Article 30, Explanation of the Draft Constitution of the Khilafah

The following is from the draft english translation of the Arabic book ????? ????????? ??????? ??????? ?? (Introduction to the constitution and the evidences that make it obligatory) published by Hizb ut-Tahrir 1382 Hijri (1963 CE). Please refer to the original Arabic for accurate meanings. Please note some of the adopted opinions of the Hizb have changed since the time the book was published so any of the adopted literature published after this book which contradicts what is mentioned in this book abrogates those specific points

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Article 30

The only conditions for the one who is given the pledge to be the leader of the State is that he fulfils the contracting conditions of the contract, even if he does not fulfil the preference conditions, since what matters  are the contracting conditions of  the contract.

The proof for this is the evidences that were narrated regarding the characteristics of the Khalifah. In some oft the narrations regarding his characteristics the request is  non-decisive, such as his  words �This order is in Quraysh� (reported by al-Bukhari from Mu�awiyah). This narration is informative, and it is in the informative form, and though it conveys the meaning of a request, it is not considered  decisive so long as it is not accompanied by an indication that confirms its decisiveness, and there is no such indication from an authentic narration. As for what is transmitted in the narration, �Whoever is against them, while they are establishing the Deen, will be thrown in the fire by his face by Allah� � this is to do with showing enmity to them and not as a confirmation for his  words �This order is in the Quraysh�. This is apart from the fact that the word �Quraysh� is a noun and not an adjective, and is called a laqab (title) in Usul al-Fiqh, and the understanding (Mafhum) of the noun, or laqab is not acted upon since the noun or laqabdoes not have a Mafhum. For that reason the text about the Quraysh does not mean that other than they cannot be appointed.

Based upon this, this narration indicates a preferred condition and not a condition of contracting due to the absence of an indication that would make the request decisive; rather there is an indication that makes it non-decisive. When the Messenger  offered himself to the tribe of �Amir Bin Sa�asa�a who asked �Will the order remain with us after you�, to which he  said �The order is in the Hand of Allah, He places it wherever He wills�, narrated by Ibn Ishaq from al-Zuhri, then this indicates that the request was non-decisive since the reply of the Messenger  indicates the permission for the order to be with them after him , and permitted to be with other than them, which indicates that the condition of being from Quraysh is a condition of preference.

As for the conditions of contracting, they are those that are related with a decisive request such that their absence leads to an absence of contracting (as is understood from the definition of what is a condition). In other words, the result of its absence would mean the invalidity of the Khilafah for him if he was not from Quraysh. The reply of the Messenger  to the tribe of �Amir takes the request away from being decisive, as opposed to what has been narrated in the texts for the conditions of contracting. For example, the condition of maturity comes from the fact that the Messenger  refused to take the pledge of allegiance from a child � when he refused to take allegiance from �Abd Allah b. Hisham � and the reason was due to his young age. Therefore, it is evidence that it is a condition for the Khalifahto be adult, since if the pledge is not correct from the child then by greater reasoning it would not be correct for the child to be the Khalifah.

Whatever characteristic has been mentioned by a decisive request is considered a condition for the contracting of the Khilafah with him, and anything else is not made a condition for contracting even if there is a text which mentions it as long as the request was non-decisive.

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