Outlawing Unauthorised Fatwa through Judicial Activism

By A. H. Monjurul Kabir

The year 2001 starts with a commendable judicial intervention outlawing the continuing malpractice of fatwa. In a landmark judgement (Writ Petition No.5897 of 2000), a Division Bench of the High Court Division of the Supreme Court of Bangladesh, comprising Justice Md. 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 also ruled that giving a fatwa by unauthorised persons(s) must be made a punishable offence by Parliament immediately. The verdict was delivered against the backdrop of an increasing number of fatwas, mostly issued by mullahs, half-educated or educated with inadequate maddrasah education targeting the vulnerable segments of the society.

The High Court judgement on the first day of January 2001 will, no doubt, have significant impacts on the societal context of Bangladesh. Many NGOs, human rights activists and groups welcomed the decision while a section of religious personalities, groups and political parties including Islami Oikkya Jote (IJO) considered the judgment audacious and have already declared the two judges Murtads.

Setting the Ground

In the present case, the judges of said Division Bench issued a suo motu rule (on its own initiative, without being approached by any party) on 2 December 2000, upon a news item published in the Daily Bangla Bazar Patrika on the same day. The rule nisi was on the Deputy Commissioner of Naogaon, to show cause as to why action shall not be taken against him, for his failure to take action against an incident of illegal fatwa in Naogaon and to show cause as to why his inaction would not be violative of Section 7 of the Muslim Family Laws Ordinance, 1961 and Sections 498, 508 and 509 of the Penal Code.

According to the report a woman named Shahida, wife of Saiful of Naogaon district was forced to marry her husband's paternal cousin Samshul on a fatwa by Hazi Azizul Huq that her marriage had been dissolved consequent to an incident of about one year ago. Her husband allegedly uttered the word 'talaq' out of anger, but thereafter continued their married life. On 16 November 2000, while Saiful was visiting his sister in another village, Hazi Azizul Huq, a neighbour who claimed to have heard the pronouncement of talaq, himself issued a fatwa that Shahida must contract a hilla (interim marriage with a third person for reunion of the couple in a broken marriage) for enabling her to resume relations with her 'divorced' husband. Accordingly Shahida was forced to consummate the marriage with Samshul. Later, Saiful refused to accept Shahida as his wife and sent her back to her father's house.

On request, the Division Bench allowed Ain-o-Salish Kendra (ASK) to appear in this case as an intervenor. Considering the importance of the case, several other lawyers and experts applied before the court to be included as Added Parties. The court also accepted their applications. On 31 December 2000, the court heard their submissions on the illegality of unauthorised fatwa in Bangladesh. Citing a number of instances of fatawabazi (issuing and enforcing fatwa) Dr. Kamal Hossain, on behalf of the intervenor, submitted that those of fatwas were the open challenge to the fundamental rights guaranteed under Articles 27 (Equality before law), 28 (Discrimination on grounds of religion etc.), 31(Right to protection of law), and 35 (Protection in respect of trial and punishment) of the Constitution of Bangladesh. Ms. Tania Amir contended that the instant fatwa is a punishable offence under section 508 of the Penal Code and there are also other sections in the Code to punish the person involved in the execution of the fatwa. Mr. Amir-ul Islam also endorsed the views expressed by Dr. Kamal Hossain and Ms. Tania Amir.

Judging the Judgment

Unfortunately in some newspapers the judgement has been given undue credit of reforming Muslim law of talaq; some dubbed the judgement as progressive as it purportedly "has overturned a provision of the Islamic law." Such misinterpretations of the judgement are bound to create confusions in public. It is important to analyse the judgement on the basis of its content. The judgement has a number of critical aspects to be considered:

Reaffirming and Reinforcing Existing Law: In Bangladesh section 7 of the Muslim Family Laws Ordinance (MFLO) governs the method relating to the dissolution of a Muslim marriage at the instance of the husband and the remarriage after the dissolution. Section 3 of the MFLO asserts that the provisions of this Ordinance shall prevail over any other law, custom, and usage. The MFLO in section 7(6) clearly discourages hilla marriage. Dissolution of marriage simply by uttering the word 'talaq' once or thrice at the same time is against the dictates of the Quran and the Hadith as well as invalid in law under section 7 of the MFLO.

Defining and Distinguishing Fatwas: Fatwa is defined as a legal opinion of a lawful person or authority; therefore, the judges do not find any authority except the courts of law to decide all questions relating to legal opinion on the Muslim and other laws as in force. The judgment makes it clear that frequent religious sermons as issued in many parts of Bangladesh specially in rural areas in the name of fatwa do not reflect the fatwas as understood under shariah.

Enacting Legislation: The judges strongly recommend for enacting a legislation that will penalise the unauthorised practice of issuing and enforcing illegal fatwa. It will be interesting to note how the House of the Nation (Parliament) responds to this request specially when a group of MPs and politicians propagating the so called myth of parliamentary sovereignty and ostensibly demanding for establishing parliamentary control over judiciary.

Promoting Proper Religious Education: The judges observe that the existing maddrasah education is defective and as a short term measure, they recommend that study of Muslim Family Laws Ordinance must be introduced not only in maddrasahs but also in schools.

Utilising Formal Religious Assemblage: The Friday Jumma prayer is of extremely importance as Imams/Khatibs deliver weekly khutba (religious sermon) on different aspects of life and living. The judges recommend the concerned authority to direct the Khatibs of all the mosques to discuss the MFLO in their Friday sermons.

Unifying Different Systems of Education: They rightly point out the need to address the wider social causes contributing to the practice of fatwas and as a long -term measure, the judges propose for introducing a unified education system.

Controlling Freedom of Religion: An enactment to control the freedom of religion subject to law, public order and morality within the scope of Article 41(1) (Freedom of religion) of the Constitution should be promulgated. The judges strongly underscore the need to define and enforce public morality. They remind the state of its duty to educate society.

In fact, the judgement fervently calls for concerted action to combat religious extremism both on the part of the state and the non-state actors including numerous mosques across the country.

Engendering Judicial Activism

Like some of the progressive courts of the world, the judiciary of Bangladesh is also trying to adopt an activist, goal oriented approach in the matter of interpretation of fundamental rights. It has expanded the interpretation of fundamental rights and in the process rewritten some parts of the Constitution through a variety of techniques of judicial activism. The present judgement on fatwa is a glaring example of such activism. The transition from traditional captive agency with a low social visibility into a liberated agency with a huge socio-political feasibility is an interesting development. The Supreme Court of India has already undergone a radical change in the last few years and it is now increasingly being identified by justices as well as people as 'the last resort for the purpose of the bewildered.' It has, through judicial activism, found a new historical basis for the legitimization of judicial power and acquired a new credibility with the people.

Judges should be afforded full protection against any threat or coercion they might have to face for being activist in their approaches. At the same time, the judiciary has to take into consideration indigenous reality and the spirit of the constitution and the laws of the land as well. In this regard what Justice J.S. Verma of the Supreme Court of India in the Jain Hawala case opined is worth remembering "judicial activism is like a sharp-edged tool, which has to be used as a scalpel by a skillful surgeon to cure the malady not as a Rampuri knife, which can kill."

Urgency for a Knowledge-Based Dialogue on Religion

Undoubtedly the judgment, still subject to appeal, is a landmark one. It reinforces the trend of interpreting Quran on the basis of human rights and human dignity for which Islam is regarded not as a mere religion but as a complete code of life, a progressive philosophy of life. It also reminds us the daunting task of interpreting Quran should be left with the most learned segment of the society, not with self-proclaimed, semi-educated experts. Islam is a religion of peace and considered as the most progressive one among all other religions even by its vehement critics. The language of threat, fear, awe and hatred as often uttered and pronounced by so-called religious leaders of the country is not of Islam. Unfortunately a section of orthodox people with improper or inadequate religious education has been discharging the crucial responsibility of preaching and interpreting Quran, Hadith and other Islamic aspects of life for quite a long time taking full advantage of the apathy of the concerned and liberal segments of our society. This trend has to be reversed. We have to be very cautious also about the common western propaganda that Islam is anti-human rights and therefore, any stand against it is synonymous with progressiveness. There is, in fact, no alternative of engaging into knowledge based dialogues on religion and civilisation. The High Court Judgement is a crystal-clear reminder of that.

Source: The Daily Star, Dhaka, January 7 ,  2001
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