Zero tolerance for fatwas that violate human rights
On December 12, 2017, Bangladesh Police arrested Abu Musa, an imam of a local mosque in Kumarkhali upazila of Kushtia district, for issuing a fatwa prohibiting women from going out of their homes to work in farm fields. Five other mosque officials were also arrested which included President of the Kalyanpur Mosque Committee and its Secretary. The Fatwa was issued on Friday, December 8, 2017, after jummah prayers and the men even used the mosque's loudspeakers later that evening to announce and spread the message. The announcement induced inhabitants of the town to try and prevent the local women from going to work in the fields. In fact, a local woman named Alo Khatun, who raises goats at her home and therefore has to go nearby farm fields to collect grass for them, told UNB news, "After the fatwa, I'm afraid of going outdoors" (6 held in Kushtia over fatwa, December 13, 2017).
This incident and many others should prompt us to question the precise legal status of fatwas in Bangladesh. Although Bangladesh is a secular country, non-state actors, such as religious leaders and clerics, have long held much sway in implementing ad-hoc, extra-judicial rulings based on what they perceive (or want people to perceive) as implementations of Islamic Law. This is especially prevalent in rural areas which are far away from the secular courts and where the local populations tend to be more conservative while having very little awareness about their legal rights and obligations.
The legality of fatwas in Bangladesh has specifically been subject to judicial scrutiny over the past two decades, prompted by a fatwa in 2001 which declared that a woman's remarriage to her former husband would be invalid without an intervening marriage with another man (known as hilla). The woman was then forced to follow the fatwa by marrying another man and then consummating the marriage. The ruling in this fatwa ran contrary to section 7(6) of the Muslim Family Laws Ordinance 1961, which does not require an intervening marriage in such a situation. After this incident came to light by way of a news-report, a High Court Division bench comprised of Justice Gholam Rabbani and Justice Nazmun Ara issued a suo moto rule (on its own motion, without being approached by any party) in response to it. Many including Ain O Shalish Kendra (ASK) and Dr Kamal Hossain were added as intervenors in the case and produced overwhelming evidence before the court demonstrating the widespread occurrence of fatwa violence across the country, whereby male members of the rural elite carried out these ad-hoc rulings against the poor and socially marginalised (almost always women), usually on matters of women's chastity, morality and mobility (Sara Hossain, High Court Nails Fatwa, Interventions 2002). In a seminal verdict dated January 2001, the High Court declared "any fatwa including the instant one are all unauthorised and illegal" (21 BLD 45). It recognised execution of fatwas of such nature to be a punishable offence under Sections 494, 508, 509 of the Penal Code (and for this particular fatwa, under Section 7 of the MFLO as well). It further recommended that giving a fatwa by unauthorised person or persons be specifically made a punishable offence by the parliament "immediately, even if it is not executed" along with several other important recommendations that would help curb fatwa violence and misuse of religion in general, which sadly fell on deaf ears.
Although the government did not file a petition for leave to appeal against this judgment, two individuals, Mufti Mohammad Tayeeb and Moulana Abdul Kalam Azad, filed for leave to appeal separately as third parties arguing, inter alia, that the verdict violates their fundamental constitutional rights to freedom of thought and religion. In May 2011, the Appellate Division allowed the appeals in part, and disapproved of the High Court's blanket ban on fatwas and qualified its issuance (Md Tayeeb vs Bangladesh, 12 ADC 01). It ruled that fatwas can be given but only on "religious matters" by "properly educated persons" which may be accepted voluntarily but "any coercion or undue influence in any form is forbidden." It also highlighted that "no punishment including physical violence or mental torture in any form can be imposed or implicated on anybody in pursuance of [a] fatwa."
In the period between 2001 and 2011 while the appeal was still pending, there was an alarming increase in fatwa violence implemented through shalish (traditional dispute resolution processes), which entailed women and girls across the country being caned, beaten, lashed or otherwise publicly degraded within their communities. In response to this a constitutional challenge was filed against the state's utter failure to act against these incidents by Bangladesh Legal Aid and Services Trust (BLAST), ASK and others before the High Court in 2009. In July 2011, the Court gave the judgment and declared infliction of all kinds of extra judicial punishments, including those imposed or inflicted by local shalish in the name of "fatwa" to be illegal and without any lawful authority (BLAST vs Bangladesh, 63 DLR 1). The Court further declared that any person involved, present, participating or assisting in any such action or its execution would come under the purview of the offences under Penal Code and be liable to punishment.
Interestingly, the imam and the mosque officials in the Kushtia case were not arrested under any section of the Penal Code but under the Special Powers Act 1974, which is a controversial military era law containing provisions for preventive detention to stop someone from committing a "prejudicial act". Perhaps this was because the fatwas in the aforesaid Supreme Court cases pertained to the infliction of physical and mental violence against women while the Kushtia fatwa inflicted economic violence, a type which was not discussed in these judgments and therefore may not come within the purview of the aforementioned sections of the Penal Code. This incident also highlights a shortfall of the Appellate Division judgment, which did not adequately clarify who can issue a fatwa since they did not specify who would count as an "educated person"—does an Imam of a local mosque, such as Abu Musa, fall under this category? We do not know. In light of such uncertainties, it is incumbent on the Parliament to respond to the epidemic of fatwa violence by finally enacting a law that systematically incorporates the Supreme Court judgments on fatwa by statutorily qualifying its legal status and specifically outlining punishments for those who inflict different types of violence and injustices in the name of fatwas. This was one of the recommendations made by the High Court to our Parliament in 2001 and it is regrettable that even after the passage of 16 years and countless cases of fatwa violence, our Parliament is yet to do its due diligence.
Taqbir Huda is currently working as a research officer at Bangladesh Institute of Law International Affairs (BILIA) and volunteers at Bangladesh Society for the Enforcement of Human Rights (BSEHR-Manabadhikar).