بسم الله الرحمن الرحيم
The Shar’i Principles for Dealing with Rivers
Question: Are there Shar’iyah principles in respect to
dealing with rivers, whether their origin to their mouth (end-point) are within
the Khilafah state or they pass through the state and into another? Jazaakum Allah
Khairan.
Answer: Islam has solutions for every problem that
has happened, is happening or will happen in the future. That is because Allah (swt)
has perfected this Deen:
﴿الْيَوْمَ أَكْمَلْتُ لَكُمْ دِينَكُمْ
وَأَتْمَمْتُ عَلَيْكُمْ نِعْمَتِي وَرَضِيتُ لَكُمُ الْإِسْلَامَ دِينًا﴾
"This day
I have perfected for you your religion and completed My favour upon you and
have chosen for you Islam as a Deen" [Sura Al-Maa’idah: 3]
And
He Ta’Aalaa has made it obligatory upon us to refer to the Shar’a of Allah for
judgment in respect to every minor and major issue. He (swt) said:
﴿وَأَنِ احْكُم بَيْنَهُم بِمَا أَنزَلَ اللَّـهُ وَلَا تَتَّبِعْ
أَهْوَاءَهُمْ وَاحْذَرْهُمْ أَن يَفْتِنُوكَ عَن بَعْضِ مَا أَنزَلَ اللَّـهُ
إِلَيْكَ﴾
"And
judge, [O Muhammad], between them by what Allah has revealed and do not follow
their inclinations and beware of them, lest they tempt you away from some of
what Allah has revealed to you" [Sura Al-Maa’idah: 49]
The
word ‘مَا’ (what), as is known,
is from the general form (Siyagh Al-‘Umoom). Consequently, Allah (swt) has
made it obligatory to rule by Islam in every matter without exception i.e.
without taking parts at the expense of parts:
﴾وَاحْذَرْهُمْ أَن يَفْتِنُوكَ عَن بَعْضِ مَا أَنزَلَ اللَّـهُ إِلَيْكَ﴿
"And
beware of them, lest they tempt you away from some of what Allah has revealed
to you".
Therefore,
Allah Al-‘Azeez Al-Hakeem has not left a single problem that people will be
exposed to within the life of this world except that it has been solved by
Islam, by a Shar’i text or through Istinbaat (deduction) in accordance
to the Usool Shar’iyah principles. Allah Ta’Aalaa created us and explained to
us that which is suitable and correct for our affairs as He (swt) is Al-Lateef
Al-Khabeer:
﴾أَلَا يَعْلَمُ مَنْ
خَلَقَ وَهُوَ اللَّطِيفُ الْخَبِيرُ﴿
"Does He
who created not know, while He is the Subtle, the Acquainted?" [Sura Al-Mulk: 14]
For that reason, there are indeed Shar’iyah principles
for dealing with rivers, equally whether they are in the Khilafah state or they
pass through it and into other countries. I will mention some of these matters
in a summarized manner and it will be explained in full at the time of the
establishment of the Khilafah state, Inshaa Allah, the state that we supplicate
to Allah to be established soon and Allah is ‘Azeezun Hakeem:
1. The major rivers are public
property (Mulkiyah ‘Aammah) and they fall under two types of the public
property. From one angle, they fall under the collective amenities which are
indicated to within his speech (saw):
«الْمُسْلِمُونَ شُرَكَاءُ فِي ثَلَاثٍ: فِي
الْكَلَإِ، وَالْمَاءِ، وَالنَّارِ»
"The
Muslims are partners in respect to three (matters): The pasture lands, water
and fire" [Narrated
by Abu Dawud]
They are also from
the types, which by the nature of their formation, prevent individuals from exclusively
taking them into their possession. That is based on the Hadeeth of Prophet (saw):
«مِنًى
مُنَاخُ مَنْ سَبَقَ»
"Mina is the
resting place of the one who reaches it first" [Narrated by
At-Tirmidhi]
Further details can
be found in the book, Funds in the Khilafah State and in the book, The
Economic System in Islam to be referred to.
2. The Muslims
understood from the time of the Prophet (saw) until our current time, that the
major rivers like the Tigris, Euphrates and the Nile are public property which
nobody can take exclusive ownership of or exclusively attain the benefit from.
The state used to enable the people to attain the benefit from the major rivers
for drinking, domestic utility, feeding the livestock (which is known as Ash-Shaffah),
to water the agricultural lands (which is called Ash-Shirb) and for
travel and transportation… It used to undertake layout of the banks and
cleaning the rivers (which is called Bakriy Al-Anhaar) so that the people
could benefit from them… All of that is clear when reviewing the books of
history and Islamic Fiqh… I will mention some of the Fiqhi texts that guide to
the concern that the Muslims had with the subject of the major rivers so that
the benefit from them can be facilitated:
- The following was
mentioned in the book ‘Tuhfat ul-Fuqahaa’ by Samarqandi (deceased around
540 AH)
“… (In regards to)
the major rivers like the Euphrates, the Tigris and Gihon amongst others, then
no one has a right over exclusivity. Rather, they are the right of the masses.
So, everyone who is able to water his lands from them, then he has the right to
do that, just as he has the right to set up mills, waterwheels and what is
similar to that. That is as long as it does not negatively impact the major
river. If it (i.e. the usage or activity) does have a negative impact upon the river,
then the person is prevented from that. In addition, the digging i.e.
maintenance of the great rivers is a duty upon the authority (ruler) to undertake
from the wealth of the Bait ul-Maal. That is because their benefit returns to
the general public and consequently the funding of that is found within the
public funds and that is the funds of the Bait ul-Maal…) End.
- The following was
mentioned in the Kuwaiti Fiqhiy Encyclopedia:
“Al-Karyu
means: Extracting the clay (sediment) from riverbed, digging
and fixing its banks. The funding of the Karyu (maintenance) and all
that the river requires in terms of fixing and rectifying is taken from the
Bait ul-Maal (State Treasury) of the Muslims, because it is for a general
interest (Maslahah ‘Aammah). If there is nothing available within
the Bait ul-Maal (treasury) then the Haakim (ruler) compels the people to restore
and maintain the rivers because their refraining from that brings about a harm
and because it realises the public interest…
The Karyu
(maintenance) of the public rivers like the Nile, Tigris and Euphrates is the
responsibility of the Sultaan (ruler/authority) to be taken from the Bait
ul-Maal. That is because the benefit of the maintenance is for the Muslims in
general and consequently its funding is from the Bait ul-Maal. That is due to
the statement of the Prophet (saw):
«الْخَرَاجُ بِالضَّمَانِ... وَلَوْ خِيفَ مِنْ هَذِهِ الأَنْهَارِ
الْغَرَقُ فَعَلَى السُّلْطَانِ إِصْلاَحُ مَسَنَاتِهَا مِنْ بَيْتِ الْمَال»
"The
Kharaaj is by guarantee … and if submerging is feared from these rivers then it
is the duty of the Sultaan (ruler) to fix or rectify its dams from the Bait
ul-Maal".
- The following was
mentioned within the book ‘Darar Al-Hukaam Fee Sharh Majallat ul-Ahkaam’:
* [(Article 1238) Non-owned
public rivers]
Article (1238) – (The
public non-owned rivers and these are the rivers that have not been included in
Muqaasim i.e. in the runnings of the collective ownership, are also Mubaahah
(permissible) like the Nile, the Tigris, Danube and Tonga Rivers). The public unownable
rivers and these are the rivers that have not been included in Muqaasim i.e.
in the runnings of the collective ownership, do not fall under the ownership of
anyone. That is like the seas and lakes. Rather they are Mubaahah
(permissible). For that reason, everyone can seek benefit through them upon the
condition that it is not harmful (or detrimental) to the general public as has
been explained in Article (1254). The person can open up a stream or conduit and
run water from it to his land and irrigate his land, set up a mill, water scoop
and water hole.
If, however, that was
harmful (or detrimental) to the ‘Aammah (public), where the water overflows and
ruins the rights of the people or prevents the movement of boats, then all of
the people have the right to prevent it. This is relation to the rivers. As for
the sea, then benefit is sought from it even if it harms. This is what
Al-Quhustaani stated (clearly) and this issue will be examined in the
explanation of the Articles (1263 and 1264).
In respect to these
rivers, all of the people have the right to Ash-Shaffah (feeding livestock,
domestic utility and drinking), whether that is harmful to the public or
unharmful. In regards to the unownable public rivers like the river Nile that
flows in the Egyptian region, the river Euphrates which flows in Iraq, the Tigris
(Dijla) (which is read with a Kasrah on the Daal and a Fat’hah), the
Shatt-ul-Arab (which is the result of the convergence of the Tigris and
Euphrates), the Danube, a part of which lies in the lands of Romania, the Tunca
River which is also called the Maritsa River which runs through the town of
Edirne, all of these major rivers are not anyone’s property because the
ownership according to Article 1249 occurs through acquirement and placing the
hand over it. This acquirement and placing one’s hand over it is not possible
in respect to these rivers. As long as these rivers cannot be taken possession
of and acquired then they remain shared amongst the people according to Article
1234 and the right for all the people to attain benefit from it is affirmed in
accordance to Article 1265 (The enlightenment and refuting the bewilderment in
respect to the beginnings of Ash-Shurb and Az-Zayla’iy in respect to
Ash-Shirb).
[(Article 1265)
Everyone has the right to irrigate his lands from non-ownable rivers].
Article (1265) – Everyone
has the right to irrigate his lands from the unownable rivers and he has the
right to open up a stream or conduit to irrigate his lands and to set up a
mill. However, it is stipulated that others are not harmed. For that reason, if
the water overflows and is harmful to the creation or it interrupts the rivers
water completely or blocks the passage of boast then that is prevented (or
forbidden)).
Everyone has the
right to Ash-Shirb and the right of Ash-Shaffah in respect to the unownable
rivers which means that he can irrigate his lands. That is if someone has
revived barren land close to the designated river. He can open up a stream or
conduit and let the water run from the designated river to his land that he has
revived. (The explanation of Al-Majma’ in respect to the Shirb). That is if the
place that the spring has been opened up from is a property of his. It is also
the right of anyone to drink the water from the designated river, to perform
Wudoo’ from it, wash clothes and to open up a stream or conduit within his
owned property or the barren lands from anew or in increase, to irrigate his
lands and he has the right to set up a mill. This would be like when the spring
has three conduits; he protects it and makes four or five conduits for it
(Al-Hindiyah in the second chapter from the Shirb).
Similarly, if it was
a large unownable river close to the vineyards of someone and the owner of the
vineyard wanted to set up irrigation equipment upon the river to irrigate his
vineyards and there was no harm to others in doing that, then the owners of the
vineyards and irrigation equipment located under his vineyard have no right to
prevent him from doing that through claims of it being against their consent.
And you are no doubt
aware that the Majallat ul-Ahkam was applied in the Uthmani State i.e. that
these mentioned Ahkam (rulings) above were applied by the state and relied upon
(or adopted). All of that guides to the manner of how the Islamic state dealt
with benefiting from the major rivers…
3. If the major river
was located, in its entirety from its beginning to end within the authority of
the Islamic state then there are no problems in respect benefiting from its
waters and travelling in them in accordance to the Shar’iyah rulings, some of
which we have mentioned above… There is no harm for the river to run in many of
the Wilaayat (provinces) because all of the provinces are within the authority
of the state whilst their division according to specific geographic borders is
only an administrative matter… If acquiring benefit of the major rivers
requires arrangements being made between the different Wilaayat then the
Khalifah will undertake the necessary administrative coordinative management
that ensures the attainment of the benefit from the different provinces in the
best and easiest manner…
4. If the regulation of
the usage of the major river and benefiting from its waters requires the state
to intervene by putting down detailed regulation for that, then the state will
put in place administrative systems that will organize the matters related to
irrigation, movement, transport and other than that… In light of the current
material technological advancements, then it is most probable that it will be
the state that undertakes the organization of the irrigation, delivery of water
to the houses and farms, the travel movement and transportation within the
rivers… The state can place fees for the usages and benefits acquired from them
upon the condition that the profits resulting from that return to the Bait
ul-Maal of the Muslims within the public property revenues section.
5. If parts of the major
river flow outside of the authority of the Islamic state, then the state will
convene, if necessary, bilateral agreements or treaties with the state that it
is related to, in accordance to the (dictates of the) Ahkam Ash-Shar’iyah. That
is in order to organize the utilization of the river without affecting the
interests of the Islamic state detrimentally and it is done in accordance to
the Ahkam Ash-Shar’iyah related to the public properties… If an act of
aggression or hostility occurs from another state by preventing the flow of
water of the major river from reaching the Islamic state or by its exploitation
in a manner that harms the interests of the Muslims, then the state will take
the political, economic and military measures that enable it to remove the harm
brought about by the other state, even if the matter reaches the point of war
against the aggressing state to take back the Haqq (right).
6. I will draw attention
to the point that throughout history, the states that are upon the shores of
the major rivers did not used to prevent each other from benefiting from the
waters of the major river (the international river). Indeed, all of the states
located upon the rivers benefited from the rivers without that being
problematic… Problems related to the international rivers did not arise until
the age of western colonialism which took them as a means for colonialism and
exerting political and economic pressures upon other states.
7. The right in respect
to the public property belongs to the subjects of the Islamic state and not to
other states. As such, the state imposes fees upon other states’ usage of the
rivers located under the authority of the Islamic state. It can also sell them
its water, electricity that results from the water and what is similar to that
... It will then place the profits realized from that within the Bait ul-Maal
to spend upon that which the Ahkam Ash-Shar’iyah has permitted.
8. In respect to the
organizational procedures that the state puts into place for the beneficial
utilization of the major rivers; dividing its waters and organizing movement or
transportation within them, it pays attention and consideration to the rivers
not drying up, the flow being interrupted or impeded, the pollution of its
waters or to any other harm that can befall them. Just as it makes effort
directly to remove any harm that happens unintentionally… It adopts water
policies characterized by justice in respect to the division of water shares
(or quotas) and at the same time it is characterized in respect to preserving
these water sources in the best manner possible … All of this is not detached
from the economic policies and the general environment that the state sets.
9. Attached to what has
been mentioned previously is the regulation of the state of the benefit from
the fishing treasure in the major rivers and enabling the people to fish and so
on…
I hope that this summarized answer is sufficient… and its
completed explanation will happen at its time Inshaa Allah.
Ata Bin Khalil Abu Al-Rashtah
12th
Safar 1438 AH
12.
11. 2016 CE
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