Tuesday, January 06, 2015

Article 31, 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

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Article 31
There are seven conditions for the Khalifah to be contracted, which are: to be male, Muslim, free, adult, sane, just, and from the people who have the capability.

Since the Khilafah is a part of the ruling (guardianship), or rather it is the greatest guardianship, for that reason the text of the 19th article is mentioned here, in other words the obligation for the seven mentioned conditions to be fulfilled:
The evidence that the Khalifah should be male is what has been narrated from the Messenger  that when he heard that the Persians had given the rule to the daughter of Kisra, he  said A people who appoint a woman as their leader will never succeed” (narrated by al-Bukhari from Abu Bakrah ); this narration contains a decisive prohibition regarding a woman being appointed the leader of a State, since the expression “never” indicates permanency, which is an exaggeration in negating the success, so it is a blame, which means that the request to leave the Khalifah from being a woman is a decisive request, and for this reason it was made a condition that he should be male.
As for the condition that he should be Muslim, this is due to His (swt) words “Allah will never grant to the disbelievers a way over the believers.” (TMQ 4:141), which is also a decisive prohibition since the expression “never” indicates permanency, and is information with the meaning of a request. As long as Allah (swt) prohibited the disbelievers having a way over the believers, then He (swt) prohibited for them to be made rulers over them, since the rule is the greatest way over the Muslims. Additionally, the Khalifah is the person of authority, and Allah (swt) made it a condition that the person of authority should be a Muslim. Allah (swt) said “Obey Allah and Obey the Messenger and the people of authority amongst you” (TMQ 4:59) and He (swt) said “When there comes to them some matter touching (public) safety or fear, they make it known (among the people); if only they had referred it to the Messenger or to those charged with authority among them” (TMQ 4:83). The words “people of authority” are not mentioned in the Quran unless it is also mentioned that they are from the Muslims, which indicates that the person of authority must be a Muslim. And since the Khalifah is the person of authority, and he is the one who appoints the people of authority, then it is a condition that he must be a Muslim.
With respect to the condition that he should be free, this is since the slave is owned by his master and so does not control the independence of conduct for himself, and by greater reasoning he does not control the conduct of others, and therefore he cannot control the guardianship over the people.
As for the condition that he should be an adult, this is due to what was narrated by ‘Ali b. Abi Talib (ra) that the Messenger  said “The pen is raised from three: the one who is asleep until they wake, the child until they become an adult, and the madman until he becomes sane” and in a narration “and the one who is afflicted with madness until he recovers”, reported by Ibn Maja and al-Hakim from ‘A’ishah, and the wording is from Ibn Maja. Al-Tirmidhi and Ibn Khuzaymah also reported a similar narration through ‘Ali (ra).
What is understood from lifting the pen is that it is not correct for him to act independently in his own affairs, so it would not be correct for him to be the Khalifah. Also, it is narrated from Abu Hurayrah that the Messenger  said “Seek protection with Allah from the head of the seventy and the leadership of the child” reported by Ahmad from Abu Hurayrah, which includes proof that it is not correct for a child to be the Khalifah. There is another narration from Abu ‘Aqil Zahrah Bin Ma‘bad, on the authority of his grandfather ‘Abd Allah Bin Hisham who lived at the time of the Prophet , and his mother Zaynab bint Hamid took him to the Messenger  and said “O Messenger of Allah, take the pledge from him”, and so the Messenger  said “He is young”, and touched his head and prayed for him, as reported by al-Bukhari. Since the child is not permitted to give the pledge, then by greater reasoning he is not permitted to be given the pledge either.
As for the condition of being sane, the narration which was just mentioned “the pen is raised from three” to “the one who is afflicted with madness until he recovers”, and in another narration “the madman until he wakes”, and from the understanding of raising of the pen is that it is not correct for him to act independently in his own affairs, so it would not be correct for him to be the Khalifah and act upon the affairs of other people.
With respect to the condition of being just, this is because Allah (swt) made it a condition for the witness to be just; He (swt) says “And take as witness two just persons from among you (TMQ 65:2), and so the one who is more significant than the witness, and that is the Khalifah, must by greater reasoning also be just. That is because if the just characteristic has been made a condition for the witness then for it to be a condition for the Khalifah is of a higher priority.
As for the condition that he is a capable person from amongst those who are able to fulfil the responsibility, this is necessitated by the pledge of allegiance, since the one who is not capable would be incapable of running the affairs of the people by the Quran and the Sunnah for those who gave him the pledge upon them.
The evidence for that includes:
1. Muslim narrated from Abu Dharr “I said: O Messenger of Allah, will you not use me? He placed his hand upon my shoulder and then said O Abu Dharr, you are weak, and it is an ‘amanah (trust), and on the Day of Judgement it will be a disgrace and a regret except (for those) who take it by its right and perform its duties correctly”.
This explains that giving the order its due right and performance is only done by those who are capable of it, and the indication that engenders decisiveness is what the Messenger  said about whoever takes it and is not capable of it “and on the day of Judgement it will be a disgrace and a regret except for he who takes it”.
2. Al-Bukhari reported from Abu Hurayrah that the Messenger of Allah  said, “If the trust is abandoned, then wait for the Hour. He said: How would it be abandoned O Messenger of Allah? He  replied: if the ruling was given to those who were not suitable for it, then wait for the Hour”
The narration indicates a decisive prohibition for the guardianship to be placed with one who is not suitable for it. And the decisive indication is that such an act would mean the abandonment of the trust, which is from the signs of the Hour, which is an indication of the enormity of the prohibition of it being undertaken by those not suitable for it.
As for how capability should be defined, this requires establishing the reality since it might be connected to bodily or mental illness, etc. and therefore its definition is left for the Madhalim court, which will confirm that the conditions of contracting have been met in the candidates for the Khilafah.





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