Fatwa and the High Court


Bangladesh has been fortunate to get a lead from the judiciary. It is the ultimate protector of its citizens. By going as far as they can go, the judges have shown the way to our nation.

On New Year's Day a Division Bench of the High Court Division of the Supreme Court of Bangladesh comprising Justice Mohammad Gholam Rabbani and Justice Najmun Ara Sultana, the first woman judge in the country, declared any fatwa issued from an unauthorised source is illegal and be made a punishable offence by the Parliament immediately. Whereas the civil society by and large welcomed the judgment voices started rising from those who have made it a practice to pronounce fatwa in season and out of season.

There are some remarkable features of the judgement. The judges issued a suo moto (of its own volition) rule. This landmark judgment was triggered by a report in a Bengali daily which reported an incident of illegal fatwa in Naogaon and the judges demanded from the district authority as to why his inaction would not be violative of Section 7 of the Muslim Family Laws Ordinance. According to the report a woman named Shahida, wife of Saiful of Naogaon was forced to marry her cousin because her marriage was supposed to have been dissolved on the pronouncement of the word 'talaq' by her husband. She was forced to undergo a 'hilla' marriage in order to remarry her husband, with whom she was living all the time. Later Saiful refused to accept Shahida and sent her to her paternal home.

The famous lawyer Dr Kamal Hossain, appearing on behalf of the intervenor submitted that fatwa was an open challenge to the fundamental rights whereas the young lawyer Ms Tania Amir pointed out that instant fatwa is punishable offence under section 508 of the penal code. Well-known Barrister Amir-ul-Islam supported the point of view of both.

What is a fatwa? Fatwa is defined as a legal opinion of a lawful authority and the only authority is the court of law. Thus frequent use of fatwa especially in the rural areas is prone to great abuse. The judges strongly recommended enactment of legislation by the Parliament that will penalise the unauthorised practice of issuing illegal fatwa.

Going a step farther the judges have found that Madrassah education is defective and as short term measure they recommended the study of Muslim Family Laws Ordinance in all the schools including the Madrassahs. The judges have suggested that during Juma prayers the Imams should include Muslim Family Laws Ordinance and bring out the salient points. In a landmark decision the judges have recommended a uniform system of education.

This historic judgment is bound to have far-reaching repercussion on the nation as a whole. It has challenged the civil society to sit up and face its responsibilities towards the underprivileged, the weak and the vulnerable. It specially demands of the society that it protects the rights of women, who are at the bottom end of the scale in economic and social development. The judges challenged the obscurantists to face the opprobrium of the civil society.

As events have unfolded the fatwabazs have not hesitated to react. Through their spokesman Mufti Amini and Sheikhul Hadis they have pronounced the two judges 'Murtad' They have launched a vicious campaign against the judges. It is a matter for the authorities to ponder whether the two fatwabazs have transgressed the limits and criminal proceedings are called for.

By their very important verdict the judges have attempted to banish fatwa, which is a bane of our rural society. By using the case at Naogaon the judges have made observations of a most sweeping kind. They have challenged the politicians to enact legislation to deal with the matter of fatwa. So far we do not see any movement from the political parties. I would venture to suggest that it is the ruling party, the Awami League, from whom the nation is expecting a lead in this matter. If we analyse the judgment we find that its contents are secular in character. The Awami League has a long history of struggle for establishing secularism in what is Bangladesh. That struggle coincides with the history of the Awami League. In the early days of Pakistan the Awami League fought for joint electorate and won.

Of the four pillars on which the sovereign state of Bangladesh was founded, secularism was supposed to be the most important one. Since the assassination of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman and his family and close associates in 1975, successive governments have mauled the Constitution to a point that it is almost unrecognisable. It is the same old Pakistani game. The Pakistanis played with the religious sentiments of the people in order to earn cheap popularity. As history has proved again and again, the so-called Islamic card fails to produce any electoral benefit. Why is it that Jamaat-e-Islami and other so-called Islamist parties fare so poorly at the polls?

It is time to pronounce loud and clear that secularism is an inseparable part of our existence. Bangabandhu Sheikh Mujibur Rahman had incorporated secularism as one of the pillars of the state. By so doing he reflected the national will. If we want to honour our motherland and the role of the Father of the Nation, we must place secularism where it belongs in our Constitution.

The two judges have laid great stress on secular education and as a long-term measure have advocated unified education. The fact that obscurantists have a free run is mainly because of illiteracy and two systems of education. I may illustrate my point with the example of Turkey. Ninety-nine per cent of the Turkish population are Muslims. The Turks are deeply religious although they abhor any showing off. Following the defeat and dismemberment of the Ottoman Empire after the First World War, the Turks under the leadership of Mustafa Kemal Ataturk fought their war of independence and drove the enemy away. The proximity of Europe had a profound influence on Turkey and Ataturk undertook sweeping reforms, which transformed the society. The main pillar of his reforms was secularism. It means the state and religion must remain separate. Turks very rightly and proudly proclaim that they have shed more blood for Islam than any other Muslim people. Based on their unhappy past riddled with fatwas from so-called religious zealots, Ataturk totally banned Turbas and similar religious outfits.

The patriotic armed forces of Turkey consider them as the guardians of Ataturk's reforms. Most importantly they stand vigil over secularism. Since the armed forces spring from the nation and have a heroic past, they enjoy unbounded affection and approval by the masses. Thus in 1997 when Necmettin Erbakan, the Prime Minister of the Islamist party called Welfare Party, strayed to far away from the secular moorings, he was virtually ousted in a manner which would appear highhanded. The armed forces moved in order to defend the state and its secular principles.

There is an institution in Turkey called the National Security Council, which meets regularly under the President of the Republic and the members are almost evenly divided between civilians and the military. It is the highest policy making body and under the prodding of the armed forces, it adopted a landmark decision by which the students were obliged to attend secular schools up to the age of 15, thereby virtually abolishing what is known as the Imam-Hatip (our Madrassah) school. Our two judges by pronouncing in favour of unified education have in fact given the lead for secular education. Education is the foundation of all progress and education of different varieties only leads to confusion within the nation.

Bangladesh has been fortunate to get a lead from the judiciary. It is the ultimate protector of its citizens. By going as far as they can go, the judges have shown the way to our nation.

Source: The Daily Star, Dhaka, January 15 ,  2001
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