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Human Rights

By:
Nader Hashemi, Emran Qureshi
Source:
The Oxford Encyclopedia of Islam and Politics What is This? Provides in-depth coverage of the political dimensions of Islam and the Muslim world through thematic examination of the major topic areas of political science as they relate to the Muslim world.

Human Rights

The term “human rights,” or huqūq al-insān in Arabic, has only recently come into common use, as have the analogous terms huqūq-i insān in Persian, insan haklari in Turkish, and hak asasi anusia in Bahasa Indonesia (Indonesian).

Early Formulations and Influences.

Concepts analogous to human rights have certain precursors in Islamic philosophy and theology, but human rights lack precise equivalents in medieval fiqh (jurisprudence). In fiqh the category ḥaqq al-ʿabd, the right of the individual Muslim, was used to distinguish cases in which legal actions against a wrongdoer were left to the discretion of the injured party or parties from other cases belonging to the category of the right of God, ḥaqq Allāh, in which prosecution was mandatory and to be undertaken by the government. One settled fiqh principle corresponding to a modern right was the right of the owners of property to seek legal relief against interference with their property.

Rather than constructing doctrines or proposing institutions designed to curb the powers of the ruler or to protect the individual from the ruler's oppression, Islamic legal thought long concentrated on defining the theoretical duties of believers, including rulers, vis-à-vis God. According to the prevailing perspective, rulers had the obligation to rule according to Sharīʿah law; their subjects were to obey them unless the order constituted a sin. The development of institutions that could place real curbs on rulers’ despotism or make them accountable to those they ruled was neglected; rebellion was commonly proposed as the remedy for tyranny.

To deal with the practical problems of protecting rights and freedoms, Muslim intellectuals and statesmen began to adopt the principles of European constitutionalism in the nineteenth century. In the latter half of the twentieth century, after the common acceptance of the principles of constitutionalism, the related question of the compatibility of international human rights principles with Islamic doctrine was raised. This debate was, however, highly politicized because of the legacy of colonialism and imperialism. During the latter half of the twentieth century Western support for Israel, despite its ongoing violation of UN Security Council resolutions, and for many authoritarian Arab/Muslim regimes brought charges of double standards and hypocrisy to the human rights debate.

The strongest influences on Muslims’ ideas came from French concepts and legal principles developed during the Enlightenment and the French Revolution. These included the first great statement of modern human rights, the 1789 Declaration des Droits de l’Homme et du Citoyen, and the 1791 French constitution, as well as concepts of public liberties. In the areas of the Muslim world ruled by Britain, which lacked a written constitution expressly guaranteeing specified rights, the models were democratic freedoms as developed in the common-law tradition and Britain's system of parliamentary government.

Many nineteenth-century officials, diplomats, and writers from Muslim countries played roles in disseminating European ideas of constitutionalism and public liberties. They included the Egyptian shaykh Rifāʿah Rāfiʿ al-Ṭahṭāwī (1801–1871), an al-Azhar scholar who studied French legal and political institutions in Paris from 1826 to 1831. He prepared a report on concepts of political rights, the rule of law, liberty, equality, and the ideas of the Enlightenment, and translated the French constitution into Arabic; in 1839 his report was translated into Turkish. The Persian diplomat Mīrzā Malkom Khān (1833–1908), who was educated in Paris, had lived in Turkey, and later became the Persian ambassador to Great Britain, wrote extensively on European concepts of government, the rule of law, and liberty, claiming that these could be reconciled with Islam. In the Ottoman realm the literary figure Namık Kemal (1840–1888) was prominent in disseminating ideas of rights and freedoms and the notion of their compatibility with Islam.

Nonetheless, it needs to be emphasized that the European colonial powers in the aftermath of the Age of Enlightenment routinely and systematically violated the rights of the colonized. Thus human rights were introduced mainly in the breech with loss of life, systematic torture in the case of France in Algeria, and the denial of liberty and freedom of speech when imperial rule was threatened. The subjugated did however use the ideas and rhetoric of rights to morally disarm their colonizer and propel their cause. It is estimated that in Algeria alone, upward of a million people died in the protracted and bitter struggle against French colonialism.

Constitutionalism and Rights.

In the nineteenth century early debates developed over differences between inherited Islamic doctrines and modern norms regarding rights, particularly concerning the equality of Muslims and non-Muslims before the law, as European powers pressed for the elimination of the disabilities traditionally imposed on non-Muslims.

The most important early reforms in the direction of realizing rights were undertaken in the Ottoman Empire, which had many non-Muslim subjects and which, because of its military and economic vulnerability, was also exposed to pressures from European powers. The hatt-ı şerif (noble edict) of 1839, reinforced by the hatt-ı hümayun (imperial edict) of 1856, was part of a series of modernizing reforms in the Tanzimat period intended to establish the security of life, honor, and property, fair and public trials, and equality before the law for all Ottoman subjects irrespective of religion. The principle of nondiscrimination based on language and race was added by the hatt-ı hümayun. In 1840 the new penal code affirmed the equality of all Ottoman subjects before the law.

By mid-century reformist pressures prompted the adoption of the 1876 Ottoman constitution, which contained a section on the hukuk-i umumiye (public liberties) of Ottoman subjects, providing for equality regardless of religion, free exercise of religions other than Islam, and freedom of worship, inviolability of personal freedom, and guarantees against arbitrary intrusions, extortion, arrest, or other unlawful violations of person, residence, or property. There were also provisions for freedom of the press, association, and education. This constitution was suspended in practice and not revived until after the Young Turk Revolution in 1908, a central goal of which was to revive the constitution and establish the equality of all Ottoman citizens. The Young Turks’ reforms expanded constitutional rights protections, prohibited arrests and searches except by established legal procedures, abolished special or extraordinary courts, and guaranteed press freedom. Turkey's second republic saw in 1961 the promulgation of a constitution that undertook in its preamble to ensure and guarantee “human rights and liberties” and made men and women equal (Article 12).

In the area of free exercise of religion, conditions were imposed to safeguard the policy of secularism adopted by Mustafa Kemal Atatürk (1881–1938), the first president of the Turkish Republic. Article 2 of the 1982 Turkish constitution proclaimed Turkey to be a law-state that respects human rights. In Republican Turkey the energetic pursuit of Kemalist secularism, beginning in 1925, led to the repression of various Islamic groups, especially Ṣūfī orders.

Popular agitation against the despotism of the Qājār shahs culminated in Persia's first constitution in 1906–1907. Persia's Shīʿī clerics were divided about the religious legitimacy of constitutionalism and its attendant rights provisions. One group of proconstitutionalist clerics, whose most articulate champion was Ayatollah Muḥammad Ḥusayn Nāʾīni (1860–1936), argued that a democratic constitution was compatible with the core values of Islam and should be supported because it placed limits on monarchial tyranny. Another group led by Ayatollah Fażlullāh Nūrī (1842–1909) opposed the constitution, citing opposition to the equality in law between Muslims and non-Muslims, freedom of the press and speech and the supremacy of human-made law over divine law.

After the 1979 Islamic Revolution in Iran official spokesmen invoked Islam as the reason for the clerical regime's hostility to international human rights, which they often dismissed as products of an alien, Western cultural tradition; however Iran did not repudiate its ratification of the International Covenant on Civil and Political Rights. The 1979 Iranian constitution in Article 20 states that all citizens shall be protected by the law and enjoy “human, political, economic, social, and cultural rights” but then qualifies them by stating they must be “in conformity with Islamic criteria.” Other articles in the constitution (Articles 21–42) that refer to basic rights and freedoms are similarly qualified by reference to religion and in case there is any doubt, Article 4 states that Islamic principles shall prevail over the entire constitution and that Islamic jurists of the non-elected Guardian Council are the interpreters of what constitutes Islamic criteria. The limitations placed on human rights correlated with the policies of Iran's clerical leadership after 1979.

The principle of equality and equal protection for women and religious minorities was breached in many ways. In the name of implementing Islamic criminal justice, the regime ignored principles of criminal procedure designed to protect the rights of the accused both before and during trial, as well as prohibitions of cruel and inhuman punishment. Religious minorities and individuals and groups opposed to clerical rule or the regime's religious ideology were excluded from the political process and were often subjected to harsh persecution. During the Reformist presidency of Mohamed Khatami (1997–2005) the human rights situation improved, especially during his first term. This was attributed in part to his own commitment to defend the rights of the people and to strengthen civil society. The proliferation of independent newspapers and the reformist-dominated sixth parliament (2000–2004) helped expose human rights abuses. Most of these gains, however, were rolled back during Khatami’s second term in office in a conservative backlash against the reform movement. Since the election of the ultraconservative President Mahmoud Ahmadinejad in 2005, the human-rights situation has continued to deteriorate.

In the Arab world a fundamental pact announced in Tunisia in 1857 under European pressure guaranteed equality for all before the law and in taxation as well as complete security for all inhabitants irrespective of religion, nationality, or race. Tunisia was the first Muslim country to promulgate a constitution, doing so in 1861 and affirming the rights established in the pact; however the constitution was suspended by the French Protectorate (1881–1956). In Tunisia as in many other Muslim countries, the independence struggle against European domination heightened people's consciousness of the importance of rights and democratic freedoms. After independence the 1956 Tunisian constitution stated that the republican form of government was the best guarantee of “human rights.”

By the end of the twentieth century all Muslim countries had adopted constitutions containing some or all of the rights principles set forth in international human rights law. The 1989 Algerian constitution was noteworthy for its guarantee of equality before the law regardless of gender (Article 28), fundamental liberties and human rights (Article 31), and human rights advocacy (Article 32). Like most Muslim countries, however, Algeria retained Islamic personal-status rules and constitutional provisions according Islam a privileged status, perpetuating the ambiguous relationship between religious and constitutional norms.

Traditional interpretations of Islamic law survived longest as the official law of the land in Saudi Arabia, but changes inaugurated in 1992 suggested that the country might be moving gradually toward a governmental system that would accord at least limited recognition to rights and constitutionalism, albeit subject to Islamic criteria. The principle that Islam entails limits on human rights was adopted in the Basic Law of Government promulgated by the Saudi Arabian regime in 1992; Article 26 provided that “the state protects human rights in accordance with the Islamic sharīʿah.” What the Sharīʿah limits on rights would entail was not defined. The basic law provided for many citizen entitlements in the area of social welfare, but only a few rights in the political or civil area were recognized. These included the provision that no one should be arrested, imprisoned, or have his actions restricted except as provided by law (Article 36); that homes should not be entered or searched save in cases specified by statutes (Article 37); that communications should not be confiscated, delayed, read, or listened to except in cases defined by statute (Article 40); and that private property must be protected and could only be taken for the public interest and with fair compensation (Article 17).

Women's Rights.

One of the areas where the clash between traditional interpretations of Islamic principles and international human rights norms remains most acute is that of women's rights. Although conservatives propounded the notion that full equality for women violated Islamic precepts, feminists argued that it was patriarchal attitudes and inadequate study of the Islamic sources that led to the notion that Islam required keeping women in a subordinate position.

In the late nineteenth century, liberal writers such as the Egyptian Qāsim Amīn (1865–1908) had already propounded the thesis that certain problems facing Middle Eastern societies—despotism, moral degeneration, and the degraded status of women—were not intrinsic to Islam but were the products of corrupting influences and social customs. While not advocating full equality for women, Amīn demanded that women's rights should be enhanced. He also linked the cause of women's freedom to the realization of freedom and rights for citizens in general. Feminists such as the Egyptian Hudā Shaʿrāwī (1882–1947) became prominent advocates of women's rights and emancipation. One of the boldest attempts to reconcile Islam with full equality for women was offered by al-Ṭāhir al-Ḥaddād, an Islamic reformer, who in 1930 published Imraʾatunā fī al-sharīʿah wa-al-mujtamaʿ (Our Women in the Sharīʿah and Society), which propounded the idea that Islam had envisaged a progressive emancipation of women; he advocated the reform of Islamic laws to eliminate obstacles to male-female equality in the domestic as well as the public sphere. For the boldness of its thesis the book was condemned with particular vehemence by conservatives and its author denounced as a heretic.

Women's equality was also a common theme among Indian Muslim modernist reformers. Mumtāz ʿAlī (1860–1935) wrote manifestos arguing for women's equality. A conservative Muslim cleric, he broke with his traditionalist brethren to articulate an Islamic exegetical basis for women's equality and founded, along with his wife, a journal on women's rights.

Unequivocal support for full equality for women came from Kemal Atatürk, who, in the wake of the Turkish war of independence, proclaimed that women had the right to equality; he subsequently took measures to remove the disabilities imposed by Turkish custom and Islamic law—without attempting to reconcile his reforms with Islamic precepts. In the Arab world the most dramatic reform was embodied in the Tunisian Law of Personal Status of 1956, promulgated by President Habib Bourguiba. Presented as an Islamic law, the code undertook bold reforms improving women's status, such as abolishing polygamy and establishing equal rights for men and women in divorce.

Into the late twentieth century many Muslim countries preserved laws that discriminated against women and denied them full civil and political rights, often in the face of constitutional provisions mandating the equality of all citizens. In general laws afforded women considerable equality outside the family; it was in the area of personal status that discriminatory features taken from traditional interpretations were retained. Saudi Arabia was notable for its reliance on its own narrow and rigidly sectarian interpretation of traditional Islam to justify its refusal to grant women rights and freedoms widely enjoyed elsewhere in the Muslim world. Saudi Arabia has also been accused by international human rights organizations of systematically discriminating against Shīʿī Muslims and religious minorities.

Few Muslim countries ratified the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, and those that chose to ratify did so subject to reservations regarding various central provisions. The reservations made by Bangladesh, Egypt, Libya, and Tunisia were specifically justified by their need to adhere to Islamic law.

Human Rights Movements.

Independent nongovernmental organizations founded for the defense of human rights have spearheaded campaigns to improve respect for human rights in Muslim countries. One of the earliest Muslim human rights organizations was established by Moroccans in December 1933 in the Spanish-controlled enclave of Tetouan as an affiliate of a Spanish human-rights organization. A human rights group with Islamic affiliations, the Iranian Committee for the Defense of Freedom and Human Rights, was formed with the participation of several religious figures; it aimed primarily at achieving democratization and the elimination of torture and of political trials in camera. A central participant was Mehdi Bazargan (1907–1995), a proponent of Islamic liberalism who went on to become Iran's first prime minister after the Islamic Revolution. He and his associates later broke with the leader of the 1979 Islamic Revolution, Ayatollah Khomeini, over the question of human rights abuses and democracy following the seizure of the U.S. embassy in Tehran. Human rights organizations in which educated professionals were prominent proliferated throughout the Muslim world in the 1980s in the face of daunting obstacles and dangers. One of the most important was the Arab Organization for Human Rights, which, like the overwhelming majority of independent human rights organizations, espoused the human rights standards set forth in international law. These organizations collaborated with international human rights organizations.

Muslim States and International Human Rights Law.

It was in the immediate aftermath of World War II that the modern international formulations of human rights were produced, setting standards that came to be incorporated in public international law. Muslim countries were among the founding members of the United Nations, whose 1945 Charter called for respect for human rights and fundamental freedoms; all Muslim countries eventually joined the UN.

Recent scholarship has shown that Muslim countries and their representatives actively participated in the formulation and negotiation of the Universal Declaration of Human Rights (UDHR) and two legally binding covenants (the International Covenant on Civil and Political Rights [ICCPR] and the International Covenant on Social, Economic, and Cultural Rights/

[ICESCR]. Some were supportive and others were not. Charles Malik representing Lebanon and Omar Loutfi representing Egypt participated in the discussions on the UDHR, Malik from its very inception.

There was no voice of Muslim unanimity but instead a diversity of opinions reflecting national and individual interests. Pakistan's foreign minister, Sir Muhammad Zafaruʾllah Khan, an Aḥmadī Muslim, argued strongly for freedom of religion. Saudi Arabia wished to omit the phrase dealing with the freedom to change religion from Article 18. Both the Indian delegate Mohammed Habib and the Pakistani delegate Zafrullah Khan opposed the Saudi motion.

The Iraqi female delegate Bedia Afnan insisted on wording that recognized gender equality, resulting in Article 3 within the ICCPR and ICESCR. Another strong proponent for women's rights was the Pakistani female delegate Shaista Ikramullah.

Aspects of the Universal Declaration of Human Rights passed by the General Assembly in 1948 provoked criticism from representatives of Muslim countries, although in the end only Saudi Arabia opposed its passage. Muslim nations differed greatly in their willingness to ratify the human rights conventions subsequently drafted under UN auspices. Muslims sometimes charged that international rights norms had a Western or Judeo-Christian bias that prevented their acceptance in Muslim milieus. In terms of the compatibility of international rights norms and Islamic law, the alleged conflicts centered on civil and political rights; issues of the compatibility of Islam with economic, social, and cultural rights were rarely raised. The principles of freedom of religion—notably the right to convert from Islam to another faith—and the full equality of persons regardless of sex or religion seemed to pose particular problems.

The charter of the Organization of the Islamic Conference (OIC), an international organization founded in 1969 to which all Muslim countries belong, stated in its preamble that the members were “reaffirming their commitment to the UN Charter and fundamental human rights.” (The organization changed its name in 2011 to the Organization of Islamic Cooperation.) The OIC charter came into force in 1973. In 1990, however, the OIC issued the Cairo Declaration on Human Rights in Islam, which diverged significantly from international human rights standards; it was not made clear how this declaration was to be reconciled with the conflicting obligations undertaken by OIC members in ratifying international human rights covenants or in their individual constitutional rights provisions, which in many cases corresponded to the international norms.

The OIC declaration extensively borrowed terms and concepts from the International Bill of Human Rights, presenting a mixture of elements taken from traditional Islamic and international law. The OIC Declaration asserted that “fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion,” but then proceeded to insert qualifications and conditions on the rights and freedoms guaranteed under international law—in conflict with international human rights theory, which does not permit religious criteria to override rights. Representative provisions included the rule in Article 24 that all the rights and freedoms stipulated in the declaration were subject to the Sharīʿah, without defining what limits this would entail.

There was no provision for equal rights for all persons regardless of sex or religion. Instead Article 1 stated that “all human beings are equal in terms of basic human dignity and basic obligations and responsibilities (not “rights”), without any discrimination on the grounds of race, color, language, sex, religious belief, political affiliation, social status or other considerations.” Article 6 further provided that “woman is equal to man in human dignity” (not “rights”), but it imposed on the husband the responsibility for the support and welfare of the family. In contrast Article 13 provided that men and women were entitled to fair wages “without discrimination.” Article 5 provided that on the right to marry there should be “no restrictions stemming from race, color, or nationality,” but did not prohibit restrictions based on religion.

The provisions regarding religion did not aim at neutrality: Article 10 stated that Islam was the religion of unspoiled nature and prohibited “any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” Article 9 called for the state to ensure the means to acquire education “so as to enable man to be acquainted with the religion of Islam.” The favored treatment of Islam carried over to freedom of speech, with Article 22(a) stating that expressing opinion freely was allowed “in such manner as would not be contrary to the principles of the sharīʿah.” Article 22(c) barred the exploitation or misuse of information “in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt or harm society or weaken its faith.” Article 18 stipulated a right to privacy in the conduct of private affairs, in the home, in the family, and regarding property and relationships. Article 15 set forth “rights of ownership” to “property acquired in a legitimate way, barring expropriation except for the public interest and upon payment of immediate and fair compensation.”

Notable for their absence were provisions calling for the observance of democratic principles in political systems and guarantees of freedom of religion, freedom of association, freedom of the press, and equality and equal protection of the law. Although torture was prohibited in Article 20, there were no provisions explicitly endorsing international rights norms in the area of criminal procedure—only the vague assurance in Article 19 that the defendant would be entitled to “a fair trial in which he shall be given all the guarantees of defense.” Since Article 25 stated that the Sharīʿah “is the only source of reference or the explanation or clarification of any of the articles of this Declaration,” the possibility was left open that a trial would be deemed “fair” as long as it was conducted in conformity with Sharīʿah norms, which were historically underdeveloped in the area of criminal procedure. There was no principle of legality per se; the provision in Article 19 that there should be no crime or punishment except as provided for in the Sharīʿah seemed to open the door to the application of taʿzīr ([discretionary] penalties), as well as rules regarding the fixed punishments for ḥadd crimes, such as amputation of the hand for theft. Article 2 prohibited taking away life except for a reason prescribed by the Sharīʿah. Reflecting the third-world setting in which Muslim nations elaborate their positions on rights, Article 11 prohibited colonialism and stated that “peoples suffering from colonialism have the full right to freedom and self-determination.” In sum the OIC Declaration suggested that the official approach of Muslim countries to civil and political rights was distinguishable from that of non-Muslim countries by reason of their reliance on Sharīʿah rules.

Today “secular” discourses in the Muslim world are widely discredited and viewed as inauthentic. Thus contemporary Muslim human rights scholars have attempted to anchor human rights discourses within an Islamic paradigm; that is, the universal is particularized within the dominant idiom of Muslim societies. Among the more visible proponents include: the human rights activist Shirin Ebadi who won the 2003 Nobel Peace Prize and the Yemeni activist Tawakkol Karman who was a co-recipient of the 2011 Nobel Peace Prize.

Shirin Ebadi won her peace prize on behalf of her struggle for the rights of children and women in her native Iran. Tawakkol Karman is a prominent human rights activist who rose to prominence for her pro-democracy struggles during the Arab Spring. Other intellectual voices include Khaled Abou El Fadl and ʿAbd Allāh al-Naʿīm. Khaled Abou El Fadl has offered critiques of modern day fundamentalists and articulated a reading that emphasizes a rights-based discourse that is premised on Islamic values and the legal debates of Islamic jurists from the medieval era. Al-Naʿīm has argued that Islamic law—and understandings of Sharīʿah—must be contested and not treated as unsusceptible to reinterpretation; that is, Sharīʿah is not divine writ itself, but rather is based on human interpretation that is inherently fallible and subject to change. He also believes that the state should not enforce Sharīʿah on society.

Muslim feminists in recent years have argued that Muslim men have arrogated to themselves alone the role of interpreters of religious law, and they now contest vigorously patriarchal interpretations of Islam. Among the most prominent proponents of an indigenous feminist reading are Zainah Anwar, Hatoon Al-Fassi, and Ziba Mir-Hosseini.

In a post–September 11th world, the ubiquitous authoritarian state remains the most significant human rights abuser in the Muslim world where torture, illegal detention, and the absence of judicial process are common. And human rights abuses at Abū Ghurayb prison in Iraq and the Guantanamo Bay detention camp and drone attacks have severely tarnished the reputation and made hollow the claim of the West as the standard-bearer of universal human rights. In Europe Muslim minorities find themselves increasingly besieged and their religious freedoms impinged. Governments, organizations, and individuals throughout the Muslim world continue to take a variety of opposing positions on human rights.

The Arab Spring witnessed the emergence of Islamic political parties that have participated in the Egyptian and Tunisian elections. They hold a variety of positions on human rights ranging from quietist and reluctant support on the part of the Muslim Brothers to Salafīs who wish to further restrict the rights of women and non-Muslim minorities. The conflicts in Iraq and Syria have also intensified and solidified the sectarian divide and conflict between the Sunni and Shīʿah. In Egypt, four Shīʿah were lynched and murdered in Greater Cairo on 23 June 2013, by a Salafī mob. In Pakistan, the Pakistani Taliban have combined ever-increasing levels of misogyny and lethal violence directed against women and girls, even going so far as to forbid girls’ education and attacking those girls who resist their strictures—most famously, Malala Yousafzai, the Pakistani teenage activist. The various terror activities against female education have no justification in Islamic legal thought and contemporary tribal practice. Pakistan's Islamist political parties remain reluctant to criticize or even accept the culpability of the Pakistani Taliban for these actions. Throughout the Islamic world, apostasy and blasphemy laws are used to target liberal Muslim thinkers, heterodox Muslims, and non-Muslim minorities. Non-state actors (jihadist groups) use these laws to legimitate extra-judicial killings of those tried, but not found guilty, particularly non-Muslim minorities in Pakistan.

There is a divide between those using “Islamic” discourses to legitimate human rights and those that interpret sacred text to obtain the opposite meaning. It remains unclear which forces are ascendant, though polling consistently reveals that a plurality of Muslims do admire and support human rights and democracy. An ever-growing number of Muslim scholars and activists are continuing the slow and deliberative process of interpreting Islamic legal principles in a way that is consonant with human rights.

[See also INTERNATIONAL LAW; ORGANIZATION OF ISLAMIC COOPERATION; TALIBAN; and TANZIMAT.]

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