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

The Khalifah possesses the following mandatory powers: A – It is he who adopts the divine rules (Ahkam Shar’i ya) necessary for managing the affairs of the Ummah, which are deduced through viable ijtihad from the Book of Allah and the Sunnah of His Messenger. Thus they become a binding law that must be obeyed and not rejected. .

B - He is responsible for the domestic and foreign policies of the State; he is the supreme commander in chief of all the armed forces and he has full powers to declare war, conclude peace treaties, truces and all other treaties. .

C - He has the powers to accept (foreign) ambassadors and to refuse them, as well as the powers to appoint Muslim ambassadors and to remove them. .

D - It is the Khalifah who appoints and removes the assistants and Walis; they are all responsible before him and before the Council of the Ummah. .

E - It is he who appoints and removes the supreme judge (Qadi al-Qudah), as well as the other judges excluding the judge of mahkamat al-Mazalim, where he appoints him, but he is restricted regarding his dismissal as it is explained in the chapter of the judiciary. He also appoints the managers of the administration departments, army commanders, chiefs of staff, and the commanders in chief. They are all answerable to him and not to the Council of the Ummah. .

F - It is he who adopts the divine rules, in light of which the State’s budget is drafted, and it is he who decides the details of the budget and the funds allocated to each department, whether concerning revenues or expenses. .

As for the detailed evidences of the six sections mentioned above, the evidence about section "A" is the general consensus of the Sahabah. Qanun (law) is a technical term which means the order that the ruler (Sultan) issues so that people abide by it. Scholars of Qanun (law) define it as "the host of principles that the Sultan (ruler) compels people to follow in their relations". In other words if the Sultan issues certain rules, then these rules become laws and people have to abide by them; and if the Sultan does not issue them, .

then they do not become law and people are not obliged to abide by them. The Muslims follow the rules of Shara’, so they abide by Allah’s (P.B.U.H) commands and prohibitions. What they abide by are the commands and prohibitions of Allah, not those of the Sultan, so what they follow are divine rules and not the orders of the Sultan. However the Sahabah have differed regarding the Shariah rules. Some of them understood matters from the divine texts different to one another’s’ understanding. Each one of them abided by what he understood and that represented the rule of Allah (S.W.T) on his behalf. However, there are some divine rules related to managing the affairs of the Ummah that all the Muslims should abide by according to one single opinion, and not each proceeding according to his own ijtihad. This indeed took place in the past. Abu Bakr, for instance, considered it fit to distribute the funds equally among all Muslims for it was their equal right. However ‘Umar deemed it wrong to give to those who had fought against the Messenger of Allah (P.B.U.H) and those who fought alongside him, or to give to the needy equal to that which was given to the wealthy. However when Abu Bakr was the Khalifah, he enforced his opinion upon the people, the judges and Walis executed his opinion and ‘Umar also submitted to Abu Bakr’s opinion and executed it. And when ‘Umar became Khalifah he enforced his own opinion which differed from that of Abu Bakr, i.e. he ordered the funds to be distributed preferentially and not equally, whereby the funds were distributed according to the length of time they had been Muslims and according to their needs. The Muslims abided by this rule, and the judges and Walis executed it. Therefore, a general consensus of the Sahabah was established stating that the Imam has the right to adopt specific rules and enforce their implementation, and Muslims have to abide by such rules even if they contradict with their own ijtihad, and they must also abandon their own opinions and ijtihads. These adopted rules are in fact laws (or canons); thus the enaction of laws belongs to the Khalifah alone and no one else has such a right. .

As for section "B", its evidence is derived from the actions of the Messenger of Allah (P.B.U.H). He (P.B.U.H) used to appoint the Walis and judges and hold them accountable to him. He (P.B.U.H.) used to control trading and prohibit fraud and cheating. He (P.B.U.H) used to distribute the funds among the people, and help the unemployed find work. He (P.B.U.H) used to run all the State’s internal affairs.

He (P.B.U.H) also used to write to the kings and meet with the envoys and receive the delegates. He (P.B.U.H) carried out all the foreign affairs of the State. He (P.B.U.H) effectively used to take command of the armed forces during the raids and He (PBUH) used to lead the battles, and He (PBUH) used to send out all the expeditions and appoint their leaders. In one instance He (PBUH) appointed Usama b. Zayd at the head of an expedition to Al-Sham; the Sahabah were not pleased with this due to Usama’s young age, but the Messenger of Allah (PBUH) forced them to accept his leadership, which proves that he was effectively the commander of the armed forces and not just its supreme commander in chief. .

It was He (PBUH) who declared war on Quraish, and on Banu Qurayzah, Banu Nadir, Banu Qaynuqa’, Khaybar and the Romans. All the wars that took place were declared by Him (PBUH). This proves that only the Khalifah has the right to declare war. It was also the Messenger of Allah (PBUH) who signed the treaties with Banu Madlij and their allies of Banu Dhumra. He (PBUH) signed a treaty with Yuhanna (Jonathan) b. Ru’ba, the leader of Ayla, and He (PBUH) also signed the treaty of Al-Hudaybiyah. The Muslims on that occasion were outraged but He (PBUH) ignored their opinion and dismissed their pleas, went ahead and signed the treaty. This proves that only the Khalifah has the mandatory powers to sign treaties, whether these are peace treaties or any other. .

As for section "C", its evidence is that it was the Messenger of Allah ( PBUH) himself who received the two envoys of Musaylama, and it was He (PBUH) who received Abu Rafi’i, an envoy from Quraish. It was also He (PBUH) who sent envoys to Heraclius, Chosroes, Al Muqawqis, Al- Harith Al-Ghassani, King of Al-Heera, Al Harith Al-Himyary, King of Yemen, the Negus of Abyssinia (Al-Habashi), and Uthman Ibn Affan to Quraish during the Hudaybiyah affair. This proves that the Khalifah is the one who receives and declines the ambassadors (envoys) and it is he who appoints the ambassadors. .

As for section "D", its evidence is that it was the Messenger of Allah ( PBUH) himself who used to appoint the Walis; for he appointed Muadh as Wali over Yemen. And he (PBUH) used to remove them; he removed Al-A’la’ b. Al-Hadrami from his post as Wali of Bahrain after its people complained about him. This indicates that the Walis are responsible before the people of the wilayah (region-district), before the Khalifah, as well as the Council of the Ummah, as it represents all the wilayahs. This is regarding the Walis. .

As for the assistants, the Messenger of Allah (PBUH) had two assistants, Abu Bakr and ‘Umar. He did not remove them nor appoint others to replace them during his lifetime. However the assistant derives his authority from the Khalifah, and since he acts in the capacity of his deputy, the Khalifah then has the right to remove him. This is analogous with the representative (agent), where a person has the right to dismiss his representative (agent). .

As for section "E", its evidence is derived from the fact that Allah’s Rasool (PBUH) appointed ’Ali as judge over Yemen. Ahmad narrated that Amru b. al-‘Aas said: "Two men disputing with each other came to the Messenger of Allah (PBUH) (seeking justice), so He (PBUH) said to me: "Judge between them, O Amru." I said: "You are better and more worthy of that." He (PBUH) said: "Even though!" So I said: "What shall I have if I judged?" He (PBUH) said: "If you judged and you were right, you would get ten rewards and if you get it wrong you would get one reward."” [Also from ‘Uqbah b. ‘Amir. See al- Haythami, Majma’ al-Zawa’id, vol.4, p.198] .

‘‘Umar (may Allah be pleased with him) used to appoint and remove judges. He appointed Shurayh as a judge over Kufa and Abu Musa as a judge over Basra. He also removed Shurahbeel b. Hasna from his post as Wali over Al- Sham and appointed Muawiya instead. Shurahbeel said to him: "Is it because of an act of disobedience or treason that you removed me?" ‘‘Umar replied: "Neither, but I wanted to appoint a man who is stronger." ‘Ali, on one occasion appointed Abu al-Aswad and then he removed him. Abu al-Aswad asked him: "Why did you remove me? I never cheated or committed a crime" ‘Ali said: "I noticed that your voice rose above the disputing men." ‘Umar and Ali did this in front of the Sahabah, and yet none of the Sahabah disapproved or censured their actions. This proves that the Khalifah reserves the right to appoint the judges in principle, and he can also delegate someone to appoint the judgehis mandatory powers as he is allowed to appoint someone to represent him in any of his dispositions. .

As for the exclusion of the powers to remove the Judge of the al-mazalim court, this would be in case the judge is litigating a lawsuit raised against the Khalifah, his assistants or the chief judge. This is according to the Shariah rule that states: “the means that leads to haram is itself haram.” If the Khalifah is given power to dismiss the judge of the mazalim court in this case, then this would influence the verdict of the judge, and accordingly obstruct the divine rule, a matter which is haram. Giving the Khalifah the power of dismissing the judge of mazalim in this case is thus a means to haram, (particularly it is enough for his rule to apply if the influence on the verdict was most likely rather than certainly to take place) All this does not make sense. Therefore, the task of dismissing the judge of mazalim in this case is left to the mahkamat al-mazalim. In other than this case the rule remains as usual, i.e. the right of appointing and dismissing the judge of mazalim is for the Khalifah. .

As for the directors of the State departments, the Messenger of Allah (PBUH) appointed secretaries for the various departments of the State. They were considered to be directors of those departments. .

He (PBUH) appointed Al-Muayqeeb b. Abi Fatimah Al-Dusi in charge of his official seal and the booty. He (PBUH) appointed Hudhayfah b. Al Yaman to assess the harvest of Al-Hijaz, and Zubayr b. Al-awwam to record the funds of the "Sadaqah". .

He (PBUH) appointed Al-Mughira b. Shu’ba in charge of registering the debts and various transactions, and so on. .

As for the army commanders and chief commanders, the Messenger of Allah (PBUYH) appointed Hamza b. ’Abd al-Muttalib as commander of an army of thirty riders to confront Quraish on the seashore; and he appointed Muhummad b. ‘Ubayda b. Al-Harith at the head of sixty fighters and instructed him to confront Quraish in the Wadi of Rabigh. He (PBUH) also appointed Sa’d b. Abi Waqqas at the head of an expedition numbering twenty riders and dispatched him towards Makkah. .

Therefore it can be seen that He (PBUH) used to appoint the army commanders, and this proves that it is the Khalifah who appoints the commanders and the army chiefs of staff. .

All those occupying these posts were answerable to Allah’s Messenger (PBUH) and to nobody else, and this indicates that the judges,s on his behalf. This is analogous with representation (wakalah), where he reserves the right to assign a deputy for himself in any of irectors of departments, army commanders, chiefs of staff and various senior officials are answerable to none but the Khalifah, and that they are not answerable to the Council of the Ummah. Only the delegated assistants, the Walis and the amils are responsible before the Council of the Ummah because they are rulers. None other than these are responsible before the Council; rather everyone else is obliged to report back to the Khalifah alone. .

As for section "F", the State budget in terms of the revenues and the expenditures is controlled by the Shariah rules. Not a single penny is levied except according to a divine rule, nor is any single penny spent except according to a divine rule. However the details of the expenditure or what is known as the budget sections is left to the Khalifah according to his ijtihad, as are the details of the revenues. It is the Khalifah, for instance, who decides the amount of the Kharaj of land, and the Jizya as well as any other levies and revenues. .

It is the Khalifah who decides the expenditures allotted for the roadwork, hospitals and other types of expenditure. All such matters are left to the Khalifah, and he decides them according to his own ijtihad and opinion. .

This is because the Messenger of Allah (PBUH) used to receive the revenues from the amils, and spend them. It was He (PBUH) who authorized the Walis on some occasions to receive funds and spend them; this was the case when He (PBUH) appointed Muadh over Yemen. Subsequently the Khulafaa’ Rashideen continued to do the same. Each one of them collected the revenues and spent them according to his opinion and ijtihad in his capacity as Khalifah. None of the Sahabah ever disapproved, and nobody ever spent a single penny without the Khalifah’s consent. When ‘Umar appointed Muawiya as Wali, he gave him a general wilayah whereby he had powers to collect and spend the funds. All this proves that the different sections of the budget are decided by the Khalifah or anyone acting on his behalf. These are the detailed evidences regarding the Khalifah’s mandatory powers, and these are confirmed by the Hadith narrated by Ahmad and Al-Bukhari from Abdullah b ‘‘Umar who reported that he heard the Messenger of Allah (PBUH) say: .

"The Imam is a guardian, and he is responsible for his subjects." [Bukhari, Sahih, #893].

This means that all the matters related to the management of the subject’s affairs is the responsibility of the Khalifah, and he reserves the right to delegate anyone with whatever task, however he deems fit, with analogy to wakala (representation)..