Reinterpretation of sharia in the light of social conditions will ensure human rights

Law Desk (LD): What is your opinion regarding the growth of Muslim personal laws since independence of Bangladesh?

Anisur Rahman (AR): In the South Asian legal context, personal laws have undergone development through legislative enactments, policies, and judicial interpretation. Over the period of three decades post-independence, there have been three distinctive types of development with regard to Muslim personal laws. For the first decade, the growth happened through a rights-based approach. A significant step forward was the introduction of Kabinnama incorporating the provision of delegated divorce. In the first two decades, the judiciary contributed to a rights-based development by way of interpretation of the Muslim personal laws touching lives of women– one of the landmark judgments in this regard was regarding custody of children (Abu Baker v. Bakar, 1985). The judgment came in stark contrast with the previously existing legal positions where a colonial, protectionist approach was preferred. In the following decade, a development-based approach can be said to have been adopted by the Supreme Court of Bangladesh – an utilitarian neo-Ijtihad, said Clark Lombardi (2006). In this approach, women's rights were considered in development terms (or social progress) and judges sought to reinterpret revelations disregarding the rulings of the previous jurists. In this regard, we may mention the Hefzur Rahman (1997) case, through which our judiciary entered into a global debate over Islamic modernity. This led to another development in the third decade, the increasing involvement of human rights-based non-government organisations in the production of knowledge to be considered as Islamic law. The human rights approach and its vocabularies had come to replace Islamic legal traditions. In reaction, a neo-traditionalist approach reappeared in the judicial interpretation as our Supreme Court had invited religious clerics in the making of Islamic law. The latter group not only became part of the judicial law making in Bangladesh—the nascent [claimed] secular state— but also claimed legal authority to interpret Islamic law in the court (M. Tayeeb v. Bangladesh, 2012).

LD: The colonial rulers purported to 'reform' personal laws. Hundreds of years later, we still question whether these reforms furthered pro-women or pro-political ends. With regard to reforms of personal laws, how do you evaluate the colonial legislative legacy?

AR: The reforms undertaken during colonial rule were largely political, in my opinion. In our country, we have been following the colonial tradition, which, perhaps, has been considered a secular tradition.  (The Momtaz Begum v. Anwar Hossain (2011) is a classic example of examining colonial legacy in the interpretation of Islamic law in Bangladesh.) As a result, enough attention has not been paid to developing Islamic jurisprudence. It is important to understand how secularism has developed in other countries of the world – for example, in France and the United States. In the context of our country, it is important to remember that we should not understand secularism to mean an absence of religion, rather a platform for equality between and among all religions. It has been a great concern how to separate religion from politics in a multicultural/multi-religious society.

LD: How do you evaluate the role of the judiciary in interpreting personal laws and upholding women's rights? 

AR: Overall, the judiciary has played a commendable role. Two approaches are noticed– modernist and traditionalist. However, it is also to be mentioned that there are some noticeable discrepancies between these approaches. With regard to some recent cases, we can see some gaps in terms of interpreting the sharia. In the recent Kabinnama case, the outcome was very positive in the sense that there should not be use of words indicating whether or not the bride is a virgin – this is discriminatory and a violation of the right to privacy. So the decision of the court is worth praising. However, the issues of the case were framed on the premise of the constitutional principles instead of Islamic law.

In contrast, as to the question of a Muslim Marriage Registrar and the very recent controversy that emanated from an observation of the higher judiciary lately– that was not an issue connected to sharia. The way the issue has been connected to sharia (if not the Quran) in bringing in menstruation to the discussion, deserves some attention. The judgment does not unambiguously discuss the sources of the sharia principles connected to the issue, rather has used the latter to determine the legality of state actions – this is a unique endeavour. There are a few instances before where sharia is used to determine issues governed by public laws, unlike religious laws. These are instances of inconsistencies.

LD: Bangladesh ratified CEDAW in 1984 but with reservations on articles 2, and 16.1(c) that deal with the equal rights of women during marriage and divorce.  How do you see the position of Bangladesh regarding such reservation?

AR: In Bangladesh, men and women have respective rights in marriage and divorce, particularly in the light of the judicial interpretations and existing laws. One area in which there remains discrepancy is the economic right of women, i.e., post-divorce maintenance, inheritance. This has been a contested issue and we do not have any positive legislation or decision of the court in this regard. Our Supreme Court has missed an opportunity to positively decide on the issue while dealing with the Hefzur Rahman case in 1997. The latter is an important case to understand the way the traditionalist approaches to sharia have become dominant following the Islamisation of the constitution during the successive military regimes that ensued after the assassination of Bangabandhu Sheikh Mujibur Rahman, the founding father of Bangladesh.

It should also be noted that scholars of Islamic law have expressed that the human rights instruments have been adopted without paying due regard to Islamic culture and jurisprudence– as a result, Muslims may view these instruments as interventions upon their faith. The way out from this would be to reinterpret sharia in the light of social conditions to attain the objectives of the international human rights law. Allama Muhammad Iqbal has nicely elaborated on it in his lectures, a collection of which is published in 1974 under the title of The Reconstruction of Religious Thought in Islam.

We should not dispute that the ultimate objective of sharia is to establish social justice, and this is not in contradiction with the objectives of human rights.  Keeping it in mind, we can interpret sharia in a way that advances human rights guaranteed in the constitution and international legal instruments.

LD: What would be your suggestion to foster the development of Muslim family law jurisprudence in the context of Bangladesh?

AR: We have to recognise that the Islamic jurisprudence must be properly developed in order to gain mass acceptance and to show that sharia and human rights are complementary to each other – this has to be done through judicial interpretation. We have to carefully evaluate where there is a scope of judicial Ijtihad. One such instance, as mentioned, is the judgment concerning custody of a child, wherein the absence of clear legal provisions was found and utilised as an opportunity for a pro-woman and pro-child (in the light of the best interest of the child principle) interpretation. We shall not outright eliminate discussions of Islamic legal thoughts— this will give rise to questions regarding the acceptability and legitimacy of a judgment.

LD: Thank you for your time.

AR: Thank you.