Saturday, May 23, 2009

Article 26 & 27, Explanation of the Draft Constitution of the Khilafah

The following is from the draft english translation of the Arabic book مقدمة الدستورأو الأسباب الموجبة له (Introduction to the constitution and the evidences that make it obligatory) published by Hizb ut-Tahrir 1382 Hijri (1963 CE). Please refer to the original Arabic for accurate meanings. Please note some of the adopted opinions of the Hizb have changed since the time the book was published so any of the adopted literature published after this book which contradicts what is mentioned in this book abrogates those specific points

Article 26:

Every mature and sane Muslim, be it man or woman, reserves the right to elect the Khalifah and to give him the Baya'a. Non-Muslims have no right in this.

The reality of the Khilafah serves as evidence that every Muslim has the right to elect the Khalifah and give him his or her Baya'a, for the Ahadith have indicated that the it is the Muslims who give their Baya'a to the Khalifah, be it men or women. Ubada Ibnu-s-Samit reported: We gave our Baya'a to the Messenger of Allah (saw)... Umm Attyya reported: We pledged our Baya'a to the Messenger of Allah (saw)... Abdul-Rahman Ibnu Auf said when he was commissioned with the task of seeking the Muslims' opinion about who to appoint as Khalifah: I have not left one single man, nor one single woman without having sought his or her opinion. No from among the Sahaba disapproved of his action. Therefore, every Muslim, man or woman, has the right to elect the Khalifah and give him his or her Baya'a. as for the non-Muslims, they have no right to this, because the Baya'a is according to the Book of Allah and the Sunnah of His Messenger and the Kafir does not believe in them. If he believes in them, he becomes a Muslim.

Article 27:

If the Khilafah has been contracted with one man by those who through their Baya'a the Khilafah is usually contracted, the Baya'a of the others would in this case be a Baya'a of obedience, not a Baya'a of contract. Hence, every person showing signs of rebellion would be forced to give his Baya'a.

Evidence of this article is derived from what occurred in the Baya'a of the four Khulafa', because it is considered as Ijma'a of the Sahaba. In the Baya'a of Abu Bakr, it was contented with the Baya'a of the influential people in Madinah alone, and the same happened in the Baya'a of Omar. In the Baya'a of Uthman, it was contented with the opinion and the Baya'a of the people of Madinah, and in the Baya'a of Ali, it was contented with the Baya'a of most of the people in Madinah and most of the people of Al-Koufa. This indicates that it is not necessary for all the Muslims to give their Baya'a in order for the Khilafah to be contracted, it is rather sufficient to take the Baya'a of most of their representatives; as for the rest of the people, if they gave their Baya'a it would be a Baya'a of obedience.

As for the forcing of those who show signs of rebellion against the Baya'a, once the Baya'a of most of the Muslims' representatives has been taken, this is deduced from the persistence of Ali (r) on making Muawyya give his Baya'a and enter in which people had entered, and also his forcing of Talha and Al-Zubayr to give him their Baya'a; none of the Sahaba disavowed his action, though some of them advised him not to remove Muawyya from the Wilaya of Al-Sham. The silence of the Sahaba over the action of one of them, if he undertook an action which should be usually condemned, such as in this case forcing someone to give the Baya'a while it is a contract of consent and choice, this silence would be considered a silent Ijma'a of the Sahaba and would act as a Shari'ah evidence.

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