The Appointmentof Khalifah/Caliph
In the following two messages I will examine two issues. The first one is who are
the Muslims who appoint the Khalifah? Are they the influential people or a certain
specific number of Muslims? Or do all Muslims appoint the Khalifah? The second issue
concerns the actions occurring this century in elections, such as secret ballots, polling
boxes and counting votes. Are thesematters consistent with Islam, and does Islam allow
them or not? Concerning the first issue there are different opinions adopted by different
scholars. A complete survey of these different opinions can be found Mahmoud Al-Khalidi
books: Al- Bay'ah In the Islamic Political Thinking and The Principles of the Ruling
System in Islam, both are in Arabic. He discusses the different opinions and refutes
those which do not have evidences from Quran or Sunnah. He ends this topic with the
opinion which is based on the practice of the Sahabah and agrees with the principles of
the ruling system in Islam. His opinion is taken literary from the writings of Taquidine
an-Nabhani (see The Islamic Personality, vol. 2, and the Khilafah). I will only comment
on some of the most famous opinions among Muslim scholars and I will discuss in detail
the opinion which I adopt, which is an-Nabhani opinion.
Some of the opinion are:
- The Khilafah is contracted by the consensus of all the influential people
(Ahl Al-Hal wa Al-'aqd). It is the opinion of Abu Ya'la, Ibnu Hazm and Imam Ahmad
(one of the two opinions attributed to him).
- The Khilafah is contracted by the consent of the people who have the power and
can protect the new Khalifah and sustain his authority. It is the opinion of Ibnu
Taymiah and Imam Ahmad (the second opinion attributed to him).
- Some scholars said the Khilafah is contracted by a certain number of people,
some said 40, others said 6, or 4 or .... There is no need to go in more details here
because there is no evidence what so ever for any of these numbers.
- The Khilafah is contracted by whoever is there from the influential people. It is
the opinion of Imam Nawawi, Al- Mawirdi and Shawkani. Al-Qalqashandi said it is the
opinion of the Shafi'i school of thought.
- The Khilafah is contracted by any number and it does not need any consent. It is
the opinion of Al-Amidi, Imam Al- Haramin and Al-Jarjani. I will briefly comment on the
above mentioned opinions.
The first opinion is not correct because the Khilafah was contracted to Abu Bakr
with those who were in the Saqifah (courtyard) of Banu Sa'edah. Not all the Sahabah
attended the meeting in the Saqifah, while all the Sahabah are Ahl Hal wa 'aqd.
Also some of the Sahabah were not in Madina when the Prophet died and they were not asked
or consulted.
The second opinion has no evidence what so ever. Ibnu Taymiah, as far as I know,
did not use any evidence. He thought the consent of the people who have the power is a
precondition for the stability of the new authority. This is not an Islamic evidence.
The third opinion is not, as I stated above has no evidence. There is no text to
limit the number of people by 40, 6, or 4 or any other number. The scholars made Qiyas
(analogy) between the Khilafah contract and some other issue like the number needed
for establishing the Jum'a prayer (Shafi'i opinion is that 40 people are needed to
establish a Jum'a prayer) or the number of witnesses needed to prove the zinna (adultery).
You can easily see that this analogy has no justification in Islam. Those are two
different topics.
The fourth and fifth opinions seem to have some justification, however
they need more clarification. Allah (SWT) has given the authority to the Ummah and made
the appointment of the Khalifah a right and duty for all Muslims; and He (SWT) did not
make it a right of one particular group excluding another, nor for a jama'ah leaving
another jama'ah aside, since the bay'ah is a duty upon all the Muslims. The Prophet
(pbuh) said: Whoever dies without having a pledge (bay'ah) upon his neck would die the
death of Jahilliyah (days of ignorance)", and this is general command for every Muslim.
Therefore, the influential people do not posses the exclusive right to appoint the
Khalifah and can not ignore the rest of the Muslims. Nor do specific persons have the
exclusive right. Rather, this right is for all the Muslims with no exception, it even
includes the fajirs (wicked people) and munafiqeen (hypocrites), providing they are
mature Muslims because the Shari'ah text came in a general form in this instance and
nothing to limit it (make it specific to certain people) except the refusal of the pledge
from the young who have not yet reached the age of puberty.
The text has to be taken generally. However, it is not a condition that all Muslims
practicethis right. Whilst it is a duty, because the bay'ah is Fard, it is Fard Kifayah
(collective duty) and not Fard 'ain (individual duty). Thus, if some of the Muslims fulfil
it, the duty drops of the rest of the Muslims. But all Muslims must be enabled to practice
their right in electing the Khalifah, regardless of wether they use their right or not.
In other words, every Muslim must be able to participate in selecting the Khalifah.
The issue is to enable the Muslims to carry out the duty of establishing the Khalifah
which Allah (SWT) prescribed upon them, in such a way that the sin of not fulfilling
this duty is removed from their shoulders. The issue is not the actual participation of all
the Muslims in conducting this duty. This is because the duty which Allah (SWT) prescribed is to
establish the Khalifah for Muslims by their consent, and it is not a requirement for all
Muslims to perform it.
Two matters result from this issue. One of them is that the
consent of all Muslims in establishment of the Khalifah is achieved, or secondly the
consent of the Muslims about the appointment is not achieved, however, in both cases the
Muslims are able to articipate in the appointment. With regard to the first matter no
condition is set concerning a specific number required to appoint the Khalifah, rather
any number of Muslims can give their bay'ah to the Khalifah and in this bay'ah the
consent of the Muslims is attained by their silence, or by proceeding to obey him, or
by anything which implies their consent, then the appointed Khalifah becomes a Khalifah
for all the Muslims, and he will be legally the Khalifah even if only three people
appointed him, because collectivity is achieved by carrying out the appointment of the
Khalifah. The consent is achieved by their silence and through obedience or anything
similar, on condition that this accomplished by absolute choice and enabling the
expression of opinions fully.
However, if the consent of all the Muslims was not
achieved, then the appointment of the Khalifah would not be accomplished unless it was
performed by a group that represents the consent of the majority of the Muslims egardless
of the number in this group. From here some jurists concluded that the appointment of the
Khalifah is established by the pledge given to him by the people of influence, because
they consider theinfluential people as the group which achieves the consent of the Muslims
though the pledge they give to any man who fulfils the contractual conditions of the
Khilafah.
Therefore, it is not the pledge of the influential people which establishes
the Khalifah, nor is their pledge a condition for the legality of the appointment of the
Khalifah, rather the pledge of the influential people is an evidence indicating that the
consent of the Muslims to the pledge has been achieved, because the influential people as
representative of the Muslims. And every evidence that indicates that the consent of the
Muslims with the pledge to a Khalifah is fulfilled completes the appointment of the
Khalifah, and the appointment of the Khalifah by this pledge would be legal.
Accordingly,the divine rule is to establish the Khalifah by any gathering whose appointment
of the Khalifah achieves the consent of the Muslims by any indication that proves this consent,
wether this indication is the pledge of the majority of the influential people, the
majority of the representative Muslims, the silent acceptance of the Muslims regarding
the group that give the pledge, their harry to show obedience as a result of the pledge
or by any similar means, as long as they were provided with the full facility to freely
express their opinions.
It is not a divine rule that this gathering must be of only the
influential people nor that they are four or four hundred or more, or that they must be
the residents of the capital or the regions. Rather the divine law is that their pledge
fulfils the consent of the majority of Muslims by any indication together with enabling
them to freely express their opinion fully. What is meant by all Muslims is those Muslims
who live in lands controlled by the Islamic state, i.e. those who are subject of the
former Khalifah, if the Khilafah exists, or those by whom the Islamic state would be
established and the Khilafah contracted, in case the Islamic state was not established
(our case now).
As for the other Muslims, their pledge and consent are not an essential
condition, because they are either believers disassociated from the Islamic authority or
they live in Dar Al- Kufr and they can not join Dar Al-Islam, so they have no right in
the contracting pledge, but they must give the pledge ofobedience because legally those
who rebel from the Islamic authority are treated as rebels. And those ho live in Dar
Al- Kufr, the establishment of the Islamic authority is not achievedby them unless they
establish it in reality or they enter into its domain.
Therefore, the Muslims who have the right in the pledge of contracting and their consent
is considered a condition to ensure the legal appointment of the Khalifah are those
Muslims by whom the authority of Islam is established in reality. It is not true to say
that this is a rational study or it has no divine evidence. The reason for this is that
it is a study about the subject upon which the divine law applies and not on the law itself,
therefore it does not need a divine law but rather must explain its reality.
For example, the eating of dead meat is prohibited is the divine law. Verification of what is
the deadmeat is the subject of the law, it is a subject which is related to the law.
So appointing the Khalifah by Muslims is the divine law, and that this appointment should be
by consent and selection is also the divine law. It is these provisions which need the
divine evidence.
However, who are the Muslims by whom the appointment is completed? And what is the matter
by which the consent and selection are fulfilled? These are referred to as the manatt (subject ) of
the law, i.e. the subject upon which the law came to treat. The application of the divine
law upon the subject is the achievement of the law. Therefore, it is needed to study
the manatt which the divine law came to treat by explaining its reality. Another example
is alcohol. The divine law is the prohibition of alcohol. The investigation that a
certain drink is alcohol or not, so as to judge it is haram or not is an investigation
of the manatt. The investigation of the reality of the alcohol is a verification of the
manatt.
Special Appreciatiation to Akhi
Shehadeh
Wallahu A'lamu Bissawab
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