The Caliph or the Candidate for the Caliphate Post

It is forbidden for someone to seek authority if they are not qualified for it. This is understood from numerous ahadith including the famous hadith of Abu Dharr quoted earlier. Taqiuddin an-Nabhani says, “As for the prohibition of asking for the imarah leadership mentioned in the ahadith, this is a prohibition for weak persons who are not fit for it like Abu Dharr (ra).”[1]

Therefore, the candidate’s taqwa should prevent him from even putting himself forward. If the Caliph is already in office, and a serious change occurs in him which affects his ability to rule, then he should resign. Al-Qurtubi says, “If a leader finds in himself an impediment which would impair his leadership, he should retire.”[2]

The People’s Representatives (Ahlul hali wal-aqd) who will contract the bay’ah

The Caliph is only in office if he has a valid bay’ah contract. No bay’ah means no rule. The bay’ah is a contract of one-to-millions i.e. between the Caliph and the Muslim ummah. This is different to other Islamic contracts which are one-to-one such as buying, selling and marriage. This therefore poses a challenge on how you get the consent of millions of people which is a condition in Islamic contracts. It’s not possible for every Muslim to participate in the election of the Imam, which is why in the rightly guided Caliphate of the sahaba, the senior representatives of the people would contract the bay’ah to the Caliph. The rest of the Muslims would accept their opinion and rush to pledge their bay’ah to the newly appointed Caliph. This was done either directly in the Prophet’s Mosque in Madinah, which was the capital of the state, or indirectly through the governors in the other provinces.[3] The classical scholars called this contracting group the أهل الحل والعقد Ahlul hali wal-aqd which literally means the ‘people who loosen and bind’.

Ahmad ibn Hanbal says: “The imamah is not effective except with its conditions […], so if testimony was given to that by the Ahlul hali wal-aqd of the scholars of Islam and their trustworthy people, or the imam took that position for himself and then the Muslims were content with that, it is also effective.”[4]

Therefore, the Ahlul hali wal-aqd are the ones who will decide who they want to rule them, and the attributes that are most important for the state at that time. Rashid Rida (1865-1935) mentions this when he explains ‘the caliphate or imamate of necessity’. “This type would be allowed when the ahl al-hall wa’l ‘aqd decided to install a caliph who had most but not all the legal requirements.[5] To this type of caliphate belonged some of the Umayyad and Abbasid caliphs who lacked ‘ilm (knowledge), imperative in exercising ijtihad.”[6]

The Ahlul hali wal-aqd could therefore decide to appoint a Caliph, who despite his kifāyah weaknesses, is a hero of the ummah due to his past role in establishing the state or commanding the Muslim armies to victory. Something similar occurred with Nelson Mandela, who became the first President of the Republic of South Africa at the age of 76 after serving 27 years in prison. His Presidency was symbolic and actual day to day affairs fell to his deputies (wazirs), Thabo Mbeki and former President F.W. de Klerk. The mitigations against kifāyah weaknesses will be discussed later.

The Ahlul hali wal-aqd in a future Caliphate will be institutionalised in an elected Majlis al-Nuwaab, with the Muslim members – male or female – forming an electoral committee to decide on who the Caliph should be and formally contract the bay’ah to them.

Hassan al-Banna says, “As for respecting the ummah’s opinion, and the obligation for her to be properly represented and participate in the ruling, Islam did not require that the opinion of all its members be sought in every issue, which in modern terminology is known as a ‘referendum’. Instead, under normal circumstances, Islam was satisfied with the Ahlul hali wal-aqd and did not specify them by their names, nor by their persons, and it appears from the sayings of the fuquha and their description of them, that this description applies to three categories:

1 – Mujtahid jurists whose opinions are relied upon in fatwas and deduction of rulings.

2- People with experience in public affairs.

3- Those who have a kind of command or leadership among people, such as heads of households and families, sheikhs of tribes and heads of groups.”[7]

Al-Mawardi says, “If it seems to the electors (ahlul hali wal-aqd) that one of the two [candidates] 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.

Most of the fuqaha and mutakallimun, however; say that his Imamate is valid and the existence of the one who is more excellent does not disqualify the Imamate of the one surpassed in excellence as long as he is not deficient regarding the conditions of the Imamate-just as in the case of the administration of judgeship it is permitted to follow the one surpassed in excellence even though the more excellent person is available since a greater degree of excellence is only an extra dimension of choice and is not considered as one of the necessary conditions.”[8]

The Mazalim Court

Article No 41 of the Draft Constitution of the Islamic State written initially by Taqiuddin an-Nabhani and then updated by Abdul-Qadeem Zallum states, “The court of the mazalim (injustices) is the only one who can decide if the change in the situation of the Khalifah, 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.”

In their explanation of this article they say, “However, if the Khalifah is afflicted by any of the circumstances [of removal] and removes himself then the issue is closed,[9] and if the Muslims see that it is necessary for him to be removed due to this situation occurring, and he disagrees with them, then the issue is referred to judgement due to the words of Allah ta’ala: فَإِن تَنَـٰزَعْتُمْ فِى شَىْءٍۢ فَرُدُّوهُ إِلَى ٱللَّهِ وَٱلرَّسُولِ “and if you differ in anything amongst yourselves then refer it to Allah and His Messenger.”[10] In other words, if you and the people of authority disagreed, and this is a disagreement between the person of authority and the Ummah, then refer it to Allah ta’ala and His Messenger ﷺ which is to refer it to judgement, in other words the court of the mazalim.

The mazalim court has the power to limit the period of notice to remove the mastery over him, or the period of grace for the freeing him from imprisonment, during which the temporary leader (Ameer Mu’aqqat)[11] would work, and after if the Khalifah then could carry out his powers without being under the mastery of others or imprisoned, then the work of the temporary leader would end. If the mastery over him or imprisonment did not end then the court would rule to remove him, and the temporary leader would begin the process of appointing the new Caliph.”[12]

The Sheikh ul-Islam in the Ottoman Caliphate held this role of Qadi Mazalim, and so had the power to issue a fetva (fatwa) to depose a sultan, as occurred in 1909 when a fetva was issued on behalf of the National Assembly to remove Sultan Abdul-Hamid II.

Case Study: The Removal of Ottoman Caliph Sultan Mustafa I

After the Ottoman Caliph Sultan Ahmed I (r.1603-1617) died in 1617, his brother Mustafa became the Caliph before being removed due to mental illness.

Colin Imber mentions, “Ahmed died in 1617, when he was less than thirty, leaving a problem of succession for which there was no precedent. With the ending of the practice of fratricide, his brother Mustafa was still alive and, by the new principle of seniority, entitled to inherit the throne. Mustafa, however, was mentally defective, presenting the dilemma of whether to give the throne to a minor, Osman, or to an idiot, Mustafa. This time, the negotiations took place between a representative of the Inner Palace, Mustafa Agha, and two dignitaries from outside, the Deputy Grand Vizier, Sofu Mehmed Pasha and the Chief Mufti, Es’ad. It was, in Pechevi’s version of events, Mustafa Agha’s word that was decisive. He argued that public disapproval was inevitable if a child came to the throne when an adult candidate was available, and that Mustafa’s ‘defect in intelligence came from his long confinement . . . and he might come to his senses if he had contact with people for a while’. It was the decision of this group of people that brought Mustafa to the throne.

Mustafa’s mental condition did not, however, improve. He was, Pechevi tells us, in the habit of ‘scattering the gold and silver coins, with which he filled his pockets, to the birds and to the fish in the sea, and to paupers whom he met in the street’, and when ‘the Viziers came to present business to him . . . he would push their turbans and uncover their heads’. The same group of people as had planned his accession now plotted his deposition. In February 1618, they called the dignitaries and troops to the Palace, where Mustafa Agha locked the door on Mustafa and, as the Throne was set up, released Ahmed’s eldest son, Osman, from the other.”[13]

Notes

[1] Taqiuddin an-Nabhani, ‘The Islamic Personality,’ Vol.2, p.33

[2] Al-Qurtubi, ‘Tafsir al-Qurtubi,’ Vol.1, Translated by Aisha Bewley, Diwan Press, p.158

[3] Dr Ali Muhammad As-Sallabi, ‘The Biography of Abu Bakr As-Siddeeq’, Dar us-Salam Publishers, p.250

[4] Ahmad, al-ʿAqīdah bi-Riwāyah al-Khallāl, 1/124

[5] The conditions he lists are not pillars of the contract and are differed over. The strongest opinion is that they are mandub (preferable) and not contractual conditions. His opinion by allowing the bay’ah without them would indicate this as well.

[6] Haddad, Mahmoud. “Arab Religious Nationalism in the Colonial Era: Rereading Rashīd Riḍā’s Ideas on the Caliphate.” Journal of the American Oriental Society, vol. 117, no. 2, 1997, pp. 253–77. JSTOR, https://doi.org/10.2307/605489

[7] Hassan al-Banna, IkhwanWiki

[8] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.15

[9] This is what al-Qurtubi mentions above

[10] Holy Qur’an, Surah Al-Nisaa’, ayah 59

[11] The role of Ameer Mu’aqqat is held by one of the wazirs while the Khaleefah is in office. On the death or removal of the Khaleefah then a new Ameer Mu’aqqat will be appointed to oversee the election.

[12] Taqiuddin an-Nabhani, ‘An Introduction to the Constitution and its obligation,’ p.125

[13] Colin Imber, ‘The Ottoman Empire, 1300–1650 – The Structure of Power,’ 2002, Palgrave Macmillan, p.110