Aviation Security Provisions Vs. Basic Fundamental

An Islamic Law Perspective

Many of our global security practices are challenged as being an invasion of privacy and/or contrary to our basic human rights. Yet the avalanche of threats facing the industry have necessitated government regulators to propose measures which, whilst not ideal, protect the aviation industry itself, and the passengers and aircrew who take to the skies. We tend to debate the issue from a sociological perspective but common law has its base in religious doctrine. Granted the current security environment, Dr. Ismail Adua Mustapha Ph.D., explores the issues from the perspective of Islamic law and demonstrates how, whilst we have fundamental human rights to privacy and a right to freedom from discrimination, this obligation can temporarily be suspended in an emergency situation.

Islamic law is a legal system that is different from other legal systems. It is an embodiment of rules guiding all spheres of human endeavours. Allah said: “Nothing have We omitted from the Book…”1 While other legal systems are only promulgated to guide worldly affairs between human beings, the purport of Islamic law is beyond human imagination as it is designed to educate the people on worldly affairs and life in the hereafter.

Aviation security and basic fundamental human rights are two issues that must be guided and protected rigorously by whatever means that are within the reach of an individual and, where pertinent, any Islamic state. They involve life, religion, and property, which are described as important aspects of human existence (Maqasid al-Shari’ah). In the 21st century, the protection that needs be given to these aspects of our lives is being shaken and derogated because of conflicting interests between providers of aviation security services and human rights activists. Security service providers, it is argued, elect to dispense with basic fundamental human rights in the interest of aviation security. In defence, the providers cite several instances of unlawful interference with civil aviation, the consequences of which have resulted in loss of lives and property. The activists vehemently oppose this proposition and contend that under no circumstances should these rights be derogated.

Basic fundamental human rights are restricted to the right to privacy and freedom from discrimination. These rights are derived from the principle in Islamic law known as Maqasid Shari’ah. Thousands of western scholars have written and commented on the conventional analysis of basic fundamental human rights, yet few have focussed on the Islamic perspective on these rights (or, for that matter, those of Christianity, Judaism, Buddhism or any other faith). It is from this perspective that this article will examine the basic fundamental human rights, and appraise the aviation security procedures that are considered to impinge upon these rights with a view to balancing the conflicting interests of the security service providers and human rights activists.

BASIC FUNDAMENTAL HUMAN RIGHTS UNDER THE ISLAMIC LAW

I. Right to Privacy
The term ‘privacy’ can be widely interpreted.
2 However, Warren and Branders define it as a, “right to be let alone”.
3 It seems Warren’s definition is similar to the earlier use of the term as contained in Q49 v. 12 in which Allah SWT says: “And do not spy…”
4 “Right to be let alone” and “do not spy” are strikingly similar; in fact, they are both intended to highlight the right to privacy. Prophet Muhammad (SAW) elaborated on this right to privacy to condemn eavesdropping:
5 Islamic law forbids eavesdropping as being contrary to the right to privacy of information. Prophet Muhammad said: “Do not eavesdrop; do not spy on one another…”
6 These authorities testify to the right of each person to control information about himself; the use of data collected; and to determine the circumstances in which that information may be published or made accessible to the public. According to these authorities, infractions of these rights are punishable in the sight of Allah.
In addition, Islamic law has deep respect for human dignity as a form of right to privacy. Dignity may be interpreted as “decency, non-degradation, and self-esteem”.
7 It is “the autonomy of an individual in addition to their having the right to make a decision”.
8 The Qur’an reads: “Certainly we gave dignity to the Children of Adam…”
9 Mohammad and Kalantarkousheh posit that dignity is exclusively given to human beings.10 The kind of dignity Allah has given to the children of Adam is unquantifiable. Out of respect for human dignity, Qur’an 24 v. 27 warned Muslims about entering another Muslim’s apartment without necessary consent being sought and obtained. Furthermore, the Qur’an stipulates that it is forbidden to unnecessarily expose the human genitalia to another person, except one’s husband or wife.11 Acting in contradiction without legal justification amounts to indecency and obscenity.