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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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