Series of Answers by the Scholar Ata Bin Khalil Abu al-Rashtah, Ameer of Hizb ut Tahrir, to the Questions of the Visitors to his Facebook Page
To Hafedh Amdouni
Question:
Assalamu Alaikum wa Rahmatullahi wa Barakatuhu. May Allah grant you and all those who carry this lasting word, by His permission, success in what He loves and is pleased with.
There are those who say that the Hizb's and some jurists' use of the delay in burying the Prophet of Guidance (saw) as evidence for the obligation of the Bay'ah is incorrect. Instead, they claim it was for other reasons, such as giving Muslims time to attend the funeral, etc. Rather, they argue the evidence is simply that as soon as he (saw) died, they rose to appoint an Imam, and this is the evidence for the obligation of the Bay'ah, not the delay in burial. Thus, they claim the delay has no relation to the Bay'ah!! Could you please clarify this for us in detail?
Answer:
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuhu.
My brother, before answering your question regarding the delay of the burial... I will mention to you some Usuli (fundamental) matters concerning Shari'ah rules:
The default in a Shari'ah command, whether it is a statement or an action, is that it indicates a request (Talab) and requires a Qarinah (indication/contextual evidence) to clarify the type of request. If the Qarinah indicates decisiveness, the request is binding, i.e., a Fard (obligation). If the Qarinah does not indicate decisiveness but suggests the preference of the act, the request is non-binding, i.e., Mandub (recommended). If the Qarinah indicates a choice, the request is for Ibahah (permissibility).
This applies to every Shari'ah text, whether it is a textual "statement" in the Book of Allah (swt) or the Sunnah of His Messenger (saw), an action of the Messenger (saw), **an action upon which the Sahaba (ra) reached a consensus (Ijma')**, or an approval from the Messenger (saw)...:
1- For example: The saying of Allah (swt):
فَإِذَا قُضِيَتِ الصَّلَاةُ فَانْتَشِرُوا فِي الْأَرْضِ وَابْتَغُوا مِنْ فَضْلِ اللَّهِ وَاذْكُرُوا اللَّهَ كَثِيرًا لَعَلَّكُمْ تُفْلِحُونَ
"And when the prayer has been concluded, disperse within the land and seek from the bounty of Allah, and remember Allah often that you may succeed." (Surah Al-Jumu'ah 62:10)
Here there is a command: "disperse," which is a request to leave the mosque after the Friday prayer. We look for the Qarinah to see if dispersing—i.e., leaving the mosque after the prayer—is a Fard, Mandub, or Mubah... We find that after the Friday prayer ended, some Muslims would leave immediately while others would sit for a short or long time... and this was with the approval of the Messenger (saw)... meaning that those who left or sat were the same. This indicates that "disperse" is a command that signifies a request for Ibahah (permissibility).
2- For another example: Standing for a funeral procession:
An-Nasa'i narrated in his Sunan: Shu'bah narrated to us, from Abdullah bin Abi al-Safar, who said: I heard al-Sha'bi narrating from Abu Sa'id, "that a funeral procession passed by the Messenger of Allah (saw) and he stood up." Amr said: "A funeral procession passed by the Messenger of Allah (saw) and he stood up." Here, the Prophet (saw) stood for a funeral that passed by him, and this action indicates a request to stand. Then we look for a Qarinah to know if this request is decisive (making it Fard), non-decisive with preference (making it Mandub), or for choice (making it Mubah). We find in Sunan an-Nasa'i from Ayyub, from Muhammad, that a funeral procession passed by al-Hasan bin Ali and Ibn Abbas; al-Hasan stood up while Ibn Abbas did not. Al-Hasan said: "Did the Messenger of Allah (saw) not stand for the funeral of a Jew?" Ibn Abbas said: "Yes, then he (saw) sat." This indicates that sitting or standing is a matter of choice, i.e., Mubah.
In this way, the Bay'ah in the Saqifah was an action upon which the Sahaba reached a consensus. It indicates a request to give the Bay'ah to a Khalifah when the position of the Khilafah becomes vacant. To determine if this request is Fard, Mandub, or Mubah, we look for the Qarinah. We find it indicates decisiveness because the Sahaba prioritized the Bay'ah over the burial of the deceased, which is a Fard. This means that the Bay'ah is a Fard and is more important than the Fard of burying the deceased.
Therefore, the evidence that the Bay'ah to the Khalifah—when the position becomes vacant—is a Fard, is the delay in burying the Messenger of Allah (saw) until the Bay'ah was completed. Since burying the deceased is a Fard, then that which was prioritized over it is also a Fard.
Thus, the delay in burial until the Bay'ah was completed is what demonstrated that the Bay'ah of the Khalifah is an obligation (Wajib) and a Fard, and what a significant Fard it is.
This is from the jurisprudential (Fiqhi) perspective.
As for the claim that the delay in burial had nothing to do with the Bay'ah, but was rather to give Muslims time to attend the funeral, this is far from the reality of what occurred. The news of the death of the Messenger (saw) was a momentous event heard by the Muslims in Medina and its surroundings. Muslims flocked to Medina and to the mosque, but they were occupied with the Bay'ah to Abu Bakr, both the Bay'ah of contract (In'iqad) and the Bay'ah of obedience (Ta'ah)... Here is the sequence of events as mentioned in the Sira (biographies):
The Messenger (saw) passed away on Monday morning. He remained without burial through Monday night and Tuesday day, during which the Bay'ah was given to Abu Bakr (ra). Then the Messenger (saw) was buried in the middle of the night, on Wednesday night. Abu Bakr was given the Bay'ah before the burial of the Messenger (saw). This was a consensus (Ijma') on prioritizing the work of appointing a Khalifah over the burial of the deceased, and this would not occur unless the appointment of a Khalifah was more obligatory than the burial of the deceased.
Therefore, the delay in burial was not to allow Muslims to gather for the funeral; rather, they were already gathered, especially the Sahaba. However, they were occupied with the Bay'ah. When they finished both the Bay'ah of contract and obedience, they turned to the burial of the Messenger of Allah (saw). And when was that? In the middle of the night, after completing the Bay'ah. If the delay had been for the purpose of people gathering for the funeral, it would have happened during Monday day, Tuesday night, or Tuesday day... But they waited for the completion of the Bay'ah to Abu Bakr in both contract and obedience, and after it was finished, they immediately proceeded to bury the Messenger (saw) on Wednesday night.
Therefore, by reflecting and pondering upon the delay of the burial, it becomes clear that it was not for any reason other than the completion of the Bay'ah to Abu Bakr in contract and obedience. Thus, it is at the very heart of the relationship with the Bay'ah.
Your brother, Ata Bin Khalil Abu al-Rashtah
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