Article 111: The Ummah Council has five powers which are:
1. (a): The Khalifah has to consult the Council and the Council has the right to advise him in operational matters and actions related to carrying out the affairs of the domestic policy that do not require deep intellectual research and serious examination, like matters of ruling, education, health, economy, trade, industry, agriculture and the like, and the opinion of the Council in these areas is binding.
(b): In the intellectual matters that require deep research and serious examination, and issues which require experience and knowledge, and technical and scientific issues, and similarly the financal issues, the army, and foreign policy, the Khalifah has the right to consult the Council about them and to acquaint himself with its opinion; however the opinion of the Council is not binding in these matters.
2. The Khalifah has the right to notify the Council of the laws and rules which he wants to adopt. The Muslim members of the Council have the right to debate them and voice their opinions regarding those rules. However, if they disagree with the Khalifah regarding the validity of their deduction or their evidence, in terms of their disagreement with the method of adoption from the basis of legislation (Usul) adopted in the State, then the decision will be referred to the Court of Madhalim, and its verdict in this matter is binding.
3. The Council has the right to hold the Khalifah accountable for all matters that took place effectively within the State, whether these were related to domestic or foreign affairs, financial affairs, or military matters. The opinion of the Council is binding if the majority’s opinion in such matters is binding, and it is not binding if the majority’s opinion in such matters is not binding.
If the Council and the Khalifah differed about the legitimacy of an action that had been already executed the matter should be referred to the Court of Madhalim to settle the question. Its verdict on the matter is binding.
4. The Ummah Council has the right to express discontent of the assistants, governors or the ‘Amils. Its opinion in such a case would be binding and the Khalifah should dismiss them at once. If the opinion of the Ummah Council differed from the opinion of the council of the concerned province regarding contentment and discontent of the governors and ‘Amils, the opinion of the council of the province overrides.
5. Muslim members of the Council have the right to restrict the nomination of candidates for the Khilafah from amongst those who fulfilled the qualification conditions as decided bythe Madhalim Court. Their opinion in this is binding, and candidates other than those shortlisted by the Council should accordingly not be considered.
This article explains the powers of the Ummah Council. The evidences for these powers are as follows:
The first point, (a): The evidence for the fact that the opinion of the Ummah Council regarding practical actions and matters, which do not require research and deep consideration, is binding, is deduced from the Messenger of Allah’s compliance with the opinion of the majority in going out of Madinah to meet the army of the idol worshippers in the Battle of Uhud. This is despite the opinion of the Messenger of Allah and the senior companions to stay in Madinah and not to leave. It is also taken from his saying to Abu Bakr (ra) and Umar (ra):
«لَوِ اجْـتَمَعْـتُمَا فِي مَشُورَةٍ مَا خَالَفْـتُكُمَا»
“If the two of you agree on an issue I consult you on (Mashura) I will not differ with you” (reported by Ahmad). Therefore, the practical matters related to the opinion leading to an action, in terms of providing services to the citizens for reassuring their livelihood, and in terms of maintaining their security, strengthening their defences and driving danger away from them; the majority opinion of the Council in all of these issues is binding upon the Khalifah even if it disagreed with his wish, which happened with the Messenger of Allah going out to Uhud in compliance with the opinion of the majority.
The first point, (b): In principle, the Khalifah takes the opinion of the scholars, experts and specialists regarding the matters of this section. This is in accordance with what happened with the Messenger of Allah when he took the opinion of Al-Hubab b. Al-Mundhir, in selecting the location of the Battle of Badr. It was reported in the Sirah of Ibn Hisham:
«إِنَّهُ ، حِينَ نَزَلَ عِنْدَ أَدْنَى مَاءٍ مِنْ بَدْرٍ، لَمْ يَرْضَ الْحُـبَابُ بْنُ الْمُنْذِرِ بِهَذَا الْمَنْزِلِ، وَقَالَ لِلرَّسُولِ يَا رَسُولَ اللهِ، أَرَأَيْتَ هَذَا الْمَنْزِلَ، أَمَنْزِلاً أَنْزَلَكَهُ اللَّهُ لَيْسَ لَنَا أَنْ نَتَقَدَّمَهُ وَلاَ نَتَأَخَّرَ عَنْهُ، أَمْ هُوَ الرَّأْيُ وَالْحَرْبُ وَالْمَكِيدَةُ؟ قَالَ: بَلْ هُوَ الرَّأْيُ وَالْحَرْبُ وَالْمَكِيدَةُ، فَقَالَ: يَا رَسُولَ اللهِ، فَإِنَّ هَذَا لَيْسَ بِمَنْزِلٍ، فَانْهَضْ بِالنَّاسِ حَتَّى نَأْتِيَ أَدْنَى مَاءٍ مِنَ القَوْمِ فَنَـنْزِلَهُ، ثُمَّ نُغَوِّرُ مَا وَرَاءَهُ مِنَ القُلُبِ، ثُمَّ نَبْنِي عَلَيْهِ حَوْضاً فَنَمْلَؤُهُ مَاءً، ثُمَّ نُقَاتِلُ القَوْمَ فَنَشْرَبُ وَلاَ يَشْرَبُونَ، فَقَالَ رَسُولُ اللهِ لَقَدْ أَشَرْتَ بِالرَّأْيِ، فَنَهَضَ رَسُولُ اللهِ وَمَنْ مَعَهُ مِنَ النَّاسِ، فَسَارَ حَـتَّى إِذَا أَتَى أَدْنَى مَاءٍ مِنَ القَوْمِ نَزَلَ عَلَيْهِ، ثُمَّ أَمَرَ بِالْقُلُبِ فَغُوِّرَتْ، وَبَنَى حَوْضاً عَلَى القَلِيبِ الَّذِي نَزَلَ عَلَيْهِ، فَمُلِئَ مَاءً، ثُمَّ قَذَفُوا فِيهِ الآنِيَةَ»
“When the Messenger camped at the nearest side of the water of Badr, Al-Hubab b. Al-Mundhir was not content with that site. He said to the Messenger: “O Messenger of Allah! Did Allah make you camp in this place where we can’t depart from it, or is it opinion, war and strategy?” He said: “It is rather opinion, war and strategy”. Hubab b. Al-Mundhir said: “O Messenger of Allah, this is not the (right) place. Move the people till we come to the side of the water near to the people (enemy); we camp there, then we seep away the water from the other part, we build a basin on top of it, we fill it with water. Then we fight against the people where we drink and they do not”. The Messenger of Allah said: “You gave the (right) opinion”. So the Messenger of Allah and the Muslims stood up and walked till they reached the near side of the water from the enemy and camped there. Then he commanded that the water be seeped away which was done. He built a basin on top of the seeped wells, filled it with water and threw pots in their (water).” So the Messenger of Allah agreed with the opinion of Al-Hubab and followed it.
In this incident, which has to do with opinion, war and strategy, the views of the people have no weight in taking the decision. Rather the view of the expert is what is considered. Similar to this are technical matters and thoughts which require study and scrutiny, together with definitions. In all such matters, reference is made to the experts and specialists, rather than to the ordinary people’s opinion. There is no value in such matters with the majority, but rather weight is given to knowledge, experience, and specialisation.
This also applies to financial matters, because the Shari’ah has determined the types of funds which must be collected and the areas over which they need to be allocated (spent). The Shari’ah has also determined the cases when taxes are imposed; ,therefore, there is no point in seeking the opinion of the people in the collection and allocation of funds. Similar to this is the army; the Shari’ah has left to the Khalifah the right of managing the army’s affairs, and it determined the rules of Jihad. There is no validity in the opinion of the people over matters decided by the Shari’ah. This also applies to the relationship of the State with other States, because this is of the thought that requires study and deep insight and is related to Jihad. Furthermore, it is a part of opinion, war and strategy. Therefore, there is no point in the opinion of the people in this matter, whether it is the majority or minority. However, the Khalifah is allowed to present these matters to the Ummah Councilfor its consultation and opinion, because such presentation is from the permitted issues (Mubah) and the opinion of the Council in these matters is not binding as in the incident of Badr. Rather the decision is entrusted with the concerned person.
The following examples are to distinguish the difference between points (a) and (b):
For deciding the building of a bridge over a river to serve the interests of the people in a village, almost isolated in terms of communications and the like, then the majority opinion of the council on this matter is binding to the Khalifah in building the bridge to solve the communication problem of the village. As for deciding the right technical location for building the bridge, and the best engineering design of the bridge, whether it should be a suspension bridge or standing over pillars in the river, etc; the experts and specialist people are consulted in such matters, rather than the majority opinion of the council.
Likewise, building a school for the children of a village, where its children find great difficulty in reaching the schools in the towns, the majority opinion of the Ummah Council on this matter is binding to the Khalifah. In regards to the choice of the location of the school in the village in terms of the soil strength suitable for design, as well as the style of its building, whether is possessed by the State, i.e. whether it is built, bought or leased, in such matters the experts and specialist people are consulted and the majority opinion of the council is not sought, though the Khalifah is allowed to consult with them over the matter, but their opinion is not binding.
As regarding a country at the frontiers, defying the danger of an enemy, then the majority opinion of the Ummah Council is binding in terms of the village’s fortification and driving the danger of the enemy away from it, and preventing its exposure to killing and expulsion after any aggression from the enemy. However, the method of building such fortifications and any fighting means used to drive the danger away from it; such things need the consultation of the experts and specialist people, rather than the majority opinion of the council.
The second point: Legislation belongs to Allah (swt) alone. Allah (swt) says:
((إِنِ الْحُكْمُ إِلَّا لِلَّهِ)) [الأنعام 57] و ((فَلَا وَرَبِّكَ لَا يُؤْمِنُونَ حَتَّى يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ ثُمَّ لَا يَجِدُوا فِي أَنْفُسِهِمْ حَرَجًا مِمَّا قَضَيْتَ وَيُسَلِّمُوا تَسْلِيمًا (65) )) [النساء]
" The decision is only for Allah."(TMQ 12: 40) " But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge concerning that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission ." (TMQ 4: 65)
In the explanation of the Messenger to His (swt) saying:
((اتَّخَذُوا أَحْبَارَهُمْ وَرُهْبَانَهُمْ أَرْبَابًا مِنْ دُونِ اللَّهِ))
“They have taken their scholars and monks as lords besides Allah.”, (TMQ 9:31), Al-Tirmidhi reported through ‘Adiyy b. Hatim who said:
«أَتَيْتُ النَّبِيَّ وَفِي عُنُقِي صَلِيبٌ مِنْ ذَهَبٍ، فَقَالَ: يَا عَدِيُّ، اطْرَحْ عَنْكَ هَذَا الْوَثَنَ. وَسَمِعْـتُهُ يَقْـرَأُ فِي سُورَةِ بَرَاءَةٌ ((اتَّخَذُوا أَحْبَارَهُمْ وَرُهْبَانَهُمْ أَرْبَابًا مِنْ دُونِ اللَّهِ)) قَالَ: أَمَا إِنَّهُمْ لَمْ يَكُونُوا يَعْبُدُونَهُمْ، وَلَكِنَّهُمْ كَانُوا إِذَا أَحَلُّوا لَهُمْ شَـيْئًا اسْـتَحَلُّوهُ وَإِذَا حَرَّمُوا عَلَيْهِمْ شَـيْئًا حَرَّمُوهُ»
“I came to the Prophet while wearing a cross of gold in my neck. He said: O Adiyy! Throw out this idol. And I heard him reading in chapter of Baraa’ah: “They have taken their scholars and monks as lords besides Allah.” (TMQ 9: 31). He said: they did not worship them; but when they allowed them something, they took as Halal and when they forbade them of something, they prohibited it”.
Therefore, legislation is not taken from the opinion of the council, neither by consensus or majority. It is rather taken from the Book of Allah (swt) and the Sunnah of His Messenger , and from that which is indicated by them through valid Ijtihad. Thus, the Messenger refused the opinion of many Muslims regarding the Hudaybiyah peace treaty, and said:
«إِنِّي عَـبْدُ اللهِ وَرَسُولُهُ، وَلَنْ أُخَالِفَ أَمْرَهُ»
“I am the servant of Allah and His Messenger, and will never disobey his order”. This is because the peace was a revelation from Allah (swt) and ,therefore, the opinion of the people is not sought regarding legislation. Based on that, the adoption of the Shari’ah rules, enacting of laws and the adoption of the rules and canons are of the mandatory powers of the Khalifah alone as explained before. It is all derived from the Shari’ah texts, irrespective if it was from his Ijtihad or that of other respected mujtahids. However, it is allowed for the Khalifah to submit to the Ummah Council whatever he wants to adopt of Shari’ah laws and canons so as to find out its opinion regarding it. This is like what Umar bin Al-Khattab (ra) did when he referred to the Muslims over the divine rules, which the companions did not object to, as in the incident of the conquered lands of Iraq, when the Muslims asked him to divide the lands amongst the fighters who opened them. So Umar (ra) asked the people, but his opinion settled on keeping the land with its landlords on condition that they pay a known Kharaj over it in addition to paying the Jizya over their persons. The reference of Umar (ra) and Abu Bakr (ra) before him to the companionsfor their opinion over the divine rules without an objection from the companionsto this, indicates their Ijma’. This serves as evidence that the Khalifah has the right to do that.
With regard to reference to the Madhalim Court in case the Khalifah differed with the Ummah Council regarding the validity of the deduction of these canons, or regarding their evidences or terms of the adoption from the sources (usul) adopted by the State, in this case the authority of the Madhalim judge is to examine the law adopted by the Khalifah, to determine whether it has a Shari’ah evidence and whether the evidence applies to the incident. Therefore, if the Khalifah differed with the Council (in other words, with the majority of the Council) over the law which the Khalifah adopted in terms of being a valid Shari’ah law or not, then this dispute is settled by the Judge of Madhalim, because it is from his specialty and the opinion of Madhalim Court is binding.
Non-Muslim members of the Council have no right in examining the laws and cannons which the Khalifah wants to adopt. This is because they do not believe in Islam, and because their right is restricted to voicing their concerns regarding any oppression that might fall upon them from the rulers, rather than expressing their view regarding the Shari’ah laws and cannons.
With regards to the third point, its evidence is the general meaning of the texts related to bringing the rulers to task. Ahmad narrated from Ibn Umar, who said: “The Messenger of Allah said:
«سَيَكُونُ عَلَيْكُمْ أُمَرَاءُ يَأْمُرُونَكُمْ بِمَا لاَ يَفْعَلُونَ، فَمَنْ صَدَّقَهُمْ بِكِذْبِهِمْ، وَأَعَانَهُمْ عَلَى ظُلْمِهِمْ، فَلَيْسَ مِنِّي وَلَسْتُ مِنْهُ، وَلَنْ يَرِدَ عَلَيَّ الْحَوْضَ»
“There will be Amirs over you who order you of things they do not do. Whoever believes their lies and helps them in their injustice will not belong to me and I do not belong to him, and he will not join me on the hawd (basin) in Jannah”.”Ahmad narrated from Abu Sa‘id Al-Khudri, who said: “The Messenger of Allah said:
«... أَلاَ إِنَّ أَفْضَلَ الْجِهَادِ كَلِمَةُ حَقٍّ عِنْدَ سُلْطَانٍ جَائِرٍ»
“…The best of Jihad is (to say) a word of truth before an oppressive ruler”.” Al-Hakim narrated from Jabir from the Prophet who said:
«سَـيِّدُ الشُّهَدَاءِ حَمْزَةُ بْنُ عَبْدِ الْمُطَّلِبِ، وَرَجُـلٌ قَـامَ إِلَى إِمَامٍ جَائِرٍ فَأَمَرَهُ وَنَهَاهُ فَقَتَلَهُ»
“The master of martyrs is Hamza bin ‘Abd Al-Muttalib and a man who stands up to an oppressive ruler where he orders him and forbids him, so he (the ruler) kills him.”Muslim narrated from Umm Salama that the Messenger of Allah said:
«سَتَكُونُ أُمَرَاءُ فَتَعْرِفُونَ وَتُنْكِرُونَ، فَمَنْ عَرَفَ بَرِئَ وَمَنْ أَنْكَرَ سَلِمَ، وَلَكِنْ مَنْ رَضِيَ وَتَابَعَ ...»
“There will be Amirs (rulers) and you will like their good deeds and dislike their bad deeds. One who sees through their deeds (and tries to prevent their repetition), is absolved from blame, and one who hates their bad deeds (in their hearts, being unable to prevent their recurrence), is (also) safe. But one who approves of their bad deeds and imitates them is spiritually ruined”. These texts are in general form and indicate holding to accounting the ruler in accordance with the rules of the Shari’ah. Furthermore accounting can be over any action. This holding to account by the Council of the Khalifah and other assistants, governors, and ‘Amils would be over any action which has been actually executed whether this action disagreed with the Shari’ah rule, was wrong or harmful to Muslims, or was unjust or complacent toward the citizens in looking after their affairs. The Khalifah must respond to this accounting and the objections by showing his view and evidence regarding his words, actions, and tasks he undertook, so that the Council can be assured of a good performance, the sincerity, and honesty of the Khalifah. If, however, the Council does not accept the view of the Khalifah and rejects his argument, this must be examined. If this matter was of the issues over which the majority opinion is binding then the opinion of the Council is binding like the issues in (a), otherwise it would not be binding as in the issues in (b). If the accounting, for example, was regarding not providing the school in the previous example then the accounting is binding. If the accounting was regarding the design he chose for the school then his accounting is not binding.
If those who account differed with the rulers over any matter from the legal (Shari’ah) point of view, the matter is referred to the court of unjust acts (Madhalim) by a request from the Council, due to what Allah (swt) says:
((يَا أَيُّهَا الَّذِينَ آَمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الْأَمْرِ مِنْكُمْ فَإِنْ تَنَازَعْتُمْ فِي شَيْءٍ فَرُدُّوهُ إِلَى اللَّهِ وَالرَّسُولِ))
“O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger.” (TMQ 4:59)
This means that if the Muslims dispute with the people of authority over a matter, they should refer it to Allah (swt) and to the Messenger , that is to arbitrate from the Shari’ah. This means to refer to the Judiciary, that is to the court of unjust acts, and its opinion is binding because it has the power in this case.
In regards to the fourth point, its evidence is that the Messenger of Allah removed Al-‘Ala’ b. Al-Hadrami, his ‘Amil over Bahrain, because the delegate of ‘Abd Al-Qays complained about him to the Messenger Ibn Sa’d narrated on the authority of Muhammad Bin Umar:
«أَنَّ رَسُولَ اللهِ قَدْ كَتَبَ إِلَى العَلاءِ بْنِ الْحَضْرَمِيِّ أَنْ يَقْدَمَ عَلَيْهِ بِعِشْرِينَ رَجُلاً مِنْ عَبْدِ الْقَيْسِ، فَقَدِمَ عَلَيْهِ بِعِشْرِينَ رَجُلاً رَأْسُهُمْ عَبْدُ اللهِ بْنُ عَوْفٍ الأَشَجِّ، وَاسْـتَخْلَفَ العَلاَءُ عَلَى البَحْرَيْنِ الْمُنْذِرَ بْنَ سَاوَى، فَشَكَا الوَفْدُ العَلاَءَ بْنَ الْحَضْرَمِيِّ، فَعَزَلَهُ رَسُولُ اللهِ وَوَلَّى أَبَانَ بْنَ سَعِيدِ بْنِ العَاصِ، وَقَالَ لَهُ: اسْتَوْصِ بَعَبْدِ القَيْسِ خَيْراً، وَأَكْرِمْ سَرَاتَهُمْ»
“That the Messenger of Allah wrote to Al-Ala’ b. Al-Hadrami to come to him with twenty men from ‘Abd Al-Qays. He reached him with twenty men headed by ‘Abd Allah b. ‘Awf Al-Ashajj, and appointed after him Al-Mundhir Bin Sawa. The delegate complained of Al-Ala’ b. Al-Hadrami, so the Messenger of Allah removed him and appointed Aban Bin Sa’id b. Al-‘Aas and said to him: ‘Take care of ‘Abd Al-Qays and respect their chiefs ’.” Also, Umar Bin Al-Khattab (ra) removed Sa’d Bin Abi Waqqas (ra) from the governorship simply because of the complaint of the people against him, and he said:
«إِنِّي لَمْ أَعْزِلْهُ عَنْ عَجْزٍ، وَلاَ عَنْ خِيَانَةٍ»
“I did not remove him because of deficiency or treason”. This indicates that the people of the provincehave the right to express their anger and discontent for their governorsand amirs, and the Khalifah thus has to remove them. Likewise, the Ummah Councilis allowed, as a representative of all Muslims in the State, to express its anger and discontent for the governorsand ‘Amils and the Khalifah has to remove them immediately if the complaint came from the majority of the Provincial Council or the majority of the Ummah Council. In the case of conflict between the views of these two councils, then the priority is given to the Provincial Council, for it is more aware and more acquainted than the Ummah Council of the condition of the governor.
With regards to the fifth point, this point has two issues: The first one is the short-listing of the nominees and the second is reducing the shortlist to six people and then to two.
As for the first issue, from following the manner of appointing the guided Khulafaa’ it appears there was short-listing of nominees made by the representatives of the Muslims directly or through requesting the Khalifah to shortlist the nominees on their behalf.
In the hall of Bani Sa’idah, the nominees were Abu Bakr (ra), Umar (ra), Abu ‘Ubaydah (ra) and Sa‘id b. ‘Ubadah (ra). These were considered sufficient and the nominations were restricted to them. This took place before the people of the hall, and then by the consent of the companions later on, where they gave the Bay’a to Abu Bakr (ra).
Towards the end of Abu Bakr’s (ra) authority, he consulted with Muslims for about three months, discussing with them the post of Khilafah after him. After they discussed this with him they agreed to his nomination of Umar (ra); in other words, the nomination was restricted to one candidate.
Restricting of nominees was more clear and obvious after the stabbing of Umar (ra) for they requested him to nominate candidates for them so he confined it to six (nominees) at the expense of all others, and he emphasised that matter, as is well known.
At the time of nominating ‘Ali (ra), he was the only nominee, without having any one else with him and so there was no need for short-listing.
Short-listing of nominees used to take place before a gathering of Muslims; a matter which would have been opposed and not executed had it been not allowed, for this prevents the right of others in nomination. Therefore, short-listing the nominees for Khilafah post is allowed due to the consensus (Ijma’) of the companions. Thus, the Ummah, or in other words, her representatives, are allowed to shortlist the nominees, whether this short-listing was conducted directly by the Ummah, or through authorising the outgoing Khalifah to do that on their behalf.
This is in regards to short-listing. In regards to evidence for the short-listing of the nominees to six people at first, this is taken from the action of Umar (ra); whilst shortening the list to two after that, is taken from the action of Abdul Rahman Ibn Auf (ra). Additionally, this verifies the meaning of the Bay’a by the majority of the Muslim electorate for if the nominees were more than two, then the winner amongst them might get for example thirty percent of the electorate, i.e. less than their majority. The winner would get the majority in the case that the nominees were not more than two.
In regards to short-listing of the six and two nominees by the Ummah Council, this must be by the Madhalim Court to ensure that the nominees fulfil the qualification conditions; this is because the short-listing conducted by the Ummah Council is for electing a Khalifah from amongst them. It means, in other words, that they must fulfil the qualification conditions. Therefore, the Madhalim Court would exclude from the nominees to the Khilafah anyone who does not fulfil the qualification conditions. After that the Ummah Council would make the shortlist from the nominees decided by the Madhalim Court to have fulfilled the qualification conditions.
This is where the fifth point is derived from.