In the name of Allah most gracious most merciful,
Assalamualaikum wa rahmatuallahi wa barakatuhu

Part Eleven

Election

In the following two messages I will examine two issues. The first one is who are the Muslims who appoint the Khalifah? Are they the influential people or a certain specific number of Muslims? Or do all Muslims appoint the Khalifah? The second issue concerns the actions occurring this century in elections, such as secret ballots, polling boxes and counting votes. Are thesematters consistent with Islam, and does Islam allow them or not?
 
      Concerning the first issue there are different opinions adopted by different scholars. A complete survey of these different opinions can be found Mahmoud Al-Khalidi books: Al- Bay'ah In the Islamic Political Thinking and The Principles of the Ruling System in Islam, both are in Arabic. He discusses the
 different opinions and refutes those which do not have evidences from Quran or Sunnah. He ends this topic with the opinion which
 is based on the practice of the Sahabah and agrees with the principles of the ruling system in Islam. His opinion is taken literary from the writings of Taquidine an-Nabhani (see The Islamic Personality, vol. 2, and the Khilafah). I will only comment on some of the most famous opinions among Muslim scholars
 and I will discuss in detail the opinion which I adopt, which is an-Nabhani opinion.
 
      Some of the opinion are:
      1. The Khilafah is contracted by the consensus of all the  influential people (Ahl Al-Hal wa Al-'aqd). It is the opinion of Abu Ya'la, Ibnu Hazm and Imam Ahmad (one of the two opinions attributed to him).
 
 
      2. The Khilafah is contracted by the consent of the people  who have the power and can protect the new Khalifah and sustain his authority. It is the opinion of Ibnu Taymiah   and Imam Ahmad (the second opinion attributed to him).
 
      3. Some scholars said the Khilafah is contracted by a   certain number of people, some said 40, others said 6, or 4 or .... There is no need to go in more details here      because there is no evidence what so ever for any of these      numbers.
 
      4. The Khilafah is contracted by whoever is there from the  influential people. It is the opinion of Imam Nawawi, Al-Mawirdi and Shawkani. Al-Qalqashandi said it is the opinion of the Shafi'i school of thought.
 
      5. The Khilafah is contracted by any number and it does not  need any consent. It is the opinion of Al-Amidi, Imam Al- Haramin and Al-Jarjani.
 
     brief comment on the above mentioned opinions.
 
      1. In first opinion the Khilafah   was contracted to Abu Bakr with those who were in the Saqifah (courtyard) of Banu Sa'edah. Not all the Sahabah  attended the meeting in the Saqifah, while all the Sahabah   are Ahl Hal wa 'aqd. Also some of the Sahabah were not in
      Madina when the Prophet died and they were not asked or consulted.
 
      2. The second opinion is based on anology of first opinion . Ibnu   Taymiah, . He thought the consent of the people who have the power is a      precondition for the stability of the new authority.
 
      3. The third opinion is not, as I stated above has no evidence. There is no text to limit the number of people by 40, 6, or 4 or any other number. The scholars made Qiyas (analogy) between the Khilafah contract and some other  issue like the number needed for establishing the Jum'a
      prayer (Shafi'i opinion is that 40 people are needed to  establish a Jum'a prayer) or the number of witnesses needed      to prove the zinna (adultery). You can easily see that this      analogy has no justification in Islam. Those are two
      different topics.
 
      The fourth and fifth opinions ............
      Allah (SWT) has given the authority to the Ummah and made the appointment of the Khalifah a right and duty for all Muslims; and He (SWT) did not make it a right of one particular group excluding another, nor for a jama'ah leaving another jama'ah aside, since the bay'ah is a duty upon all the Muslims. The Prophet (pbuh) said: Whoever dies without having a pledge (bay'ah) upon his neck would die the death of Jahilliyah (days of ignorance)", and this is general command for every Muslim.
 Therefore, the influential people do not posses the exclusive right to appoint the Khalifah and can not ignore the rest of the Muslims. Nor do specific persons have the exclusive right.
 Rather, this right is for all the Muslims with no exception, it even includes the fajirs (wicked people) and munafiqeen
 (hypocrites), providing they are mature Muslims because the Shari'ah text came in a general form in this instance and nothing to limit it (make it specific to certain people) except the refusal of the pledge from the young who have not yet reached the age of puberty. So the text has to be taken generally.
      However, it is not a condition that all Muslims practice this right. Whilst it is a duty, because the bay'ah is Fard, it is Fard Kifayah (collective duty) and not Fard 'ain (individual duty). Thus, if some of the Muslims fulfil it, the duty drops of the rest of the Muslims. But all Muslims must be enabled to
 practice their right in electing the Khalifah, regardless of wether they use their right or not. In other words, every Muslim must be able to participate in selecting the Khalifah. So the issue is to enable the Muslims to carry out the duty of  establishing the Khalifah which Allah (SWT) prescribed upon them,
 in such a way that the sin of not fulfilling this duty is removed from their shoulders. The issue is not the actual participation of all the Muslims in conducting this duty. This is because the duty which Allah (SWT) prescribed is to establish the Khalifah for Muslims by their consent, and it is not a requirement for all
 Muslims to perform it. Two matters result from this issue. One of them is that the consent of all Muslims in establishment of the Khalifah is achieved, or secondly the consent of the Muslims about the appointment is not achieved, however, in both cases the Muslims are able to participate in the appointment.
      With regard to the first matter no condition is set concerning a specific number required to appoint the Khalifah, rather any number of Muslims can give their bay'ah to the Khalifah and in this bay'ah the consent of the Muslims is attained by their silence, or by proceeding to obey him, or by anything which implies their consent, then the appointed Khalifah becomes a Khalifah for all the Muslims, and he will be legally the Khalifah even if only three people appointed him, because
 collectivity is achieved by carrying out the appointment of the Khalifah. The consent is achieved by their silence and through obedience or anything similar, on condition that this accomplished by absolute choice and enabling the expression of opinions fully. However, if the consent of all the Muslims was
 not achieved, then the appointment of the Khalifah would not be accomplished unless it was performed by a group that represents the consent of the majority of the Muslims regardless of the number in this group. From here some jurists concluded that the appointment of the Khalifah is established by the pledge given to him by the people of influence, because they consider the influential people as the group which achieves the consent of the
 Muslims though the pledge they give to any man who fulfils the contractual conditions of the Khilafah. Therefore, it is not the pledge of the influential people which establishes the Khalifah, nor is their pledge a condition for the legality of the appointment of the Khalifah, rather the pledge of the influential people is an evidence indicating that the consent of the Muslims to the pledge has been achieved, because the influential people as representative of the Muslims. And every evidence that indicates that the consent of the Muslims with the pledge to a Khalifah is fulfilled completes the appointment of the Khalifah, and the appointment of the Khalifah by this pledge would be legal. Accordingly, the divine rule is to establish the Khalifah by any gathering whose appointment of the Khalifah achieves the consent of the Muslims by any indication that proves this consent, wether this indication is the pledge of the majority of the influential people, the majority of the representative Muslims, the silent acceptance of the Muslims regarding the group that give the pledge, their carry to show obedience as a result of the pledge or by any similar means, as long as they were provided with the full facility to freely express their opinions. It is  not a divine rule that this gathering must be of only the influential people nor that they are four or four hundred or more, or that they must be the residents of the capital or the regions. Rather the divine law is that their pledge fulfils the consent of the majority of Muslims by any indication together with enabling them to freely express their opinion fully.      What is meant by all Muslims is those Muslims who live in lands controlled by the Islamic state, i.e. those who are subject
 of the former Khalifah, if the Khilafah exists, or those by whom the Islamic state would be established and the Khilafah contracted, in case the Islamic state was not established (our case now). As for the other Muslims, their pledge and consent are  not an essential condition, because they are either believers
 disassociated from the Islamic authority or they live in Dar Al- Kufr and they can not join Dar Al-Islam, so they have no right in the contracting pledge, but they must give the pledge of obedience because legally those who rebel from the Islamic authority are treated as rebels. And those who live in Dar Al-
 Kufr, the establishment of the Islamic authority is not achieved by them unless they establish it in reality or they enter into its domain. Therefore, the Muslims who have the right in the pledge of contracting and their consent is considered a condition to ensure the legal appointment of the Khalifah are those Muslims
 by whom the authority of Islam is established in reality.It is not true to say that this is a rational study or it has no divine evidence. The reason for this is that it is a study about the subject upon which the divine law applies and not on the law itself, therefore it does not need a divine law but rather must explain its reality. For example, the eating of dead meat is prohibited is the divine law. Verification of what is the dead meat is the subject of the law, it is a subject which is related
 to the law. So appointing the Khalifah by Muslims is the divine law, and that this appointment should be by consent and selection is also the divine law. It is these provisions which need the divine evidence. But who are the Muslims by whom the appointment is completed? And what is the matter by which the consent and
 selection are fulfilled? These are referred to as the manatt (subject) of the law, i.e. the subject upon which the law came to treat. The application of the divine law upon the subject is the achievement of the law. Therefore, it is needed to study the manatt which the divine law came to treat by explaining its
 reality. Another example is alcohol. The divine law is the prohibition of alcohol. The investigation that a certain drink is alcohol or not, so as to judge it is haram or not is an investigation of the manatt. The investigation of the reality of the alcohol is a verification of the manatt

Salam,

     In the last message the issue of who are the Muslims who appoint the Khalifah was examined. It was shown that the divine 

rule is to establish the Khalifah by any gathering whose appointment of the Khalifah achieves the consent of the Muslims

by any indication that proves this consent, whether this indication is the pledge of the majority of the influential

people, the majority of the representative Muslims, the silent acceptance of the Muslims regarding the group that give the

pledge, their carry to show obedience as a result of the pledge or by any similar means, as long as they were provided with the

full facility to freely express their opinions. In this message I will examine the issue of elections.

The actions occurring this century in elections, such as secret ballots, polling boxes and counting votes and the like,

all these are styles to perform the selection by consent.Therefore, they do not enter under the divine law, nor in the

question of manatt of the divine law which is the subject that the divine law came to treat, because this matter is not

concerned with direct Muslim deeds or the subject upon which the divine law applies; rather they are the means of the human

 action

to which the divine law came, i.e., the action which the speech of the law-giver (Allah) is related with, which in this instance,

is the establishment of the Khalifah by consent, provided that there is a complete facilitation to enable the expression of

opinion for this question. Therefore, these styles and means are not part of what the divine laws are sought for. And they are

treated as matters which the general text has permitted, and there is no special evidence to forbid them, so they are mubah.

So Muslims have the right to select these or other styles. Any style which leads to enabling the Muslims to carry out the Fard 

of appointing the Khalifah by consent and selection, Muslims are allowed to use, unless there is a divine evidence which prohibits

it.

It is incorrect to say that this style is a human act and should not be conducted except according to the divine law, with

an evidence to indicate its rule. It is incorrect to say so because the human action which must be conducted according to the

divine law and which must have an evidence that indicates its law, is only the action which is considered as an origin, or it

is a branch of an origin action whose evidence is special, not general. An example for this is prayer, whose evidence is only

related to establishing it, and it does not include every action included in the prayer. Therefore there must be an evidence upon

every action in it. But the action which is a branch from an action that a general evidence applies to its origin, then the

general evidence applies on all its branches. The prohibition of an action (which is a branch) requires an evidence to prohibit

it, and get it out of the rule of its origin and thus give it a new rule, and so are all the styles. In the question of

elections, the original action is the appointment of the Khalifah by consent and selection. But the actions which branch out from

that such as polling, using the polling boxes and counting of the votes and the like, they all enter under the rule of the origin,

and do not require another evidence. To exclude any of them from the rule of the origin, i.e. to prohibit it, it is a matter which

require an evidence. This is the case for all the styles which are human actions. Concerning the means which are tools like the

box in which the voting papers are put, these take the rule of things and not the rule for actions, upon which applies the

principle "Originally things are permitted unless there exists an evidence of prohibition."

The difference between method and style is that method is an action which is an action which is considered by itself as an

origin, or a branch to an action that does not have a general evidence for its origin, rather, its evidence is special. The

style is an action which is a branch to an action upon which there is no general evidence. Thence, the method must depend upon

a divine evidence because it is a divine rule, therefore it must be adhered to, observed, and closely followed. And Muslims have

no choice concerning it unless its rule is ibaha (permissible). 

This is different from the style which does not depend on a divine evidence, rather it is included in the rule of its origin.

Therefore, it is not obligatory to follow a particular style even if the Prophet (pbuh) did so. Rather a Muslim is allowed to use

any style as long as it leads to the performance of the action, and thus it becomes a branch to the action. Therefore, it is said

that the style is defined by the kind of action. An example is the Da'wa. The divine rule is that it is Fard to spread the da'wa

on every Muslim. Spreading da'wa is the method but we can do it with different styles and using different means and tools. The

styles and the means are branch which are included in their origin and they do not need a separate evidence. During the time

of the Prophet (pbuh) people did it by contacting the people directly, speaking with them or living with them. Nowadays we can

do it by using the media, TV and Radio programs, Video tapes, writing books, writing in magazines and newspapers and to say

nothing about using the internet. All these styles and means were not used by the Prophet. There are many other examples where

 the

method was given the divine rule, while the styles and means which branch out from that method enter under the divine rule of

the origin. Asking for a divine text to prove that the election is a legal way in showing the consent of the people is the same

as asking for a divine text to prove that using cars, trains and planes for travelling is allowed in Islam. Jeronifsky (sorry for

the spelling) the right wing Russian leader advised Muslims, in an interview with MBC TV, not use planes and cars for travelling.

He said good Muslims should use Camels and horses to travel from Europe to Mecca for pilgrimage since there were no cars and

planes at the time of the Prophet.

In the last three messages I tried to give an outline for a method which can be used in our contemporary time to 

appoint

the Khalifah in an Islamic state. This method is derived from the practice of the Sahabah and the basic principles of 

the ruling

system in Islam. In short the Hukm shari'i (Sharia rule) concerning the appointment of the Khalifah is to limit the

nominees for the Khilafah by those who represent the opinion of the majority of the Muslims (like the members of 

Majlis Al-Shura).

Then their names are displayed to the Muslims and they are asked to select one of the nominees to be Khalifah for all. 

Then it is

determined whom the majority of the Muslims have chosen, and the bay'ah from all Muslims is taken for him,

 whether each person had

specifically chosen him or not. The Khilafah is also convened to the new Khalifah if the bay'ah is made by the majority 

of those

who represent the Muslim Ummah who are under the authority of the Khalifah that is being replaced by another, 

as was the case at

the time of the Khulafa'a ar-Rashidun. Their bay'ah would then be a bay'ah of contract to the Khilafah. 

As for the bay'ah of the

other people (who do not live in the domain of the Khilafah) it becomes a bay'ah of obedience after the Khilafah was 

convened to

the Khalifah, that is a bay'ah of submission to the Khalifah, not a bay'ah of contract to establish the Khilafah. 

This bay'ah

should be based on selection and consent. This can be achieved by any style or means which fulfils these conditions. 

These styles and

means should not be prohibited by another divine evidence.

This would be the case if there was a Khalifah who died or was deposed and it is required to establish a Khalifah in his

place. But if the there is no Khalifah at all what would the Muslim do?

This will be the subject of the next message.

continued..