Tuesday, December 28, 2010

Wikileaks & Free Media: A Muslim Perspective

By Dr. Wael Shihab
Tuesday, 14 December 2010 00:00
Courtesy of "On Islam"

In case of conflict between personal and pubic interests, the public interest of the whole community takes precedence over the interest of individuals
The controversial Wikileaks site has recently posted online more than 400,000 documents detailing events in Iraq after the 2003 US-led invasion and revealing US diplomatic secret cables from various parts of the globe, months after releasing some 90,000 secret records of US military incident and intelligence reports about the war in Afghanistan.
On Tuesday, December 7, 2010, Julian Assange, the 39-year-old Australian founder of Wikileaks, was arrested by police in London. Assange, who was the subject of a European arrest warrant, denies allegations that he sexually assaulted two women in Sweden. Whereupon, a Wikileaks spokesman said Mr Assange's arrest was an attack on media freedom but it would not stop the release of more secret files.(1)
In spite of arresting its founder, the whistle-blowing website, Wikileaks, is continuing to unveil a huge number of secret documents which have put the world in turmoil, anxiety, and disorder. In a recent on-line poll, nearly 85.7% of respondents considered Assange’s arrest as politically motivated.(2)
World reactions to the Wikileaks documents—released in partnership with a number of international newspapers including The New York Times, The Guardian and the German news magazine Der Spiegel—have drastically differed. While some people and countries have commended the leaks and even recommended a Nobel Prize for Assange, others regarded the incident as a massive threat to world peace and order, an American or Israeli conspiracy potentially aiming at creating worldwide chaos.  
Freedom of expression, which is a well-established principle in Islam and most world religions and free democratic systems, is a key concept in the current crisis. While some people defend the leaks as part of a “free media”, others see them as a violation to responsible ethical freedom.
The following is a study of the concept of freedom, as an objective of Shari`ah, its features, and ethics. Also, the Wikileaks releases case will be tackled in the light of the concluded principles and freedom ethics.

Freedom: A Well-Established Objective of Shari`ah
While the majority of scholars tend to confine the higher objectives of Shari`ah to five, namely the preservation of religion, life, intellect, lineage and property, other scholars add other significant goals—such as justice, freedom, and the preservation of `ird (honor)—to the list of maqasid (objectives of Shari`ah).(3)
The early list of five essential values is, apparently, based on a reading of the relevant hudud (prescribed penalties) that Shari`ah legalizes to protect. Imam Al-Ghazali (d. 505 AH) refers to his list of the five objectives of Shari`ah, saying,
Maslahah, which we are concerned about here, means the protection of the objectives of shar`, namely the preservation of religion, life, offspring, reason, and property. Anything that furthers theses five objectives is maslahah, and anything that runs contrary to them is mafsadah.(4)
Scholars, mostly late and contemporary, have opened the scope of the maqasid to include other essential objectives of Shari`ah. The Maliki jurist, Shihab ad-Din al-Qarafi (d. 684 AH) has added a sixth to the list of the five objectives of Shari`ah, namely the protection of `ird (honor). Ibn Taymiyyah (d. 728 AH) was probably the first scholar to depart from the notion of confining the maqasid to a specific number. Ibn `Ashur further opened the scope of the maqasid to include the preservation of the social order, promotion of the wellbeing and righteousness (salah) of the community, preservation of the family, etc.(5)
Freedom—including religious freedom, freedom of expression, freedom of action, media freedom, personal freedom, etc.—is supported by a countless number of general and detailed proofs of Shari`ah
The renowned contemporary scholar Yusuf Al-Qaradawi has further extended the list of the maqasid to include human dignity, freedom, social welfare and human fraternity among the higher maqasid of the Shari`ah. These objectives are, of course, undoubtedly upheld by the weight of both general and detailed evidence in the Qur’an and Sunnah.(6)
Freedom—including religious freedom, freedom of expression, freedom of action, media freedom, personal freedom, etc.—is supported by a countless number of general and detailed proofs of Shari`ah. For example, the Qur’an emphasizes religious freedom saying, “There is no compulsion in religion”(7), “Say: (It is) the truth from the Lord of you (all). Then whosoever will, let him believe, and whosoever will, let him disbelieve” (8). Ibn `Ashur affirms Shari`ah’s insistence on freedom, saying,
It has already been established that equality is one of the objectives of the Shari`ah. It necessarily follows that equality of the community’s members in freely conducting their personal affairs constitutes one of the primary goals of the Shari`ah. This is what is meant by “freedom.” The Arabic term hurriyyah has been used to denote two meanings, one deriving from the other.
(1) The first meaning is the opposite of slavery. It refers to the original ability of all rational and mature people to handle their affairs themselves without depending on the consent of someone else....
(2) The second meaning of the term hurriyyah is derived from the first by metaphorical usage. It denotes one’s ability to act freely and handle one’s affairs as one likes, without opposition from anyone. This is the opposite of having one’s hands tied or being unable to act freely. Having one’s hands tied describes a person who, owing to powerlessness, poverty, lack of protection, or pressing need, is driven into a situation similar to that of a slave, in which he or she is subject to the will of someone else in all his or her dealings. One is thus deprived of all sense of self-respect and condemned to accept humiliation. These two meanings of freedom have been intended by the Shari`ah, for both stem fromfitrah (natural disposition) and reflect the notion of equality that constitutes, as shown earlier, one of the essential objectives of Shari`ah. It was in this light that `Umar ibn Al-Khattab exclaimed: “On what grounds do you enslave people whose mothers have born them free?” – meaning that being free is something inherent to man’s inborn nature.(9)
Given the above, it becomes crystal clear that freedom, in its various ethical and responsible forms and types, is maintained and well-established in Islam.

Ethical Vs. Irresponsible Freedom
Ethical responsible freedom, which I support here, is bounded by the general ethics and guidelines of Islam. It is restricted by the Shari`ah-based limits that regulate people’s relations and dealings. So, it is not acceptable, for example, to approve insulting or attacking holy books, prophets, or religions under the pretext of freedom of expression or liberties. Also, it is not acceptable to justify harming people or risking public interest of communities for “irresponsible” freedom of few individuals.
Freedom, in whatever type or form, is governed by the following general maxims:
1.    Harm should be removed. Freedom does not justify harming oneself or others, whether individuals or communities. This equally applies to physical, emotional, material, or spiritual harm. One is not free to harm others’ lives, beliefs, emotions, reputation, etc. This principle is in-line with the juristic maxim that reads: Ad-dararu yuzal (harm must be eliminated). This legal maxim is founded on the hadith that reads: "No harm shall be inflicted or reciprocated."(10) Some of the variant renderings of the maxim 'ad-dararu yuzal' read as follows: “Harm must be eliminated but not by means of another harm” (ad-dararu yuzalu wa lakin la bid-darari); and “Harm is not eliminated by another harm” (ad-dararu la yuzalu bid-darari).(11)
Protecting the valid interests of a whole community takes priority over the interests of few individuals
2.    Public interest takes priority over personal interests. An individual’s freedom does not entitle him or her to endanger or violate the public interest of the community. Islam considers both personal and public interests. However, in case of conflict between personal and pubic interests, the public interest of the whole community, which is usually greater and more significant, takes precedence over the interest of individuals. In other words, protecting the valid interests of a whole community takes priority over the interests of few individuals.
3.    Islamic ethics and values should never be violated. One’s freedom is governed by the Shari`ah-based rulings and regulations, which are meant for people’s valid benefits. It is Islamically not allowed, for example, for a man and a woman to freely engage in illicit sexual relations under the pretext of personal freedom.
Freedom, which is guaranteed and protected in Islam, works within a frame of general ethics and morals that secure people’s wellbeing and happiness. Ibn `Ashur elaborates,
Freedom of expression (hurriyat al-aqwal) consists of showing one’s beliefs and views within the limits of what it is allowed by the Shari`ah... Freedom of action that affects others is lawful as long as it does not cause them harm. This kind of freedom combines a twofold objective of the Shari`ah, namely, the freedom to act that does not go beyond the actor and the freedom to act that affects someone else’s freedom to act, without however causing harm to him or her. Harm might consist of suspending someone’s right or destroying it altogether. This requires the offender to compensate for the damage caused, as has been expounded by the jurists. For this reason, a person can be prevented from an act that would result in the violation of someone else’s freedom, for this is a form of injustice. When one has carried out an act that has harmed another person, he is responsible for that harm and must rectify or repair it as best as possible. If the damage is such that it cannot be rectified by financial compensation, then recourse must be taken to deterrent punishment...
Furthermore, the Shari`ah has placed certain obligations upon its followers, according to which their freedom to act is restricted for their own good, both now and in the future. These obligations include the fulfillment of what relates to the public good (masalih `ammah), such as implementing collective obligations (furud al-kifayat), or realizing the good of those whose well-being the Shari`ah has made the duty of specific persons, like providing for one’s relatives. If people transgress the limits of their freedom in this respect, they will have to be stopped at the limits of the Shari`ah by liability, such as compensation for negligence, or by punishment without acceptance of repentance, as in armed robbery (harabah), … etc. Examples illustrating this are abundant.
You should know that the violation of freedom is one of the gravest forms of injustice and wrongdoing (zulm). Therefore, the realization and determination of the extent of people’s freedom in the sight of the Shari`ah must be the responsibility of judges who are invested with the power to settle disputes between people. That is why if a victim takes revenge for himself from the offender, this would be considered an aggression for which he deserves to be reprimanded.(12)

Wikileaks Releases: Ethical or Irresponsible?
There are a number of factors that should be highlighted before attempting to assess the case of Wikileaks releases on the basis of the above-mentioned principles and guidelines:
1.    Up till now, there are various, and even conflicting, interpretations on how Wikileaks got hold of the secret US cables and documents.
2.    Analysts have drastically differed in concluding the objectives of leaking such a huge number of confidential US cables and documents, though Mr. Assange clearly said, “We specialize in allowing whistle-blowers and journalists who have been censored to get material out to the public”(13).
3.    Benefits and harms of the leaks are still proportional and speculative.  
My personal view, therefore, is founded on the current available information on this controversial, debatable, and complicated issue. My opinion, which is based on my own understanding of the various angles of the case, would consider ethics and morals of freedom.
Wikileaks, though not free of mistakes and errors, has provided the world community with an unprecedented amount of proof of injustice, oppression, and corruption.
Though Wikileaks has been subject to severe criticism and attacks, mostly from Western political circles, the horrible crimes and wrongdoings that the documents have revealed are more grave and heinous; covering such crimes, let alone committing them, is what the world community should first condemn and criticize.
I believe that it was far better to hand such serious documents to legal and judiciary channels—such as international courts, world parliaments, people representative councils, and human rights organizations—in order to legally investigate them and set peoples’ affairs to order.
The leaks, which have put the world in turmoil and caused a great mess, have also proved the duplicity and hypocrisy of many governments and regimes, causing people great worry and unrest. Wikileaks, though not free of mistakes and errors, has provided the world community with an unprecedented amount of proof of injustice, oppression, and corruption.     
In the light of the principles of ethical freedom, Wikileaks may have committed some mistakes. However, the content of the leaks expose a huge volume of information that needs a thorough study and analysis of scholars, intellectuals, and thinkers to change and reform the current disastrous and unjust conditions of the world.    

Reform We Need
In conclusion, I would like to emphasize that the world, which is apparently overwhelmed with injustice, oppression, corruption, and disorder, is in bad need of reform and real change. It is Allah’s decree and unchangeable sunnah (way) that He doesn’t change or reform people’s affairs until they themselves change to the better. The Qur’an unequivocally says, “Surely, Allah does not change the condition of people until they themselves change their affairs”(14).   
The world is in dire need of re-establishing trust and maintaining transparency between the ruled and the rulers, the citizens and the governments. Scholars, intellectuals, thinkers, and all faithful people should join hands and put the heads together and stand one hand, rulers and subjects, against wicked conspiracies against the world community. Every member, man or woman, of the entire human family has a share in this responsibility. We are together in the same boat and we have to start rowing together before it is too late.
We should reach out to other communities and cooperate with all the peace-loving people, regardless of their religious or ethnic affiliations, and work for the cause of truth and justice and fundamental rights of all fellow citizens and human beings.
We must recapture the essential universal, ethical values and ideals of Islam and accentuate them, rather than being ossified on dogmas and rituals.
I would like to conclude this article with the following wonderful remarks of Ibn `Ashur on reform:
From a comprehensive thematic analysis (istiqra’) of the textual sources of the Shari`ah pertaining to the objectives of legislation, we can draw the following conclusions. Both its general rules and specific proofs indicate that the all-purpose principle (maqsad `amm) of Islamic legislation is to preserve the social order of the community and insure its healthy progress by promoting the well-being and righteousness (salah) of that which prevails in it, namely, the human species. The well-being and virtue of human beings consist of the soundness of their intellect, the righteousness of their deeds as well as the goodness of the things of the world where they live that are put at their disposal.(15)  

(1) http://www.bbc.co.uk/news/uk-11937110, December 7, 2010.
(2) See OnIslam poll, www.onislam.net, December 9, 2010.
(3) See Wa’il `Abdul-Mut`al Shihab Najm, Al-Masalih al-Mursalah and Their Contemporary Applications: An Analytical Study, unpublished PhD thesis, Faculty of Languages and Translations, Al-Azhar University (Cairo: 2010 AC), p. 38.
(4) Abu Hamid al-Ghazali, al-Mustasfa min `Im al-Usul, 2 vols. (n.p., Dar al-Fikr lit-Tiba`ah wa an-Nashr wa at-Tawzi`, n.d.), 1: pp. 286-287.
(5) See Mohammad Hashim Kamali, An Introduction to Shari`ah (Kuala Lumpur: Ilmiah Publishers, 2006 AC), p. 118; Muhammad at-Tahir ibn `Ashur, Treatise on Maqasid al-Shari`ah, annotated and trans. Mohamed el-Tahir el-Mesawi (Herndon: The International Institute of Islamic Thought, 1427 AH – 2006 AC), pp. 87 & 241ff; Jasir `Uddah, Fiqh al-Maqasid, Inatat al-Ahkam ash-Shar`iyyah bi Maqasidiha (Herndon: The International Institute of Islamic Thought, 1427 AH – 2006 AC), pp. 26-28.
(6) See `Uddah, Fiqh al-Maqasid, p. 27.
(7) Qur’an, surat Al-Baqarah, verse no. 256.
(8) Qur’an, surat Al-Kahf, verse no. 29.
(9) Ibn `Ashur, Maqasid al-Shari`ah, pp. 150-151.
(10) Muhammad ibn Yazid abu `abd Allah al-Qazwini, Sunan ibn Majah, 2. vols., ed. Muhammad Fu'ad `abd al-Baqi (Beirut: Dar al-Fikr, nd), 2: p. 784.
(11) Wa’il Shihab, Al-Masalih al-Mursalah, pp. 208-209.
(12) Ibn `Ashur, Maqasid al-Shari`ah, pp. 156-159.
(13) Jonathan Fildes, “What is Wikileaks?”, www.bbc.co.uk, December 7, 2010.
(14) Qur’an, surat Ar-Ra`d, verse no. 11.
(15) Ibn `Ashur, Treatise on Maqasid al-Shari`ah, p. 87.

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