Ayatullah Sayyid Mujtaba Nur Mufidi in an Exclusive Interview with Ijtihad Network: In Events Like Floods, the Duties of Governments Transcend Liability (Daman)

If we wish to examine the issue from the standpoint of jurisprudential sources, the concept of government in its modern sense did not exist in the past, both in terms of its various responsibilities and in terms of its authorities, services, and tasks. What we have in religious sources (apart from the absolute and general implications of the proofs of liability (daman) which encompass legal entities such as the government) are mainly certain narrations regarding the error of the ruling judge in the chapter of judgment (qada), stating that if the judge errs in identifying the subject, in the ruling, or in its application, and due to his error, a loss and harm is directed toward one of the litigants, this error and harm must be compensated from the public treasury (Bayt al-Mal).

Exclusive to Ijtihad Network: The recent severe and unprecedented floods in the country directed numerous duties toward various segments of society. In the meantime, the Islamic seminaries—besides their general duty of physical relief and aid collection like other people—are also responsible for responding to the jurisprudential questions specifically faced by flood victims. One of the most important questions facing flood victims is the ruling of liability (daman) for the damages inflicted upon them as a result of the flood.

Ayatullah Sayyid Mujtaba Nur Mufidi, a lecturer of advanced (Kharij) jurisprudence at the Islamic Seminary of Qom, discusses the issue of government liability in these events. The member of the Scientific Council of the Fiqh Center of A’immah al-Athar believes that the core liability of the Islamic government regarding these events is an established and clear matter. The details of the interview with him are as follows:

Ijtihad: Is the government and Islamic state liable (damin) for the damages (human and material) inflicted upon flood victims? Does the negligence (qusur) or fault (taqsir) of government officials affect this ruling? Some officials initially claimed that the government is not liable, and that we only provide support and assistance.

Ayatullah Sayyid Mujtaba Nur Mufidi: I think we must respond to this question from two perspectives. First, if the government has made such a claim, on which of the existing statutory laws has it based this statement, and can there be a foundation for this claim from the perspective of written, codified law? Second, is the responsibility to compensate for damages placed upon the government in religious sources?

If we wish to examine the issue from the standpoint of jurisprudential sources, the concept of government in its modern sense did not exist in the past, both in terms of its various responsibilities and in terms of its authorities, services, and tasks. What we have in religious sources are mainly the absolute and general implications of the proofs of liability (daman), which encompass both natural and legal persons such as the government.

Apart from this, in the chapter of judgment (qada), regarding the error of the ruling judge, certain narrations have been transmitted stating that if the judge errs in identifying the subject, in the ruling, or in its application, and due to his error, a loss and harm is directed toward one of the litigants, this error and harm must be compensated from the public treasury (Bayt al-Mal). The outward meaning of this statement is that the error was unintentional and not based on collusion.

However, as a whole, it appears that the core responsibility of the Islamic system in compensating for damages directed toward the people—which in some way possess a public aspect or are attributable to the government and state sovereignty—is established and clear. In general, it can be said that what constitutes the source of damage and harm for the members of a society can be various factors.

At times, the government in its general sense may have a contract with the people, and due to failing to act upon this contract, a loss and harm is directed toward the people. Here, the liability resulting from the violation of the contract is definitely the responsibility of the government, and it must compensate for this damage. These are liabilities that result from contracts.

At other times, there is no contract whatsoever between the people and the government in various dimensions; yet concurrently, damages are directed toward the people, such as the damage resulting from the actions of the government to provide security, social security, public comfort, and public interests. This is in itself a factor; meaning, through the actions it performs to provide public security—such as engaging with a rebel or outlaw group—and to establish tranquility, damages might be directed toward the people.

Sometimes, the issue is not social security or establishing public safety, but rather negligence (qusur) or fault (taqsir) may occur in the services it provides to the people, resulting in damage, or fundamentally, the source of harm and damage can be force majeure, such as natural disasters.

Therefore, in examining this issue, attention must be paid to the fact that the sources of government liability, the civil responsibility of the system, and the compensation for damages of the people and those who have suffered losses are diverse.

Another important point is: regardless of what the source of harm to the people is, what do we consider to be the foundation of the government’s civil responsibility? This affects the outcome of the discussion.

Regarding the foundation of the government’s civil responsibility, various views and opinions are proposed in the West. Suppose someone like Rousseau, who considers the government to be the product of a social contract that provides security, welfare, peace, and tranquility to the people, holds a specific opinion in the domain of civil responsibility. Fundamentally, the duties of the government and the services it must provide are decisive in this issue.

In any case, the theories are diverse. For example, according to the Theory of Fault (taqsir), if the government is at fault in its work and, due to its fault and shortcoming, a damage is directed toward the people, it must compensate. This fault can be attributed to an officer of the government or a state employee, or it can be attributed to an institution and organization. The fault of a state employee is conceived as acting in the execution of the law in such a manner that inflicts damage and harm upon another.

The fault of the government or the system has several dimensions. One dimension is the failure to enact and pass laws. If the government can enact laws that prevent certain damages and fails to do so, the government will definitely possess civil responsibility; or, for example, if the government does not exercise proper supervision over the execution of laws.

Indeed, it is even possible that the law has been enacted and supervision has been carried out, but it lacks the necessary tools for this work; meaning, the apparatuses that must provide services possess defects and problems. For example, in this recent flood in Golestan, one of the issues raised is that one of the sluice gates of the dam had not been opened for ten years and had rusted, and although correspondences had been carried out, no effect was given to them. Now, we are not concerned with the extent of the harm caused by this factor, but in any case, it is effective in the damage to some degree.

Of course, this theory has been subjected to criticism and objection. In any case, the Theory of Fault requires that if the government has committed no shortcoming in some place, it also bears no responsibility in compensating for damages.

Another theory is the Theory of Risk (khatar); meaning, if a natural or legal person—encompassing the government—prepares a ground and environment that creates risk, and due to the creation of this risky environment, a harm is directed toward persons, the government must compensate. This theory differs from the Theory of Fault. In the Theory of Fault, the government has committed a shortcoming in enacting or executing the law; but in the Theory of Risk, for example, the government wishes to perform a work that is mixed with probabilities of risk, and the government also takes all precautions and commits no shortcoming; yet the nature of the work is risky, and consequently, a harm is directed toward the people due to the creation of this risky environment, in which case the government is held liable.

Another theory is the provision of welfare and security. In any case, the duty of the government is to provide the welfare and security of its citizens, and therefore, if a defect enters one of these aspects, it is liable.

Therefore, close attention must be paid to two points: first, with which part of the sources of civil responsibility are we dealing? Second, what are the foundations of civil responsibility and what is our foundation in the domain of civil responsibility? This is in itself an important factor in our conclusion—which foundation we choose and in which domain of these sources we wish to examine the issue.

In this section, I believe that what can be utilized from the sum of religious teachings is that, in any case, the state sovereignty and the Islamic system possess highly comprehensive duties toward the citizens, and based on those duties, the scope of its responsibilities is also exceptionally extensive; meaning, just as it is duty-bound to provide security, welfare, and comfort in both material and spiritual aspects, naturally if certain factors conflict with these matters, it must eliminate them as the government.

Sometimes, we examine the issue from the perspective of civil responsibility in its modern sense or liability (daman) in its conventional jurisprudential sense—namely, an obligation to compensate for damages—which is somewhat debatable, and there is room for these objections and discussions as to whether the government committed a shortcoming or not.

However, I believe that in relation to natural disasters and unexpected events—meaning events that were unpredictable, occurred suddenly, were uncontrollable, and caught everyone by surprise—the Islamic government bears a responsibility that transcends these discussions, and the duty of compensating for damages is the responsibility of the government; meaning, I wish to elevate the discussion beyond conventional civil responsibility and liability (daman). I wish to say that the responsibility of the Islamic government, based on its inherent duties, requires that it provide public security in various dimensions. This view is beyond the issue of conventional liability (daman), and as an inherent duty, I believe the state sovereignty possesses this obligation.

The inherent duties of the ruler and the Islamic government must be examined. If we look at it from this angle, we do not fall into these challenges. The sovereignty is duty-bound to provide at least the minimum requirements of life and the primary needs of human beings for the people, even if no problem or natural disaster is involved. Based on those very inherent duties, the Islamic government is duty-bound, if under certain conditions these matters are damaged, to provide for the people based on those very inherent duties. I wish to discuss this primarily from a perspective beyond a purely legal discussion.

Ijtihad: What Sharia proof exists to expand the responsibility of the Islamic government to this extent? What is the reality of the government?

Ayatullah Sayyid Mujtaba Nur Mufidi: This subject requires a detailed discussion. In religious sources, narrations, and the biography of the Infallibles (peace be upon them)—particularly the Prophet (peace be upon him and his progeny) and the Commander of the Faithful (peace be upon him)—there are highly important points in this regard that must be addressed in their proper place.

The ruler in the Islamic system is both a father to the people and a servant to the people. Therefore, wherever the people face a problem, he must hasten to their aid and serve. However, the government in its modern concept is not a father to the people, but rather emerges from the people to assume and manage the affairs that the people require in various aspects, and must execute them through the enactment of laws, regulations, security, welfare, and comfort.

The ideal Islamic government is a government that, transcending liability (daman), is duty-bound to assist in resolving the problem when natural disasters occur and create such a difficulty for the people. Fundamentally, if someone is homeless and sleeping on the street, or is an addict, or has gone bankrupt due to poor management, it is among the slogans and programs of the Islamic government that such a state should not arise for anyone. Here, it is not an issue of liability (daman). In the first degree, this is an inherent duty for the Islamic government to provide the primary requirements of human life, regardless of any religion, for all those who are in some way helpless, trapped, and unable to secure their own livelihood. This responsibility can be named moral or humanitarian responsibility. I do not think anyone disagrees on this.

However, if we wish to look at the discussion from a legal perspective, the assumption is that natural disasters and unexpected events have occurred and created these difficulties. Here, if no fault (taqsir) is involved—meaning it was truly unpredictable, and no shortcoming was committed by either the government officer or the system and state sovereignty as the government, neither in terms of enacting laws, nor in terms of execution, nor in terms of tools and facilities—naturally it cannot be said that the government is liable. However, if one of these factors is raised, it can be said that the government is at fault and liable.

Ijtihad: Can it be said that no negligence (qusur) is conceivable on the part of the government, and that the government is always at fault?

Ayatullah Sayyid Mujtaba Nur Mufidi: I am speaking in a general sense: assuming that no fault or shortcoming was committed by either the government officer or the system and state sovereignty as the government, neither in terms of enacting laws, nor in terms of execution, nor in terms of tools and facilities, it cannot be said that the government is at fault. For example, if lightning strikes and kills a hundred people, is the government at fault?

However, if we descend a step and say the event was predictable and they failed to predict it, or they lacked the tools and facilities for it, or they possessed the tools and facilities but the human factor erred and was unable to manage the affairs correctly—meaning, from the stage of prediction to the stage of the occurrence of damage and loss, several factors intervene in which the officer and employee of the government can play a role. If we wish to examine this issue from a Sharia perspective, the outward reality of the matter is that if the government employee is negligent—meaning there is no defect in the tools and means of control, prevention, and management, and only the human factor intervened—the error of this issue lies upon the government, and the government is liable.

Ijtihad: Why, under this assumption, is the employee himself not liable, and the government is liable?

Ayatullah Sayyid Mujtaba Nur Mufidi: Because the assumption is that the government employee made an error, and similar to a judge who erred and, based on his error, a damage was inflicted upon a person, it must be paid from the public treasury (Bayt al-Mal). Here, the same applies. Why should this employee, who exerted his effort, was benevolent (muhsin), and committed no shortcoming—and if there is a defect, it is, for example, in the tools and means—be liable? Here, the error is attributed to the government, and the government is liable.

However, if the shortcoming of an official or the director of an organization and institution is at fault in creating the damage—for example, how correctly did the head of the water department of a region decide in controlling the inflow, outflow, and directing the water to a dam? Was he benevolent (muhsin) or not? Some, in these critical conditions, do not comprehend the reality of the crisis and the danger threatening the people, and in those conditions, like individuals who only know how to read the book of law, lack the power of decision-making, or their organizational interests take precedence over everything.

Like a machine in critical conditions, he thinks that if he makes a certain decision, his organizational interest as the director of that organization might be damaged, and consequently, he makes a decision that results in damage. Of course, they must investigate the instances. However, if it is so, here both the government and that official are liable.

The liability of the government is by virtue of the fact that this person is an officer of the government, and this point does not negate the personal liability of the individual. In the Civil Law, the principle of civil responsibility is directed toward individuals, and they have cleared the government of this civil responsibility as much as they could. Of course, this is a defect that exists in the Civil Law.

If the government has also claimed that “we are not liable,” it is perhaps based on this existing Civil Law; meaning, from this very law, some infer that the government is not liable, and some infer that the government is liable, and there is a disagreement among lawyers in this issue. In these cases, in my view, the responsibility is directed both toward the individuals, the official, and the employee who caused the damage through that type of behavior.

The examples of this are also numerous. We ourselves have seen from close proximity that an official, during the flood crisis, insisted on a matter which, had they made a timely decision, would have resulted in less damage. Our officials do not take risks. First of all, they did not predict the depth of the disaster and thought it was something that would end quickly, and with that history of drought in the country, such floods were fundamentally unpredictable; but the official is thinking that he must be held accountable.

However, in the domain of the Civil Law, there is a legal vacuum that becomes the source of these statements. I have in mind that in the budget law, we have a line under the title of “unexpected events and the crisis committee.” The figure is not important; what is important is that from a legal perspective, a responsibility is placed upon the government.

What is predicted in the law is separate from the issue of liability (daman), and is merely support and assistance in critical conditions and natural disasters. Those assistances encompass primary housing and providing provisions, clothing, and public necessities. This responsibility is placed upon the system, and the government is also committed to it. How much it is acted upon is another discussion.

In any case, from the perspective of the Civil Law, there is nothing that directly deems the government liable in these matters, and therefore some have said that the government is not liable.

The result is that, from one perspective, if natural disasters and unexpected events occur, under any circumstance—even if in some way the people themselves are at fault in creating those problems due to ignorance and negligence—the government nevertheless bears a public responsibility.

In the next stage, if in all the domains mentioned, no negligence or fault is committed by either the government or the government officers, there is no liability (daman). If the government officer commits a shortcoming, if it is intentional and cannot be attributed to the government and the system, the individual is liable; but if this damage is also attributable to the government, both are liable.

There are also cases where, for example, the person paid attention to neither the law nor the legal obligations, and the government did not grant a permit either, and they stopped him several times, yet he built a house in the riverbed, and the assumption also is that the government dredged the river and yet such an event occurred; here, this event cannot be attributed to the government.

Sometimes the event is such that it is unpredictable, and therefore they did not dredge the rivers, and built construction within this very riverbed, and warning and prediction devices were not everywhere; this collection of matters joined hands and these events occurred. If we wish to examine the issue in relation to these conditions, we must say the government must compensate for the damage; but this point must also be noted, that the government is in severe resource constraints, and faces many difficulties in securing revenues, and therefore we must evaluate the priorities and observe the conflict of the more important and the important (tazahum al-ahamm wa al-muhim), which enters another domain, and naturally when resources do not exist, the issue of priorities arises.