ISLAMIC CONSTITUTIONAL LAW

INTRODUCTION

• The words Istikhlaf, Bai’ah and Shura are commonly used

in the context of choosing a leader/Amir/Khalifah in an
Islamic state.
• A leader in an Islamic polity must be chosen by the
people and not as a result of forced imposition upon
them.
• The usage and practice of these words truly show how
democratic is an Islamic polity as opposed to what is said
by the West regarding an Islamic polity i.e.
undemocratic.
• The chosen leader/amir/khalifah thus, has the support of
the people for his leadership which is a prerequisite or a
vital requirement in an Islamic state
ISTIKHLAF
• The Qur'an has used term Istikhlaf or Khilafat in the following three
meanings and contexts:
a) To bear the authority delegated by Allah – In this sense, the whole
human race is Allah's Khalifah (successor) on the earth
b) To acknowledge Allah as the Supreme Sovereign and to use His
delegated powers and authority in accordance with His Law – In this
sense only a pious and righteous believer can be a Khalifah, because
he alone can discharge the responsibilities of Khilafat truly. As such, a
disbeliever and sinner cannot be Khalifah yet he is rather a rebel
against AIlah, because he abuses the power and authority delegated
by Allah in disobedience to Him in the land bestowed by Him.
c) The succession of one ruling nation in the land after the fall of
another nation.
• The meanings (a) and (b) imply vicegerency while (c) implies
successorship
• Al-Istikhlaf means choosing one’s own successor. Technically, it
is a process of nominating a specific successor by the ailing ruler.
• Jurists have different opinion on this method. According to the
view of majority, the system of appointing a successor for ruling
is considered to be “Munkar” (evil act) in the as it contradicts
Islamic principles. This is because the authority belongs to the
Ummah and not to the Khalifah alone.
• Moreover, the Prophet did not use this form and after his
demise, Muslims chose his successor through Bai’ah.
• Some of the early Muslim rulers, however, did choose their own
successors and this form of transfer of power later took root.
Some jurists, however, arguing from early Islamic precedents,
have approved of this method of succession only if Istikhlaf was
based on extensive consultation
• It is important to note that the appointment of the next
Caliph, by the existing Caliph, is not included in the Khilafah
contract because he does not have the right to contract it.
• The Khilafah is a right of the Muslims, they contract it to
whom they wish. It is illegal thus to appoint a successor by
the existing Caliph.
• Authority - Surah Al An’am 6:6 : “See they not how many of
those before them we did destroy? Generations we have
established on the earth, in strength such as we have given to
you. For whom we poured out rain from the skies in
abundance, and gave (fertile) streams flowing beneath their
(feet): yet for their sins we destroyed them, and raised in
their wake fresh generations (to succeed them).”
• Given Islam’s flexible approach to ijtihad, scholars
formulated different proposals e.g. a democratic character of
succession by Istikhlaf will depend on whether the
nomination is followed by Bai’ah.
• Whether the role being played by the Caliph is akin to that of
a constitutional monarch or is more akin to that of an
absolute one. There is no such thing as an absolute monarch
in an Islamic State.
• Abu Bakr is said to have followed this practice. However, it
must be pointed out here that Abu Bakr did not appoint a
Caliph , rather he consulted the Muslims about who might be
Caliph for them and he nominated Umar. Some say Ali and
Umar were nominated by Abu Bakr. Then the Muslims
through three months during the life of Abu Bakr, chose Umar
by their majority. After the death of Abu Bakr, the people came
and gave the pledge to Umar, and hence the Khilafah was
contracted to Umar.
BAI’AH

• The word “Bai’ah” is derived from “Bai” which means “selling”.

As such it connotes a contract between someone who makes
an offer and another who accepts it, the latter being the one
engaged in Bai’ah.
• In the case of political succession, bai’ah is the act of accepting
and declaring allegiance to a potential ruler. Bai’ah takes place
when one or more individuals inform another that they
support his assumption of leadership position and pledge the
allegiance to him. In other words, bai’ah is a compact that
binds the ruler to the ruled in Islamic Shari‛ah.
• Historically, the process of the Bai’ah of the Caliph/Khalifah
came to consist of two stages.
• In the first stage certain individuals, referred to as “Ahl al-Hal
wa’l Aqd” (those who can enter into a contract or dissolve it),
engaged in extensive consultations to build a consensus and
the gave the bai’ah to a potential Caliph they agreed upon.
This led to nomination.
• Individuals engaging in consultations at the first stage had to
meet certain requirements i.e. had to be just, knowledgeable
and wise, which would enable them to make the best choice
for Caliph.
• In second stage, the general public gave its bai’ah to the
chosen candidate.
• The legal status of the bai’ah is that the ruler commits himself
to follow and protect Islam, to safeguard the welfare of the
citizens, and to protect the land and the security of the country.
• The ruled, in turn, are bound to give advice and to be loyal to
the ruler in everything except that which contradicts Islam.
• In addition to the above, bai’ah is an obligation upon all
Muslims, and it is a right for every Muslim, man or woman.
Authorities
• Hadith: “Whosoever dies without having a bai’ah upon his neck
dies the death of jahiliyyah”.
• Hadith reported by Ubadah bin as-Samit said: “We made a
bai’ah to the Prophet to hear and to obey in whatever pleases
and displeases us, and we should not dispute the authority of
those who have been entrusted with it, and that we stand for or
speak the truth wherever we are without fearing the blame of
any blamer for the sake of Allah”
• This shows that Bai’ah is a right for Muslims, as the bai’ah itself
indicates an offer, because the Bai’ah is offered by the Muslims
to the Caliph/Khalifah, and not by the Caliph/Khalifah to the
Muslims.
SHURA
• The word shura is derived from a root word of shawwara which
literally means displayed, exhibited, signalled.
• Technically, jurists have defined shura to mean:
i. Al-Asfahani – Extracting an opinion as a result of consulting
one another
ii. Ibn Arabi – Meeting on a matter on which one seeks the
advice of another bringing up his opinion
iii. Al-Khaliq – To evaluate the opinion of experience people in
certain affairs so as to direct us to the positive which is closed
to the truth
iv. Al-Khalidi – A meeting to discuss something in which each
considers the other so as to obtain opinion or to present the
matter to the chosen group of people in order to know its
meaning and aim
• In general, shura can be understood to be a meeting or
consultation where there is exchange of opinions and to make
a decision which would be transformed into an action that
would affect the public as a whole.
• It is important to note that a person should not decide a matter
on his personal opinion and ignore others when it involves the
interests of two or more persons. No one has the right to do as
he likes in matters of common interest. Justice demands that
all those whose interests are involved in a matter be consulted,
and if it concerns a large number of the people, their reliable
representatives should be made a party in consultation
Authorities

• Surah As-Syura 42:38: “They manage their affairs by mutual

consultation”.
• Surah Ali Imran 3:59: “Consult them in the conduct of affairs.
And when though art resolved, then put thy trust in Allah.”
• These two verses make consultation compulsory and also
direct the Head of State/Caliph/Khalifah that when, after
mutual consultations, a decision has been taken by him, he
should enforce it with determination, having full faith in God.
Shura-jurisprudential wisdom (hikmah)
• Consultation, is an important pillar of the Islamic way of life, and to
conduct the affairs of collective life without consultation is not only the
way of ignorance but also an express violation of the law prescribed by
Allah.
• Making shura or participation with others in making a decision that
concerns them is next to and the consequence of faith in Allah. Its
adherence shows the positive response to His commandment and
comes next after establishing prayers.
• Surah As-Shura 42:38: “And those who answer the call of their Lord and obey
Him (in His orders and prohibitions), and establish the Prayer in conformity
with its conditions; and whose affairs are by consultation among
themselves..”
• It is a religious obligation to offer advice to the leadership whenever it is
necessary to enjoin good and to forbid evil.
• Surah Al-Hajj 22:41: “They are the believers who, if We give them authority
on earth, without doubt establish the Prayer in conformity with its
conditions, pay the Prescribed Purifying Alms fully, and enjoin and promote
what is right and good, and forbid and try to prevent evil…”
According to Al-Maududi

1. It is injustice that a person should decide a matter by his personal

opinion and ignore others when it involves the interests of two or more
persons. Justice demands that all those whose interests are involved in
a matter be consulted, and if it concerns a large number of the people,
their reliable representatives should be made a party in consultation
2. A man tries to do what he likes in matters of common interest either
because he wants to usurp the rights of others for selfish ends, or
because he looks down upon others and regards himself as a superior
person. A believer is neither selfish so that he should get undue
benefits by usurping the rights of others, nor is arrogant and self-
conceited that he should regard himself as all wise and all knowing.
3. It is a grave responsibility to give decisions in matters that involve the
rights and interests of others. No one who fears God and knows what
severe accountability for it he will be subjected to by his Lord, can dare
take the heavy burden of it solely on himself.
Hukm of Shura and its subject
matters/scope
• According to Ibn ‘Atiyya - Shura is one of the basics of Islamic
law (shari’ah), and a mandatory rule; and anyone who is
entrusted with a public authority, who does not take the
counsel of those who have knowledge and are conscious of
God, should be dismissed from his or her public position, and
there is no argument about that.
• For the scope of shura or the matters which ought to be the
subject of consultation, there are no specific limitations. The
generality and wide applicability of the Qur’anic words signify
that it encompasses all affairs of the Muslim community in
every aspect of life.
• However, in a state guided by the Shari‛ah, not every public issue
has to be decided through al-Shura process. For example, there are
two conditions to be observed in respect to it.
1. Shura is not applicable to matters on which an injunction exists in
the Qur’an and Sunnah. Any matters falling under this category are
out of the subject of al-Shura, except when its purpose is only to
interpret the injunction or to enforce it.
2. When a question is referred to shura, the advisers are precluded
from reading a decision contradicting a legislative injunction in
the Qur’an or in the Sunnah. In the event of such contradiction
adherence, the opinion reached by shura is prohibited thus
rendering it valueless.
• Outside the realm of these two conditions, any matter may on
which there is no injunction be subject to shura provided it is
within the scope of the public affairs of the Ummah.
Whether the decision of Shura is binding or
advisory on the Head of State and the people

The first opinion:

• The advice or decision of the Majlis al-Shura is binding on the head
of state or ruler if the members of the Majlis or the majority of them
arrive at an opinion on a certain matter.
• Authority - Surah Ali Imran 3:159: “Consult them in the conduct of
affairs. And when thou art resolved, then put thy trust in Allah”.
• However, the requirement to obey the conclusions resulting from
the consultation comes al-Azm (decision or resolution) can be
reached only after consultation has taken place.
• Authority – Hadith: Prophet Muhammad was asked what the word
al-Azm in the verse meant. He replied: “Taking the counsel of those
who are known for their good opinions and the adherence to it”.
(b) The second opinion

• The ruler is not obliged to act in accordance with the opinion

rendered by the majority. It is sufficient that he consult the
advisories and then act according to his best judgment
whether or not it is in conformity with the views of the Majlis-
al-Shura.
• Authority:
I. In the case of the Hudaybiyyah Treaty. It was known that the
action of the Prophet were inspired by revelation. When
Umar inquired from the Prophet why the Muslims should
accept the peace, the Prophet repliedsaid: “I am Allah’s slave
and His Rasul. I will not oppose His order, and He will not
abandon me.”
II. Abu Bakr’s stand to fight the apostasy war.
III. Position of Umar with respect to distribution of the lands in
Iraq after its conquest.