First Question:

There are those who say that Hizb ut Tahrir depends on the period of Mecca in its quest for the establishment of the Khilafah "Caliphate" and not on the period of Medina. It views material action, i.e. "Jihad" in the stage of calling for the establishment of the Khilafah "Caliphate" as a violation of the Shari'ah, because the Prophet (saw) has not done so... The questioner adds: Why is the evidence of the establishment of the Khilafah "Caliphate" not taken from the Medinese period, where Jihad was valid and applied? Is there a clear-cut sufficient answer to the issue? Wa jazak Allahu khairan.

The Answer:

Within this question lie several matters that require explanation:

1. The relevant evidence, whether from the Book or from the Sunnah, must be followed comprehensively, and there is no difference between the evidence emerging in Mecca al-Mukarrameh and the evidence emerging in the Medina al-Munawwarah.

2. The required evidence is one that pertains to the issue, rather than evidence that does not pertain to the matter:

a. For example, if I wanted to know how to perform ablution, I would search for evidence pertaining to ablution, whether revealed in Mecca or in Medina. The ruling is then extracted from the evidence according to the established legal (Shar'ii) methodology... But I would not research evidence on fasting to extract from it the ruling of ablution and its modalities.

b. As another example, if I wanted to know the provisions of Hajj, I would start searching for evidence pertaining to Hajj, whether revealed in Mecca or in Medina, and from it the ruling is extracted according to the established legal (Shar'ii) methodology. I would not research the evidence of prayer to extract from it the provisions of Hajj and its modalities.

c. As a further example, if I wanted to know the provisions of Jihad: Whether as an individual or as a collective obligation, whether defensive or aggressive, what pertains to Jihad from the provisions of conquests and spreading Islam, whether the conquest takes place by force or through conciliation... I would research the evidence on Jihad wherever it is to be found, whether revealed in Mecca or in Medina, and the ruling is extracted from it according to the established legal methodology. But I would not research the evidence on Zakat to take from it the ruling of Jihad and its details.

d. This is the modus operandi in every issue, the evidence is researched whether revealed in Mecca or in Medina, and from this evidence the Shar'i ruling of the issue is taken according to the established legal methodology.

3. Now we come to the issue of establishing an Islamic state, and we search for its evidence, whether revealed in Mecca or in Medina, and extract the Shar'i ruling according to the established legal methodology.

We do not find any evidence to establish an Islamic state, except that which was presented by the Messenger of Allah (saw) in his Seerah in the Holy City of Mecca. He called to Islam secretly, then forming a believing, steadfast block...then he announced it among the people in Mecca and its surroundings...then seeking support from the people of power and strength. Eventually Allah showed mercy to him (saw) through the Ansar, so the Prophet (saw) emigrated to them and set up the state.

This is the evidence of the establishment of the State, and there is no other evidence. The Messenger (saw) showed it to us in his Seerah through clear-cut evidence, and we have to commit to it. The issue is not one of the Meccan period before the imposition of Jihad, or the Medinese period after the imposition of Jihad. Rather it is a research for evidence pertaining to the establishment of the State, which is only to be found in Mecca until the Messenger of Allah (saw) migrated to Medina and established the State.
It is one matter while Jihad is a different matter. As we said, the evidence on the establishment of the State is taken from its precedents, and the evidence on Jihad is taken from its precedence, and they are different and independent from each other. Therefore Jihad is not suspended in the absence of the Khilafah "Caliphate" state, because the Messenger (saw) says:

«وَالْجِهَادُ مَاضٍ مُنْذُ بَعَثَنِي اللهُ عَزَّ وَجَلَّ إِلَى أَنْ يُقَاتِلَ آخِرُ أُمَّتِي الدَّجَّالَ، لَا يُبْطِلُهُ جَوْرُ جَائِرٍ وَلَا عَدْلُ عَادِلٍ»
"Jihad is ongoing since Allah Almighty sent me until the last of my Ummah will fight the Dajjal, neither the injustice of an oppressor nor the justice of a righteous will suspend it." [Reported by al-Bayhaqi in as-Sunan al-Kubra from Anas Bin Malik]

Therefore, Jihad is ongoing within the framework of its Shar'i provisions, whether the Khilafah "Caliphate" has been established or not.
And the work for the establishment of the Khilafah "Caliphate" is not suspended because the rulers suspended Jihad. The work for the Khilafah "Caliphate" goes on until it is established, because it is prohibited for the Muslims who are able to, that there shall be no Bay'ah to a Khaleefah in their necks. Muslim narrated from Abdullah Bin Umar who said: I heard the Messenger of Allah (saw) say:

«مَنْ خَلَعَ يَدًا مِنْ طَاعَةٍ، لَقِيَ اللهَ يَوْمَ الْقِيَامَةِ لَا حُجَّةَ لَهُ، وَمَنْ مَاتَ وَلَيْسَ فِي عُنُقِهِ بَيْعَةٌ، مَاتَ مِيتَةً جَاهِلِيَّةً»
"Who withdrew his hand from obedience will meet Allah on the day of resurrection without an argument for himself, and who died without a Bay'ah in his neck, died the death of Jahiliyah."

Hence Jihad is ongoing, and the work for the Khilafah "Caliphate" continues until it is established, none of them depends on the other, they are two different issues. For each issue its Shar'i evidence is sought, and from it the ruling specific to the matter is extracted according to the established legal methodology.

4. Therefore commitment of the Hizb to the method of the Prophet (saw) as he demonstrated in Mecca until he established the state in Medina, and the non-use of hostilities during the phase of calling for the establishment of the Khilafah "Caliphate", have nothing to do with the Meccan or the Medinese period. Rather there is no evidence on the establishing the State except for what the Prophet (saw) demonstrated in Mecca until it was established in Medina. Therefore the issue is the method of the establishment of the state, but there is no other method except what the Prophet (saw) demonstrated in his Seerah in Mecca.
If the issue was the work of the Islamic State and its institutions... then we had taken it from the evidence demonstrated by the Messenger of Allah (saw) in Medina, because the State was established there.

5. Conclusion:

A. The provisions on any matter are taken from the evidence that pertains to this matter, whether revealed in Mecca or Medina. Such that the provisions of fasting are taking from the evidence on fasting, and the provisions of prayer are taken from the evidence on prayer, and the provisions of Jihad are taken from the evidence on Jihad as well as the provisions of the establishment of the State are taken from the evidence on establishing the State...and so on.

B. The commitment to the method of the Prophet (saw) in Mecca for the establishment of the State stems from the fact that there is no other evidence on the establishment of the State except that which was demonstrated in the Holy City of Mecca. Had there been evidence on the establishment of the State originating in Medina, then this evidence too would have been made a source of research.
We ask Allah Almighty's help and success for the establishment of an Islamic state, a rightly guided Khilafah "Caliphate" that restores honor in Islam and Muslims, and humiliates Kufr and Kuffar, such that goodness prevails throughout the world, and that is beloved to Allah.

Second Question:

I stopped on the saying of Allah (swt) in Surah al-Baqarah:

فَإِذَا أَفَضْتُمْ مِنْ عَرَفَاتٍ فَاذْكُرُوا اللَّهَ عِنْدَ الْمَشْعَرِ الْحَرَامِ وَاذْكُرُوهُ كَمَا هَدَاكُمْ وَإِنْ كُنْتُمْ مِنْ قَبْلِهِ لَمِنَ الضَّالِّينَ * ثُمَّ أَفِيضُوا مِنْ حَيْثُ أَفَاضَ النَّاسُ وَاسْتَغْفِرُوا اللَّهَ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ
"But when you depart from 'Arafat, remember Allah at al-Mash'ar al-Haram. And remember Him, as He has guided you, for indeed, you were before that among those astray. Then depart from the place from where [all] the people depart and ask forgiveness of Allah. Indeed, Allah is Forgiving and Merciful." [Al-Baqarah: 198-199]

The first Ayah(فَإِذَا أَفَضْتُمْ مِنْ عَرَفَاتٍ فَاذْكُرُوا اللَّهَ عِنْدَ الْمَشْعَرِ الْحَرَامِ) "But when you depart from 'Arafat, remember Allah at al- Mash'ar al-Haram." [Al-Baqarah: 198] concerns the departure from ‘Arafat to al-Mash'ar al-Haram, i.e. Muzdalifa. Whereas the verse after it "ثُمَّ أَفِيضُوا" clarifies that there is another departure from Muzdalifah to Mina, does that mean that there are two departures? One where the pilgrims stand in Arafat and then depart to Muzdalifah, and the second where the pilgrims stand in Muzdalifah and depart to Mina? Knowing that according to our information, the Wuquf (standing) is in ‘Arafat and from there is the Ifaadah (departure)...?

Please clarify this matter and Jazak Allahu Khairan.

Answer:

It is one departure, my brother, which is from ‘Arafat to Muzdalifah. This is what we call Ifaadah, and to prove this I will explain to you the meanings of the two honorable Ayat: (فَإِذَا أَفَضْتُمْ مِنْ عَرَفَاتٍ) "But when you depart from 'Arafat" [Al-Baqarah: 198]

This has the meaning: If you drive yourselves in masses from ‘Arafat. Linguistically it comes from the water that overflows if its post is flowed, so it comes from the "departure" of the water, meaning its pouring in masses.

As for (عَرَفَاتٍ) ‘Arafat, there is no plural of ‘Arafat. It is the meaning of the place known during Hajj. It is a noun that stems from a plural, therefore linguistically it does not have singular nor plural which means that there are no fractions of the place that are called عرفة in singular and gathered they are called عرفات in plural. Rather عرفة (singular) and عرفات (plural) carry the same meaning, which is the known place. The التاء (last letter) in the word ‘Arafat عرفات is not the letter of femininity, which is why the word can be declined, meaning that it does not prevent declination.

(وَإِنْ كُنْتُمْ مِنْ قَبْلِهِ لَمِنَ الضَّالِّينَ) "for indeed, you were before that among those astray." [Al-Baqarah: 198]

Meaning that before the advent of the Prophet (saw) to you with guidance, and the proclamation of the Shar'i provisions for Hajj and others, you were going astray.

((الْمَشْعَرِ الْحَرَامِ)) "al-Mash'ar al-Haram." [Al-Baqarah: 198]

This is all of Muzdalifah as stated by Ibn ‘Umar (ra). Muzdalifah is also called جَمْع"Jam' (group)"

(ثُمَّ أَفِيضُوا مِنْ حَيْثُ أَفَاضَ النَّاسُ وَاسْتَغْفِرُوا اللَّهَ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ) "Then depart from the place from where [all] the people depart and ask forgiveness of Allah. Indeed, Allah is Forgiving and Merciful." [Al-Baqarah: 199]

This addresses the people of Mecca: That your departure shall be like that of all other people, from ‘Arafat to Muzdalifah, not beginning from Muzdalifah. Therefore your Wuquf (standing) is in ‘Arafat, not in Muzdalifah. Therein lies an invalidation of the tradition of the Quraish from the time of Jahiliyah to perform the Wuquf (standing) in Muzdalifah instead of ‘Arafat like the rest of the people. In the time of Jahiliyah the Quraish did not perform the standing in ‘Arafat, but they would stand in Muzdalifah because it belongs to the sacred area of al-Haram. They used to say: "We are the custodians of the sacred House of Allah, therefore we do not leave the sacred area." They were called al-Humsa and used to stand in particular in Muzdalifah without the other people. So Allah (swt) ordered the Quraish in this Holy Ayah to depart from ‘Arafat just as the people departed without distinguishing and He called them to repent to Allah for their former mistakes, when they performed their Hajj without guidance. And Allah (swt) is forgiving and merciful to His loyal slaves.

Al-Bukhari and Muslim reported, and the report of Bukhari is from Hisham Bin ‘Urwa from his father, from Aisha (ra):«كَانَتْ قُرَيْشٌ وَمَنْ دَانَ دِينَهَا يَقِفُونَ بِالْمُزْدَلِفَةِ، وَكَانُوا يُسَمَّوْنَ الحُمْسَ، وَكَانَ سَائِرُ العَرَبِ يَقِفُونَ بِعَرَفَاتٍ، فَلَمَّا جَاءَ الإِسْلاَمُ أَمَرَ اللَّهُ نَبِيَّهُ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ أَنْ يَأْتِيَ عَرَفَاتٍ، ثُمَّ يَقِفَ بِهَا، ثُمَّ يُفِيضَ مِنْهَا» فَذَلِكَ قَوْلُهُ تَعَالَى: ثُمَّ أَفِيضُوا مِنْ حَيْثُ أَفَاضَ النَّاسُ» "Quraish and those who followed their Deen used to perform their standing (Wuquf) in Muzdalifah, and they were called al-Humsa, and the rest of the Arabs used to stand in ‘Arafat. So when Islam came, Allah ordered his Prophet (saw) to go to ‘Arafat, to then perform his standing there, to then depart from it. For this is the saying of Allah Almighty: "Then depart from the place from where [all] the people depart" [Al-Baqarah: 199]

In this sense comes ثُمَّ "then", to understand the last part of the previous Ayah (وَتَزَوَّدُوا فَإِنَّ خَيْرَ الزَّادِ التَّقْوَى وَاتَّقُونِ يَا أُولِي الْأَلْبَابِ) "And take provisions, but indeed, the best provision is fear of Allah. And fear Me, O you of understanding." [Al-Baqarah: 197]

Meaning that these verses do not come in chronological order in their meaning, as if the order of their meaning is as follows:
"And take provisions, but indeed, the best provision is fear of Allah. And fear Me, Oh you of understanding. Then depart from where the people depart from ‘Arafat and not from Muzdalifah as the Quraish used to do in the time of Jahiliyah. If you depart from ‘Arafat, then you have performed the order of Allah (swt), so go to Muzdalifah and remember Allah at the Mash'ar al-Haram - meaning Muzdalifah - and praise Allah for the guidance he bestowed on you, after you have been from those astray, misguided before that."

It seems that the motivation for the question is that the questioner read that ثم "then" is a conjunction letter, stating the order of the acts, such that what comes after takes a later order from what comes before it, i.e. chronologically. Based on this he understood the meaning of the two Ayaat as follows:
He understood from the previous Ayah(فَإِذَا أَفَضْتُمْ مِنْ عَرَفَاتٍ فَاذْكُرُوا اللَّهَ عِنْدَ الْمَشْعَرِ الْحَرَامِ) "But when you depart from 'Arafat, remember Allah at al- Mash'ar al-Haram." [Al-Baqarah: 198] that it pertains to Muzdalifah, such that the pilgrims have already reached Muzdalifah.
And he understood from the second Ayah (﴿ثُمَّ أَفِيضُوا مِنْ حَيْثُ أَفَاضَ النَّاسُ)﴾ "Then depart from the place from where [all] the people depart and ask forgiveness of Allah. Indeed, Allah is Forgiving and Merciful." [Al-Baqarah: 199] with his assumption of the meaning of ثم "then" to be: You have reached Muzdalifah and after your remembrance of Allah and the Fajr prayer, push along to Mina, such that the meaning is in line with what he understood from (ثُمَّ أَفِيضُوا مِنْ حَيْثُ أَفَاضَ النَّاسُ) "Then depart from the place from where [all] the people depart and ask forgiveness of Allah. Indeed, Allah is Forgiving and Merciful." [Al-Baqarah: 199]

Which is: Depart from Muzdalifah to Mina. It seems that this is the reason for his question.

This is not the case, as is clarified from two perspectives:

The first perspective: What Bukhari and Muslim reported around the revelation of this Ayah (ثُمَّ أَفِيضُوا مِنْ حَيْثُ أَفَاضَ النَّاسُ) "Then depart from the place from where [all] the people depart and ask forgiveness of Allah. Indeed, Allah is Forgiving and Merciful." [Al-Baqarah: 199] meaning: Depart from ‘Arafat, not from Muzdalifah. Allah has obliged every pilgrim to depart from ‘Arafat, also the Quraish.

The second perspective: The particle ثم "then" usually indicates chronological order, such that what comes after it takes place after what came before it, from a timely perspective. But this is not its only meaning, it is used in other cases as well. It can also be used to indicate that what comes after it from a timely perspective took place before what came before it. But this then needs an indication and highlighting of the purpose. The Arabs say: "I liked what I did today, then ثم what I did yesterday I liked even better." Here it is a conjunction, connecting "what he did yesterday" with "what he did today", therefore connecting the later with the earlier without relating the order between them. This is an exception from its more widely known meaning that the later took place after the former with chronology between them. Therefore we have said that its usage apart from its usual meaning needs an indication. The purpose of this irregular usage is to emphasize an important matter that requires concentration, because an exceptional usage in the Arabic language always has a reason.

Upon the study of the aforementioned Arabic proverb, we find that the indication of the order of what stands after ثم "then" taking place before what stands after it, is the explicit usage of the word "yesterday" after "then" and the usage of "today" before "then." The matter to be highlighted in their saying is the reduction of the value of what was made today. The explicit meaning of the speech is praising what was made yesterday and its true meaning is the dispraise of the actor's abilities ... Instead of progress in his work to the front, he weakened from before, such that today's work was weaker than yesterday's work.

In the Holy Ayah, the indication is the reason of revelation as reported by al-Bukhari and Muslim.

The purpose to be highlighted is the invalidation of the tradition of the Quraish to stand in Muzdalifah and not to perform their standing in ‘Arafat. Meaning that after Allah (swt) mentioned their departure from ‘Arafat to Muzdalifah in the previous verse, He reminded them that this departure from ‘Arafat to Muzdalifah is obligatory upon Quraish just as all other people.

I hope that the matter was clarified. The departure is from ‘Arafat, and the following Ayah (ثُمَّ أَفِيضُوا...) "Then depart..." [Al-Baqarah: 199] in its meaning stands before (فَإِذَا أَفَضْتُمْ مِنْ عَرَفَاتٍ...) "But when you depart from 'Arafat..." [Al-Baqarah: 199].

Pre-drawing (Proceeding) and delay in the language of the Arabs are for a purpose, and the purpose here is to remove the distinction of the Quraish from the rest of the people, as was done in the time of Jahiliyah.