Answer to Question:  

Clarification of Article 33 in the Draft Constitution: Vacancy of the Khaleefah Post and Appointment of the Eldest Assistant as Temporary Ameer (leader)  

Question:

In the Name of Allah the Great and from Him I get the support:

Our Honourable Scholar: As-Salaam Alaikum Wa Rahmatullah Wa Barakaatuhu

I have two questions; can you kindly honour me with their answers? I ask Allah to guide your steps and of those working for the resumption of the Islamic way of life:

It is stated in the book The Draft Constitution, The Necessary Evidences for It Part One page 218 (English version) Article 33:
"b. If the Khalifah dies or resigns before appointing the temporary leader, or the position of the Khilafah "Caliphate" becomes vacant due to another reason, then the eldest of the assistants becomes the temporary leader."

What is the evidence for this article? Why does the eldest of assistants become the temporary leader and not one who is younger than him?

Answer:

Wa Alaikum us Salaam Wa Rahmatullah Wa Barakaatuhu

Article 33 is well explained in the book The Draft Constitution, and it is related to two issues: the first is the appointment of a temporary leader by the Khalifah before his death, and the second issue is the mentioned order of appointment of the temporary leader if the Khalifah does not appoint him before his death. The evidence for the first issue, as mentioned in the Article, is Ijmaa' (consensus) of the companions. The following was the explanation of this article in the Book:

"When the Khalifah feels that his death is close, close to the time that the Khilafah "Caliphate" would become vacant, he may appoint a temporary leader to be responsible for the Muslims' affairs during the period of steps being taken to appoint the new Khalifah. He would undertake his work after the death of the Khalifah and his main work would be to complete the appointment of the new Khalifah within three days. It is not permitted for the temporary leader to adopt rules, since this is the right of the Khalifah who has been given a pledge by the Ummah. In the same manner, it is not permitted for him to be nominated for the Khilafah "Caliphate" or to support the nominees, since Umar (ra) appointed someone other than those who were nominated for the Khilafah "Caliphate".

The responsibility of this leader ends with the appointment of the new Khalifah since his task was time-constrained to this goal. The evidence for this is what Umar (ra) did when he was stabbed and this was done without any opposition from the companions and so is considered to be an Ijma'. Umar (ra) said to the six candidates

«وليصلِّ بكم صهيب هذه الأيام الثلاثة التي تتشاورون فيها»

"Let Suhayb lead you in prayers during the three days of your consultation."

and then he said to Suhaib, as mentioned in Tarikh Al-Tabari,

«صل بالناس ثلاثة أيام، إلى أن قال: فإن اجتمع خمسة، ورضوا رجلاً، وأبى واحد، فاشدخ رأسه بالسيف ...»

"lead the people in prayer for three days ..until he said: if five of them agree upon a man while one disagreed, then strike his head with a sword..". This means that Suhaib was appointed as a leader over them - he was appointed as a leader for the prayer and leadership of the prayer meant leadership over the people. Also, he was given the right to apply the punishment (strike his head) and the only one who can establish punishment by death is the leader. This issue took place in front of the companions without any dissenters and so it is an Ijmaa' that the Khalifah can appoint a temporary leader who undertakes the steps to appoint the new Khalifah." (End)

The second issue which is how to appoint the temporary leader if the Khalifah does not appoint one before his death, and the priority measures regarding that:

It is an administrative issue and it is permissible to adopt an article that details this.

Therefore the following was mentioned in Article 33:

"The temporary leader would be the eldest assistant as long as he is not a candidate, and if he is a candidate then the next one in seniority and so on until all the assistants are considered, in which case it would then fall to the eldest executive minister and so on. If all of them want to be candidates then the youngest of the executive ministers is compelled to become the temporary leader."

To be noted, there are necessary considerations taken in this adoption; the assistants are the most knowledgeable regarding ruling, and most aware of the affairs during the time of the former Khalifah. They are followed in this by the executive assistants due to their closeness to the Khalifah and his work. These are the best people to be temporary leaders. And because the assistants are equal in terms of assistance, no one was preferred over the other, and the same is with the executive assistants, this is why the age was a good criteria for preference as in the case of prayer: If the condition of being Imam of the prayer was met by all who are in the congregation, then the eldest will lead them.

Extracted by Muslim in his Sahih from Shu'bah, that Ismai'l Bin Raja' said, I heard Aws Bin Dhamja' say: I heard Abu Mas'ood say the Prophet (saw) told us:

«يَؤُمُّ الْقَوْمَ أَقْرَؤُهُمْ لِكِتَابِ اللهِ، وَأَقْدَمُهُمْ قِرَاءَةً، فَإِنْ كَانَتْ قِرَاءَتُهُمْ سَوَاءً، فَلْيَؤُمَّهُمْ أَقْدَمُهُمْ هِجْرَةً، فَإِنْ كَانُوا فِي الْهِجْرَةِ سَوَاءً، فَلْيَؤُمَّهُمْ أَكْبَرُهُمْ سِنًّا، وَلَا تَؤُمَّنَّ الرَّجُلَ فِي أَهْلِهِ، وَلَا فِي سُلْطَانِهِ، وَلَا تَجْلِسْ عَلَى تَكْرِمَتِهِ فِي بَيْتِهِ إِلَّا أَنْ يَأْذَنَ لَكَ، أَوْ بِإِذْنِهِ»

"The one who leads the prayer is the most proficient in reciting the Book of Allah, and the oldest in recitation, If their recitation are equal, then the first who did Hijra (immigration) should lead, if they were equal in Hijra, then let their eldest (in age, and Islam) lead. Do not lead a man's family, or lead a man in his place of authority, and do not sit on his resting place until you are given permission or by his permission."

This is the basis of the adoption of this administrative issue, which is to appoint the eldest of assistants, then the one who follows, then the eldest of the executive assistants, then the one who follows, and so on.

Your brother,

Ata Bin Khalil Abu Al-Rashtah

The link to the answer from the Ameer's Facebook page.