Section Four

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Legislative Rules of Islamic Law which Govern All Procedures and Measures for the Protection and Conservation of the Environment

1.

Protection, conservation and development of the environment and natural resources is a mandatory religious duty to which every Muslim should be committed. This commitment emanates from the individual's responsibility before God to protect himself and his community. It is also a common social duty which rulers, administrative and municipal agencies and organizations undertake in accordance with the responsibilities assigned to them.

2.

Religious awareness and guidance in this field is necessary so that each individual may take part in the protection and development of the environment and natural resources. The aphorism transmitted by tradition says, "All people are God's dependants and He loves most those who are the most useful and beneficial to their dependants"1. God says, "Do no mischief on the earth after it hath been set in order"2 [Quran 7: 56, 85] and "…but God loveth not mischief"3 [Quran 2: 205]. Any deliberate or intentional damage to the natural environment and resources is a kind of mischief or corruption that is forbidden by Islam. It is rather a kind of detestable impudence which every Muslim should shun, and which every ruler or supporter should prohibit, especially if it leads to or results in general damage. The aphorism transmitted by tradition says, "He who does not show concern for the interest and good of all Muslims is not a Muslim"4.

       1.Related as a Prophetic tradition but it is a tradition of weak ascription.

       4. Related as a Prophetic tradition but with weak ascription.

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3.

Religious awareness and Islamic guidance includes a call to all individuals, at all levels and by all possible means, to commit themselves to Islamic morals and manners in dealing with nature, the environment and the natural resources for their sustainable use and development. The best way to achieve this is by reminding all individuals of their following religious duties:

- No extravagance, excessive use or over-utilization;

- No illegitimate or unlawful attempt to destroying the natural resources;

- No damage, abuse, pollution or distortion of the natural environment in any way;

- Construction and development of the earth, its resources, elements and phenomena through the improvement and betterment of natural resources, the protection and conservation of all existing forms of life, the cultivating of land and the reclamation and cleansing of the soil, air and water.

4.

Ownership of all environmental elements is the common and shared right of all members of the Islamic community. Each is entitled to use and benefit from them without infringement, violation or delay of other members' equal rights. In this respect, needs and wants should be carefully and precisely assessed both qualitatively and quantitatively.

5.

Islamic law stipulates the interference of the ruling authorities for the good and interest of all people and to eliminate common mischief and corruption. This is their original and primary duty. This interference is also determined and limited by the general rules and implications of Islamic law and jurisprudence and by the actual, lawful tasks and responsibilities assigned to them. The juristic rule in this connection is "The leader's actions are determined and dictated by the common good". There is no doubt that a leader's actions may become illegitimate and unlawful if they are based on whim and absolute autocracy with no consideration for people's interests and the common good. The State's legitimate interference is aimed at favouring the actual and essential common interests, and at the protection of those interests against any other conflicting interests.

6.

The interests of the nation and the community should be preferred to the interests of individuals in the case of conflict. Any limited harm or damage to a particular individual could be accepted if it leads to a general avoidance and control of general damage to society and the environment at large. Similarly, overlooking, or even neglecting, private interest for the purpose of achieving and protecting the common interest of the public is the same as opting for the lesser evil and avoiding the greater damage by accepting the lesser. The juristic rule in this respect is "if two evils or mischief conflict, the lesser could be accepted to avoid and prevent the greater".

7.

Interests are to be assessed and classified according to their importance and urgency. There are fundamental interests, needed interests and luxury interests. Preference and priority should be given to fundamental interests if these conflict with needed or luxury interests. In the same way, priority should be given to needed interests if these conflict with luxury interests.

8.

Interests differ in degrees of actuality and urgency. There are actual or urgent interests, and projected or probable interests. It goes without saying that priority should be given to actual or urgent interests in case of conflict with any other projected or probable interests.

9.

Some actions help to achieve some interests, but they may bring about similar, even heavier, damage and mischief. The juristic or doctrinal rule in this connection is "Avoidance of mischief should be given preference and should come before the achievement of interests," because the first step towards the achievement and realization of the common good is to eliminate mischief.

10.

The primary duty of the ruler and his assistants, whether they are administrative, municipal or judicial authorities, is to do their best to realize the interests of individuals for the betterment of life and society as a whole. This also includes protection, conservation and development of the environment and natural resources. This process covers two major phases:

- Prevention of damage;

- Remedy of damage.

11.

The State has the right to take all measures and actions to avoid, prevent or minimize damage before it occurs in application of the following rules: "No damage or retaliation for such damage is allowed" and "annihilating all pretexts leading to mischief".

  1. The State has the right to forbid any action, whether temporary or permanent that may lead to or result in damage or mischief. No one is entitled to stop or even spoil the community's sustainable use of any of the basic elements or resources of the environment. This applies to air pollution by smoke, and exhaust from factories and cars. It equally applies to water pollution through destruction of public wells, or the dumping of toxic materials into them to render them unsuitable or unfit for use.
  2. The State has the right to limit the scope of action, its place, time, kind and quality so as to prevent, avoid, control, minimize, or limit damage or restrict it to a certain place or time.
  3. The State has the right to impose certain measures or technical standards to prevent the occurrence of damage, or minimize it, or restrict it to the least and narrowest scope possible and with the least possible impact. Experts and specialists are to undertake this task, each in their own field.

12.

    The State has the right to take all necessary measures and actions associated with the elimination of actual damage, repair of its effects and provision of indemnity for it in application of the rules that "Damage or mischief should be eliminated and removed", "Damage or mischief should not be removed through similar damage or mischief", "Look for and resort to alternatives in case the original becomes impossible" and "obligation or necessity does not annihilate or delay the rights of others".

  1. The State, for instance, has the right to hold individuals organizations, establishments and companies responsible for the elimination and removal of damage resulting from their activities, enterprises and projects which are needed for the welfare of the whole community and which may result in, or lead to damage to, the environment and the natural resources or elements. The rule in this connection is "Damage or mischief should be removed as much as possible".
  2. The State has the right to impose moratoria on certain projects or enterprises if it realizes that such projects or enterprises will lead to, or result in, real damage to the environment that is in excess of the benefits thereof. The elimination of mischief should be given preference and priority to the fulfillment and achievement of interests. If, however,
  3. The community is in urgent need of some action that may result in certain damage, the need in this case should be considered a necessity in so far as it permits the forbidden. Excuses and pretexts for such actions should, in this case, be carefully and precisely assessed each time, according to its own circumstances and situation. If, however, the need for such harmful actions vanishes, the authority should stop these actions or impose moratoria on them for "Whatever is permissible for a certain reason or pretext becomes null and void when that reason or pretext vanishes or becomes irrelevant".
  4. The State has the right to hold individuals, organizations, establishments and companies responsible for the cost of eliminating the damage resulting from unlawful activities in violation of the terms of licenses, charters, permits or contracts. The juristic rule is "The user or executor is a guarantor even if his act is not deliberate or intentional". Nevertheless, individuals, organizations, establishments and companies should not be held responsible for any damage or mischief that may result from exercising their lawful and legitimate or licensed rights, within the usual and legitimate limits and in accordance with common practices. "For legal permission annihilates indemnity and guarantee" according to the juristic rule.
  5. The State has the right to claim damages or indemnity from individuals, organizations, establishments and companies for avoidable damage to the physical or natural environment, resulting from unlawful activities, which cannot be eliminated or recovered.
  6. The State has the right to censure or blame individuals, or the owners of organizations and establishments or their designees, should they infringe or violate the terms of licenses, charters, permits or contracts intentionally or deliberately or through evident negligence or violation of the general policies and instructions set forth by the State for the conservation of the natural
  7. environment, its elements and its resources.

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