. Al-Aswad, and said: "Go forth until you reach the garden of Khakh, you will find a Tha'ina (a woman riding a camel) who is carrying a letter, so take it from her." We set off riding at high speed until we reached the garden, and we found the Tha'ina. We said to her: "Get out the letter." She said: "I have no letter." We said: "Get it out or else we take off the dress. So she got it out of her braid and we brought it back to the Messenger of Allah (SAW)."
These incidents indicate that ruling in Islam is not an oppressive rule, and it is forbidden for it to be such, for oppressive ruling brings grave harm to the Muslims, contradicts the Shari'ah rules, and also disagrees with the Shari'ah principle that states 'no harming and no self-inflicted harm', "La Dharara Wala Dhirar".
It also indicates that it is forbidden for the Islamic State to set up an intelligence organisation to spy against the citizens, Muslims and non-Muslims alike, and that it is forbidden to harm them.
It is the duty of the State to set up an intelligence service in order to spy against the Kuffar and gather information about them and to combat the espionage they carry out against the State.
Obedience to the Muslim ruler who governs/rules with Islam is compulsory
Obedience is compulsory upon muslims for the Muslim ruler who implements the laws Islam in his ruling, even if he did wrong or withheld the rights, as long as he does not order an act of disobedience (to Allah) and as long as he does not show an act of flagrant disbelief (Kufr Bawah)
Evidence about the obligation of obedience to the ruler is manifested in the Holy verses and the related Ahadith. Allah (SWT) says:
"O you who believe obey Allah and obey the Messenger and those in authority from amongst you." [An-Nisa’a: 59]
Al- Bukhari reported on the authority of Abu Salama Ibnu 'Abdul Rahman that he heard Abu Hurayra say:
"The Messenger of Allah (SAW) said: 'Whoever obeyed me is as if he had obeyed Allah, and whoever disobeyed me is as if he had disobeyed Allah. And whoever obeyed my Ameer is as if he had obeyed me and whoever disobeyed my Ameer is as if he had disobeyed me."' In another narration he was reported to have said:
"Whoever obeyed the Ameer is as if he had obeyed me." Al- Bukhari narrated from Anas Ibnu Malik, who said:
"The Messenger of Allah (SAW) said: 'You must hear and obey, even if it were appointed upon you an Abyssinian slave whose hair is like a raisin."' Muslim narrated from 'Amru b. Al-'Ass, that the Messenger of Allah (SAW) said: "Whosoever gave his Bai'ah to an Imam giving him the clasp of his hand and the fruit of his heart let him obey him as long as he can, and if another comes to dispute with him you must strike the neck of the latter."
These are clear evidences that obedience is obligatory, for Allah (SWT) has ordered the obedience to the people in authority, to the Ameer and to the Imam. This order has been associated with an indication (Qareena), that it is decisive by the fact that the Messenger of Allah (SAW) considered the disobedience of the Ameer as the disobedience to the Messenger (SAW) and to Allah (SWT). He (SAW) emphasised obedience even if the ruler were an Abyssinian slave. All these serve as indications (Qara'in) that the order is decisive, thus the obedience of the ruler is obligatory.
The obedience has come unrestricted, not confined to a certain ruler nor to certain issues. It is therefore obligatory to obey any Muslim ruler, even if he were a wrongdoer, a rebel, or unjustly squandering people's wealth. His obedience is obligatory, for the evidences have come unrestricted, and should remain so.
Some Ahadith have however been reported indicating that obedience to the ruler is obligatory even if the ruler did wrong, and even if he were a tyrant. Al- Bukhari narrated from 'Abdullah, who said:
"The Messenger of Allah (SAW) said to us: "You shall witness after me selfishness and matters which you will disown." They said: "What do you order us, O Messenger of Allah?" He said: "Give them their due right and ask Allah for your due right"." Al-Bukhari also reported on the authority of Abu Raja'a from Ibnu 'Abbas that the Messenger of Allah (SAW) said: "If anyone sees in his Ameer something that displeases him let him remain patient, for behold! He who separates himself from the Jama'a (community) by even so much as a hand span and dies thereupon, he would have died the death of Jahiliyyah."
These Ahadith are explicit regarding the obligation of obeying the ruler whatever he does. The Messenger of Allah stressed this very strongly, for Muslim narrated from Nafi' on the authority of 'Abdullah Ibnu 'Umar, who said:
"I heard the Messenger of Allah (SAW) say: 'Whoever withdraws his hand from obedience to the Ameer will find no proof for himself when he meets Allah on the Day of Judgement, and whoever dies without having an oath of allegiance (Bai'ah) on his neck he would die the death of Jahiliyyah."'
The Hadith of Ibnu 'Umar as reported by Al-Hakim states that the Messenger of Allah (SAW) said:
"He who abandons the Jama'a by even so much as a hand span is as if he has taken the knot of Islam off his neck, until he returns. And whoever dies while there was no Imam of Jama'a ruling over him, his death would be that of the days of Jahiliyyah."
It is thus forbidden to disobey the ruler whatever he does.
It is forbidden to disobey the ruler whatever he did, nor to rebel against him or fight him, whatever happened from him. Al-Bukhari narrated from 'Abdullah b. 'Umar that the Messenger of Allah (SAW) said:
"He who takes up arms against us is not one of us."
The ruler should not be disputed with over the authority whatever is the reason, except for what has been stated by a text, which is the appearance of the flagrant disbelief.
The prohibition of fighting against the rulers is also explicit, even if they commit Munkar. For Muslim reported on the authority of Umm Salama that the Messenger of Allah (SAW) said: "Ameers will be appointed over you, you will recognise some of what they do and you will disown some. Whoever recognised he is absolved from blame. Whoever disapproved (of their bad deeds) he is safe, but whoever consented and followed them (he is doomed.)" They said: "Should we not fight against them?" He (SAW) replied: "No, as long as they prayed." In a Hadith reported by Muslim from 'Awf b. Malik "... It was said: "O Messenger of Allah? Should not we fight against them?" He said: "No, as long as they established prayer amongst you."' Additionally in the narration of 'Ubadah Ibnus-Samit regarding the Bai'ah as reported by Muslim: "And you should not dispute with the people in authority unless you witness a flagrant act of disbelief upon which you have a proof from Allah."
All these are explicit texts that prohibit the rebellion against the ruler, fighting against him and disputing with him over the authority. In addition, there are Ahadith which indicate the obligation of obeying the ruler no matter how much of a tyrant he is, and no matter how many evils he commits. All these Ahadith exhort and demand total obedience to the ruler. The unrestricted verses and Ahadith which command the enjoining of Ma'aruf and the forbidding of Munkar even by hand do not apply to the ruler, because this has been specified by the Ahadith mentioned earlier. The obedience of the ruler therefore, is general and unrestricted except where it is mentioned.
No Obedience in Sin
One matter that has been excluded from the obligation of obeying the ruler is when he orders a sin. This exclusion has been confirmed by text. Nafi' reported on the authority of Ibnu 'Umar that the Messenger of Allah (SAW) said: "It is obligatory upon a Muslim that he should listen and obey whether he likes it or not, except when he is ordered to commit a sinful act. If he is ordered to do a sinful act, a Muslim should neither listen nor obey", narrated by Muslim. The subject being addressed here is the case of a ruler ordering a Muslim to commit sin. It does not address the issue of a ruler being sinful. If the ruler committed the sin before you, without ordering you to commit it, you still have to obey him. Muslim reported on the authority of 'Awf Ibnu Malik Al-Ashjai', he said: "I heard the Messenger of Allah (SAW) say: 'The best of your Imams are those whom you love and they love you, and whom you pray for and they pray for you, and the worst of your Imams are those whom you hate and they hate you and you curse them and they curse you.' We asked: 'O Messenger of Allah, shall we not then declare war on them?' He (SAW) said: 'No, as long as they establish prayer among you. Mind you! Whoever has a Wali (ruler) appointed over him and he saw him commit an act of disobedience to Allah, he should hate the Wali's act of disobedience to Allah, but should not withdraw his hand from obedience.'"
This serves as an evidence that what is intended by ordering a sinful act is ordering of the act itself by the ruler rather than the ruler himself committing it. If the ruler is seen committing a sin, it would not be lawful to disobey him, but if he ordered somebody to disobey Allah, then he should not be obeyed for there is no obedience to any created person in an act of disobedience to the Creator.
This is the only case when disobedience to the ruler is lawful and obligatory, namely when he orders a sinful act. It must be known without doubt that what has been ordered is truly a sin, such as if he orders one to take usury. If however, his order is to perform something which in his opinion is lawful but may be considered unlawful by others, he should be obeyed and it is not allowed to disobey him. This would not be considered an order to commit a sin, but an order to commit a lawful act. For instance, if one is ordered, against one's own opinion, to have a photograph taken for an official transaction by the ruler, he should be obeyed. For the ruler deems that the Hadith of Ibnu 'Abbas that prohibits photographing refers to the manual drawing and sketching, but does not apply to the photographic picture. Accordingly, this is an evidence or a probable evidence in his view. Therefore, his order to use a photographic picture in the official transactions or documents is not an order to commit a sin. He should therefore be obeyed and it would be unlawful to disobey him.
Accounting the Rulers is Fard upon the Muslims
Holding the rulers accountable is a duty upon the Muslims. The obligation of obeying them even if they did wrong and withheld people's rights does not mean that the Muslims should keep silent, but it means that obeying them is obligatory and holding them accountable for their actions is obligatory as well.
Allah (SWT) ordered the Muslims to hold their rulers accountable and strongly commanded them to challenge them if they withheld the citizens' rights, neglected their duties towards them, ignored any of the citizens affairs, violated the rules of Islam or ruled by other than that which Allah (SWT) has revealed. Muslim reported on the authority of Umm Salama that the Messenger of Allah (SAW) said: "Ameers will be appointed over you, you recognise some of what they do and you disown some. Whoever recognised he is absolved from blame. Whoever disapproved (of their bad deeds) he is safe, but whoever consented and followed them (he is doomed.)" They said: "Should we not fight against them?" He (SAW) replied: "No, as long as they prayed." In another narration by Muslim, "Whoever hated he would be absolved (of sin) and whoever disapproved he would be safe, but whoever consented and followed (he would be not)." This narration explains the first narration. The Messenger of Allah (SAW) has ordered showing the disapproval toward the ruler and has made this obligatory by any possible means. This could be by hand, but only if it does not lead to fighting, (without the use of the sword), by the tongue by saying something, or by the heart if one were not able to use the hand or tongue. He (SAW) considered the one who does not disown the wrong deed as being an accomplice to the ruler in the sin, for he said if anyone approved of their bad deeds and imitated them he would be doomed and would not escape the blame and the sin.
The evidences concerning the enjoining of Ma'aruf and the forbidding of Munkar are also evidences for holding the ruler accountable, for they are general evidences which include the ruler as well as others. Allah (SWT) has commanded decisively the enjoining of Ma'aruf and the forbidding of Munkar. He (SWT) says:
"And let there arise from amongst you a band of people inviting to all that is good (Khayr), enjoying what is right (Ma’aruf) and forbidding what is wrong (Munkar)." [Al-Imran: 104]
He (SWT) also says:
"You are the best of peoples, brought out for mankind enjoying what is right and forbidding what is wrong." [Al-’Imran: 110]
Allah (SWT) says:
"Those who follow the Messenger, the unlettered Prophet who they find mentioned in their own scriptures, in the Taurat and Gospel, where he commands them with the right and forbid them of the wrong." [Al-Araf: 157]
And He (SWT) says:
"Those who turn themselves to Allah in repentance, worship Him, praise Him, wander in devotion to the cause of Allah, they bow and prostrate, they enjoin the right and forbid the wrong and observe the limits put by Allah, so proclaim the glad tidings to the believers."
And He (SWT) says:
"There are those who if we establish them in the land, establish regular prayers (the Salah) and give the Zakat, enjoin the right and forbid the wrong." [Al-Hajj: 41]
In all these verses, Allah (SWT) commands the enjoining of Ma'aruf (the right) and the forbidding of Munkar (the wrong). The command is combined with further indicators which confirm that the command is decisive, namely the praise, for He (SWT) says:
"And those are the succesful ones." [Al-’Imran: 104]
He (SWT) says:
"You were the best nation." [Al-’Imran: 110]
In another verse He (SWT) says:
"And give glad tidings to the believers." [At-Tauba: 112]
These all serve as evidences that the command is decisive, which means that it is an obligation. Holding the ruler accountable is in fact enjoining Ma'aruf and forbidding Munkar, thus it is an obligation.
In addition, there are many Ahadith which indicate the obligation of enjoining Ma'aruf and forbidding Munkar. Huzayfah Ibnul Yaman reported that the Messenger of Allah (SAW) said: "By Whom in Whose hand is my soul, you shall enjoin Ma'aruf and you shall forbid Munkar, or Allah may send His punishment upon you, then you will supplicate to Him and He will not answer your prayers", narrated by Ahmed and al-Tirmithi. Abu Sa'id Al-Khudri reported: "The Messenger of Allah (SAW) said: "Whoever of you sees a Munkar should change it with his hand, and if he was unable then with his tongue, and if he was unable then he should abhor it by his heart and that is the weakest of Iman (belief)", narrated by Muslim. Ahmed narrated from Uday Ibnu Abdi Al-Kindi, who said: "I heard the Messenger of Allah (SAW) say: 'Verily Allah would not punish the common people because of the deeds of some specific people unless they witness the Munkar among them while they are able to deny it but do not do so. If they did this Allah would then punish both the common people and the specific people."'
All these Ahadith indicate the obligation of enjoining Ma'aruf and forbidding Munkar. They indicate the obligation of enjoining Ma'aruf towards the ruler and forbidding his Munkar. Without doubt, this means holding him accountable for his actions. Furthermore, there are Ahadith which specifically relate to the ruler, confirming the obligation of holding him accountable, thus stressing the importance of enjoining Ma'aruf towards the ruler and forbidding his Munkar. Ahmed narrated from Abi Sa'id, who said: "The Messenger of Allah (SAW) said: 'The best of Jihad is a word of truth before the tyrant ruler."' Abu 'Amama reported:" A man came to the Messenger of Allah (SAW) when he was about to throw the first Jamra (pebble), so he said: "O Messenger of Allah, which is the best Jihad?" He (SAW) kept silent. When he (SAW) threw the second Jamra, the man asked him again. And again he (SAW) did not answer. When he (SAW) threw the Jamrat-ul-Aqaba - known also as Al Jamra Al Kubra - (the great Jamra), and put his foot in the stirrup to ride he said: "Where is the person who asked?" The man said: "It is me O Messenger of Allah." He (SAW) said: "A word of truth said before a tyrant ruler"," narrated by Ibnu Majah and Ahmed.
This is an explicit text about the ruler and about the obligation of saying the truth to his face. This includes holding the rulers accountable, struggling against those who withhold the citizens' rights, neglect their duties towards their subjects, or ignore some of their affairs. It is a duty, for it is Allah's command and is considered to be like the best of Jihad. It is as if he (SAW) says: The best Jihad in the sight of Allah is to struggle against the tyrant rulers. This evidence alone is sufficient to prove the obligation of holding the rulers accountable.
The Messenger of Allah (SAW) has exhorted the struggle against the tyrant rulers, no matter how great the trials , even if it leads to the loss of life. It has been reported by Al-Hakim from Jabir from the Prophet r: "The master of martyrs is Hamza, and a man who stood up to a tyrant ruler to advise him and got killed." This is of the most eloquent phrases in voicing the truth and exhorting the endurance of trials and harm which could even mean death, in the bid to hold the tyrant rulers accountable and struggle against them.
The Ruler Who Displays Flagrant Kufr Must be Fought Against
There is one situation excluded from the general rule concerning the obligation of obedience to the ruler. This is the case of commanding people to perform a sin. Similarly there is one situation excluded from the general rule concerning the prohibition of rebellion against the ruler and taking up arms against him, which is when he commits an act of flagrant disbelief. In this case he should be fought against, for there are texts related to this situation. 'Awf Ibnu Malik Al-Ashja'i said: "I heard the Messenger of Allah (SAW) say: 'The best of your Imams are those whom you love and they love you and whom you pray for and they pray for you, and the worst of your Imams are those whom you hate and they hate you and you curse them and they curse you.' We asked: 'O Messenger of Allah, shall we not then declare war on them?' He said: 'No, as long as they establish the prayer among you', narrated by Muslim. What is meant by establishing the prayer is to rule by Islam, that is to implement the rules of Shari'ah . This is because the whole of Islam is denoted here by naming part of it. This is common in Arabic, for instance Allah (SWT) says: "To free a neck" [4:92] which means to free the slave i.e. all of him and not just his neck. In this Hadith he (SAW) said: "As long as they establish the prayer among you." This means the establishment of all the rules not just the prayer and is a figurative form where basically the part is mentioned to refer to the whole. Muslim reported on the authority of Umm Salama that the Messenger of Allah (SAW) said:
"Ameers will be appointed over you, you recognise some of what they do and you disown some. Whoever recognised he is absolved from blame. Whoever disapproved (of their bad deeds) he is safe, but whoever consented and followed them (he is doomed.)" They said: "Should we not fight against them?" He (SAW) replied: "No, as long as they prayed."
This means the establishment of all the rules not just the prayer and is a figurative form where basically the part is mentioned to refer to the whole. 'Ubadah Ibnus-Samit reported:
"The Messenger of Allah (SAW) called us and we gave him the Bai'ah (oath of allegiance). Among the injunctions he made binding upon us was to listen and obey to the Ameer in our pleasure and displeasure, in our adversity and prosperity, and giving (others) preference over ourselves, and not to dispute the authority with its people, he said: "Unless you see a flagrant disbelief on which you have clear proof from Allah," narrated by Muslim.
The subject of these three Ahadith, the Hadith of 'Awf Ibnu Malik, that of Umm Salama, and that of 'Ubadah Ibnus- Samit is the rebellion against the ruler. They categorically forbid the rebellion against him : "Should we not then declare war on them?" He (SAW) said: "No." "Should not we fight against them?" He (SAW) said: "No." "And we should not dispute the with the people of authority." They all forbid the rebellion against the ruler categorically, thus indicating a prohibition. This is combined with the disgrace attributed to the rebellion and is indicated in the Hadith where Allah's Messenger (SAW) said: "He who rebels against the ruler and deserts the Jama'ah, his death would be that of the days of Jahiliyyah", narrated by An-Nasa'i from Abu Hurairah. It is therefore, a decisive prohibition, for it considers the death of he who disobeys and rebels against the Imam as a death of Jahiliyyah, indicating that it is a decisive prohibition. The Ahadith thus serve as evidence for the prohibition of rebellion.
However, one case is excluded which is expressed in the first and second Ahadith, not establishing the prayer, and not praying. It is also expressed in the third Hadith by the flagrant disbelief. The non-establishment of prayer and the non-performing of prayer, that is, ruling by other than what Allah (SWT) has revealed, means to rule by Kufr rules, a matter which would undoubtedly mean the appearance of flagrant disbelief. The "flagrant disbelief" that came in the Hadith is a description that applies on everything that is considered as flagrant Kufr. So if flagrant Kufr, of which we have proof from Allah I, has appeared, we should rebel against it. Whether this was ruling by the laws of disbelief , that is by other than what Allah has revealed, or he was not ruling by the disbelief laws, but remaining silent about apostasy against Islam and allowing the apostates to display openly their disbelief or anything similar. All this would be flagrant disbelief. This is general and includes any type of flagrant disbelief. This is the exception (mentioned in the Ahadith): appearance of the clear disbelief, so if this occurs then rebellion becomes obligatory.
The indication in these Ahadith regarding the obligation of rebellion against the rulers in this case is reflected in the fact that the Messenger of Allah (SAW) has forbidden us from declaring war on them, fighting against them and disputing with them over their authority, and he excluded this case, which means it is excluded from the rule of prohibition. This means that it becomes an order which we need to fulfil. The indicative meaning (Mafhoom) of the Ahadith means the order to declare war on the ruler, fighting against him and disputing with him over his authority, if such case occured. The indicative meaning (Mafhoom) is equal to the literal meaning in terms of its proof on the rule. It therefore serves as an evidence indicating that the legislator has ordered the Muslims to declare war on the rulers, fighting against them and disputing with them over their authority if the open Kufr emerged in their ruling. As for the indication (Qareena) that this order is decisive, this is because the subject matter of this order was emphasised by Shari'ah . Ruling by Islam has been made obligatory by the Legislator, and not Mandub (recommended). The emergence of flagrant disbelief has been forbidden by Shar'a, and is not merely Makruh (undesirable). The subject matter of the order thus serves as an indication (Qareena) that the order is decisive. The rebellion against the ruler in this exceptional case is thus not only permitted but actually an obligation upon the Muslims.
However, it has to be stressed that what is intended by the emergence of the flagrant disbelief, is the disbelief on which we have a decisive evidence proving that it is an act of disbelief. The Messenger of Allah (SAW) did not stop at saying "flagrant disbelief" but he went on to say "on which you have a Burhan (proof) from Allah." The word Burhan is only referred to the decisive evidence. The presence of a clear cut evidence proving flagrant disbelief is one of the conditions of rebellion. If there were doubts about it not being an act of disbelief, or if there was a probable (Zanni) evidence about it being an act of disbelief even if the evidence was correct, then the rebellion would be unlawful, as the rebellion is only allowed if there were a clear cut evidence that it is an act of disbelief.
What is thus meant by flagrant disbelief, is the type of disbelief over which there is no doubt and over which a conclusive evidence has proved that it is disbelief. If the rulers ordered an action or conduct that carried a doubt, this is not an act of disbelief and it would be unlawful to rebel against him under the pretext that there was flagrant disbelief. This is due to the presence of the doubt. For instance, if the ruler ordered the teaching of the theory of dialectical materialism at universities, or the teaching of other doctrines of disbelief, and one thought that the teaching of doctrines of disbelief would lead to disbelief he must in this case obey the ruler and study such doctrines. It would be forbidden to rebel against the ruler under the pretext that flagrant disbelief has been perpetrated. The ruler would have evidence that it is permitted to acquire information about the doctrines of disbelief, for the Qur'an has mentioned them, where Allah (SWT) has addressed them and refuted them.
It can be seen that everything that has evidence or a probable evidence that it is not disbelief and there is an evidence or a probable evidence that it is from Islam and the ruler ordered it or performed it, then it would not be considered as the rules of disbelief, nor emergence of flagrant disbelief. It would not be included in the exception and it would be unlawful to rebel against the ruler in such a case, rather to obey him would be obligatory.
Establishing Political Parties is Fard Kifayah
The duty of holding the rulers accountable, which has been ordered by Allah (SWT), is carried by individuals in their capacity as individuals and by groups and parties in their capacity as groups and parties.
In addition to ordering the Muslims to invite to the Good (Al-Khair), enjoin the Ma'aruf and forbid the Munkar and to hold the rulers accountable, Allah (SWT) has also ordered them to establish political parties from among themselves. These political parties would carry out, as groups, the call to the Good, that is, to Islam, to enjoining Ma'aruf, to forbidding of Munkar and to hold the rulers accountable. Allah (SWT) says:
"Let there arise from amongst you a group which calls to the good, enjoins Ma'aruf and forbids Munkar." [Al-’Imran: 104].
This means that the Muslims should establish a group from among themselves, which would have the quality of a group and would perform two actions.These are the call to Islam and to enjoin Ma'aruf and forbid Munkar.
This command of establishing a group is decisive because the task which the verse commands the group to perform is an obligation that Muslims must perform as confirmed by the numerous verses and Ahadith. This serves as an indication (Qareena) that the command of establishing a group is decisive. The command mentioned in the verse is thus also decisive. It is a duty of sufficiency upon Muslims. If it is performed by some of them, others would be exempted, as it is not an individual duty. Allah (SWT) has ordered the Muslims to establish from among themselves a group to carry out the duty of calling to the Good, to enjoin Ma'aruf and forbid Munkar. He (SWT) did not command all the Muslims, in the verse, to carry out such a duty. He only ordered them to establish a group that carries out that duty. The order is thus focussed on the establishing of a group and not on the performing of the two tasks.
The two tasks just determine the duty of the group which has to be established and it is thus a description of the nature of the group.
The group, in order for it to carry out its duty as a group and to continue as a group while carrying out its duty, should fulfil certain requirements. What makes it a group is the presence of a bond that links all its members. They thus form a single body, like a bloc. Without this bond the group which Allah (SWT) has ordered to be established would not be working as a group.
What maintains it as a group that functions properly is the presence of an Ameer whose obedience is obligatory. The Shar'a ordered every group of three people or over to appoint an Ameer over it. The Messenger of Allah (SAW) said: "It would be forbidden for three people who are in an open country, not to appoint one from among them as Ameer", narrated by Ahmed from 'Abdullah b. 'Amru.
These two qualities, the presence of a bond among the group and the presence of an Ameer who must be obeyed, indicate that a group that has a bond and an Ameer who must be obeyed must be established when Allah (SWT) says: "Let there arise from amongst you a group." The group, or the bloc, or the party, or the association or any other name used to refer to a group, would fulfil the requirements of a group and maintain it as a group at work. This indicates that the verse orders the founding of groups, or parties, or blocs, or organisations or the like.
The order to establish a group is an order to establish political parties. This is deduced from the fact that the verse has determined the duty of this group which is the call to Islam, enjoining the Ma'aruf, and forbidding the Munkar. The duty of enjoining Ma'aruf and forbidding Munkar is general and not restricted. It therefore includes the rulers and this implies holding them accountable. The holding of the rulers accountable is a political task performed by the political parties and it is the most important task of the political parties.
Thus the verse indicates the duty of establishing political parties which would call to Islam, enjoin Ma'aruf and forbid Munkar, and would hold the rulers accountable for their actions and conduct.
The verse also indicates that the parties should be Islamic, be based on the Islamic ’Aqeeda and adopt the divine rules. It is forbidden for these parties to be communist, socialist, capitalist, nationalist, or parties calling for democracy, secularism, masonism, or to be founded on anything other than the Islamic 'Aqeeda, or adopting other than the divine rules. This is because the verse has determined the quality of these parties by way of determining their tasks. These tasks are the call to Islam, enjoining Ma'aruf and forbidding Munkar, and any party that performs such tasks must carry Islam and be founded on the basis of Islam. Any group founded on a communist, socialist, capitalist, democratic, secular, masonic, nationalist, patriotic, or regional basis would not be founded on an Islamic basis, nor carrying Islam, nor adopting the rules of Islam. Such a party would rather be founded on a basis of disbelief and structured around concepts of disbelief.
It is thus forbidden for the Muslims to gather on the basis of communism, socialism, capitalism, democracy, secularism, masonism, patriotism, nationalism or any basis other than Islam.
These parties must be overt and not secret. The call for the Good and enjoining Ma'aruf and forbidding Munkar, as well as holding the rulers accountable and the work towards the seizing of power via the Ummah should be carried out openly and explicitly and not confidentially and secretly, in order to achieve the purpose demanded of it.
These parties should not carry out physical activities. They should call to Islam verbally and enjoin Ma'aruf and forbid Munkar verbally. Their styles must be peaceful; they should not take up arms, nor use violence. This is because the use of force towards the ruler is forbidden, and the Ahadith have stressed this. Enjoining Ma'aruf and forbidding Munkar as well as holding the rulers accountable can thus be carried out without the use of force. The styles and means must be peaceful. It is forbidden to use force and confront the ruler with weapons except in case he showed the flagrant disbelief of which we have proof from Allah (SWT), as mentioned in the Hadith of 'Ubadah Ibnus-Samit:
"And not to dispute with the people their authority unless you witness an act of flagrant disbelief about which you have proof from Allah."
The guarantee of the implementation of Islam
the natural/normal guarantee for implementing Islam, the carrying of its Da'wah, the continuity of its implementation and the perfection of this implementation is the Taqwa of the ruler and the concentration of this Taqwa within himself. This is because the Taqwa of Allah by the ruler makes him concerned about Islam more than his concerned about his life and his own needs. It also generates in him the sensitive feeling that makes him remember Allah within himself every moment and when he undertakes an action, and fear Allah regarding everyone of his conducts.
If the ruler lost the Taqwa, then he would have lost the natural guarantee for implementing Islam, improving its application and the continuity of this application, and he would have lost the guarantee to carry the Islamic Da’wah. Since the ruler is subject for the Taqwa to elude him, then there must be a physical means that compels him to implement its land or removes him from the power/authority and establishes in his place the ruler who implement Islam and carries its Da’wah. This practical/physical means is the Ummah. Therefore it is obligatory upon the Islamic Ummah, if she saw an unjust ruler, violating the sanctity of Allah, breaking the covenant of Allah, opposing the Sunnah of Rassool Allah, treating the servants of Allah with sin and transgression, she must challenge him byword and by action, or change/replace him. In order that the Ummah undertakes this duty, she must be characterised with the Taqwa of Allah, because the fear of the Ummah from Allah generates/creates the concern about Islam and its implementation. This obliges her to account for the ruler about his actions, so she argues/discusses with him and account him whenever she sees from him any shortcomings in the implementation or an attempt to deviate from the Ahkam (rules) of Islam, or misapplies the systems of Islam. By such a means, the application of Islam continues as well as the improvement of its application.
However the Ummah-which is the practical means in the Dunya to implement Islam through her watching over and accounting the ruler- needs a correct structure to be established within her. This correct structure should be based on Islam, distinct in its deep understanding and its great fear of Allah. This is because it is established on one basis, which is the Islamic Aqeedah, and works to educate/culture the people with the concentrated Islamic culture (Thaqafah). It is a culture which broadens the scope of mind, and strengthens the comprehension, and purified the soul: for it links the emotions with the thought, and it generates harmony/agreement between the thoughts and the emotions. This makes within the Muslim the required Islamic personality. This area structure was established on this personality/character, it would be the means to mould the Ummah. This is because what purifies her thoughts, and moulds her in one thought and thus drives her to one objective is Islam, where she lives for its sake and carries the Da’wah to it.. Then she would be continually vigilant about the ideology which she carries and would be well aware of it. What awakens her is this structure which lives for the sake of the ideology, for the sake of the Da’wah to it and for the sake of the implementation of this ideology and the continuity of its implementation.
This structure is the ideological party which emerges from the Ummah. In other words, it is the party which is established on the basis of Islam, and makes Islam its intellectual leadership, which the party carries in the Ummah so that she understands Islam, and it carries the Da’wah to Islam everywhere so that people embrace it. Therefore it is a Hizb of da’wah which undertakes no action other than the da’wah. This is because action in the other areas is the function of the state, and not the function of the hizb.
Once the hizb was established and led the Ummah it becomes the watchful eye over the state, because it is the Ummah or the representative of the Ummah. It leads her and makes her carry out her duty, which is to argue/discuss with the state and account it, challenging her with words, or actions, or change her if it is feared of danger from it on Islam.
It would be difficult for the Ummah to to argue/discuss or account the state without having a hizb which holds the post of her leadership towards/before the statebecause of the many difficulties before her that are not overcome except by the presence of a unified leadership represented in a structure and not in an individual or individuals. Therefore it is necessary for an ideological and political hizb to be established in the Ummah. Its only work is to carry the Islamic Da’wah and its only method for carrying the Da’wah is the political way. Thus the emergence of this hizb is inevitable, for it is the practical means which leads the Ummah and guarantees –through it’s leadership for the ummah- the performance of the state of its duty in the best manner, which is the carrying of the Islamic Da’wah, the application of Islam and the continuity of this application. It is also the practical means to prevent its misapplication.
The structuring of the Rasool (SAW) of the muslims around Islam was evident in the house of Al-Arqam, then the structure included all the Sahabah. Thus they were the block which emerged among the Muslims and took the responsibility of carrying Islam practically, although all the muslims used to carry the responsibilities of Islam in general manner. It was reported that Rasool Allah (SAW) passed away leaving behind sixty thousand of the Sahabah. These were the Islamic block, or the Islamic Hizb which carries the responsibility of Islam practically. Otherwise the Rasool (SAW) passed away while the Muslims were many times more than that number (of the Sahabah). Then the time of the Sahabah, the Tab’ieenn and the Tab’iee etTab’ieen ended, the Hizb disappeared. So weakness started to creap into the souls of the rulers, for there was no hizb that leads the Ummah to watch over them, and argue/discuss with them and account them (the rulers). This continued until misapplication of Islam took place. Therefore the true guarantee for the application of Islam, the carrying of its Da’wah and the betterment of its application is the Islamic and political Hizb.