Series of Answers by the Eminent Scholar Ata bin Khalil Abu Al-Rashta, Ameer of Hizb ut-Tahrir, to the Questions of the Visitors to his Facebook Page "Fiqhi"
Answer to a Question
To: Abdullah Ibn Al-Mufakkir
Question:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuhu our dear Shaikh.
I ask Allah to strengthen you, give you long lasting health and age and allow you to witness the return of the Khilafah and lead us, Ameen.
I have a question regarding the Hizbs draft constitution. In article 7 clause F it states: "The State will implement the rest of the Shari’ah rules and all the Islamic Shari’ah matters, such as transactions, penal codes, testimonies, ruling systems and economics among others equally upon the Muslims and non-Muslims. The State will also implement the same upon those with a covenant, the asylum seekers and all those under the authority of Islam in the same way. It implements them upon all members of society except for the ambassadors, consuls, and similar for they have diplomatic immunity."
My question is regarding the point about Ambassadors. The reality is that sometimes there are temporary ambassadors who only stay for an amount of time then return to their countries and permanent ambassadors who stay in the Khilafah permanently. Does this article apply to both types of ambassadors?
Also, if either of the ambassadors commits a crime or undertakes an illegal activity beyond their remit as an ambassador, are they both judged and punished accordingly by the Khilafah? Or are temporary and permanent ambassadors treated differently in this matter.
Jazakumullahu Khairan.
From: Saifudeen Abdullah
Translation of the Question:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuhu, our dear Sheikh.
I ask Allah to strengthen you, grant you lasting health and a long life, and make you among the witnesses to the return of the Khilafah and lead us, Ameen.
I have a question regarding the Party's Draft Constitution. In Article "7", Clause "F", it states:
[The State implements the remaining Shari’ah rules and all other matters of Islamic Shari’ah, such as transactions, penal codes, evidences, systems of ruling, economics, and others, upon everyone. Its implementation is equal upon Muslims and non-Muslims alike. It is also implemented upon the people of covenant (Mu’ahideen), those granted asylum (Musta’mineen), and everyone under the authority of Islam, just as it is implemented upon the individuals of the subjects, except for ambassadors, messengers, and their like, for they have diplomatic immunity.]
My question is regarding the point related to ambassadors. The reality is that there are some temporary ambassadors (messengers) who stay for a certain period of time and then return to their countries, and there are ambassadors who reside in the Khilafah state permanently. Does this article apply to both types of ambassadors?
And if one of these two types commits a crime or performs an illegal act outside his capacity as an ambassador, are they tried and punished according to the Khilafah state? Or are the temporary ambassador and the permanent ambassador treated differently in this matter?
May Allah reward you with goodness.
From: Saifudeen Abdullah
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuhu,
May Allah bless you for your kind prayers for us, and we ask Allah for goodness for you.
Regarding your question about permanent and temporary ambassadors, there is no difference between them from a Shari’ah perspective. As long as the description of "messenger" (Rasul) applies to the person, they enjoy diplomatic immunity during their stay in the Khilafah State without distinction. In the past, during the time of the Prophet ﷺ, the Sahabah, and subsequent eras, there were no permanent resident ambassadors; rather, messengers were sent to deliver a message and then return to their country—meaning they were, in your words, "temporary ambassadors/messengers." Later, the practice of permanent ambassadors and embassies was introduced in the world due to the complexity of relations, the need for constant communication between states, and the presence of citizens of the embassy's state in those countries. Thus, states began to accept opening permanent embassies for other countries on their soil and accepting resident ambassadors for those states. Previously, the ambassador or messenger would go once to fulfill a specific mission. This is what is understood from the Hadith regarding messengers. Ahmad narrated on the authority of Ibn Mas’ud, who said:
جَاءَ ابْنُ النَّوَّاحَةِ وَابْنُ أُثَالٍ، رَسُولاَ مُسَيْلِمَةَ إِلَى النَّبِيِّ ﷺ، فَقَالَ لَهُمَا: أَتَشْهَدَانِ أَنِّي رَسُولُ اللَّهِ؟ قَالاَ: نَشْهَدُ أَنَّ مُسَيْلِمَةَ رَسُولُ اللَّهِ، فَقَالَ النَّبِيِّ ﷺ: آمَنْتُ بِاللَّهِ وَرُسُلِهِ، لَوْ كُنْتُ قَاتِلاً رَسُولاً لَقَتَلْتُكُمَا، قَالَ عَبْدُ اللَّهِ: قَالَ: فَمَضَتِ السُّنَّةُ أَنَّ الرُّسُلَ لاَ تُقْتَلُ
"Ibn al-Nawwahah and Ibn Uthal, the two messengers of Musaylimah, came to the Prophet ﷺ. He said to them: 'Do you bear witness that I am the Messenger of Allah?' They said: 'We bear witness that Musaylimah is the messenger of Allah.' The Prophet ﷺ said: 'I believe in Allah and His messengers; if I were to kill a messenger, I would have killed you both.' Abdullah said: 'The Sunnah was thus established that messengers are not to be killed.'" (Reported by Ahmad and authenticated by al-Haythami). It is clear from this Hadith that the talk is about two messengers sent by Musaylimah the Liar for a one-time mission.
As for your inquiry regarding the punishment of ambassadors and messengers, the answer is found in the explanation of Clause "F" of Article "7" in the book The Introduction to the Constitution, which states: [As for Clause (F), regarding the implementation of all Islamic rules, its evidence is what preceded: that the non-Muslim is addressed by the foundations (usul) and the branches (furu’) and is required to follow all the rules of Islam. This is general and includes the Dhimmi and the non-Dhimmi who live under the authority of Islam. Therefore, all non-Muslims who enter the Abode of Islam (Dar al-Islam), whether they are Dhimmis, Mu’ahids, or Musta’mins, must have the rules of Islam applied to them, except for matters of creed (aqeedah), and every action considered part of creed, and every action the Prophet ﷺ approved for them. However, ambassadors and those of their kind are excluded from this; the penal codes are not applied to them, and they are given what is called diplomatic immunity. This is due to what Ahmad narrated from Ibn Mas’ud:
جَاءَ ابْنُ النَّوَّاحَةِ وَابْنُ أُثَالٍ، رَسُولاَ مُسَيْلِمَةَ إِلَى النَّبِيِّ ﷺ، فَقَالَ لَهُمَا: أَتَشْهَدَانِ أَنِّي رَسُولُ اللَّهِ؟ قَالاَ: نَشْهَدُ أَنَّ مُسَيْلِمَةَ رَسُولُ اللَّهِ، فَقَالَ النَّبِيِّ ﷺ: آمَنْتُ بِاللَّهِ وَرُسُلِهِ، لَوْ كُنْتُ قَاتِلاً رَسُولاً لَقَتَلْتُكُمَا، قَالَ عَبْدُ اللَّهِ: قَالَ: فَمَضَتِ السُّنَّةُ أَنَّ الرُّسُلَ لاَ تُقْتَلُ
"Ibn al-Nawwahah and Ibn Uthal, the two messengers of Musaylimah, came to the Prophet ﷺ. He said to them: 'Do you bear witness that I am the Messenger of Allah?' They said: 'We bear witness that Musaylimah is the messenger of Allah.' The Prophet ﷺ said: 'I believe in Allah and His messengers; if I were to kill a messenger, I would have killed you both.' Abdullah said: 'The Sunnah was thus established that messengers are not to be killed.'" (Reported by Ahmad and authenticated by al-Haythami). This Hadith indicates the prohibition of killing messengers who come from the non-Muslims, and all other punishments are like killing. However, this is for whoever fits the description of a messenger, such as the ambassador, the chargé d'affaires, and their like. As for those who do not fit the description of a messenger, such as the consul, the commercial agent, and similar roles, they have no such immunity because the description of a messenger does not apply to them.
International custom is referred to in this matter because it is a technical term whose reality is identified through custom, and this falls under the category of Tahqiq al-Manat (verification of the ratio/reality)—that is, knowing whether this person is considered among the messengers or not.] End of the quote from the book The Introduction to the Constitution.
The impermissibility of applying the death penalty and all other punishments applies to both the permanent ambassador and the temporary ambassador/messenger, as long as the reality of "messenger" is fulfilled in them. Therefore, there is no difference regarding the non-infliction of punishment between the permanent and temporary ambassador; both are messengers, and the rules of messengers apply to them in the matter of punishment.
As for the final part of your question: ("And if one of these two types commits a crime or performs an illegal act outside his capacity as an ambassador, are they tried and punished according to the Khilafah state? Or are the temporary ambassador and the permanent ambassador treated differently in this matter?"), we have not yet detailed the reality of punishments that are included in immunity and those that are not. We will detail this in the Executive Regulations of the constitutional articles that we have begun working on, and we ask Allah for help in completing them at the appropriate time, Allah willing.
I hope this is sufficient, and Allah is All-Knowing and All-Wise.
Your brother, Ata bin Khalil Abu Al-Rashta
06 Safar al-Khayr 1445 AH Corresponding to 22/08/2023 CE
Link to the answer from the Ameer’s Facebook page: https://www.facebook.com/HT.AtaabuAlrashtah/posts/849472483406789