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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 223
June 18, 2011

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Law Alter Views

Misapplication, but not the Fatwa
itself be banned

Md. Harun Reza

It is not permissible to declare a law illegal due to its misapplication; rather it would be wise to take initiative to give proper treatment of that law. No doubt Fatwa is valid in Islamic law, if complied with Islamic Jurisprudence. How far it is rationale to harass people in the name of Fatwa is prime concern of the present Endeavour.

What is Fatwa
We can define Fatwa as religious opinion concerning Islamic law issued by Islamic scholar. Normally Fatwa means to give solution to the problems relating to Islamic law. Therefore, when an Islamic erudite scholar gives his opinion on any matter of Islamic Shariah on the basis of Quran, Sunnah, Ijma, qias & prevailing circumstances, it is called Fatwa.

Nature of Fatwa
Fatwa generally means to reply any query. Recently a misconception has grown among the populace that Fatwa is issued and used only against women to suppress them in the form of Hilla Marriage, beating, throwing slues, verbal divorce, compelling to live lonely etc. In fact Fatwa is not the same. It can be interpreted that Fatwa forms on aspect of our legal system. Mass people feel free to oblige Fatwa whereas law is mandatory and necessarily people are bound by law.

Who are eligible to give Fatwa
Mufti Mizanur Rahman secretary of Bashundhara Islamic Research centre as amicus curie has opined before Supreme Court that only competent person can give Fatwa. In order for a scholar to be qualified to issue a Fatwa, it was required that he must have obtained license to teach and issue legal opinions. In addition he must have due knowledge and sincerity of heart about the issue. The so-called religious clerics are in no way authorized to issue Fatwa. It is worthy to mention here that in Bangladesh usually ill-literate Matbar, Imam and influential personnel issues Fatwa resulting serious sufferings to the victim. In fact Fatwa must have issued and done in correspond with Quran, Sunnah, Ijma & qias. Otherwise it would be defrauding to citizen & punishable in law. Our Apex court has also affirmed that only competent person are eligible to issue fatwa though the term 'Competent' has not been well defined.

HENA episode and Fatwa in Bangladesh
In 1993 the issue of Fatwa came up in the caption of dailies of Bangladesh where Nur Jahan Begum were compelled to death by throwing stones. Very recently the term Fatwa attracts the attention of the people of Bangladesh. It is due to the episode of “Hena's death” being a victim of mistreatment of Fatwa. Hena, a 14 years girl was caused to death through inflicting “Dorra”. Salish consisted of 5 members headed by one ward member with local Imam & teachers of Madrasha, gave verdict to impose Dorra. Whether the Salish board has authority to issue Fatwa is the central question here. No one is authorized to impose punishment beyond tenets of law. It tantamounts to violation of Art 35 (1) of Bangladesh constitution.No Fatwa should be enforced which results in deprivation of other's rights. For example, in rural areas the so called Mufti or local Matbar declares a marriage invalid or compels a family to live lonely or directs an innocent girl to death. Without any doubt, all these determine personal as well as social prestige of the victim family. It is absolutely interference to freedom of life, the most precious fundamental rights in broad sense. Recently the ambit and misapplication of Fatwa have been rising tremendously in our society. At the beginning of the year it is noticed that in the name of Fatwa some religious fanatics attacked our culture by compelling the bauls to get their mustache and long hair cut terming it as anti-Islamic.

Maltreatment of Fatwa and Criminal Offence
Many of our legal experts put forward that as there is no specific legal provision regarding Fatwa, so it is becoming difficult to bring the clerics under the process of law. Some people argues that issuing Fatwa is a criminal offence under our penal law. Again issuance of Fatwa beyond authority is necessarily an offence under section 34 of penal code for persecuting common intention. When any person declared that I have issued this Fatwa and two others on behalf of him enforced it, then it would come under the very doctrine of common intention or abetment. Then it comes very much within the ambit of section 100 of penal code.

Supreme Court Initiative
A division Bench of High Court Division(HCD) consisting of Justice Golam Rabbani and Justice Najmun Ara Sultana declared all punishments imposed in the name of Fatwa illegal on January 1, 2001. The HCD issued it on its own initiative. An appeal was preferred against that order. After a long time hearing on the issue commenced on February 1, 2011. The court appointed some amicus curie to assist it in reaching decision. In the meantime the HCD following the episode of HENA, issued 8 directives. Amongst others, these are, to run a campaign at all mosques, madrasas and union parishad across the country identifying Fatwa as criminal offence. The Appellate Division of the Supreme Court on 12th May has given solution to the proceedings pending before it for about 10 years confirming Fatwa valid in cases which are purely religious in nature. But it is neither be enforced nor any physical or mental pressure be imposed in any way. People at large welcomed the verdict though there still remains some vagueness in understanding some terms used in the primary order.

To meet up the new challenges & situation of Islamic law one might resort to Fatwa. But how this Fatwa is exercised and enforced is the prime concern. Anyone found guilty of abusing Fatwa can be brought before law. To that effect the government should take initiative to prevent its misapplication. However the govt. may think of establishing Fatwa Board consisting qualified, updated and expert Islamic scholars. The responsibility of the board may be to render Fatwa in the light of the Holy Quran, Sunnah, Ijma & Qias and to restrain any sort of abuse of Fatwa.

The writer is Lecturer of Law, Bangladesh University of Business & Technology, Dhaka.





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