ISLAMIC PERSPECTIVES OF WATER PRIVATISATION
HUKUM PENSWASTAAAN AIR....
ISLAMIC PERSPECTIVES OF WATER PRIVATISATION
Prof. Dr. Amriah Buang
Paper presented at Research for Social Advancement (REFSA) Consultation on Water Supply Privatisation, 15th Jan 2005, Kuala Lumpur
The concept of ownership in Islam
Man is neither the absolute owner nor the total possessor of the earth and its resources. He does not have the right to possess as much as he desires or to obtain material wealth in any way he may choose. Indeed, the earth's wealth belongs to God and man is but His vicegerent and servant. Thus in ‘owning’ man is actually only a custodian to the dispensation of God’s resources. Property rights come with the responsibility of custodianship.
The concept of private ownership in Islam
Although, in Islam private property is accepted as a legitimate form of ownership, the general ethos though is geared towards using property ownership as a way of achieving largely social ends by using an individual's entrepreneurial capacity and ingenuity. For instance, the Prophet allowed the possession of water in At-Taif and Khayber by individuals, who utilised it for the irrigation of their plants and farms. Had the sharing ( public ownership ) of water been just because it is water and not due to the fact that it was considered a need of the community, then it would have been prohibited by the Prophet for the individuals to posses it.
Similarly, in the three categories of land, mawat land, land which is ‘dead’ (idle) belongs to anybody who is able to bring the land to productivity once again. This is in recognition of their investment and risk they have taken to bring it back to life again. Property rights come with the responsibility of custodianship. It has to be used to achieve the ends of social good. As the Shia Scholar, Seyyed Mahmood Taleqani writes in his tract Islam and Ownership: “….Indeed, the earth's wealth belongs to God and man his vicegerent and servant. And because vicegerency belongs to all people, each individual is a guardian of the public trust. And, this ownership should be limited for the public welfare." (1983, as quoted by Saliem Fakir at http://islamic-world.net/economics/notion_of_public_goods_02.htm)
The concept of water in Islam : Water as a public good
Islam was very specific as to what it stipulated as being public property and what it allowed to be part of the private sector. Ibn Majah narrated from Abu Hurairah that the Prophet said:
'Three things are not prevented from (the people): the water, the pastures and the fire.'
In a similar hadith Ibn 'Abbas narrated the Prophet as saying:
'Muslims are partners (associates) in three things: water, pastures and fire', (reported by Abu Dawud).
Anas narrated from Ibn Abbas added that, 'Adding its price is haram'.
These hadiths indicate that the public is mutual stakeholders in the affairs of three environmental resources - water, pastures (bio-resources) and fire (fuels and energy resources) and it is forbidden for individuals to own them. Rather they are to be administered centrally by the state.
Islam has defined public property as: 'the permission of the Lawgiver (ie Allah swt alone) to the community to share the use of the asset.' And these are categorized in three categories:
a) That which is considered a public utility; they are the things that the community cannot do without, and for which she would disperse and search for if they were not available. Ibn 'Abbas narrated that the Prophet said::
"People share in three things: Water, Pasture lands, and Fire." [Reported by Abu Dawud] Added to this type of public property is all machinery used to extract water and the pipes used for this purpose, machinery to generate electricity from public waterfalls, together with its poles, wires and stations.
b) The uncountable minerals, which cannot be normally depleted. As for the insignificant and countable minerals they can belong to private property. They are treated like the hidden treasure (Rikaz) where a fifth of it is paid to the state treasury (Bait ul-Mal). As for the uncountable quantity which cannot be normally depleted like the minerals of gold, silver, petrol, phosphate, iron, sulfur and the like, the evidence for this is what was narrated by At-Tirmidhi from Abyadh ibn Hammal,
"….that he came to the Prophet and asked him to grant him a salt laden land, and he granted it to him. And when he left, one person in attendance with the Prophet said, 'Do you know what you granted him? You granted him the uncountable water (Al-'udd)'. He then took it away from him." So when he realized that it was of the permanent or continuous mines which are not depleted he reversed his grant and took it back thereby prohibiting its ownership by individuals as it is a public property.
c) Things which, by their nature, would prevent individual possession, such as roads, rivers, seas, lakes, mosques, public spaces and the like. He said:
"Mina is the camping place for he who reached there first". Mina is where Muslims camp during hajj, outside Makkah. He also said:
"There is no seclusion (Hima) except for Allah and His Messenger," so no one is allowed to designate for himself anything from the public utilities. The sanctuary (Hima) is the protected place.
As regards the factories and buildings, they have the same rule (Hukm) of what they produce. So if they were built to manufacture products that are of the public property, then they are of the public property, such as oil refineries. If they were however built to produce private property such as factories of textiles and cars and the like, then they are private property.
These three categories constitute the domain of public property in Islam. Individuals are not allowed to own them . The state are not allowed to own anything of them. It is not allowed for the state to sell them or grant their ownership to anyone. The state is not allowed to assign them to one section of people to the exclusion of another section because the state does not own them. So the sale or leasing of any part of them is a transgression of the sharia and therefore constitutes a great crime. The sharia prohibits this and it is haraam for the Ummah to remain silent over this matter. No ruler or regime is entitled to dispense with them except as the sharia has stipulated it. So the role of the state will be confined to enabling the citizens to benefit from this public-ownership.
The Islamic view on nationalisation
The political system of Islam obliges the state to provide the public with all the essential utilities and services which are deemed necessary for the clear objective that this is for the welfare of its citizens. This is contradictory to the outlook of the capitalist political system which, rather than taking care of the affairs of its citizens, looks to off-load its responsibilities to private companies which then disregard the quality of service in favour of profit with corporate bigwigs pocketing large amounts of money in the process.
Capitalist states nationalise property if they deem it to be in the public interest; the state is not obliged to nationalize but rather it chooses to do so when it sees fit. This is different from the Islamic view of property as the Islamic ideology leaves no scope for the government to define public or private property and instead stipulates in detail those things which fall under each category:
q If there was a right for all Muslims in a thing then it is public/state owned whether it is something of collective benefit like a park or river or whether it is a community necessity like an education or health service.
q That which is not public property falls under private ownership, and which the state is forbidden to own. Thus the state cannot forcibly obtain ownership of things which are of a privately owned nature under the pretext of the public interest, and could be taken to the Court of Unjust Acts (Mahkamat al-Mathalim) on the matter. However, should the individual allow the state to purchase the thing from them willingly then this is perfectly acceptable.
Such distinction is absent from the capitalist system resulting in properties changing from one category to another as perceptions of the public interest change (Khilafah Magazine Muharram/Safar 1425 / March 2004. http://www.khilafah.com/home/category.php?DocumentID=9189&TagID=24).
The notion of a public good within an Islamic Framework
In general, there are many indications that the notion of a public good, and public good practices are central to an Islamic ethos. This principle is also extended to owners of private goods in circumstances where a good, like food, which is essential for the survival of humans, cannot be sold at monopolistic or exploitative prices, but a fair price so that it is made accessible, and the private owner fairly compensated. (Ibn Taymiya, 1983) In the case of need the State has a right to intervene for the sake of public interest and welfare. Another example is when the State-and this was the practice at the time of the Prophet Muhammed and his Caliphs-land (called hima land) can be set aside for the purposes of public utility where the need arises. The use of the hima system is still prevalent in some Muslim countries today, especially in rural areas where himas are created to support animal grazing on a more communal basis. The potential exist to apply this concept to other areas of use such as the rehabilitation of degraded land, protection of biodiversity, wetlands etc.
To be sure, poverty is viewed in Islam as the cause of contempt, and conflict in society, eroding the ability of the society to create meaningful social contracts. It is for this reason that Islamic precepts and institutions have a strong flavour of social and distributive justice to them. A good example of this is prohibition on riba (usurious interest) in the Quran in an uncompromising way. Riba is seen as the most pernicious form of exploitation and if encouraged leads to the erosion of social welfare by creating a set of dependencies in the economy. For the practices of distributive justice and its institutions to function there is a need for a state that is strong and willing to make interventions where there are clear distortions in the economy that undermines social welfare.
It is for this reason that the system of sharing and giving in Islam -which is the main rationale for its system of taxation and moral admonitions-is aimed not only at institutionalising the distribution of wealth, but also restoring dignity amongst the poor, and inculcating generosity and empathy amongst the rich. The essence of the Islamic social welfare system is pivoted around the need to protect human dignity. Human dignity itself creates the sense of belonging, community and well-being the effects of which are translated into positive actions in other realms of human activity. Through the mechanism of taxation and moral admonitions Islamic traditions are aimed at holding the integrity of community (ummah) intact. It sees the protection of the whole as a sacred obligation that is not to be compromised under any circumstances.
The ethical system that governs socio-economic policies in Islam is hinged around four main tenets. They are:
1. Unity (tawhid): Individual actions must conform to an integrated whole represented by the absolute sovereignty of God.
2. Equilibrium (al'adl wal ihsan): in which individuals have the freedom to act, but must do so while bearing the general well-being of the present and future generations.
3. Free will (Ikhtiyar) : individual freedom is guided by a broader framework of duty to community or society.
4. Responsibility (Fardh) : Individuals and society have the responsibility to use and dispose of possessions and wealth in a responsible way. It is not to be wasted but conserved.
Wealth creation for instance is not abhorred in Islam, but permitted and must be regulated in terms of its future distribution and system of taxation through various precepts we find through the institution of practices such as zakat, sadaqa, and the inheritance system. While sadaqa (the giving of alms) is seen as voluntary, its universal practice has acquired the status of 'urf' (custom) in Muslim societies all over the world. The system of taxation was also extended to agricultural goods, certain kinds of commerce such as mining, and taxation of goods of foreigners.
The Baitul-mal (treasury), as a state institution would then redistribute the collection of zakat to two categories of poor, the fuqara (poor from Muslim communities) and masakin (poor from non-Muslim societies). Funds from treasury were used to build roads, maintain security, and support allies of the Islamic state.
In other cases mosques, universities, schools, libraries and scholarship was promoted to ensure general societal benefits because it was identified as an essential public good. It is also interesting to note that in the works of the classical Hanbali scholar, Ibn Taymiya, he also sees the necessity of the state to establish collective industries where certain essential goods have to be imported at great expense or where there is a shortage of such goods in the market. (Ibn Taymiya, Public Duties in Islam, 1983) These goods could be clothing or food. From Ibn Taymiya's tract we also learn that with the creation of the Hisba, while the right of ownership was honoured, the Hisba ensured that it was not allowed to be abused. For instance, the establishment of a flour mill or tanning factory in a residential area that led to pollution was disallowed. Places of public amenity could not become the exclusive privilege of an individual or a group. The benefits of these amenities were for both rich and poor alike.
As the Islamic empire expanded during the period of the Umayyads and Abbasids, the sponsorship of centres of knowledge and accumulation of knowledge around the world was not only of benefit to Muslim states and as historical research shows, such investments have been critical to the revival of lost traditions of science, mathematics and philosophy from amongst the Greeks, Indians, Persians and other ancient civilizations. In fact, this investment in knowledge as a public good by Muslim rulers has been of great benefit to modern civilization and the advancement of key sciences in the West. This investment in knowledge which was not confined to any discipline and crossed the bounds of culture and religion was an indispensable investment that is often underplayed by western scholars.
The central role of the state was also extended onto issues of insurance. Unlike in our contemporary society where insurance cover has been left to the private sector, in Islam this was seen as a state responsibility. There is also evidence that during the period of the Caliphs, regional security, and forming of friendly relations, was seen as an important way of ensuring security for Muslim societies. State taxes were also expended to support good neighbourliness and cross-border security, even if the benefit did not exclusively accrue to the Muslim state. The Islamic system of economy has also been characterised by the French anthropologist Marcel Mauss, as having the characteristic of being a kind of 'gift economy'. As Mauss demonstrates, in his anthropological study: 'The Gift", that the characteristic of a gift economy, seem to have been an essential feature of most if not all pre-capitalistic societies.
The giving of alms in these societies-which amounts to the sacrifice by the rich of a proportion of their wealth-was a way of creating a system of distributive justice through religious moral persuasion and in some cases like in Islam was also enforced by the state and certain religious rites. Given that the act of giving is seen as a supreme virtue, the idea of a gift becomes an essential ethos of both the Muslim social fabric and economic system. It is intrinsic to a Muslim's way of being. One of the virtues of giving is that the giver also prospers as a result of his/her giving. So what occu
ISLAMIC PERSPECTIVES OF WATER PRIVATISATION
Prof. Dr. Amriah Buang
Paper presented at Research for Social Advancement (REFSA) Consultation on Water Supply Privatisation, 15th Jan 2005, Kuala Lumpur
The concept of ownership in Islam
Man is neither the absolute owner nor the total possessor of the earth and its resources. He does not have the right to possess as much as he desires or to obtain material wealth in any way he may choose. Indeed, the earth's wealth belongs to God and man is but His vicegerent and servant. Thus in ‘owning’ man is actually only a custodian to the dispensation of God’s resources. Property rights come with the responsibility of custodianship.
The concept of private ownership in Islam
Although, in Islam private property is accepted as a legitimate form of ownership, the general ethos though is geared towards using property ownership as a way of achieving largely social ends by using an individual's entrepreneurial capacity and ingenuity. For instance, the Prophet allowed the possession of water in At-Taif and Khayber by individuals, who utilised it for the irrigation of their plants and farms. Had the sharing ( public ownership ) of water been just because it is water and not due to the fact that it was considered a need of the community, then it would have been prohibited by the Prophet for the individuals to posses it.
Similarly, in the three categories of land, mawat land, land which is ‘dead’ (idle) belongs to anybody who is able to bring the land to productivity once again. This is in recognition of their investment and risk they have taken to bring it back to life again. Property rights come with the responsibility of custodianship. It has to be used to achieve the ends of social good. As the Shia Scholar, Seyyed Mahmood Taleqani writes in his tract Islam and Ownership: “….Indeed, the earth's wealth belongs to God and man his vicegerent and servant. And because vicegerency belongs to all people, each individual is a guardian of the public trust. And, this ownership should be limited for the public welfare." (1983, as quoted by Saliem Fakir at http://islamic-world.net/economics/notion_of_public_goods_02.htm)
The concept of water in Islam : Water as a public good
Islam was very specific as to what it stipulated as being public property and what it allowed to be part of the private sector. Ibn Majah narrated from Abu Hurairah that the Prophet said:
'Three things are not prevented from (the people): the water, the pastures and the fire.'
In a similar hadith Ibn 'Abbas narrated the Prophet as saying:
'Muslims are partners (associates) in three things: water, pastures and fire', (reported by Abu Dawud).
Anas narrated from Ibn Abbas added that, 'Adding its price is haram'.
These hadiths indicate that the public is mutual stakeholders in the affairs of three environmental resources - water, pastures (bio-resources) and fire (fuels and energy resources) and it is forbidden for individuals to own them. Rather they are to be administered centrally by the state.
Islam has defined public property as: 'the permission of the Lawgiver (ie Allah swt alone) to the community to share the use of the asset.' And these are categorized in three categories:
a) That which is considered a public utility; they are the things that the community cannot do without, and for which she would disperse and search for if they were not available. Ibn 'Abbas narrated that the Prophet said::
"People share in three things: Water, Pasture lands, and Fire." [Reported by Abu Dawud] Added to this type of public property is all machinery used to extract water and the pipes used for this purpose, machinery to generate electricity from public waterfalls, together with its poles, wires and stations.
b) The uncountable minerals, which cannot be normally depleted. As for the insignificant and countable minerals they can belong to private property. They are treated like the hidden treasure (Rikaz) where a fifth of it is paid to the state treasury (Bait ul-Mal). As for the uncountable quantity which cannot be normally depleted like the minerals of gold, silver, petrol, phosphate, iron, sulfur and the like, the evidence for this is what was narrated by At-Tirmidhi from Abyadh ibn Hammal,
"….that he came to the Prophet and asked him to grant him a salt laden land, and he granted it to him. And when he left, one person in attendance with the Prophet said, 'Do you know what you granted him? You granted him the uncountable water (Al-'udd)'. He then took it away from him." So when he realized that it was of the permanent or continuous mines which are not depleted he reversed his grant and took it back thereby prohibiting its ownership by individuals as it is a public property.
c) Things which, by their nature, would prevent individual possession, such as roads, rivers, seas, lakes, mosques, public spaces and the like. He said:
"Mina is the camping place for he who reached there first". Mina is where Muslims camp during hajj, outside Makkah. He also said:
"There is no seclusion (Hima) except for Allah and His Messenger," so no one is allowed to designate for himself anything from the public utilities. The sanctuary (Hima) is the protected place.
As regards the factories and buildings, they have the same rule (Hukm) of what they produce. So if they were built to manufacture products that are of the public property, then they are of the public property, such as oil refineries. If they were however built to produce private property such as factories of textiles and cars and the like, then they are private property.
These three categories constitute the domain of public property in Islam. Individuals are not allowed to own them . The state are not allowed to own anything of them. It is not allowed for the state to sell them or grant their ownership to anyone. The state is not allowed to assign them to one section of people to the exclusion of another section because the state does not own them. So the sale or leasing of any part of them is a transgression of the sharia and therefore constitutes a great crime. The sharia prohibits this and it is haraam for the Ummah to remain silent over this matter. No ruler or regime is entitled to dispense with them except as the sharia has stipulated it. So the role of the state will be confined to enabling the citizens to benefit from this public-ownership.
The Islamic view on nationalisation
The political system of Islam obliges the state to provide the public with all the essential utilities and services which are deemed necessary for the clear objective that this is for the welfare of its citizens. This is contradictory to the outlook of the capitalist political system which, rather than taking care of the affairs of its citizens, looks to off-load its responsibilities to private companies which then disregard the quality of service in favour of profit with corporate bigwigs pocketing large amounts of money in the process.
Capitalist states nationalise property if they deem it to be in the public interest; the state is not obliged to nationalize but rather it chooses to do so when it sees fit. This is different from the Islamic view of property as the Islamic ideology leaves no scope for the government to define public or private property and instead stipulates in detail those things which fall under each category:
q If there was a right for all Muslims in a thing then it is public/state owned whether it is something of collective benefit like a park or river or whether it is a community necessity like an education or health service.
q That which is not public property falls under private ownership, and which the state is forbidden to own. Thus the state cannot forcibly obtain ownership of things which are of a privately owned nature under the pretext of the public interest, and could be taken to the Court of Unjust Acts (Mahkamat al-Mathalim) on the matter. However, should the individual allow the state to purchase the thing from them willingly then this is perfectly acceptable.
Such distinction is absent from the capitalist system resulting in properties changing from one category to another as perceptions of the public interest change (Khilafah Magazine Muharram/Safar 1425 / March 2004. http://www.khilafah.com/home/category.php?DocumentID=9189&TagID=24).
The notion of a public good within an Islamic Framework
In general, there are many indications that the notion of a public good, and public good practices are central to an Islamic ethos. This principle is also extended to owners of private goods in circumstances where a good, like food, which is essential for the survival of humans, cannot be sold at monopolistic or exploitative prices, but a fair price so that it is made accessible, and the private owner fairly compensated. (Ibn Taymiya, 1983) In the case of need the State has a right to intervene for the sake of public interest and welfare. Another example is when the State-and this was the practice at the time of the Prophet Muhammed and his Caliphs-land (called hima land) can be set aside for the purposes of public utility where the need arises. The use of the hima system is still prevalent in some Muslim countries today, especially in rural areas where himas are created to support animal grazing on a more communal basis. The potential exist to apply this concept to other areas of use such as the rehabilitation of degraded land, protection of biodiversity, wetlands etc.
To be sure, poverty is viewed in Islam as the cause of contempt, and conflict in society, eroding the ability of the society to create meaningful social contracts. It is for this reason that Islamic precepts and institutions have a strong flavour of social and distributive justice to them. A good example of this is prohibition on riba (usurious interest) in the Quran in an uncompromising way. Riba is seen as the most pernicious form of exploitation and if encouraged leads to the erosion of social welfare by creating a set of dependencies in the economy. For the practices of distributive justice and its institutions to function there is a need for a state that is strong and willing to make interventions where there are clear distortions in the economy that undermines social welfare.
It is for this reason that the system of sharing and giving in Islam -which is the main rationale for its system of taxation and moral admonitions-is aimed not only at institutionalising the distribution of wealth, but also restoring dignity amongst the poor, and inculcating generosity and empathy amongst the rich. The essence of the Islamic social welfare system is pivoted around the need to protect human dignity. Human dignity itself creates the sense of belonging, community and well-being the effects of which are translated into positive actions in other realms of human activity. Through the mechanism of taxation and moral admonitions Islamic traditions are aimed at holding the integrity of community (ummah) intact. It sees the protection of the whole as a sacred obligation that is not to be compromised under any circumstances.
The ethical system that governs socio-economic policies in Islam is hinged around four main tenets. They are:
1. Unity (tawhid): Individual actions must conform to an integrated whole represented by the absolute sovereignty of God.
2. Equilibrium (al'adl wal ihsan): in which individuals have the freedom to act, but must do so while bearing the general well-being of the present and future generations.
3. Free will (Ikhtiyar) : individual freedom is guided by a broader framework of duty to community or society.
4. Responsibility (Fardh) : Individuals and society have the responsibility to use and dispose of possessions and wealth in a responsible way. It is not to be wasted but conserved.
Wealth creation for instance is not abhorred in Islam, but permitted and must be regulated in terms of its future distribution and system of taxation through various precepts we find through the institution of practices such as zakat, sadaqa, and the inheritance system. While sadaqa (the giving of alms) is seen as voluntary, its universal practice has acquired the status of 'urf' (custom) in Muslim societies all over the world. The system of taxation was also extended to agricultural goods, certain kinds of commerce such as mining, and taxation of goods of foreigners.
The Baitul-mal (treasury), as a state institution would then redistribute the collection of zakat to two categories of poor, the fuqara (poor from Muslim communities) and masakin (poor from non-Muslim societies). Funds from treasury were used to build roads, maintain security, and support allies of the Islamic state.
In other cases mosques, universities, schools, libraries and scholarship was promoted to ensure general societal benefits because it was identified as an essential public good. It is also interesting to note that in the works of the classical Hanbali scholar, Ibn Taymiya, he also sees the necessity of the state to establish collective industries where certain essential goods have to be imported at great expense or where there is a shortage of such goods in the market. (Ibn Taymiya, Public Duties in Islam, 1983) These goods could be clothing or food. From Ibn Taymiya's tract we also learn that with the creation of the Hisba, while the right of ownership was honoured, the Hisba ensured that it was not allowed to be abused. For instance, the establishment of a flour mill or tanning factory in a residential area that led to pollution was disallowed. Places of public amenity could not become the exclusive privilege of an individual or a group. The benefits of these amenities were for both rich and poor alike.
As the Islamic empire expanded during the period of the Umayyads and Abbasids, the sponsorship of centres of knowledge and accumulation of knowledge around the world was not only of benefit to Muslim states and as historical research shows, such investments have been critical to the revival of lost traditions of science, mathematics and philosophy from amongst the Greeks, Indians, Persians and other ancient civilizations. In fact, this investment in knowledge as a public good by Muslim rulers has been of great benefit to modern civilization and the advancement of key sciences in the West. This investment in knowledge which was not confined to any discipline and crossed the bounds of culture and religion was an indispensable investment that is often underplayed by western scholars.
The central role of the state was also extended onto issues of insurance. Unlike in our contemporary society where insurance cover has been left to the private sector, in Islam this was seen as a state responsibility. There is also evidence that during the period of the Caliphs, regional security, and forming of friendly relations, was seen as an important way of ensuring security for Muslim societies. State taxes were also expended to support good neighbourliness and cross-border security, even if the benefit did not exclusively accrue to the Muslim state. The Islamic system of economy has also been characterised by the French anthropologist Marcel Mauss, as having the characteristic of being a kind of 'gift economy'. As Mauss demonstrates, in his anthropological study: 'The Gift", that the characteristic of a gift economy, seem to have been an essential feature of most if not all pre-capitalistic societies.
The giving of alms in these societies-which amounts to the sacrifice by the rich of a proportion of their wealth-was a way of creating a system of distributive justice through religious moral persuasion and in some cases like in Islam was also enforced by the state and certain religious rites. Given that the act of giving is seen as a supreme virtue, the idea of a gift becomes an essential ethos of both the Muslim social fabric and economic system. It is intrinsic to a Muslim's way of being. One of the virtues of giving is that the giver also prospers as a result of his/her giving. So what occu
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