The bay’ah is a ruling contract which governs the relationship between Muslims and the Islamic state. For those Muslims living under the authority of the Khilafah the bay’ah is their citizenship contract with the state. Unlike most Islamic contracts which are one-to-one such as buying, selling, and marriage, the bay’ah is one-to-millions i.e. between the Khaleefah and the Muslim ummah. This poses a challenge on how you get the free choice and consent of millions of people which is a condition in Islamic contracts.
Historically in the rightly guided Khilafah of the sahaba, the senior representatives of the people would contract the bay’ah to the Khaleefah. The rest of the Muslims would accept their opinion and rush to pledge their bay’ah to the newly appointed Khaleefah directly in the Prophet’s mosque in Medina which was the capital of the state, or indirectly through the governors in the other provinces. The classical fiqh books called this contracting group Ahl hali wal-aqd
Who are the political representatives of the people?
The sharia has not defined who the people’s representatives are. This falls under manat ul-hukm (reality the rule is applied to). In any state the representatives of the people will be close to the government and so are found in the capital. This is why the representatives in the Islamic State’s capital Medina used to contract the bay’ah. In a tribal society these representatives will be senior members of the tribe or the tribal leader. The representatives will also need to be trusted individuals who are strong in the ideology of the state which in the Khilafah is Islam. All of those contracting the bay’ah in the rightly guided Khilafah were senior sahaba and tribal leaders, and were in fact all eligible for the post of the Khaleefah themselves. If we look to the contracting of the bay’ah to Abu Bakr as a case study we can clearly see this.
The Muslims of Medina fell in to two main categories. The Muhajireen who emigrated from Makkah with the Prophet Muhammad ﷺ, and the Ansar (supporters) who consisted of two tribes called Al-Aws and Al-Khazraj. At the saqifa (portico) of the Sa’ida clan of the Khazraj tribe the main participants involved in the contracting of the bay’ah were:
- Sa’d ibn Ubadah, chief of the Sa’ida clan of Al-Khazraj and the effective leader of the Ansar.
- Al-Bashir ibn Sa’d, leader of Al-Khazraj
- Usaid ibn Hudayr, leader of Al-Aws
- Abu Bakr, muhajireen, one of the 10 promised jannah
- Umar bin al-Khattab, muhajireen, one of the 10 promised jannah
- Abu Ubaydah bin al-jarrah, muhajireen, one of the 10 promised jannah
In a future Khilafah the issue of representation will be formalised in to a non-legislative House of Representatives (Majlis ul-Ummah) which will consist of an electoral committee made up of Muslim (male and female) Majlis members who will contract the bay’ah. These representatives will be elected to the Majlis every five years by the Muslim citizens of the state.
Non-Muslim citizens of the Islamic State (dhimmi) are not governed by the bay’ah but by the dhimmah contract. The dhimmi will have their own Majlis members elected to represent any interests and issues specific to their communities which are not covered by the general interests and issues which affect the entire society.
How many representatives are required to contract the bay’ah?
Mawardi in Ahkam as-Sultaniyah lists four opinions of the scholars regarding this question:
As for its formation by the election of the people of power, the ‘ulama, according to the different madhhabs, have different opinions as to the number of persons needed in the formation of the Imamate.
One group says that it can only be conferred by way of the majority of those of power and influence in each country, such that acceptance is general and submission to the Imamate is by a consensus; this madhhab is rejected by the oath of allegiance to Abu Bakr, may Allah be pleased with him, that is to a succession arrived at by way of the election of only those who were present they made the oath of allegiance to him and did not expect any other person from outside to present himself for this election.
Another group say that the minimum number of persons that should gather for the formation of the Imamate is five or that it should be formed by one of them with the agreement of four others. They take two matters as their proof: the first that the oath of allegiance to Abu Bakr, may Allah be pleased with him, was made by five persons together and that the people followed them in this matter. These persons were ‘Umar ibn al-Khattab, Abu ‘Ubaidah ibn al-Jarrah, Usayd ibn Hudayr, Bashir ibn Sa’d and Salim the freed-slave of Abu Hudhayfah, may Allah be pleased with them. The second proof is that ‘Umar set up a council of six persons so that one of them should take on the Imamate with the acceptance of the other five – and this is the opinion of most of the fuqaha and the mutakallimun from amongst the people of Basra.
Others from amongst the ‘ulama of Kufa say the Imamate comes into being by way of three persons, one of them taking charge by virtue of the acceptance of the other two such that there is one who decides the matter together with two witnesses, in the same way as the contract of marriage is made valid by the man in charge (the wali) and two witnesses.
Another group says that it comes about by way of a single person as ‘Abbas said to ‘Ali, may the pleasure of Allah be upon them both, “Reach out your hand so that I may make allegiance to you and that the people say that the uncle of the Messenger of Allah, may the peace and blessings of Allah be upon him, has given allegiance to his paternal nephew and so that there will not be two persons disputing your succession.” They also say that it is ruling which when given, even by one person, has to be carried out.
The strongest opinion is that the sharia has not specified any specific number of representatives to contract the bay’ah. So even one person of sufficient standing and influence who Muslims will listen to, can contract the bay’ah. This is what occurred in the time of Imam Ali where Al-Abbas the uncle of the Prophet Muhammad ﷺ contracted the bay’ah to Ali and the Muslims accepted this. Abbas said to Ali: “Reach out your hand so that I may make allegiance to you and that the people say that the uncle of the Messenger of Allah ﷺ has given bay’ah to his paternal nephew and so that there will not be two persons disputing your Khilafah.”
In a future Khilafah, the state is divided administratively in to provinces, districts, cities and neighbourhoods and so the Khaleefah will adopt on how many Majlis ul-Ummah representatives are allocated to each city to be truly representative. This will be for the experts to determine and advise the Khaleefah.
Who will contract the bay’ah in a newly established Khilafah?
The method of establishing the Khilafah derived from the sunnah of the Prophet Muhammad ﷺ shows us that the contracting bay’ah is taken from the nusra (support) who hold the keys to power. Who are the nusra is a manat ul-hukm discussion, but in many Muslim countries such as Pakistan it is the army. The Prophet ﷺ took bay’ah from the Ansar at the second pledge of Al-Aqaba, who were the nusra at that time.