This is an extract from the article Part 1: Bay’a in Islamic History – The Rightly Guided Khilafah
When Umar ibn Al-Khattab was stabbed and his death was imminent, the Ahlul hali wal-aqd came and asked him to nominate a successor as Abu Bakr had done for him. Umar couldn’t come to a decision so he appointed a council of six candidates who were all from the 10 promised jannah to meet after his death and appoint a Khaleefah. Umar summoned Ali, Uthman, Sa’d, Abdul-Rahman ibn Awf, and al-Zubayr ibn Al-Awwam and said to them, “I have looked into the matter and consider you to be the chiefs and leaders of the people. This matter will remain among you alone.”
Someone suggested to Umar that he appoint his son Abdullah ibn Umar who was one of the prominent scholars of Madinah who used to give fatawa (legal decisions) for people, and an expert on governmental affairs. Umar responded harshly to this suggestion, “Allah curse you! You were not saying this for Allah’s sake!” Umar was known as the door against fitnah (tribulations) and wanted to prevent the concept of hereditary rule appearing in the state. Although, due to Ibn Umar’s skills he said to the council of six, “Abdullah ibn Umar will be there as an adviser, but he shall have nothing to do with the matter [of the actual appointment].”
|Name||Position within the state|
|Abdul-Rahman ibn Awf||shura, police|
|Ali ibn Abi Talib||wazir, qadi|
|Uthman bin Affan||wazir, shura|
|Sa’d ibn Abi Waqqas||Amir of Jihad, Governor|
|Zubayr ibn al-‘Awam||shura, police|
|Talha ibn Ubayd Allah||shura, police. Talha was travelling so didn’t partake in the council.|
The Time Limit for bay’a
There is no explicit evidence (daleel) from the Qur’an or sunnah which places a time limit on when the bay’a contract has to be concluded. The bay’a to Abu Bakr was concluded on the same day the Messenger of Allah ﷺ passed away, and the bay’a to Umar was also contracted on the same day Abu Bakr died. It was Umar ibn Al-Khattab who specified the three days and nights, time limit for concluding the bay’a contract. He said, “When I die, consult for three days, and let Suhaib lead the Muslims in prayer. Do not let the fourth day come without having an Ameer upon you.”
In another narration he said to Suhaib, “Lead the people in prayer three days, and let ‘Ali, ‘Uthman, Az-Zubayr, Sa’d, ‘Abdul Rahman ibn Awf, and Talha, if he came back (from his travel) and bring in ‘Abdullah ibn ‘Umar, without allowing him any personal interest in the matter, and stand at their heads (i.e. supervise them). If five agreed and accepted one man, while one man rejected, then hit his head with the sword (kill him). If four consented and agreed on one man, and two disagreed, then kill the dissenters with the sword. If three agreed on one man and three disagreed then let ‘Abdullah bin ‘Umar arbitrate. The group that ‘Abdullah ibn ‘Umar judged for, let them select one from them. If they did not accept the judgement of ‘Abdullah ibn ‘Umar, then be (all of you) with the group in which is ‘Abdul Rahman ibn Awf, and kill the rest if they declined to accept what the people agreed upon.”
The fact that Umar is ordering the killing of Muslims if the three-day time limit was passed, and none of the sahaba objected to this, makes it an ijma as-sahaba and a shara daleel for us. The sanctity of Muslim blood is well-established from numerous ayaat and hadith. So if the sahaba consented to killing a Muslim, and not any Muslim at that, but one of the ten promised Jannah (ashratul-mubashireen) then this is known in usul al-fiqh as a decisive qareenah (indication) which indicates an obligation.
Dr Muhammad As-Sallaabi disagrees with this ijtihad and objects to the narration of Umar based on its isnad (chain of narration) and matn (text). He says, “This is a report which has no sound isnad. It is one of the weird stories quoted by Abu Mukhnaf, and is contrary to the saheeh texts and what is known of the conduct of the Sahabah. Abu Mukhnaf narrated that Umar said to Suhaib, ‘…If five agreed and accepted one man, while one man rejected, then hit his head with the sword (kill him). If four consented and agreed on one man…’ But this is a false report. How could ‘Umar have said such a thing, when he knew that they were among the elite of the Companions of the Messenger of Allah ﷺ and he was the one who had chosen them for this task because he knew of their virtue and high status?”
Firstly, if we examine the full isnad of this narration we find it is as follows:
“Umar Bin Shibhat told us, he said: Ali Bin Muhammad told us from Wakee’, from Al-A’mash, from Ibrahim and Muhammad Bin Abdullah Al-Ansary, from Ibn Arooba from Qatadah from Shahr Bin Hawshab AND Abu Mukhnaf, from Yusuf Bin Yazeed, from Abbas Bin Sahl and Mubarak Bin Fadhala, from Ubaid Allah Bin Umar and Yunus Bin Abi Ishaq, from Amr Bin Maysoon Al Awdi that Umar Bin Al Khattab when he was stabbed…”
This shows that Abu Mukhnaf was not the only one who narrated from Qatada, but also Shahr bin Hawshab also narrated from him, and he is considered trustworthy. Therefore, the text is not weak in its isnad.
In terms of the matn (text) then this shows the difference between a muhadith (scholar who collects and verifies narrations) and a mujtihad (scholar who derives rules from the sharia through ijtihad). Deriving law is a cold subject where emotion and personal biases cannot enter. Sheikh Ata Bin Khalil Abu Al-Rashtah says, “The Sharia rules are taken from their evidences and are not taken by desire and assumption.”
As mentioned, if the sahaba collectively consented on the permissibility of an action, which on the surface seems to be forbidden by other evidences such as killing a believer or delaying the burial of a believer, then this becomes an ijma and is a sharia daleel. Umar’s command to kill someone from the ashratul-mubashireen indicates the strong obligation of completing the bay’a within three days.
There is also a hikmah (wisdom) here in the text on why it must be concluded within three days, and that is prolonging the time limit on the bay’a contract will lead to fitna and instability within the state.
Having said this, if circumstances arose where the contract could not be concluded within three days, such as an attack on the Majlis and electoral council, then the time limit can be extended and this is the decision of the Qadi Mazalim. The Provisional Ameer will simply continue running the state during this period along with the governors of the provinces.
The draft constitution of the Islamic State by Hizb ut-Tahrir has two articles covering this:
Article No 32: If the position of the Khilafah becomes vacant due to the death of its leader, his resignation, or his removal, it is obligatory to appoint a Khaleefah within three days from the date that the position of the Khilafah became vacant.
Article No 33: A Provisional Ameer is appointed to take charge of the affairs of the Muslims, and to prepare for the election of the new Khaleefah after the vacation of the position of the Khilafah according to the following process: … 6-The Provisional Ameer makes all effort to complete the appointment of a new Khaleefah within three days, and it is not permitted for this to be extended except due to overwhelming circumstances which the Mazalim court has to confirm.
This time limit was well-established but since the Khilafah descended in to hereditary rule and the nomination of successors, there was never a delay in the appointment of the next Khaleefah except in times of civil strife.
During the election of Marwan ibn Al-Hakam, who is considered one of the Umayyad Khaleefahs but was not actually a legitimate Khaleefah according to the strongest opinion, Hassan ibn Malik went up on the minbar on Monday and said, “Oh people, we shall, Allah willing, appoint a Khaleefah on Thursday (i.e. after three days debate).”
The Messenger of Allah ﷺ said, “It would be forbidden for three people who are in an open country, not to appoint one from among them as Ameer.”
There should never be a situation where the Muslim Ummah is leaderless as she is today, because this will lead to severe fitna, disunity and deaths of millions. The Messenger of Allah ﷺ prophesised this, when he ﷺ said that despite our huge numbers, “The nations will soon summon one another to attack you as people do when eating invite others to share their dish.”
When the Khaleefah dies, or resigns, or is incapacitated there needs to be a deputy to takeover the state. This deputy during the three-day election process is known as the Provisional Ameer and is appointed by the previous Khaleefah as Umar did with Suhaib or is one of the wazirs in the case the Provisional Ameer was not appointed, or was standing as a candidate for the post of Khaleefah.
The evidence that Suhaib was the Provisional Ameer is taken from the command of Umar to Suhaib, “Lead the people in prayer three days…If five agreed and accepted one man, while one man rejected, then hit his head with the sword (kill him)…”
The word salah in the Islamic Arabic texts can have a majaz mursal (hypallage) meaning based on the principle, where the part is mentioned but the whole is intended, i.e. salah is an indication of ruling by all of Islam, not simply praying. This is a well-known principle in balagha (rhetoric) which can be found in the Qur’an such as the ayah on who is eligible for zakat. Allah (Most High) says,
إِنَّمَا ٱلصَّدَقَـٰتُ لِلْفُقَرَآءِ وَٱلْمَسَـٰكِينِ وَٱلْعَـٰمِلِينَ عَلَيْهَا وَٱلْمُؤَلَّفَةِ قُلُوبُهُمْ وَفِى ٱلرِّقَابِ وَٱلْغَـٰرِمِينَ وَفِى سَبِيلِ ٱللَّهِ وَٱبْنِ ٱلسَّبِيلِ ۖ فَرِيضَةً مِّنَ ٱللَّهِ ۗ وَٱللَّهُ عَلِيمٌ حَكِيمٌ
“The Sadaqāt are meant only for the poor, the needy, those who administer them, those whose hearts need winning over, to free necks (slaves) and help those in debt, for Allah’s cause, and for travellers in need. This is ordained by Allah; Allah is all knowing and wise.” (Tawba, 9:60)
Sararuk Chowdhury explains this verse, “Here, the word رِّقَابِ ‘neck’ refers to the entire person. The neck is a defining semantic feature of emancipating a slave – whether a believer or non-believer – and so is used here metaphorically in place of the entire person.”
Moreover, only a ruler has the power of implementing punishments so this indicates that Suhaib was not simply leading the prayer as an Imam in the masjid, but was the Imam of the state.
We will see further examples of the Provisional Ameer as we trace the bay’a through Islamic history. When Sulayman ibn Abdul-Malik was Khaleefah he was advised by the righteous scholar Raja’ bin Haywah al-Kundi, to nominate his nephew Umar bin Abdul-Aziz as the next Khaleefah over his own son and brother. Sulayman did this, and knowing that Banu Umayyah would not be happy he nominated his brother Yazeed ibn Abdul-Malik as the Khaleefah after Umar.
Raja’ bin Haywah, who was the Provisional Ameer overseeing the transition process to the next Khaleefah, sealed Umar bin Abdul-Azeez’s nomination in an envelope so no one could read it. He then asked the influentials from Banu Umayyah who were the Ahlul hali wal-aqd to take bay’a over the sealed document.
After Sulayman’s death, the sealed document was opened and Umar bin Abdul-Aziz’s name announced. Umar bin Abdul-Aziz reluctantly ascended the minbar in the Dabiq Masjid and Banu Umayyah came to give their bay’a. Hisham ibn Abdul-Malik initially refused to give bay’a but Raja’ threatened to have him beheaded so Hisham then gave bay’ah.
As mentioned, the Provisional Ameer has the power to implement punishments and can call on the police and army to assist him in quelling rebellion and dissent during the transition process if required. The police chief assisting Raja’ was Ka’ab bin Hamid al-‘Unsi, and he played the same role as Abu Talha Al-Ansari did for Suhaib Ar-Rumi.
Role of the Police
Umar appointed Abu Talha Al-Ansari to select 50 men to protect the council. This is the role of the police and the army in the appointment of the Khaleefah – they are protectors not appointers. Within the Khilafah the military should be kept separate from politics and ruling to prevent the dominance of military opinions in domestic and external affairs. This can lead to halting the Islamic conquests and the emergence of an oppressive police state as we saw during the later Abbasid period where the army became the defacto power and authority in the state, with the Khaleefah becoming a mere figurehead.
The council of the six were the Ahlul hali wal-aqd and although their contracting of the bay’a to Uthman would be sufficient, Abdul-Rahman ibn Awf withdrew his candidacy and went around the capital Madinah seeking shura from the different clans of Quraysh and the Ansar, on who they wanted as the next Khaleefah. He found their opinions were in favour of Ali and Uthman, but that the people also wanted a continuation of Abu Bakr and Umar’s actions in ruling rather than any stark changes.
Abdul-Rahman said, “Now then, O Ali. I have looked at the people’s tendencies and noticed that they do not consider anybody equal to Uthman, so you should not incur blame (by disagreeing).” Then Abdul-Rahman said (to Uthman), “I gave the bay’a to you on condition that you will follow the sunnah of Allah and His Messenger, and the two Khaleefahs after him.” So Abdul-Rahman gave the bay’a to him, and so did the people including the Muhajireen, the Ansar, the chiefs of the army and all the Muslims.
Adding conditions to the bay’a
Binding Uthman to the condition of following the way of the two previous Khaleefahs – Abu Bakr and Umar, serves as a sharia daleel (evidence) that it is permitted to add extra conditions to the bay’a because the sahaba consented to this which represents an ijma.
The bay’a is a contract and as such it’s allowed to add extra conditions that the Khaleefah must abide by, as long as these extra conditions do not violate the fundamentals of the contract. So it would be haram to impose a four-year time limit on the bay’a contract which will we discuss in due course.
In origin it is not allowed to add a condition to the bay’a that obliges the Khaleefah to adopt a certain opinion which becomes law, because this contradicts the first executive mandatory power that adoption is for the Khaleefah only. However, a condition can be added to the bay’a that obliges the Khaleefah to adopt a certain opinion if the unity of the Muslims requires this. This is because of the principle in usul ul-fiqh (foundations of Islamic law) that a mujtahid (scholar) can leave his ijtihad and adopt another opinion if it is intended to unify the Muslims for their own good.
This is what happened with Uthman’s bay’a. It is therefore permitted to restrict the Khaleefah to certain constitutional processes such as the empowerment of the Majlis ul-Ummah and the judiciary as counterbalances to his executive power, if unity of the ummah demanded this.
Which ruler tried to re-introduce an electoral council?
Mu’awiya ibn Yazid (64H/683CE) was made wali al-ahd (heir apparent) by his father Yazid ibn Mu’awiya. Like his father he received the bay’a from the Ahlul hali wal-aqd in Ash-Sham but the Ahlul hali wal-aqd in Hijaz gave bay’a to Abdullah ibn az-Zubayr.
Mu’awiya ibn Yazid was a pious and honest man but he was only in power for forty days before passing away. He is noted as one of the Umayyads who tried to remove hereditary rule and bring back shura for the bay’a. He assembled the people together and said: “O people! Indeed, I have been entrusted with your affairs while I am weak and unable. I would therefore like for you to concede leadership to a man of strength in the same manner that as-Siddiq i.e. Abu Bakr) endowed ‘Umar. If you will, then appoint a committee for consultation comprised of six persons from amongst you as ‘Umar bin al-Khattab did; for just one of you cannot be right concerning it. And so, I have bequeathed your affairs to yourselves, therefore you should appoint the one that is most fitting to undertake leadership over you.”
He then stepped down and entered his house, and did not come out until he had died. It is believed that he was either poisoned or stabbed. Another martyr in trying to correct the bay’a and reverse hereditary rule.
 Abu Ja`far Muhammad b. Jarir al-Tabari, ‘The History of Al-Tabari’, translation of Ta’rikh al-rusul wa’l-muluk, State University of New York Press, Volume XIV, pp.145
 Ibid, pp.144
 Sahih Bukhari 7096 https://sunnah.com/bukhari:7096
 Tabari, Op.cit., Volume XIV, pp.146
 Ibid, pp.145
 Ibraaheem Shu’oot, ‘Abaatel Yajibu An-Tamuhhu Minat-Taareekh,’ pp.101
 At-Tabaqat by Ibn Sa’ d, 3/364
 Tabari, Op.cit., Volume XIV, pp.146
 Dr Ali Muhammad As-Sallaabee, ‘Life of Umar ibn Al-Khattab,’ Vol. 2, pp.386
 Sheikh Ata Bin Khalil Abu Al-Rashtah, http://www.khilafah.com/qaa-strength-of-hadith-evidence-used-in-specifying-the-time-limit-to-appoint-a-khaleefah/
 ‘An Introduction to the Constitution and its obligation’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah, Hizb ut-Tahrir, pp.99
 Ibid, pp.100
 Jalal ad-Din as-Suyuti, ‘History of the Umayyad Caliphs,’ translated by T.S.Andersson, Ta Ha Publishers, pp.42
 Tabari, Op.cit., Volume XX, pp.59
 Narrated by Ahmed from ‘Abdullah bin ‘Amr
 Abu Dawud 4297, https://sunnah.com/abudawud:4297
 Sararuk Chowdhury, ‘Introducing Arabic Rhetoric,’ Ad-Duha 2008, pp.92
 Dr. Ali Muhammad As-Sallabi, ‘Umar bin Abd al-Aziz,’ Darussalam, pp.106
 Taqiuddin an-Nabhani, ‘The Islamic Personality,’ Volume 2, translation of Shakhsiya Islamiyya,
http://www.maktabaislamia.com, 5th edition 2003, pp.133
 Sahih Bukhari 7207, https://sunnah.com/bukhari:7207
 Taqiuddin an-Nabhani, ‘The Islamic Personality,’ Volume 1, translation of Shakhsiya Islamiyya, http://www.maktabaislamia.com, 6th Edition 2013, pp.171
 Ibn Kathir, ‘The Caliphate of Banu Umayyah,’ translation of Bidiyah wan-Nihiya, Darussalam, pp.205