The Institutions of State in the Khilafah by Hizb ut-Tahrir

1. The Council of the Ummah has the following mandatory powers and they are: .

(a): The Khalifah has to consult the Council and the Council has the right to advise him in the practical matters and actions related to discharging the affairs of the domestic policy that do not require profound thought and scrutiny such as provision of the necessary services so as to enjoy the tranquillity in life in terms of the matters of ruling, education, health, economy, trading, industry, farming and the like. In addition, strengthening the defences of their cities, saving their security and driving the danger of their enemy. The opinion of the Council in these matters is binding to the Khalifah, i.e. the opinion of the majority is executed. .

(b): In the intellectual matters that require profound thought and scrutiny, such as revealing the facts or taking the decision of war, the matters that require experience, information and knowledge, like putting military plans and all the technical and practical matters. All of such matters are taken from the specialists and not by majority. Similar to that are the finance, the army and foreign policy, which the Khalifah has the right to decide in accordance with his opinion and ijtihad, based on the ahkam shariah, and they are not within the mandatory powers of the council. The Khalifah has the right to refer to the Council for consultation and to acquaint himself with its opinion; however the opinion of the Council is not binding in these matters. .

2. The opinion of the council is not sought regarding legislation; the legislation is rather taken from the Book of Allah, the Sunnah of His Messenger and from what they alluded to in terms of ijmaa'us-sahabah and the divine qiyas, through valid ijtihad. The adoption of the ahkam shariah and enacting of laws would take place in this way. The Khalifah 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, if they disagreed with the Khalifah regarding the validity of their deduction or their evidence, in terms of their disagreement with the method of adoption from the divine foundations (usool) adopted in the State, then the decision will refer to mahkamat ul-mathalim, and its verdict in this matter is binding. .

3. The Council of the Ummah reserves the right to hold the Khalifah accountable on all matters that take place effectively within the State, whether these were related to home affairs, foreign affairs, financial affairs or military matters. The opinion of the Council is binding if the majority's opinion in such matters is binding, and it is not binding if the majority's opinion in such matters is not binding. .

If the Council and the Khalifah 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 assistants, Walis or the amils. Its opinion in such a case would be binding and the Khalifah should dismiss them at once. If the opinion of the council of the Ummah differed from the opinion of the council of the concerned wilayah regarding content and discontent of the walis and amils, the opinion of the council of the wilayah has the priority. .

5. The Muslim members of the Council have the right to restrict the nomination of candidates for the Khilafah from amongst those decided by mahkamat ul- Mazalim to fulfilling the contractual conditions, whether they were restricted to two or six nominees, as it is explained under the subject of the Khalifah's election. Their opinion in such a matter is binding, and candidates other than those shortlisted by the Council should accordingly not be considered. .

These are the mandatory powers of the Council of the Ummah. The evidences to these mandatory powers are as follows:.

The first point, (a): The evidence to the fact that the opinion of the council of the Ummah regarding the practical actions and matters, which do not require study and scrutiny is binding, is deduced from the Messenger of Allah's (PBUH) compliance with the opinion of the majority in going out of Madinah to meet the army of the mushriks in the battle of Uhud. This is despite the opinion of the Messenger of Allah (PBUH) and the Sahabah to stay in Madinah and not to go out of it. .

It is also taken from His (PBUH) saying to Abu Bakr and ‘Umar (ra): .

"Had you agreed together on a consulted matter I would not have disagreed with you." .

Therefore, the practical matters related to the opinion leading to an action, in terms of providing the services to the citizens for reassuring their life, and in terms of maintaining their security, strengthening their defences and driving danger away from them; the majority opinion of the council in all of these issues is binding upon the Khalifah even if it disagreed with his wish, which happened with the Messenger of Allah (PBUH) going out to Uhud in compliance with the opinion of the majority. .

The first point (b): In principle, the Khalifah takes the opinion of the scholars and the experts and the specialists regarding the matters of this section. This is in accordance with what happened with the Messenger of Allah ( PBUH) when he took the opinion of Al-Habab b. Al-Mundhir in selecting the location of the battle of Badr. It was reported in the Sirah of ibn Hisham: “When the Messenger (PBUH) camped at the nearest side of the water of Badr, Al-Habbab ibn Al-Mundhir was not content with that site. He said to the Messenger: “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 (PBUH) said: “It is rather the opinion, war and strategy”. Al-Habbab b. Al-Mundhir 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 (PBUH) said: “You gave the (right) opinion”. So the Messenger of Allah (PBUH) and the Muslims stood up and walked till they reached the near side of the water from the enemy and camped there. .

Then He (PBUH) ordered that the water be seeped away which was done. .

He (PBUH) built a basin on top of the seeped wells, filled it with water and threw in their (water) pots.” So the Messenger of Allah ( PBUH) 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 such matters, reference is made to the experts and specialists, rather than to the ordinary people's opinion. There is no weight in such matters to the majority, but rather to the knowledge, experience and specialisation. .

This also applies to the financial matters, because the Sharia has determined the types of funds which must be collected, and the areas over which they need to be allocated (spent). The Sharia 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 Sharia has left to the Khalifah 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 Sharia. 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 Khalifah 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. Rather the decision is entrusted with the concerned person.. To distinguish the difference between points (a) and (b), we say: .

For deciding the building of a bridge over a river to serve the interests of the people in a village, almost isolated in terms of communications and the like, then the majority opinion of the council on this matter is binding to the Khalifah in building the bridge to solve the communications problem of the village. As for deciding the right technical location for building the bridge, and the best engineering design of the bridge, whether it should be a suspension bridge or standing over pillars in the river etc; the experts and specialized people are consulted in such matters, rather than the majority opinion of the council. .

Likewise, building a school for the children of a village, where its children find great difficulty in reaching the schools in the towns, the majority opinion of the council of the Ummah on this matter is binding to the Khalifah. In regards to the choice of the location of the school in the village in terms of the soil strength suitable for design, as well as the style of its building, whether is possessed by the State, i.e. it is built, bought or leased, in such matters the experts and specialised people are consulted; and the majority opinion of the council is not sought, though the Khalifah is allowed to consult with them over the matter, but their opinion is not binding.. As regarding a country at the frontiers, defying the danger of an enemy, then the majority opinion of the council of the Ummah is binding in terms of the village's fortification and driving the danger of the enemy away from it, and preventing its exposure to killing and expulsion after any aggression from the enemy. However, the method of building such fortifications and any fighting means used to drive the danger away from it; such things need the consultation of the experts and specialized people, rather than the majority opinion of the council. .

The second point: Legislation belongs to Allah alone. Allah (S.W.T) says: .

"Verily, the decision rests with Allah only." [TMQ 12: 40]. "But nay, by your Lord, they will not be true believers until they make you judge of what is in dispute between them, and find within themselves no dislike of that which you decided and submit with full submission." [TMQ 4: 65] .

In the explanation of the Messenger (PBUH) to His (S.W.T) saying: .

"They have taken as lords beside Allah their rabbis and their monks", [TMQ 9:31] .

Al-Tirmidhi reported through ‘Adi ibn Hatim, he said: .

"I came to the Prophet (PBUH) while wearing a cross of gold in my neck. He said: O Adiy! Throw out this idol. And I heard him reading in surah of Bara’ah: 'They have taken as lords beside Allah their rabbis and their monks' (9: 31). He said: they did not worship them; but when they were permitted something they took it as halal and when they were prohibited something they forbade it". [Tirmidhi, Sunan, #3095] .

Therefore, legislation is not taken from the opinion of the council, neither by consensus or majority. It is rather taken from the Book of Allah and the Sunnah of His Messenger, and from that which is indicated by them through valid ijtihad. .

Thus, the Messenger (PBUH) refused the opinion of many Muslims regarding the Hudaybiyah peace treaty, and said: "I am the servant of Allah and His Messenger, and will never disobey his order." .

This is because the peace was a revelation from Allah (S.W.T); .

therefore the opinion of the people is not sought regarding legislation. Based on that, the adoption of the ahkam shariah, enacting of laws and the adoption of the rules and cannons are of the mandatory powers of the Khalifah alone as explained before. However, it is allowed for the Khalifah to submit to the council of the Ummah whatever he wants to adopt of ahkam shariah and cannons so as to find out its opinion regarding it. This is like 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. So ‘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’. This serves as evidence that the Khalifah has the right to do that.. With regard to reference to the mahkamat al-Mazalim in case the Khalifah differed with the council of the Ummah regarding the validity of the deduction of these cannons, or regarding their evidences or terms of the adoption from the sources (usool) adopted by the State. In this case the authority of Mathalim judge is to examine the hukm adopted by the Khalifah, whether it has divine evidence and whether the evidence applies to the incident. Therefore, if the Khalifah differed with the council (i.e. the majority of the council) over the hukm which the Khalifah adopted in terms of being a valid hukm shar’i or not, then this dispute is settled by the judge of Mazalim, because it is of his speciality; and the opinion of mahkamat ul-mathalim is binding. .

Non-Muslim members of the council have no right in examining the ahkam and cannons which the Khalifah wants to adopt. This is because they do not believe in Islam, and because their right is restricted to voicing their concerns regarding any oppression that might fall upon them from the rulers, rather than expressing their view regarding the divine ahkam and canons.. With regards to the third point, its evidence is the general meaning of the texts related to bringing the rulers to task. Ahmad narrated from Ibn ‘Umar, who said: “The Messenger of Allah (PBUH) said: “There will be Amirs 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 Hawd (basin)”. [al-Mundhiry, al- Targhib wa’l-Tarhib, vol.3, p.2203]. Ahmad narrated from Abu Sa’id al-Khudri, who said: “The Messenger of Allah (PBUH) said:. “…The best of Jihad is (to say) a word of truth before an oppressor ruler”.” [Abu Dawud, Sunan, #4344]. Al-Hakim narrated from Jabir from the Prophet (PBUH) who said: “The master of martyrs is Hamza b. ‘Abd al-Muttalib and a man who stood to an oppressor ruler where he ordered him and forbade him so he (the ruler) killed him.” [Al-Mundhiry, al-Targhib wa’l-Tarhib, vol.3, p.229]. Muslim narrated from Umm Salamah that the Messenger of Allah ( PBUH) said: .

“There will be Amirs you recognise some of what they do and deny some. Whoever recognised he would be free of responsibility, and whoever denied he will be safe; but whoever accepted and follows (he will be not)”.

These texts are in general form and indicate accounting of the ruler in accordance with the rules of the shara’. Furthermore accounting can be over any action. This accounting by the Council to the Khalifah and other assistants, governors and ‘Amils would be over any 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 Khalifah must respond to this accounting and the objections by showing his view and evidence regarding his words, actions and tasks he undertook, so that the Council can be assured of the good performance, the sincerity and honesty of the Khalifah. If however the Council does not accept the view of the Khalifah 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 like the issues in (a), otherwise it would not be like the issues in (a). If the accounting for example was regarding not providing the school in the previous example then the accounting is binding. If the accounting was however regarding the design he chose for the school then his accounting is not binding. .

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 (S.W.T) 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.” [4:59] 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 arbitrate to the Sharia. This means to refer to Judiciary, that is to the court of unjust acts and its opinion is binding, because it has the mandatory power in this case. .

In regards to the fourth point, its evidence is that the Messenger of Allah (PBUH) removed al-’Ala’ ibn al-Hadrami, his Amil over Bahrain, because the delegate of `Abd Qays complained about him to the Messenger (PBUH). Ibn Sa’d narrated on the authority of Muhammad b. ‘Umar:. “That the Messenger of Allah wrote to al-Ala’ b. Al-Hadrami to come to him with twenty men from ‘Abd Qays. He reached him with twenty men headed by Abdullah ibn Awf al-Ashajj, and appointed after him al-Mundhir b. Sawa. The delegate complained of al-‘Ala’ b. Al-Hadrami so the Messenger of Allah (PBUH) removed him and appointed Iban b. Said b. Al-Aass and said to him:” Take care of ‘Abd Al-Qays and respect their chiefs.” .

Also ‘Umar b. Al-Khattab removed Sa’d 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 Amirs, and the Khalifah 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 Amils and the Khalifah has to remove them immediately if the complaint came from the majority of the council of the wilayah or the majority of the council of the Ummah. In the case of conflict between the views of these two councils, then the priority is given to the council of the wilayah, for it is more aware and more acquainted than the council of the Ummah of the condition of the wali. .

With regards to the fifth point, this point has two issues: The first one is the short listing of the nominees, and the second is reducing the shortlist to six people and then to two. .

As for the first issue, from following the manner of appointing the guided Khulafaa' it appears there was short listing of nominees made by the representatives of the Muslims directly, or through requesting the Khalifah to shortlist the nominees on their behalf. .

In the hall of Bani Sa'idah the nominees were Abu Bakr, ‘Umar, Abu Ubayda and Sa'd ibn Ubadah, who were seen enough and to whom the nominations were restricted. This took place before the people of the hall, and then by the consent of the Sahabah later on, where they gave the bayah to Abu Bakr. .

Towards the end of Abu Bakr's (ra) authority, he consulted with Muslims for about three months, discussing with them the post of Khilafah after him. After they discussed this with him they agreed to his nomination of ‘Umar, i.e. restricting the nomination to one candidate. .

Restricting of nominees was more clear and obvious after the stabbing of ‘Umar, for they requested him (ra) to nominate to them candidates; so he confined it to six (nominees), depriving others of it, where he emphasised that matter as it is known. .

At the time of nominating ’Ali (ra), he was the only nominee, without having any one else with him; so there was no need for short listing. .

Short listing of nominees used to take place before a gathering of Muslims; a matter which is opposed and not executed had it been not allowed, for this prevents the right of others in nomination. Therefore, short listing the nominees for Khilafah post is allowed due to the ijmaa' us-Sahabah. Thus, the Ummah, i.e. her representatives are allowed to shortlist the nominees, whether this short listing was conducted directly by the Ummah, or through authorizing the outgoing Khalifah to do that on their behalf. .

This is in regards to short listing. In regards to evidence for the short listing of the nominees to six people at first, this is taken from the action of ‘Umar (ra); whilst shortening the list to two after that is taken from the action of Abdul Rahman ibn Awf (ra). Additionally this verifies the meaning of the bayah by the majority of the Muslim electorate; for if the nominees were more than two, then the winner amongst them might get for example thirty percent of the electorate, i.e. less than their majority. The winner would get the majority in case the nominees were not more than two. .

In regards to short listing of the six and two nominees by the council of the Ummah, this must be by the mahkamat ul-mathalim to ensure that the nominees fulfil the contractual conditions; this is because the short listing conducted by the council of the Ummah is for electing a Khalifah from amongst them. It means in other words that they must fulfil the contractual conditions. Therefore, mahkamat ul-mathalim would exclude from the nominees to the Khilafah anyone who does not fulfil the contractual conditions. After that the council of the Ummah would make the shortlist from the nominees decided by mahkamat ul-mathalim to have fulfilled the contractual conditions.