The question of limiting the head of state’s term to a specific number of years, was not an issue in ancient and medieval times because most heads of state were life-long monarchs. The renaissance in Europe paved the way for philosophers to develop new theories of governance based on the democratic model first developed by the ancient Greeks. After the French and American revolutions these new principles were codified in their constitutions. The republican system was developed to replace the monarchies of the past, and central to this was restricting the powers and term of office of the president who headed this system.
The American constitution restricted the president to a four-year term but allowed re-election without restriction. In 1951 the Twenty-Second Amendment was passed which restricted the US President to two terms, so they can never serve more than eight years in office. This was done to prevent a life-long monarch emerging who if corrupt, would be corrupt for life.
The dominance of the western democratic system and the shocking levels of corruption experienced at the hands of life-long presidents and kings in the Muslim world, has led to Muslim academics questioning whether bringing back a Caliph-for-life is a wise idea. Surely history shows that many Caliphs were corrupt and this corruption continued until their death. To rectify this, they propose that a future Caliphate should have a time-limit on the bay’a contract, so if the Caliph fails to fulfil his responsibilities or commits oppression then the ummah can remove him by not extending his term, and re-elect another person who is more worthy.
The evidence for imposing a time-limit on the bay’a
The opinions of those who advocate imposing a time-limit on the bay’a are as follows.
Kamal Hussein says: “Where does it say explicitly in sharia, that the role of the Khaleefah is for life. In fact, contract law, generally no contract is for life. There’s always an end, or there’s some provision for that contract to end. It’s only if there’s any other daleel which stipulates that, then you can say that it is for life. Just because it happened that way. Just because the next Khaleefah was appointed either because he died or he was assassinated does not mean that it is a hukm shari we are bound to follow.”[1]
Muhammad Asad says, “Apart from the stipulation that the prospective amir be a Muslim and the “most righteous of you” -which obviously implies that he must be mature, wise, and superior in character-the sharf’ah does not specify any further conditions for eligibility to this office, nor does it lay down any particular mode of election, or circumscribe the extent of the electorate. Consequently, these details are to be devised by the community in accordance with its best interests and the exigencies of the time.
The same applies to the question of the period during which the amir shall hold office. It is conceivable that a definite number of years may be fixed for this purpose (possibly with the right to reelection); alternatively, the amir’s tenure of office may be subject to termination when the incumbent reaches a certain age limit, provided he discharges his duties loyally and efficiently; or, as a third alternative, the tenure of office may be for life, with the same proviso as above-that is to say, the amir would have to relinquish his office only if and when it becomes evident that he does not loyally perform his duties or that he is no longer able to maintain efficiency owing to bodily ill-health or mental debility. In this wide latitude regarding the tenure of the amir’s office we see another illustration of the great flexibility inherent in the political law of Qur’an and Sunnah.”[2]
In summary there are two key evidences put forward here. One that Islamic contracts generally have a time-limit, the bay’a is an Islamic contract so they bay’a can have a time-limit. The other evidence is based on maslaha (benefit). I will deal with these in turn.
The evidence that the bay’a contract has no time-limit
While many Islamic contracts do have a time-limit imposed on them such as taking a loan, “You who believe, when you contract a debt for a stated term, put it down in writing,”[3] others such as nikah (marriage) have no time-limit because the command is mutlaq (unrestricted). “Marry the single among you and those of your male and female slaves who are fit [for marriage].”[4]
The bay’a is similar to nikah in that the commands to listen and obey are mutlaq, so there is no time-limit imposed. The Prophet Muhammad ﷺ said, “Hear and obey, even if you were ruled by an Abyssinian slave, whose hair is like a raisin.”[5] In another narration, he ﷺ said, “If a slave having some limb of his missing, and having dark complexion is appointed to govern you according to the Book of Allah the Exalted, listen to him and obey him.”[6]
The bay’a given to each of the Rightly Guided Caliphs never contained a time-limit and represents an ijma as-sahaba (consensus of the companions) which is a shara’ daleel (divine evidence). When Abu Bakr was asked to nominate a successor he announced to the people, “Will you be satisfied with him whom I have left as my successor over you? For, by Allah, I do not shun the effort [to reach] the best opinion, nor have I appointed a relative. I have designated Umar ibn al-Khattab as my successor; therefore, hear him and obey.” They responded, “We hear and obey.”[7]Despite his illness, Abu Bakr did not resign and hand over power to Umar. Rather he remained in office as a Caliph until his death.
When Umar ibn Al-Khattab was asked to nominate a successor, he couldn’t find anyone he was completely satisfied with, so he named six sahaba of the ten promised jannah and left the decision with the senior sahaba in Madinah to choose the next Caliph. Again Umar did not resign and remained in office as Caliph until he died. He said, “When you put me into my grave, assemble these people in one room to choose one of their number.”[8]
Uthman bin Affan was told explicitly by the Prophet ﷺ not to resign his office. It was narrated from ‘Aishah that the Messenger of Allah ﷺ said: “O Uthman, if Allah places you in authority over this matter (as the Caliph) someday and the hypocrites want to rid you of the garment with which Allah has clothed you (i.e., the position of Caliph), do not take it off.” He said that three times. (One of the narrators) Nu’man said: “I said to ‘Aishah: ‘What kept you from telling the people that?’ She said: ‘I was made to forget it.’”[9]
Although it’s allowed for the Caliph to resign his position, the order given to Uthman shows that Islam did not want the removal of the Caliph to be taken lightly, or become easy to do when the people express dissatisfaction with his policies. If the Caliph is ruling by Islam, then he has the authority to make unpopular decisions in the pursuit of the wider objectives of Islam which benefit all of mankind. The Messenger of Allah ﷺ said, “There will be three types of people whom Allah will neither speak to on the Day of Resurrection, nor will He purify them from sins, and they will have a painful punishment…[one of these people is] a man who gives bay’a to an Imam and gives it only for worldly benefits, if the Imam gives him what he wants, he abides by his pledge, otherwise he does not fulfill his pledge…”[10]
The sahaba also gave a mutlaq bay’a to the Umayyad Caliphs. Bukhari narrates from Abdullah bin Dinar: “I witnessed Ibn Umar when the people gathered around Abdul Malik. Ibn Umar wrote: ‘I gave the bay’a that I will listen to and obey Allah’s Slave, Abdul-Malik, Ameer of the believers according to Allah’s Laws and the Traditions of His Messenger as much as I can; and my sons too, give the same pledge.’”[11]
No Caliph in Islamic history was ever given the bay’a with a time limit. Mawardi in Ahkam as-Sultaniyah which codified the rules of governance for the Abbasid Caliphate says, “So if the Imam fulfils the rights of the Ummah, as we have described above, he will have executed the claim of Allah, may He be exalted, regarding their rights and their duties: in which case they have a duty to obey and support him as long as his state does not change.”[12]
He also deals with the case where a more qualified candidate appears after the bay’a has been concluded to a Caliph. “If it seems to the electors that one of the two is the more excellent and they make the oath of allegiance to him for the Imamate but then someone more excellent than him appears then this first Imamate stands and it is not permitted to abandon it for someone who is more excellent than him.”[13]
Maslaha has no place in restricting the bay’a to a fixed time period
Someone may bring a shubhat daleel (semblance of an evidence) based on the principle of Al-Maslahah Al-Mursalah (public interest) that limiting the bay’a will prevent the corruption of a life-long ruler. This is one of three options Muhammad Asad proposed, “It is conceivable that a definite number of years may be fixed for this purpose (possibly with the right to reelection).”
Maslaha does not apply in the case of the bay’a because the sunnah and ijma have already established the hukm (rule) as discussed previously. This maslaha therefore becomes Al-Masaalih Al-Mulghaah (a cancelled interest). Muhammad Hussein Abdullah explains what these cancelled interests are. “These are Masaalih (interests) that have been imagined to be Masaalih whilst the Shaari’ relinquished them and they are not given regard due to the Ahkaam that He legislated, indicating that they are not to be given consideration.”[14]
Is a life-long ruler good or bad?
The premise put forward by those who advocate a time-limit on the Caliph, is that it is in the interest of the ummah because it prevents corruption. But is this necessarily the case? Some of the pros and cons of a life-long ruler are as follows.
Pros
- If the leader is a tyrant, then his harm is limited to a short period of time
- Regular elections will force the head of state to look after the people because if they don’t, then they won’t get re-elected.
Cons
- Short-termism
- Unable to execute unpopular policies which are required in the long term for the benefit of future generations.
The effect of re-electing the head of state
The debate on limiting a head of state’s term of office is not new. It was discussed by the founding fathers of America when they were laying down the foundations of the new republic, and it was discussed by the French philosophers whose ideas underpinned the American constitution.
The famous French philosopher Tocqueville wrote, “Were the legislators of the United States wrong or right to permit the reelection of the president?”
“Intrigue and corruption are vices natural to elective governments. But when the head of state can be reelected, the vices spread indefinitely and compromise the very existence of the country. When a plain candidate can succeed by intrigue, his maneuvers can only be exercised in a limited space. When, on the contrary, the head of state puts himself in the running, he borrows the force of the government for his own use.”[15]
“It is impossible to consider the ordinary course of affairs in the United States without noticing that the desire to be reelected dominates the thoughts of the president; that the whole policy of his administration tends toward that point; that his least steps are subordinated to that object; that above all as the moment of the crisis approaches, individual interest is substituted in his mind for the general interest.
The principle of reelection therefore renders the corrupting influence of elective governments more extensive and more dangerous. It tends to degrade the political morality of the people and to replace patriotism with cleverness.”[16]
He also compared the US President to the life-long monarchs of Europe. “The power of the king in France has, first, the advantage of longevity over that of the president. For longevity is one of the first elements of force. One loves and fears only what will exist for a long time.”[17]
Alexander Hamilton, one of the founding fathers of America, gave a speech at the Constitutional Convention in 1787, proposing a President-for-Life. According to James Madison’s notes, Hamilton said in regards to the executive, “The English model was the only good one on this subject. The hereditary interest of the king was so interwoven with that of the nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad… Let one executive be appointed for life who dares execute his powers.” He also said, “And let me observe that an executive is less dangerous to the liberties of the people when in office during life than for seven years.”[18] Some of the reasons Alexander Hamilton cited for his preference of a lifetime executive and senate were stability, permanence, protection against foreign invasion, and insulation against the uncertainties of democratic governance.[19]
A Caliph-for-life has the benefit of focusing on long-term strategic planning for the state, rather than short-termism which is undoubtably a problem in democratic republican systems. An example of enacting unpopular decisions to benefit future generations is the policy of the Umayyad Caliph Al-Walid ibn Abdul-Malik (r. 86H/705CE – 96H/715CE), when he ordered the governor of Madinah Umar bin Abdul-Aziz to expand the Prophet’s ﷺ mosque to a size of 200×200 cubits (dhira). A Hashemite cubit is equivalent to 61.6cm[20], so the expansion was to a size of 123×123 metres.
After receiving the order Umar bin Abdul-Aziz convened the Regional Assembly (Majls ul-Wiliyah) and the people of Madinah informing them of the decision. The people were not happy about this decision and exclaimed, “But these apartments have low ceilings made from palm branches, the walls are made of unburnt bricks and the doors are made from cloth, that must remain intact in their original form for the Hajj pilgrims, visitors and travellers to look at so that they might contemplate on the houses of the Prophet ﷺ and be humbled by them. It is incumbent that they are not renovated except out of necessity and even in those dire circumstances they should remain as they are. These lofty buildings that al-Walid proposes are indeed like the dwellings of the Pharaoh and Khosrau in origin and, moreover, they are symbolic of their high hopes of everlasting life in this world.”[21]
Umar informed al-Walid of the outcome of his shura from the people of Madinah, but al-Walid pressed on with his decision and Umar implemented it. Majority shura in this case is not binding on the Caliph and since the Caliph is also the Imam and responsible for the salah he must do what is necessary to facilitate salah for the people. Expanding the mosque to allow more Muslims to pray took precedent in Al-Walid’s opinion over keeping the original houses of the sahaba which surrounded the mosque. This benefited future generations of Muslims.
Ideology prevents corruption not time-limits and re-elections
The Muslim world has regular elections for the head of state, but this does not prevent tyranny and corruption because the societies are not ideological societies, and the authority in many of these countries has been usurped by a ruling junta or foreign power. Sisi in Egypt attained around 97% of the vote in both the 2014 and 2018 Egyptian elections.[22] Assad won a fourth term in Syria in 2021 with 95% of the vote.[23]
The 2000 elections in Uzbekistan sum up much of the Muslim world where the President of the time Islam Karimov gained 92% of the vote, and the sole opposition candidate Abdulhasiz Jalalov admitted he only entered the race to make it seem democratic and even he voted for Karimov![24]
Without an ideology to bind the society together, where the people and institutions all believe in the basis of the system and work in harmony towards a common goal, then no amount of elections and accountability mechanisms will work.
We can see this in the west where the fundamental pillars of secular-liberalism and democracy are slowly being eroded.[25] Democracy only works if people believe in the system and accept that the opinion of the majority is correct. This pillar of democracy is unravelling in the west. The UK Brexit vote and Trump’s election and attempted re-election show that this pillar is crumbling. 70% of Republicans didn’t think the 2020 election was free and fair,[26] and only one-third of Republican voters say they trust the upcoming 2024 Presidential elections to be free and fair.[27] Another poll shows Americans don’t believe in “American Democracy”, with half of Americans saying the storming of the Capitol made them less confident in the stability of democracy in the United States.[28]
How do we deal with a corrupt Caliph-for-life?
When the sharia closes one door, we need to go back to the sharia and find another door. We don’t break down a door that sharia has shut simply based on the prevailing reality, or benefit and harm.
No matter how many checks and balances are put in place, the weakest link is always the human being, because to err is human. This is where the strength of ideology comes in, which is an essential condition for anyone taking up the post of Caliph. When Trump was departing office, he nearly sparked a constitutional crisis because the US President has the power to pardon crimes and Trump was going to use this power to pardon himself and his family.[29] This is something no US President has ever done, and something the founding fathers never envisaged.
In a future constitutional Caliphate apart from the Caliph himself, all rulers in the state – wazirs, governors and mayors – can be removed if the people’s representatives in the Regional Assembly (Majlis ul-Wiliyah) or House of Representatives (Majlis ul-Ummah) express a vote of no-confidence in them. The Caliph must then remove these officials from office. The day-to-day affairs are run by the governors and mayors in their respective provinces and districts, so they have the biggest effect on people’s day to day lives. In Islamic history, unfortunately this accountability mechanism was not adopted which led to governors at certain times committing huge oppression against their people. Al-Hajjaj bin Yusuf, who was the Umayyad governor of Iraq under Abdul-Malik ibn Marwan and Al-Walid ibn Abdul-Malik caused many people in his province to migrate to the Hijaz which was under the governorship of Umar ibn Abdul-Aziz. This is not a situation we ever want repeated again, and binding the Caliph to a constitution which empowers the people’s representatives to express dissatisfaction in these rulers will mitigate this.
But what about the Caliph himself? What happens if he is corrupt? Do we have to live with this corruption until his death?
The Caliph is not an absolute monarch or dictator, who can legislate laws from his own mind that suit his personal or family interests. Although the Caliph holds all executive powers within the Caliphate his powers are restricted by the sharia. He has no power to legislate because the Caliph is not a lawmaker. His only power in this regard is adopting a sharia rule by either deriving it himself from the Islamic texts through ijtihad, or adopting from his appointed ulema (scholars) who advise the government. In either case the rules would be scrutinised by the Mazalim judges and sharia committee of the Majlis to ensure they conform to the Caliph’s method of deducting rules (istanbat). This separation of powers was noted by some orientalists.
C.A. Nallino says, “But these universal monarchs of Islam, just like all other Muslim sovereigns, while they possessed to an unlimited degree executive power and some judicial power, are entirely lacking in legislative power; because legislation properly so called can only be the divine law itself, the shari’a, of which the ulama, or doctors, are alone the interpreters.”[30]
Thomas Arnold says, “The law being thus of divine origin demanded the obedience even of the Caliph himself, and theoretically at least the administration of the state was supposed to be brought into harmony with the dictates of the sacred law. It is true that by theory the Caliph could be a mujtahid, that is an authority on law, but the legal decisions of a mujtahid are limited to interpretation of the law in its application to such particular problems as may from time to time arise, and he is thus in no sense a creator of new legislation.”[31]
In regards to administrative laws and policies the Majlis has wide-powers in these areas, some of which are binding if the majority of the Majlis votes for them.
Noah Feldman highlights this, “In the classical Sunni constitutional balance, the shari’a existed alongside a body of administrative regulations that governed many matters in the realms of taxation and criminal law. The Ottoman Empire had long featured thousands of such regulations, called kanun, a word whose derivation from the Latin canon testified to its origins outside the shari’a.”[32]
When we look to the sharia we find that although the bay’a in origin is for life, it is an Islamic contract and as such can become fasid (defective) or batil (void).[33] If the pillars of the bay’a such as implementation of Islam and justice are contravened as we saw with the Umayyad Caliph Al-Walid II, there is provision for rectifying and even annulling the contract. The Caliph is not above the law or an absolute monarch, because he is restricted by the sharia in his executive powers, legislation and judiciary.
Unlike the other rulers of the state, the Majlis has no power in the removal of the Caliph. If the bay’a contract becomes fasid or batil then this is a judicial matter which must be dealt with by the Mahkamat ul-Mazalim (Court of Unjust Acts) which has the sole power to impeach the Caliph.
In the Umayyad period there was no independent judge in the position of Qadi ul-Mazalim, so it was left to the Ahlul hali wal-aqd (influential people) from among the Yamani tribes and Umayyad family to instigate a coup d’état against Al-Walid II.
In a future Caliphate there needs to be a formal constitutional process for impeaching the Caliph to prevent instability and fitna which occurs through coups and revolution. The draft constitution of the Caliphate states,
Article No 41: The court of the Mazalim (injustices) is the only one who can decide if the change in the situation of the Caliph, is a change which removes him from the leadership or not, and it is the only one who has the power to remove or warn him.[34]
Impeachment is a judicial function and must be performed by the Supreme Court which is the Court of Unjust Acts that acts in a similar manner to an upper house. This is the only institution within the state which has the power to remove the Caliph. The Caliph has no power to remove any judge who is investigating him, and the Caliph’s removal must be because he contradicted one or more of the seven contractual conditions of the bay’a, leading to the contract either becoming batil or fasid. If the bay’a contract is still valid, then no impeachment will take place and the Caliph will remain in office.
In the Ottoman Caliphate the Sheikh ul-Islam held the position of Qadi Mazalim, and he had the authority to issue a fatwa of removal against the Sultan and Caliph. This occurred when he issued a fatwa of removal against Selim III (r. 1789-1807).[35]
Conclusion
Without a limit on his term of office, the Caliph can focus on long term strategic planning for the state, instead of short-term planning from one election to the next as we find in the democratic-republican system. It also prevents corporate interests from hijacking the government agenda, through campaign contributions that any presidential candidate or party in the west must secure to achieve power. The 2020 US Presidential election cost a staggering $14billion[36].
Limiting the term of office for the head of state is an essential element of accountability in democracy, but not in the Caliphate. The Caliph is under constant investigation and evaluation by the Majlis and Mazalim to ensure he is abiding by his bay’a and the constitution of the state.
Since the Caliph is not a lawmaker or legislator, he is unable to pass legislation that would drastically alter the shape of the state and the rights of Muslim and non-Muslim citizens. This makes the question of who rules less of an issue in the Caliphate as opposed to democracy where different political parties can have a dramatic affect on people’s lives. The rise of authoritarian nationalist leaders in India, Hungary and Austria are examples of this.
Only the sharia defines what is a husn (good) ruling system and what is a qubh (bad) ruling system. Our minds may perceive benefit in limiting the ruler’s term of office but as discussed, this benefit is rejected because it contradicts the Islamic texts which impose no such limit. Allah (Most High) says, “It may be that you hate something when it is good for you and it may be that you love something when it is bad for you. Allah knows and you do not know.”[37]
Notes
[1] The Thinking Muslim, Episode 59, ‘Islamic Governance, Caliphates and Emirates’ with Iyad Hilal and Kamal Hussain, https://www.thinkingmuslim.com/podcast/59-caliphates-emirates, 1:05:30
[2] Muhammad Asad, ‘The Principle of State and Government in Islam,’ Islamic Book Trust Kuala Lumpur, pp.42
[3] Holy Qur’an, Chapter Baqara, verse 282
[4] Holy Qur’an, Chapter An-Nur, verse 32
[5] Sahih Bukhari 7142, https://sunnah.com/bukhari:7142
[6] Sahih Muslim 1298a, https://sunnah.com/muslim:1298a
[7] 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 XXIII, pp.147
[8] al-Tabari, Op.cit., Volume XXIV, pp.146
[9] Ibn Majah 112, https://sunnah.com/ibnmajah:112
[10] Sahih al-Bukhari 7212, https://sunnah.com/bukhari:7212
[11] Sahih al-Bukhari 7203, https://sunnah.com/bukhari:7203
[12] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, pp.29
[13] Ibid, pp.15
[14] Muhammad Hussein Abdullah, ‘Al-Waadih Fee Usool ul-Fiqh,’ pp.231
[15] Alexis De Tocqueville, ‘Democracy in America,’ THE UNIVERSITY OF CHICAGO PRESS, 2002, pp.178
[16] Tocqueville, Op.cit., pp.179
[17] Alexis De Tocqueville, Op.cit., pp.169
[18] Edward J Larson; Michael P. Winship, ‘The Constitutional Convention: A Narrative History from the Notes of James Madison,’ New York: Modern Library. pp.50–51.
[19] Fischer, S. (2018). Creole Revolution, Independence, and Militarization – The Ideology of Creole Revolution: Imperialism and Independence in American and Latin American Political Thought. By Joshua Simon. Cambridge: Cambridge University Press, 2017. pp.276.
[20] Abdul-Qadeem Zalloom, ‘Funds in The Khilafah State,’ 2nd edition, Al-Khilafah Publications, pp.52
[21] Ibn Katheer, ‘The Caliphate of Banu Umayyah,’ Darussalam, pp.414
[22] The Guardian Newspaper, Sisi wins landslide victory in Egypt election, https://www.theguardian.com/world/2018/apr/02/sisi-poised-to-declare-landslide-victory-in-egypt-election
[23] Reuters, Syria’s Assad wins 4th term with 95% of vote, in election the West calls fraudulent, https://www.reuters.com/world/middle-east/syrias-president-bashar-al-assad-wins-fourth-term-office-with-951-votes-live-2021-05-27/
[24] BBC News, ‘Uzbekistan’s one horse race,’ http://news.bbc.co.uk/1/hi/world/asia-pacific/595781.stm
[25] Julian Baggini, ‘Think democracy means the people are always right? Wrong,’ https://www.theguardian.com/commentisfree/2016/oct/05/democracy-politicians-populism-institutions
[26] Politico, ‘Poll: 70 percent of Republicans don’t think the election was free and fair,’
[27] The Hill, ‘Just one-third of GOP voters say they trust 2024 elections will be fair: poll,’ https://thehill.com/homenews/campaign/579377-just-one-third-of-republicans-trust-us-elections-poll
[28] GMF, ‘Poll Shows Americans Don’t Believe in “American Democracy”,’ https://www.gmfus.org/news/poll-shows-americans-dont-believe-american-democracy
[29] New York Times, ‘Trump Is Said to Have Discussed Pardoning Himself,’
[30] C.A. Nallino, Appunti sulla natura del ‘Califfato’ in genere e sul presunto ‘Califfato Otttomano’, pp.200
[31] Thomas W. Arnold, ‘The Caliphate,’ pp.53
[32] Noah Feldman, ‘The Fall and Rise of the Islamic State,’ pp.61
[33] Hizb ut-Tahrir, ‘An Introduction to the Constitution and its obligation,’ a translation of ‘Muqadimatud-Dustur Aw al-Asbabul Mujibatulah,’ pp.124
[34] Hizb ut-Tahrir, ‘An Introduction to the Constitution and its obligation,’ Op.cit., pp.125
[35] Dr. Yakoob Ahmed, Ottoman History Course
[36] BBC News, ‘US election 2020: How much did it cost and who paid for it?’ https://www.bbc.co.uk/news/av/election-us-2020-54696386
[37] Holy Qur’an, Surah Baqarah, Verse 216
Islamic Civilization 