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Umh!, Whats this? |
Neighbours January
2001
Verdict against fatwas
In what could be seen as an extraordinary New Millennium/New
Year gift to the nation, a division bench of the High Court in Bangladesh
ruled on January 1, 2001 that all fatwas are unauthorised and illegal.
The court went on to say that the very issue of fatwas should be made a
punishable offence.
To give to our readers a feel of how the news was
received inside Bangladesh, we reproduce below the news report on the verdict,
the editorial that followed and an opinion piece, all published in the
country’s leading English daily, The Daily Star.
Fatwa illegal, declares HC
By Special Correspondent The High
Court yesterday ruled that any fatwa or ‘le gal opinion’ not given
by a court is unauthorised and illegal. A division bench of the HC gave
the ruling in its judgement in a case concerning a housewife at a Naogaon
village.
The housewife, Shahida of Atikha
in Sadar upazila of Naogaon, was reportedly given talaaq (verbal divorce)
by her husband and was forced to marry his cousin following a fatwa for
hilla (forced marriage) given by a local maulana.
“Fatwa means legal opinion which
means legal opinion of a lawful person or authority. Legal system in Bangladesh
empowers only the courts to decide all questions relating to legal opinion
on the Muslim and other laws in force,” the court said.
“ We therefore hold that any fatwa
including the instant one is unauthorised and illegal”, said the HC Bench
comprising Justice Mohammad Gholam Rabbani and Justice Nazmun Ara Sultana.
The judgement came on a suo motu
rule issued by the court on the district magistrate and deputy commissioner
of Naogaon, Lutfur Rahman, on December 2 following a newspaper report on
the plight of Shahida.
Subsequently, Ain–o–Salish Kendra
and feminist groups filed a writ petition as intervenor. Eminent lawyer
Dr Kamal Hossain represented the petitioners. The HC judgement said, “Marriage
between Shahida and her husband Saiful Islam was not dissolved and that
for the sake of argument if it is taken that the marriage was dissolved,
even then there was no legal bar for Shahida to remarry Saiful without
an intervening marriage with a third person. The fatwa in question is wrong”.
It went on, “Giving a fatwa by unauthorised
person or persons must be made a punishable offence by the Parliament immediately,
even if it is not executed”.
The division bench observed, “We
further hold that the respondent district magistrate should have immediately
taken cognisance of the said offence under Section 190 of the Code of Criminal
procedure. We are, however, satisfied with the steps taken by the respondent
as stated in his affidavit–in–opposition. Let it, we hope, be the once
for all warning to the other district magistrates, the magistrates and
the police officers.”
The bench further said, “Before
parting with this matter, we find it necessary to answer a question as
to why a particular group of men, upon either getting education from madrassa
or forming a religious group, are becoming fanatics with wrong views. There
must be defect in their education and their attitude.”
It suggested introduction of Muslim
Family Ordinance in the curriculum of madrassas and schools and sermons
during Friday prayers.
As a long–term measure, the court
recommended “an unified education system and an enactment to control the
freedom of religion subject to law, public order and morality within the
scope of Article 41 (1) of the Constitution.” It noted, “The State must
define and enforce public morality. It must educate society”.
The bench directed the court office
to send copies of the judgement to the ministries of home, law, education
and religious affairs immediately.
A large number of women’s rights
activists including Maleka Begum and barrister Tania Amir who was the amicus
curie in the case were present in the court yesterday.
Meanwhile, Maulana Haji Azizul Islam
who gave the fatwa for hilla and five others are facing prosecution following
steps taken by the district administration of Naogaon.
In November last year, Shahida was
forced to go for hilla as dictated by the maulana. He claimed to have overheard
talaaq pronounced three times by Saiful during a family feud about a year
and a half ago.
The maulana arranged the forced
marriage of Shahida with Saiful’s cousin Shadidul when he was away from
the village and subsequent divorce after a day. But Saiful refused to accept
her. The DC of Naogaon told the HC in an affidavit that Maulana Azizul
Islam was arrested on December 6. Five others including the person who
conducted the forced marriage are also in custody. At the initiative of
local union parishad, Shahida and Saiful are now living together, the DC
added.
(The Daily Star,
January 2, 2001, news report)
Implement the verdict on fatwa
This is a gigantic step forward
we have potentially made in the women’s modernising process by virtue of
a single High Court verdict in a public interest litigation of monumental
significance. In very unambiguous terms a division bench of the High Court
has declared ‘fatwa’, the so–called legal opinion not delivered by any
court, as ‘unauthorised and illegal’. Fatwa has been the cause of many
a woman’s ruination. The far-reaching import of the HC ruling lies in the
pronouncement of any fatwa including the instant one as unauthorised and
illegal together with the suggestion that fatwa be made punishable “even
if it is not executed.”
It bears an ample testimony to the
rising tide of benign judicial activism. For, the judgement came on a suo
motu rule issued on district magistrate and deputy commissioner, Naogaon
taking cognisance of newspaper reports on the plight of fatwa victim Shahida.
Then came the writ petition filed by Ain–o–Salish Kendra and feminist groups
who were duly represented by Dr Kamal Hossain in the court. Our kudos to
the judges and civil society activists.
Fatwa has essentially had nothing
to do with religion. It has been conveniently used by the clerics as an
instrument of power–play in cohorts with local influentials and a vehicle
for assertion of bigoted religious authority over the community. It has
taken hold on the rural folks whose general level of education is low.
With the least knowledge of what the true religious tenets are all about
they are easily bamboozled into accepting the edicts that the so–called
men of religion dish out to them.
Seminally, of course, there is the
coterie interests to catalyse the chemistry. Such an abuse of religion,
repugnant as it has been to the civil society at large, has now been dealt
a body–blow by the upholder of the Constitution, the highest judiciary
of the country. It is for the government now to implement the verdict in
full including the recipe for legislating a law through Parliament that
will provide for deterrent punishment to those who dare deliver fatwa again,
regardless of whether it is ‘executed or not’.
A word of entreaty for our religious
leaders: please welcome the verdict, spread the words of sanity in keeping
with the true spirit of our religion and help the society out of the mire
of tyrannical orthodoxy and obsolescence.
(The Daily Star,
January 3, 2001, editorial)
Fatwa, HC verdict and recalcitrant
clerics
By AH Jaffor Ullah
On the first day of the year 2001we
just read the news emanating from Dhaka at
Bangladesh’s High Court had finally given its verdict on legality of fatwa,
the religious edict, in the impoverished nation of 125 million people.
Two judges declared that fatwa is illegal in Bangladesh. This news was
welcomed by most of the sensible people because for too long the religious
edict is used as a tool against women in Bangladesh. Therefore, civil rights
groups and other organisations that are helping the women have welcomed
the judges’ decision. But we knew then that some mullahs would strike back.
Well, just that happened sooner than we thought!
A BBC report came recently in which
the headline read “Islamic group attacks fatwa ruling.” In that report
it was mentioned that an extremist Islamic group in Bangladesh has denounced
two High Court judges as apostates for delivering the landmark decision
against the use of fatwa.
According to the BBC report, one
mullah by the name Fazlul Huq Amini representing the Islamic Unity Alliance
had already threatened to launch a nationwide campaign against the landmark
verdict handed down on Monday (January 1). This verdict had outlawed any
such fatwa in the nation. Most of the freedom loving people in Bangladesh
who value personal freedom heaved a sigh of relief hearing the High Court
decision.
In rural Bangladesh mullahs particularly
think they have monopoly over the settlement of marriage and divorce. Fatwa
is the weapon they won’t give up so easily. They will fight tooth and nail
to hold onto the power of delivering fatwa. This makes them all too powerful
in rural society where the tentacles of law quite do not reach the common
folks.
The government should take precautionary
measurers to thwart the evil design of such extremists. We hope Bangladesh’s
political parties will show solidarity to back up the decision.
After a long time we are just beginning
to witness the social reform in our impoverished motherland. The High Court
judges have shown enough courage to outlaw fatwa. Now some extremist mullahs
want to get even with the judges and that is the reason the call for apostasy
just came because they know that their power would be curtailed by the
enactment of the new law. More than anything, the judges now need protection.
The government should immediately arrest Fazlul Huq Amini and his ilk for
his offensive way of challenging the court decision.
Rather than calling the judges murtad
(apostate) they could have challenged the judges’ verdict in a lawful way.
The big task for the government would be to show such recalcitrant clerics
that Bangladesh is not a lawless nation as perceived by them and no one
is above the law.
(The Daily Star,
January 6, 2001, opinion)
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