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3. The Mandate of the Governing Authorities

The primary duty of the ruler and his assistants, whether they are administrative, municipal, or judicial authorities, is to secure the common welfare and to avert and eliminate injuries to the society as a whole. This includes protection and conservation of the environment and natural resources.

Historically, many of the responsibilities of environmental protection and conservation have come under the jurisdiction of the office of the hisbah, a governmental agency which was charged specifically with the establishment of good and eradication of evils. The muhtasib, who headed this office, was required to be a jurist thoroughly familiar with the rulings of Islamic law which pertained to his position. He was responsible for the inspection of markets, roads, buildings, watercourses, reserves (hima) and so forth. Among his duties were supervision and enforcement of regulations and standards pertaining to safety, hygiene, and cleanliness; the removal and disposal of wastes and pollutants; the prevention and elimination of hazards and nuisances; the protection of reserves (hima) from violation and trespass; and the prevention. of abse and treatment of animals. He was responsible for assessing damages and imposing fines and other penalties. In addition, he had wide discretion-ary authority to take necessary measures to ensure the public welfare.

The protection and conservation of the environment and natural resources involves two major aspects:

Remedy of damage; and Prevention of damage.

(a) The governing authorities have the obligation to take all necessary measures and actions associated with the elimination of existing damage, repair of its effects, and provision of indemnity for it in application of the relevant principles of Islamic law, including "Damage shall be eliminated," "Damage shall not be eliminated by means of similar damage," "If the original fails, its equivalent shall be resorted to," and "Exigency does not cancel the rights of others."

The governing authorities have, for instance, the right to hold individuals, or- ganizations, establishments, and companies responsible for the elimination and repair of damage resulting from their activities, enterprises, and projects which, although needed for the welfare of the whole community, may result in damage to the environment and the natural resources. The legal rules in this regard are, "Damage shall be eliminated," and "Damage shall be removed to the extent that is possible."

The governing authorities have the right and obligation to impose moratoria on various activities, projects, or enterprises if they realize that such activities,projects, or enterprises will result in real damage to the environment that is in excess of or equivalent to the benefits thereof, because "The averting of harm takes precedence over the acquisition of benefits." If, however, the community is in urgent need of some action that may result in certain damage, the need may be considered as a necessity in implementing the principle that "'Dire necessity renders prohibited things permissible." In this case, "Damage shall be removed to the extent that is possible," and "Every necessity shall be assessed according to its value." If, the need for such harmful actions vanishes, the authorities should stop them, for "That which is permitted on account of an excuse ceases to be permissible with the cessation of that excuse."

The governing authorities have the right to hold individuals, organizations, establishments, and companies responsible for the cost of eliminating the damage resulting from their activities, or of rehabilitating areas degraded by them. The juristic rule is "The author of an act is held responsible, even ifhis act is not intentional." However, individuals, organizations, establishments, and companies should not be held liable for damage that may result from exercising their lawful and legitimate rights in compliance with the terms of their licenses, charters, permits or contracts, and in accordance with correct and recognized practices. For "Legal pemission cancels liability," according to the juristic rule.

The governing authorities have the right to claim damages or idemnity from in- dividuals, organizations, establishments, and companies for irreversible damage to the natural environment resulting from their activities.

The governing authorities have the right to censure or punish individuals, or the owners of organizations and establishments or their designees, should they infringe or violate the terms of licenses, charters, permits, or contracts deliberately or through evident negligence or violation of the general policies and instructions set forth by the government for the conservation of the natural environment, its elements, and its resources.

The governing authorities have the right and obligation to intervene for the protection of animals whenever they are abused; to prohibit their killing by illicit methods or for illicit purposes, and to prohibit undue injury to them. This applies equally to domestic animals and wild animals in captivity , whether in private ownership or in public institutions such as zoos, research institutes, etc. If an animal's owner mistreats it, or fails to provide it adequate maintenance by way of food, water, shelter, and the like, the governing authorities are to compel him to provide for its needs; and if he refuses or is unable to provide and care for it properly, the authorities must compel him to sell it; or he may slaughter it for food if it is of a kind that is lawful to eat.

(b) The governing authorities have the obligation to take all necessary measures and actions to avoid, prevent, or minimize damage before it occurs in application of the principle "There shall be no damage and no infliction of damage," and the juristic method of obstructing outwardly legitimate means which may serve as pretexts for illegitimate ends.

The governing authorities have, for instance, the right and obligation to forbid any activity, whether temporary or permanent, that may lead to or result in dam- age or mischief. No one is entitled to obstruct the community's sustainable use of any of the basic elements or resources of the environment. This applies to air pollution by smoke and harmful fumes from factories, cars, and the like, and to the impairment of water resources through the ruin ofpublic wells, and the depletion of aquifers or their pollution by means of toxic substances that render them unfit for use. It also applies to overhunting, overgrazing, and destruction of valuable habitats and biotopes, deforestation, and any degradation of the natural resources through their misuse or overexploitation.

The governing authorities have the right to limit the scope of action, its place, time, kind, and quality so as to prevent, avoid, control, minimize, or limit dam- age or restrict it to a certain place or time.

The governing authorities have the right and obligation to impose specific measures or technical standards and to require particular methods or techniques to prevent the occurence of damage, or minimize it, or restrict it to the least and narrowest scope possible and with the least possible impact. Experts and specialists in all relevant fields are to be entrusted with determining the appropriate criteria.

The governing authorities have the right and obligation to take all measures necessary for the preservation of rare and endangered species of animals and plants and the habitats or biotopes needed for the survival of viable populations; and to impose sanctions against individuals, establishments, and companies that violate such measures.

The governing authorities have the obligation to provide guidance and infonnation about all matters upon which the public welfare depends -including the correct and sustainable use of the earth's resources and to provide encouragements and incentives for beneficial practices.

The governmental authorities have the right, and in this age of increased human impact, the obligation to take a guiding role in planning the development of the land and sea and the utilization of their natural resources to secure the wel- fare of created beings and avert injury to them. Such planning should include the preservation of areas ofspecial ecological importance and distinction, as well as the adaptation of development in ecologically sensitive areas to accord with the particular natural constraints, capacities, and characteristics of each area. This requires that all development projects and activities be assessed with regard to their potential benefits and detriments or impacts, both immediate and long-tenn, prior to their approval. It also requires that if approved, such projects be designed and implemented in such a manner as to minimize hannful impacts and ensure the preservation of ecosystems for the benefit of present and future generations. Such development planning should be accomplished within the framework of the policies and legislative principles discussed above, and the Islamic institutions for conservation and sustainable development as described below.