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Article 34, Explanation of the Draft Constitution of the Khilafah

The following is the translation of an article from the book by Hizb ut-Tahrir entitled 'Introduction to the Constitution and the necessary evidences for it' which is the explanation of its draft constitution for the Khilafah state. This draft translation is from the second edition published in 2009 which was updated from the original published in 1963.

Article 34

The method of appointing the Khalifah is the pledge of allegiance (Bay’a). The practical steps to appoint the Khalifah and his Bay’a are:
a.      The Madhalim court announces the vacancy of the position of the Khilafah
b.      The temporary leader takes control of his responsibility and announces the opening of the nomination procedure immediately
c.       Applications of the candidates fulfilling the contracting conditions would be accepted, excluding the other applications, by the decision from the Madhalim court.
d.      The candidates who have been accepted by the Madhalim court, are then short listed twice by the Muslim members of the Shura council: first; they select the six candidates who got the highest votes from them, and the second stage is to select the two candidates who got the highest votes
e.       The names of the two are announced and the Muslims are requested to vote for one of them
f.        The result of the elections is announced and the Muslims are informed of the one that got most of the votes.
g.      The Muslims promptly set out to give the pledge to whoever got most of the votes, as the Khalifah of the Muslims upon the Book of Allah (swt) and the Sunnah of His Messenger .
h.      Once the pledge has been completed, the Khalifah is announced to the public, until the news of his appointment has reached the whole Ummah, with mentioning of his name and that he fulfilled the characteristics that make him valid for contracting the Khilafah to him.
i.        After completing the steps to appoint the new Khalifah the responsibility of the temporary leader ends.

When the Shari’ah obligated the appointment of a Khalifah upon the Ummah, it specified the method by which he would be appointed. This method has been defined by the Quran and Sunnah and the consensus of the companions. This method is the pledge of allegiance (Bay’a). The appointment of the Khalifah occurs through the taking of the Bay’a of the Muslims upon the action by the Book of Allah (swt) and the Sunnah of His Messenger . What is meant by “Muslims” is those Muslims who were under the responsibility of the last Khalifah if the Khilafah was established or the Muslims of the area which the Khilafah was being established within if it was not already established.
The fact that this method (Bay’a) is confirmed by the Muslims’ Bay’a to the Messenger , and from the order of the Messenger  upon us to give the Bay’a to the Imam. As for the Bay’a of the Muslims to the Messenger , it was not a Bay’a on Prophethood but rather upon ruling, since it was a Bay’a upon action and not upon confimation (of the truth of his Prophethood). So he  was given the Bay’a upon the basis that he was a ruler and not that he was a Prophet or a Messenger, since the confirmation of belief in Prophethood and his  message is Iman and not Bay’a. Therefore all that remains is that the Bay’a must have been in respect of him  being the head of the state. The Bay’a is mentioned in the Quran and the Sunnah. Allah (swt) says:O Prophet! When believing women come to you to give you the Bay’a (pledge), that they will not associate anything in worship with Allah, that they will not steal, that they will not commit illegal sexual intercourse, that they will not kill their children, that they will not utter slander, intentionally forging falsehood (i.e. by making illegal children belonging to their husbands), and that they will not disobey you in Ma‘ruf (Islamic Monotheism and all that which Islam ordains) then accept their Bay‘a (pledge)” (TMQ 60:12), and Allah (swt) says “Verily, those who give Bay‘a (pledge) to you (O Muhammad) they are giving Bay‘a (pledge) to Allah. The Hand of Allah is over their hands” (TMQ 48:10). Al-Bukhari reported: Isma‘il said that Malik said to me from Yahya b. Sa‘id who said: ‘Ubadah b. al-Walid said his father said to him from ‘Ubadah b. al-Samit “We gave the oath of allegiance to Allah's Apostle that we would listen to and obey him both at the time when we were active and at the time when we were tired and that we would not fight against the ruler or disobey him, and would stand firm for the truth or say the truth wherever we might be, and in the Way of Allah we would not be afraid of the blame of the blamers”. And in Muslim from ‘Abd Allah b. ‘Amru b. al-‘As that the Messenger of Allah  said He who swears allegiance to a Khalifah should give him the pledge of his hand and the sincerity of his heart (i.e. submit to him both outwardly as well as inwardly). He should obey him to the best of his capacity. If another man comes forward (as claimant to Khalifah) disputing his authority, they (the Muslims) should behead the latter”.And also in Muslim from Abu Sa‘id al-Khudri that the Messenger of Allah said “If the Bay’a is given to two Khalifahs (khalifatayn) then strike the neck of the latter”. Muslim also reported from Abu Hazem who said: I sat with Abu Huraira for five years, and I heard him say from the Prophet The tribes of Isra’il were ruled by the Prophets, every time a Prophet died he was followed by another Prophet, and there will be no Prophets after me, and there will be khulafaa’ (successors) and they will be many”.
The texts of the Quran and Sunnah are explicit that the method to appoint the Khalifah is the Bay’a. It could also be understood from the consensus of the companions, who acted upon this, and the Bay’a to the righteous Khulafaa’ are clear in this regard.
The practical steps which conclude with the action of the appointment of the Khalifah before the giving of the pledge to him are understood from what occurred with the righteous khulafaa’ who came straight after the death of the Messenger . They were Abu Bakr (ra), Umar (ra), ‘Uthman (ra) and ‘Ali (ra), may Allah be pleased with them. All of the companions were silent upon and consented to the steps taken, even though they were steps which would have been rejected if they contradicted the shari‘a since they were connected to the most important issue upon which the Muslim entity rested and the continuity of the ruling by Islam.
Whoever followed what occurred in the appointment of those khulafaa’, they would find that some of the Muslims discussed the issue in Saqifa Bani Sa‘idah and that the candidates were Sa’d (ra), Abu ‘Ubaida (ra), Umar (ra) and Abu Bakr (ra). However, both Umar (ra) and Abu ‘Ubaida (ra) did not wish to contest the issue against Abu Bakr (ra), and so the issue was really between Abu Bakr (ra) and Sa’d Bin ‘Ubada (ra) and no one else, with the result of the discussion being that the Bay’a was given to Abu Bakr (ra). Then on the second day the Muslims were called to the mosque to give him their Bay’a, and so the Bay’a in al-Saqifa was one of contracting, and with it the person becomes the Khalifah of the Muslims, and the Bay’a in the mosque on the second day is the Bay’a of obedience.
When Abu Bakr (ra) felt that his illness was terminal and specifically that the Muslim armies were involved in battles with the major powers of the time, the Persians and the Romans, he called the Muslims in order to consult them upon who should be the Khalifah for them and spent three months doing this consultation. When he had completed it and knew the opinion of the majority of the Muslims, he commissioned them, or in modern terminology nominated, that Umar (ra) should be the Khalifah after him. This commissioning or nomination was not a contract for Umar (ra) to be the Khalifah after him, since after the death of Abu Bakr (ra) the Muslims attended the mosque to give their Bay’a to Umar (ra) and through that he became the Khalifah of the Muslims, and not through the consultations, or Abu Bakr’s (ra) commission, since if the nomination by Abu Bakr (ra) was a contract for the Khilafah then he would not have required the Bay’a of the Muslims. This is on top of the texts mentioned earlier which explicitly indicate that the only manner for a person to become the Khalifah is through the Bay’a given by the Muslims.
At the time that Umar (ra) was stabbed the Muslims requested that he appoint a successor which he refused to do. They pressed upon him and so he made, or nominated, six candidates for them, after which he appointed Suhayb to lead the people in prayer and to prevail upon those whom Umar (ra) had nominated until they decided upon a Khalifah from amongst themselves during the three days he had specified for them. He said to Suhayb “if five of them agreed upon a man while one disagreed, then strike his head with a sword..” as has been reported by al-Tabari in his al-Ta’rikh, as well as Ibn Qutaybah who authored the book al-Imama wa ’l-Siyasa which is commonly known by al-Ta’rikh al-Khulafaa’, and Ibn Sa’d in al-Tabaqat al-Kubra. Then Umar (ra) appointed Abu Talha al-Ansari along with fifty men to guard them, and charged al-Miqdad Bin al-Aswad with finding a place for them to meet. Then after the death of Umar (ra) and subsequent to the council settling upon the candidates, ‘Abd al Rahman Bin ‘Auf said: Which of you would remove yourselves (from consideration) and assume responsibility to select the best of you? To which all of them remained silent. Then ‘Abd al Rahman said I remove myself and then consulted each of them individually asking them who they considered the most worthy of the responsibility if they didn’t consider themselves, and he found that their answers were limited to two: ‘Ali (ra) and ‘Uthman (ra). After that ‘Abd al Rahman sought the opinions of the Muslims asking them which of the two they would prefer. He asked the men and women, surveying the opinion of the people, not just during the daytime but even during the night. Al-Bukhari narrated from al-Miswar Bin Makhrama who said “Abdur-Rahman called on me after a portion of the night had passed and knocked on my door till I got up, and he said to me, "I see you have been sleeping! By Allah, during the last three nights I have not slept enough”. After the people had offered morning prayer,Bay’a of ‘Uthman (ra) was completed. He became the Khalifah through the Bay’a of the Muslims, and not because Umar (ra) limited it to six. Then ‘Uthman (ra) was killed, and so the masses of the Muslims in Madinah and Kufa gave their Bay’a to ‘Ali b. Abi Talib (ra), and so he became the Khalifah through the Bay’a of the Muslims.
By close examination of the manner of their Bay’a, it becomes clear that the candidates for the Khilafah were announced to the people and that they all fulfilled the necessary conditions of contracting. After this the opinion of the influential people (ahl al hal wa ’l-‘aqd) from the Muslims was taken, the representatives of the Ummah, and the representatives were well known in the era of the righteous Khulafaa’ since they were the companions, may Allah be pleased with them, or the people of Madinah. Whoever the companions, or the majority of them, wanted to become Khalifah was given the Bay’a of contracting, and thus became the Khalifah to whom obedience was obligatory, and so the Muslims would give them the Bay’a of obedience. In this manner the Khalifah is found and becomes the authorised representative of the Ummah in ruling and authority.
As for the issue of limiting the candidates, then by following the manner in which the righteous khulafaa’ were appointed, it becomes clear that the candidacy was limited. In Saqifa Bani Sa’idah the candidates were Abu Bakr (ra), Umar (ra), Abu ‘Ubaida (ra) and Sa’d Bin ‘Ubada (ra) and that was all, though Umar (ra) and Abu ‘Ubaydah (ra) didn’t wish to compete against Abu Bakr (ra) and so in practical terms the candidates were Abu Bakr (ra) and Sa’d Bin ‘Ubada (ra). Then the ahl al hal wa ’l-‘aqd elected Abu Bakr (ra) the Khalifah in al-Saqifa and gave him the Bay’a of contracting, and the next day the Muslims gave Abu Bakr (ra) the Bay’a of obedience in the mosque.
Abu Bakr (ra) nominated Umar (ra) as the Khalifah for the Muslims, without there being any other candidate, and then the Muslims gave him the Bay’a of contracting and then the Bay’a of obedience.
Umar (ra) nominated six candidates for the Muslims and told them to elect the Khalifah from amongst themselves, then ‘Abd al-Rahman b. ‘Awf discussed with five of them and limited them to two: ‘Ali (ra) and ‘Uthman (ra), after the others had charged him to do. After that he surveyed the opinion of the people and that opinion settled upon ‘Uthman (ra) as the Khalifah.
As for ‘Ali (ra), there was no other candidate for the Khilafah and so the masses of the Muslims in Madinah and Kufa gave him the Bay’a and he became the fourth Khalifah.
And due to the Bay’a of ‘Uthman (ra) being settled within the maximum permitted time to elect the Khalifah – three days and nights – and also that the candidates were limited to six and then after that to two, we will mention how that occurred with the details in order to understand the issue we are discussing:
1.      Umar (ra) died on Sunday morning in Muharram 24 A.H. from the effects of being stabbed by Abu Lu’lu’a, may Allah (swt) curse him, when Umar (ra) was standing in prayer in the pulpit of the mosque during the Wednesday morning prayer four days before the end of Dhul Hijja 23 A.H. Suhayb led the prayer for him in accordance with his will.
2.      When they had completed the issue of Umar (ra), al-Miqdad gathered the council of six which had been entrusted by Umar (ra) in one of the houses and Abu Talha took care of their needs. They sat therein and discussed and then appointed Abd al-Rahman b. ‘Awf to select the Khalifah from amongst them with their consent.
3.      ‘Abd al-Rahman began to discuss with them and he asked each of them: If he was not to be the Khalifah then who did he think should be from amongst the others? Their answers were limited to ‘Ali (ra) and ‘Uthman (ra), and so Abd al-Rahman limited the candidacy to two from the original six.
4.      After that Abd al-Rahman began to consult the people as is well known.
5.      On Tuesday night - in other words the night of the third day after the death of Umar (ra) on Sunday, Abd al-Rahman went to the house of his nephew al-Miswar Bin Makhramah. The following is taken directly from al-Bidayah wa ’l-Nihayah of Ibn Kathir:
“When the night whose morning would have been the fourth day after the death of Umar, Abd al-Rahmanb. ‘Awf came to the house of his nephew al-Miswar Bin Makhrama and said “You are sleeping O Miswar? By Allah I did not get much sleep for the last three (nights)” in other words the last three nights after the death of Umar (ra) which occurred on Sunday morning, which was Sunday, Monday and Tuesday night – until he said “Go and call ‘Ali and ‘‘Uthman for me…and then he went out with them to the mosque…the people were called to the prayer in congregation”,which was the Wednesday morning prayer. Then he took Ali’s (ra) hand, may Allah (swt) be pleased with him and honour his face, and asked him regarding taking the Bay’a upon the Book of Allah (swt), the Sunnah of His Messenger  and the actions of Abu Bakr (ra) and Umar (ra). ‘Ali (ra) famously replied: upon the Book and the Sunnah – yes. As for the actions of Abu Bakr (ra) and Umar (ra), he would make his own Ijtihad. Abdul Rahman removed his hand, took the hand of ‘Uthman (ra) and asked the same question. ‘Uthman (ra) replied: By Allah yes, and so the Bay’a was completed with ‘Uthman (ra).
Suhayb led the people in the morning and midday prayer that day, and then ‘Uthman (ra) led them in the afternoon prayer as the Khalifah of the Muslims. This means that despite the contracting Bay’a to ‘Uthman (ra) starting at the Morning Prayer, the leadership of Suhayb did not expire except after the Bay’a  of the influential people in Madinah to ‘‘Uthman (ra). This was completed a little before the afternoon prayer, where the companions summoned each other to give Bay’a to ‘Uthman (ra) until after the middle of that day had passed and before the afternoon prayer. When the taking of the Bay’a was completed before the afternoon prayer, the leadership of Suhayb finished, and ‘Uthman (ra) led the people in the afternoon prayer as their Khalifah.
The author of al-Bidayah wa’ l-Nihayah explains why Suhayb led the people in the afternoon prayer though ‘Uthman (ra) took the Bay’a at the morning prayer, saying: “The people gave him the Bay’a in the mosque, then he was taken to the house of shura (i.e. the house where the people of consultation met), so the rest of the people gave him the Bay’a . It seems he did not finish taking the Bay’a until after the midday prayer. So, Suhayb prayed that prayer in the Prophet’s mosque, thus the first prayer in which the Khalifah, leader of the believers ‘Uthman (ra) led the Muslims was the afternoon prayer”.
Consequently the following matters must be considered when making nominations for the post of Khilafah after it becomes vacant (through death or dismissal), which are:
1.      The work regarding candidacy and appointment must be done day and night until the task is completed.
2.      Nominees have to be short listed in terms of fulfilling the contractual conditions, a matter that is conducted by the Madhalim court.
3.      Nominees are short listed twice: to six and then to two. The council of the Ummah conducts this short listing as representatives of the Ummah. This is because the Ummah delegated Umar (ra) to represent them, who nominated six people and the six nominees delegated a representative from amongst themselves, ‘Abd al Rahman, who short listed the nominees to two after discussion. Thus, the reference in all of this is the Ummah’s council; in other words its representatives.
4.      After the completion of the elections and the Bay’a, the Khalifah is announced to the public such that all of the Ummah are aware of it, and his name and characteristics that mean he fulfils the criteria for the contraction of the Khilafah are also mentioned.
5.      The task of the temporary leader expires after the completion of the taking of the Bay’a by the Khalifah, rather than by the announcement of the results. The leadership of Suhayb did not finish by the election of ‘Uthman (ra), but rather by the completion of his Bay’a.
This is the case if there was a Khalifah and he passed away or was removed and a Khalifah needs to be appointed to replace him.
If there is no Khalifah at all, it becomes obligatory upon the Muslims to appoint a Khalifah, to implement the rules of the shari’a and to carry the Islamic call to the world, as is currently the case since the removal of the Islamic Khilafah in Istanbul, on 28th Rajab 1342 AH (3rd March 1924). In such a situation, every one of the Muslim countries in the Islamic world is suitable to appoint a Khalifah, and the Khilafah would be contracted to him. So, if one of the Muslim countries gave the Bay’a to a Khalifah, and the Khilafah was contracted to him, it becomes obligatory upon the Muslims in the other countries to give him the Bay’a of obedience or in other words a Bay’a of submission to his authority. This is after the Khilafah has been concluded to him through the Bay’a of the people of his country. The following four conditions have to be fulfilled in that country:
1.      The authority of the country must be in the hands of the Muslims and not in the hands of a non-Islamic country or under a non-Islamic influence.
2.      The security of the Muslims in that country must be guaranteed by Islam; in other words its protection at home and abroad should be in the name of Islam and by Islamic forces to the exclusion of all others.
3.      The implementation of Islam should take place with immediate effect in a comprehensive and radical manner; the Khalifah must be involved in the conveying of the call to Islam.
4.      The Khalifah must fulfil all the contractual conditions, although he might not fulfil the preferred conditions, since what matters are the conditions of the contract.
Should that country satisfy these four conditions then the Khilafah would be established by the Bay’a of that country alone, and the Khilafah would be concluded by it alone. The Khalifahto whom they gave the Bay’a would become the legitimate Khalifah and any Bay’a to other than him would be invalid.
Any country that might give the Bay’a to another Khalifah after that, then their Bay’a would be invalid, due to the saying of the Messenger of Allah
“If Bay’a was given to two Khalifah, then kill the latter of them”and his  saying “Fulfil the Bay’a of the first, then the first”and his  saying“Whoever gave Bay’a to an imam, giving him the clasp of his hand and the fruit of heart, let him obey him as much as he could. If anybody else came to challenge his authority, then strike the head of the latter.”

The method of the Bay’a: In the aforementioned we have explained the evidences for the Bay’a as the prescribed method of appointing a Khalifah in Islam. Regarding its practical implementation, it is through shaking the hand as well as by writing. It has been narrated by ‘Abd Allah b. Dinar who said: “I witnessed Ibn Umar when people agreed on Abd al-Malik b. Marwan saying: "I write herewith that I agree to hear and obey ‘Abd Allah Abd al-Malik, the leader of the believers, according to the Book of Allah and the Sunnah of His Messenger, and to the best of my ability”.  The Bay’a can also be given by any other means.
The Bay’a should only be given by an adult as the Bay’a of the minor is not valid. Abu Aqeel Zahrah b. Ma‘bad reported on the authority of his grand-father ‘Abd Allah b. Hisham who lived during the time of the Messenger of Allah , that his mother Zaynab bint Hamid took him to the Messenger of Allah  and said “O Messenger of Allah, take Bay’a from him” upon this the Messenger of Allah  said He is young and he  wiped over his head and prayed for him, as narrated by al-Bukhari.
As for the wording of the Bay’a, it is not restricted to any specific wording, but it should include the commitment that the Khalifah acts according to the Book of Allah (swt) and the Sunnah of His Messenger  and that the person who gives the Bay’a should pledge to obey in that which they liked and disliked and in ease and hardship. A law will be published that will determine this wording in accordance with the previous points.
Once the Bay’a is given to the Khalifah, then the Bay’a becomes a trust on the neck of the one who gave the Bay’a, where he is not allowed to withdraw it. For it is his right in terms of appointing the Khalifah until he gives it. But once he gave it, he is not allowed to withdraw it. Even if he wanted to do so, he is not permitted to withdraw his Bay’a. Al-Bukhari narrated from Jabir Ibn ‘Abd Allah that a Bedouin gave the Bay’a to the Messenger of Allah  on Islam, but he became unwell, so he said: “Relieve me of my Bay’a”, which the Messenger of Allah  refused. Then he came and said the same, but the Messenger  rejected. So he left the town. The Messenger of Allah said “The town is like the mason’s bellow (or furnace), it gets rid of (cleans) its impurity, and its goodness (scent) manifests (shines)”.
Muslim also narrated from Nafi’ on the authority of ‘Abd Allah b. Umar that he heard the Messenger of Allah  say “Whoever withdraws a hand from obedience, he would meet Allah on the day of judgement without having proof for himself”.

Breaking the Bay’a to the Khalifah is a withdrawal of the hand from the obedience to Allah (swt). However, this is the case if his Bay’a to the Khalifah was a Bay’a of contracting, or a Bay’a of obedience to a Khalifah was accepted and pledged by the Muslims. But if he pledged himself to a Khalifah initially, and the Bay’a was not completed, then he has the right to relieve himself from that Bay’a, in view of the fact that the contracting Bay’a has not been concluded to him from the Muslims. So the prohibition in the hadith is focused on withdrawing a Bay’a to a Khalifah, not to a man for whom the Khilafah contract was not completed.


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