Enforcement of Fatwas in Bangladesh and the Violation of Constitutionally Guaranteed Fundamental Rights of Others: Compromising Between Rights

asia-pacific journal on human rights and the law 18 (2017) 155-171 brill.com/aphu

Md Jahid Hossain Bhuiyan Dr.; Associate Professor, Department of Law, Northern University Bangladesh [email protected]

Abstract

Each religious community is entitled to enjoy its religious freedom, and members of every community have the right to manifest, profess, and practice their religion. Fat- was are manifestations of religious belief. In Bangladesh, extra-judicial penalties in the form of lashings or beatings may be carried out in the name of fatwas. Consequently, fatwas as manifestations of religion may come into conflict with the rights of others. Questions then arise whether fatwas as manifestations of religion can be restricted, in what conditions, and by whom. This article will examine these questions.

Keywords fatwa – religious minorities – compromises between rights – freedom of religion – Bangladesh

* This article is based on portions of the author’s Ph.D thesis, submitted to the TC Beirne School of Law, the University of Queensland, Australia. The research was funded by Inter- national Postgraduate Research Scholarship (Australian Government Scholarship) and the University of Queensland Centennial Scholarship. The author would like thank Ann Black, Werner Menski and the anonymous reviewer for their helpful comments on an earlier version of this article. He would like to give special thanks to Darryn Jensen for his constructive comments that greatly contributed to improving the earlier and final version of the article.

156 Bhuiyan

1 Introduction

The right to freedom of religion is an integral part of a liberal state. Each religious community is entitled to enjoy its religious freedom, and members of every community have the right to manifest, profess, and practice their religion. Exercising one’s religious freedom, however, is not unrestricted, as the state can limit this right when taking into account circumstances relating to public order, morality,1 public safety, health, or the fundamental rights and freedoms of others.2 Fatwas are manifestations of religious belief. ‘Fatwa means legal opinion which, therefore, further means the legal opinion of a lawful person or authority. The legal system of Bangladesh empowers only the Courts to decide all questions relating to legal opinion on the Muslim and other Laws that are in force.’3 In Bangladesh, extra-judicial penalties in the form of lashings or beatings may be carried out in the name of fatwas. Consequently, fatwas as manifestations of religious belief may come into conflict with the rights of others. Questions then arises whether fatwas as manifestations of religion can be restricted, in what conditions, and by whom. This article will examine these questions.

2 Fatwas against Religious Minorities

Sometimes religious minorities in Bangladesh are victims of fatwas. For instance, on 4 April 2000, a 14-year-old Christian girl, Serafina Mardi, was gang raped by nine men from her village. The girl’s family decided to approach the court for justice and filed a case against the rapists. Salish4 was organised by

1 The Constitution of Bangladesh, art 41; International Covenant on Civil and Political Rights 1966 (iccpr), art 18(3). 2 iccpr, art 18(3). 3 Editor, The daily Banglabazar Patrika and two others v District Magistrate and Deputy Commis- sioner, Nagaon, Writ Petition No. 5897 of 2000, 6. In Western countries, fatwas which are sen- sational or conflicting with Western culture are generally reported or highlighted. Nadirsyah Hosen and Ann Black, ‘Fatwas: Their Role in Contemporary Secular Australia’ (2009) 18(2) Griffith L Rev 405, 405–406. 4 Salish is an informal system of justice in which people in rural areas of Bangladesh try to solve issues inter alia pertaining to land or cattle. Tiffany A. Hodge, ‘Women and Islamic Law in Bangladesh: Finding a Space for the Fatwa’ in Jeffrey T. Kenney and Ebrahim Mossa (eds), Islam in the Modern World (Routledge 2014) 390, 398–399; Graeme R. Newman, Crime and Punishment around the World: (Four Volumes) (abc-clio, llc 2010) 33.

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Compromising between Rights 157 the community leaders and Shurshunipara Catholic Church on 23 April 2000. Under the salish, it was decided that bdt 1.40 lac was to be paid as compensation to Serafina’s family by the nine men involved. In addition, the salish determined that one of the accused rapists, Nirmol Murmu, would marry Serafina. Tragically, Serafina committed suicide by setting herself on the fire on 21 Feb- ruary 2001. She did this as she was denied justice because the community leaders and Shurshunipara Catholic Church had coerced her family into retracting the case.5 According to the Reverend Bernard Tudu, a priest of the Church, the families of the nine men decided to leave the village, which was home to 36 indigenous Christian families. As a result, the salish was initiated as local leaders felt that this departure would weaken the community. Tutu asserted that the church had no involvement, except to keep the compensation money for Serafina’s family.6 Father Advocate Albert Rozerio, Secretary General, Episcopal Commission for Justice and Peace in Bangladesh, and Legal Advisor for Dhaka Catho- lic Archdiocese, was questioned as to whether the Church had the power to perform arbitration in such a case, to which he responded that

Each religious community or parish is under one or more parish priest. To assist him, a parish council looks after the education, health, social justice and legal arbitration of the community. The president of the parish is a Father and there is an understanding that to maintain the peace of the parish they are allowed to take any decision. But this does not have any legal basis. It can work only as a support to the existing law of the land but has no legal power … We have Cannon [sic] Laws to govern a congregation, but for crimes like rape, murder, robbery the law of the land has to be followed.7

The Coordinating Council of Human Rights in Bangladesh (cchrb) reported another incident in which an 18-year-old Hindu girl, Anjali Karmakar, was ex- pelled from her village in Rajshahi district’s Bagha Sadar Thana because of a salish on 11 June 1994, for violating the social customs of the village by ‘chatting with a man’. Her father was also forced to hold his ears in public for not being able to regulate the activities of his ‘shameless daughter’. Forcing someone

5 Anwar Ali, “‘Religion’ saved, with its rapists” The Daily Star (Bangladesh, 23 February 2011) 1. 6 Ibid. 7 Quoted by Habibul Haque Khondker, ‘Modern Law, Traditional “Shalish” and Civil Society Activism in Bangladesh’ in Adam Possamai, James T Richardson and Bryan S Turner (eds), The Sociology of Shari’a: Case Studies from around the World (Springer 2015) 31, 43.

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158 Bhuiyan to hold his/her ears in public in Bangladesh is a form of punishment in rural salish, symbolising an act of public humiliation. After school authorities inter- vened, Anjali was allowed to return home to sit her examinations.8 An Italian citizen, Cesare Tavella, who was recruited at a Netherlands-based non-governmental church-cooperative was shot dead on 28 September 2015 in Dhaka. The Islamic State (is) took responsibility for the killing, and this was the first alleged killing by the group in Bangladesh. The is issued a warning that ‘citizens of the crusader coalition’ would not be safe in Muslim countries. It is suspected that Islamist militants killed a Hindu priest at a temple in Bangladesh, as the is supposedly took responsibility for this action via a statement in social media. The is asserted that the ‘almighty God’ and ‘soldiers of the Caliphate’ were part of a security operation that killed priest Jogeshwar Roy, the founder and leader of the Devjganj temple, owned by ‘infidel Hindus’.9 Thus, a number of Hindus, Christians, and secular activists were killed by Is- lamist militants. As a result, over 100 000 Bangladeshi clerics issued a fatwa on 13 June 2017, against such killings. The fatwas stated that these killings are ‘forbidden in Islam’, and ‘are illegal, and are crimes against humanity’.10 It is noted that in January 2001 the High Court Division of the Supreme Court of Bangladesh in Editor, The Daily Banglabazar Patrika and two others v District Magistrate and Deputy Commissioner, Nagaon11 declared all fatwas illegal. The facts were as follows. A news report issued in the Daily Banglabazar Patrika on 2 December 2000 revealed that Sahida, the wife of Saiful of the Naogaon district, had been coerced into entering into marriage with Samshul, her husband’s paternal cousin. This was done following the claim that her husband had said the word talaq to her a year ago, a term used by a husband to dissolve the marriage, yet he continued to remain in the marriage. Following this, Haji Azizul Huq issued a fatwa that declared the marriage dissolved. After this news was published in the Daily Banglabazar Patrika on 2 December 2000, a bench of the hcd, which acted on its own initiative, issued a suo motu rule, following which it became illegal to implement fatwas in Bangladesh.

8 Amnesty International, ‘Bangladesh: Fundamental rights of women violated with virtual impunity’ (Amnesty International, Bangladesh, 1 October 1994) accessed 23 April 2015. 9 Editorial, ‘Isis claims responsibility for killing of Hindu priest in Bangladesh’, 21 Febru- ary 2016, The Guardian (London, 21 February 2016) accessed 21 April 2016. 10 Editorial, ‘Fatwas against secret killings in Bangladesh’ The Daily Star (Bangladesh, 15 June 2017) 16. 11 Editorial (n 3).

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Compromising between Rights 159

Third parties, who were not involved in the hcd case, filed two appeals against this judgment. The hcd granted leave to appeal both of the petitions.12 On 1 March 2011, the Appeal Division (ad) started hearing the appeal against the judgment of the hcd which declared fatwas illegal in 2001.13 On 12 May 2011, the ad declared that fatwas were legal only for religion based issues, but also noted a fatwa cannot be employed to inflict punishment on any person. A fatwa can neither be used to violate the rights nor to affect the rights or repu- tation or dignity of a person who is protected under the law of the land. After considering the two different appeals, the Supreme Court ruled that, ‘Fatwa on religious matters only may be given by the properly educated persons which may be accepted only voluntarily but any coercion or undue influence in any form is forbidden.’14 Similar issues have surfaced in India and, as a result, it was held by the Supreme Court of India on 7 July 2014 that ‘Fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive methods’.15 Only religious scholars16 in Bangladesh can issue fatwas but they cannot enforce them nor can they punish any person. Punishment can only be imposed by the state.17 This does not include private (including mufti/religious

12 Arafat Hosen Khan, ‘From fatwas to freedom: Protecting women rights in Bangladesh’ The Financial Express (Bangladesh, 11 December 2012). 13 Editorial, ‘Fatwa illegal, goes against constitution: Dr Kamal tells sc’ The Daily Star (Bangladesh, 3 March 2011) 20. 14 Mohammad Tayeeb, Moulana Abul Kalam Azad v Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Religious Affairs and others Civil Appeal Nos. 593–594 of 2001, Judgment delivered on 12 May 2011 by the Appellate Division of the Supreme Court of Bangladesh, 85. 15 Vishwa Lochan Madan v Union of India & Ors., Writ Petition (Civil) No. 386 of 2005, Supreme Court of India, 17 (judgment delivered on 7 July 2014). 16 Fatwas can be about the beginning of a festival depending on the visibility of moon, or provide a perspective on a spiritual matter. As prescribed by the Islam, only scholars of the religion with proficiency in Islamic law who are regarded as the muftis, are eligible to dictate a fatwa. The first mufti in Islam was the Prophet Muhammad. Sherman A Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi (Brill 1996) 219. There is no official mufti in Bangladesh. In Bangladesh, mufti is the person who received an education on Islamic jurisprudence from madrassah. Edward P Lipton (ed), Religious Freedom in Asia (Nova Science Publishers 2002) 12. 17 Article 35 of the Constitution of Bangladesh states: ‘(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. … (3) Every person accused of a criminal offence shall have the right to a

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160 Bhuiyan scholars) involvement in the imposition of punishment.18 Only persons with public authority can punish. In other words, only established courts and tri- bunals should have the authority to carry out trials for any crime or enforce any punishment.19 Extra-judicial penalties in the form of lashing or beating are illegal and violate sections 323 to 326 of the Penal Code 1860.20 Extra-judicial punishment also violates Article 7 of the International Covenant on Civil and Political Rights (iccpr); Articles 2 and 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (cat); and the Convention on the Elimination of all forms of Discrimination against Women 1979 (cedaw).21 The right to religious freedom and its practice is subject to concerns about public order, morality, and health. This does not signify by extension that there would be any exclusion of order and health in the personal sphere. It is certain that public order is directly related to a nation’s personal or social order. Hence, the state has the complete power to manage the way people exercise religion in Bangladesh, to the extent that it negatively influences the rights of others.22 No individuals can violate the constitutionally guaranteed fundamental rights of others. The protection of these fundamental rights is the duty of the state. Any individual, regardless of race, religion, sex or caste is entitled to approach the High Court Division of the Supreme Court of Bangladesh to have his or her fundamental rights enforced. The gross violation of human rights and any arbitrary state actions can be avoided through maintaining these fundamental rights. Certain rights, however, are also accessible against private individuals. Such rights, inter alia, are contained in Articles 28,23 30,24 3425 of the Constitution of Bangladesh.

speedy and public trial by an independent Court or tribunal established by law.’ (emphasis added) 18 Quoted by Anthony F Lang Jr, Punishment, Justice and International Relations: Ethics and Order After the Cold War (Routledge 2008) 29. 19 Bangladesh Legal Aid and Services Trust and Others, Advocate Md. Alahuddin Dolon, Mahbub Shafique and others v Government of Bangladesh and others, Writ Petition no. 5863 of 2009 with Writ Petition No. 754 of 2010 and Writ Petition No. 4275 of 2010, 14. 20 Ibid 18–19. 21 Ibid 16. 22 Faustina Pereira, The Fractured Scales: The Search for a Uniform Personal Code (Stree 2002) 142. 23 Discrimination on grounds of religion, etc. 24 Prohibition of foreign title, etc. 25 Prohibition of forced labour.

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Compromising between Rights 161

Islamic scholars in Bangladesh believe that a fatwa is an Islamic right which can be issued by specialist scholars in Islamic jurisprudence. It is not compul- sory, according to them, to follow their fatwas. They do not want to contravene the existing laws of Bangladesh. This view of Islamic scholars is in conformi- ty with the Supreme Court of Bangladesh and in line with the limitation of freedom of religion as mentioned in Article 41 of the Constitution. Although issuing fatwas is an Islamic right, no Islamic scholars can carry out lashings for violations of Islamic criminal law. The reason for not allowing the enforcement of fatwas is that such enforcement would transgress the rights of others.

3 Compromises between Rights

Since freedom of religion is a right for everyone, religion should not be rel- egated to the private sphere. Religious parties or followers of religions should be allowed to raise their concerns regarding religious issues. They should be given an opportunity to take part in debates that affect them. Respecting and accommodating the religious convictions of everyone is vital as everyone has the right to freedom of religion. However, it should also be kept in mind that there are limitations to the exercise of religious freedom; the right of freedom of religion is not absolute.26 There are two important parts of the right to freedom of religion: freedom to possess a belief and freedom to express or manifest a belief. Freedom of belief is absolute; however, the freedom to express a belief is limited. This is not surprising as the manner in which a belief is manifested may have an impact on others.27 Hence, the fundamental rights and freedoms of others necessar- ily create limitations on freedom of religion.28 Parents have the freedom to choose and practise any religion they want;29 however, such activities need

26 P(D) v S(C) [1993] 4 scr 141, 182. See also Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 clr 116, [149] (Rich J); Grace Bible Church v Reedman (1984) 36 sasr 376, 385 and 388. 27 R v Secretary of State for Education and Employment, ex parte Williamson (2005) ukhl 15, [16]. 28 Article 18 of the iccpr refers to the ‘fundamental rights and freedoms of others’ and Article 9 of the European Convention on Human Rights refers to the ‘rights and freedoms of others’. To know more about ‘fundamental rights and freedoms of others’, see Paul M Taylor, Freedom of Religion: un and European Human Rights Law and Practice (cup 2005) 328–333. 29 Parental authority is not absolute. L’Heureux-Dubé J said: ‘Because children are vulner- able and cannot exercise their rights independently, particularly at a young age, and

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162 Bhuiyan to be restricted when there are conflicts between the parents’ rights and the child’s rights. Similarly, there is an intersection between the proclaimed private religious beliefs of people and the interests of the general public. Any action carried out in the private domain can affect the public space. It is important that everyone accepts the legal repercussions of their private convictions and ensures that these effects do not infringe fundamental rights.30 International and religious standards that assure freedom of religion allow states to restrict the manifestation of the right to freedom of religion so that the fundamental rights and freedoms of others (or rights and freedoms of others) can be protected. However, it is important that the state imposes restrictions only to attain a permissible aim and which are proportionate to that aim. It must be ensured that with any law restricting the manifestation of religion, limitations are not imposed discriminately. The restrictions contained in law and legislative acts may be considered as being specified by the law if they are consistent with the rule of law, are not indiscriminate, are clearly defined and are available to all those whose activities would be affected. The condition that limitations be specified by law reflects the principle of legality and puts a constraint on the imposition of power by the state.31 A pluralistic society needs to create a balance between the freedom to exercise one’s beliefs and the interests of other people who are affected by these practices.32 Few (if any) rights are absolute. Rachel Fell McDermott observes that ‘there is no such thing as an absolute right vested in any individual or community forming part of a nation; that all rights are relative, no society can remain in- tact even for twenty-four hours on the basis of absolute rights’.33 Julie Debeljak notes that ‘[u]nder international human rights law, absolute rights cannot be derogated from (or overridden) and no circumstance justifies a qualification or limitation of such rights. Absolute rights in the iccpr include the prohibition

because child abuse and neglect have long-term effects that impact negatively both on the individual child and on society, the state has assumed both the duty and the power to intervene to protect children’s welfare.’ Winnipeg Child and Family Services v klw [2000] 2 scr 519, 19 dlr (4th) 9, [75]. ‘The parents’ right to practice their religion cannot extend to imperil the life and health of the child’. Re J (An Infant): B and B v Director-General of Social Welfare (1996) 2 nzlr 134, 146. 30 P(D) v S(C) (n 26) 182. 31 Donna J Sullivan, ‘Gender Equality and Religious Freedom: Toward a Framework for Conflict Resolution’ (1992) 24 New York University International Law and Politics 795, 808–810. 32 R v Secretary of State for Education and Employment; ex parte Williamson (n 27) [16]. 33 Rachel Fell McDermott et al (eds), Sources of Indian Tradition: Modern India, Pakistan, and Bangladesh, vol 2 (3rd edn, Columbia University Press 2014) 474.

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Compromising between Rights 163 on genocide (art 6(3)) and the prohibition on slavery and servitude (arts 8(1) and (2))’.34 The Constitution of Bangladesh contains few unrestricted rights (absolute rights) such as equality before law in Article 27, non-discrimination on grounds of religion, etc. in Article 28, and equality of opportunity in public employment in Article 29.35 Since few (if any) rights are absolute, when there is a disagreement between the right to religious freedom and another right, there needs to be a balance between the rights that completely respects the significance of both rights.36 For this purpose, the rights in question need to be defined. For instance, those who view homosexual behaviour as immoral have the right to possess and voice that view. However, those who believe that such behaviour is not immoral, also have the right to hold and express that viewpoint. But this does not mean that either of these groups can exhibit any form of discrimination37 although what amounts to impermissible discrimination is extremely contentious. For example, a person who holds a religious-inspired belief that homo- sexuality is immoral38 offers a house to let. If a same-sex couple wishes to rent the house, would it be impermissible for the owner of the house to refuse? On the one hand, the owner might think he is assisting people to engage in immoral cohabitation. On the other hand, the same-sex couple is being refused accommodation on the ground that they are a same-sex couple. In this case, there is really no compromise that could completely respect the significance of both sets of rights. Religious freedom does not give way to the rights of others. The right to religious freedom, however, does not succeed merely on the basis that the individual is practising his/her religion.39 For instance, in 2008, a proposal put forward by a local mosque close to Oxford City, England to broadcast the call to prayer provoked an outcry even though it was an appeal to exercise a basic right, the right to manifest one’s religion. The outcry was made by the neighbours who

34 Julie Debeljak, ‘Balancing Rights in a Democracy: The Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006’ (2008) 32 Monash U L Rev 422, 434. 35 To know more about absolute right, see Natasa Mavronicola, ‘What is an ‘absolute right’? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights’ (2012) 12(4) Human Rts L Rev 723. 36 Dagenais v Canadian Broadcasting Corp (1994) 120 dlr (4th) 12, 37. 37 Chamberlain v Board of Trustees of School District No. 36, (2002) 4 scr 710, 784. 38 Michael J Perry, Religion in Politics: Constitutional and Moral Perspectives (oup 1997) 82–85. 39 Roger Trigg, Free to Believe? Religious Freedom in a Liberal Society (Theos 2010) 17.

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164 Bhuiyan considered it to be a form of noise pollution.40 This conflict shows that the freedom of a particular person or group can serve as a significant source of public annoyance. In this regard, a balance between the two rights needs to be established.41 It is rational to undergo a balancing process which takes into account the underlying values of both rights and the effect the two rights have on each other on the basis of the relevant facts of the case.42 This means that the conflict between rights should be addressed by reconciling the rights by means of accommodation and, if this is not possible, then by case-by-case balancing.43 When the judiciary resolves a disagreement between religious freedom and another right, the decision is not conclusive as the judiciary does not have the ultimate say about rights. Since the parliament is sovereign, it ‘can always ren- der a judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospec- tively’, but it cannot ‘merely declare a decision of a Court of Law to be invalid or to be inoperative in which case it would be held to be an exercise of judicial power.’44 It has frequently been claimed that parliamentary sovereignty is needed for democracy. Since judges are not elected, judicial sovereignty is not democratic. Hence, democracy can be sustained by giving sovereign power to the representatives.45 In case of a disagreement between religious freedom and another right, the parliament can make rules that apply to classes of cases. Par- liament sets down rules so that like cases are dealt with in like ways. In case of a disagreement between religious freedom and another right, the parliament also has the power to limit the right to religious freedom to the extent that it is contradictory with the pledge to maintain democratic pluralism. For example, if someone is sentenced to lashes by a fatwa then the state has an obligation to prevent it. Though religious leaders can express their opinion on different issues, it is up to the individuals whether they will follow those opinions or not.

40 Ibid 16. 41 Ibid 17. 42 Sullivan (n 31) 811–813. See also, Waheeda Amien, ‘Overcoming the Conflict between the Right to Freedom of Religion and Women’s Rights to Equality: A South African Case Study of Muslim Marriages’ (2006) 28 Human Rts Q 729, 753. 43 McLachlin CJ in R v ns, 2012 scc 72, [52]. It is important to accommodate and balance genuine religious beliefs compared to other interests; Frank Iacobucci, ‘“Reconciling Rights” The Supreme Court of Canada’s Approach to Competing Charter Rights’ (2003) 20 Supreme Crt L Rev 137, 141. 44 SS Boto v BD Sardana air 1997 sc 3127. See also Ridwanul Hoque, Judicial Activism in Bangladesh: A Golden Mean Approach (Cambridge Scholars Publishing 2011) 101. 45 Debeljak (n 34) 427–428.

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Compromising between Rights 165

So democratic pluralism suggests that rights and freedoms are democratically determined. Hence the wishes and opinions of the majority prevail. Ultimate decisions about rights are made by majoritarian procedures.46 ‘The appeal of majority-decision is that it not only solves the difficulty that [general disagreement] generates, but it does so in a respectful spirit …’47 There are several grounds on which majoritarianism can be supported; however, the simplest and seemingly most morally fundamental reasoning is that when equal individuals are unable to reach a consensus on the rules or policies, then the most equitable way of settling the dispute is by giving an equal vote to everyone, and the side that receives the most votes gets to impose its decision. In majoritarianism, political and moral equality is preserved as political decisions depend on a system in which everyone gets an equal say; and no one is considered more capable or worthwhile of having a greater say. In majoritarianism, there is one basic interpretation of political equality: equal votes for equal people and those who get the highest votes win.48 Since in democratic pluralism, the parliament decides the fundamental rights and freedoms of others on the basis of majoritarianism, the decision of the majority can violate the rights of minorities.49 That means the parliament through its legislative action could violate the rights of minorities, including religious minorities, completely. Thus there is a tension between democratic pluralism and the fundamental rights and freedoms of others. In such cases, the courts can limit the state and majoritarianism. However, while the parliament exercises its legislative power, it should take into account the state’s obligation to respect human rights. When states become parties to international

46 Jeremy Waldron, Law and Disagreement (oup 1999) 229. 47 Ibid 118. 48 This argument was mentioned in Stephen Macedo, ‘Against Majoritarianism: Democratic Values and Institutional Design’ (2010) 90 Boston U L Rev 1029, 1031–1032. 49 Ronald Dworkin argued that rights are ‘trumps’ against the majority’s tyranny. Ronald Dworkin, Taking Rights Seriously (cup 1978) Ch. 4. According to Dworkin, reasonable citizens believe that the ultimate judgement regarding when to limit its own power to secure individual rights should be made by the majority. Ronald Dworkin, Freedom’s Law: The Moral Readings of the American Constitution (oup 1996) 16. Apprehensions are also shown by John Stuart Mill regarding the tyranny of the majority, see John Stuart Mill, On Liberty (2nd edn, John W. Parker and Son, West Strand 1859) 12–14. It was argued by Jeremy Waldron that apart from popular majoritarianism, other political structures do not per- mit a voice and vote in the ultimate decision-process to each citizen; rather they make the final decision about the rights of all citizens based on the voices of a limited number of people. See Waldron (n 46) 229.

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166 Bhuiyan

human rights treaties, they are under the obligation to respect, protect and fulfil human rights in accordance with international law. If the majority of the parliament supports policies that are against the rights of minorities, then a better alternative might be a weak form of judicial review. When a weak judicial review process is in place, courts may investigate legislation to check if it is consistent with individual rights; however, they may not refuse to use it (or restrict its application) just because there may otherwise be a violation of those rights.50 On the other hand, a strong judicial review system provides power to the courts to reject the application of a law in a certain case (even if the law is applicable to the case) or to modify the impact of the law to make its application consistent with individual rights. In this system, courts also have the power to ensure that a particular law is not applied, so as to make it effectually a dead letter. In a stronger judicial review system, the courts would have the authority to eliminate a law from the statute book.51 In Bangladesh, courts follow the strong form of judicial review.52 Weak judicial review entails an evaluation of laws that are believed to violate minority rights, without invalidating them.53 Individuals or groups who believe that the law violates individual rights or any other constitutional provision appear in courts as equals (at least formally) to put forward their apprehensions.54 It is noted that judicial review carried out on the basis of

50 Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale lj 1346, 1355. 51 Ibid 1354. 52 For details see Steven Greer, ‘Preventive Detention and Public Security – Towards a General Model’ in Andrew Harding and John Hatchard (eds), Preventive Detention and Security Law: A Comparative Survey (Martinus Nijhoff Publishers 1993) 23, 32–34. See also Md Jahid Hossain Bhuiyan, ‘Preventive Detention and Violation of Human Rights: Ban- gladesh, India and Pakistan Perspective’ (2004) 8 Bangladesh J L 103. Waldron is against strong judicial review. His ‘argument against [strong] judicial review is not unconditional but depends on certain institutional and political features of modern liberal democra- cies.’ See Waldron (n 50) 1353. However, strong judicial review may be ‘necessary as a pro- tective measure against legislative pathologies relating to sex, race, or religion in particular countries’, ibid 1352. ‘But even if that is so, it is worth figuring out whether that sort of defense goes to the heart of the matter, or whether it should be regarded instead as an exceptional reason to refrain from following the tendency of what, in most countries, would be a compelling normative argument against [strong judicial review] … What is needed is some general understanding, uncontaminated by the cultural, historical, and political preoccupations of each society’, ibid 1352. The argument of Waldron against the strong judicial review is supportable. 53 Macedo (n 48) 1040. 54 Ibid.

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Compromising between Rights 167 violation of individual rights is distinct from judicial review carried out on the basis that the parliament is not adhering to the correct process. Though the Constitution of Bangladesh does not contain the term ‘judicial review’, it is envisaged in the Constitution. Several fundamental rights are guaranteed by the Constitution of Bangladesh in Part iii. The Constitu- tion also guarantees their judicial enforcement.55 If an individual feels that he is being unjustifiably denied any of these fundamental rights, he can appeal to the High Court Division (hcd) for the enforcement of fundamental rights.56 This Court can give instructions to any person or authority regarding the enforcement of any of the fundamental rights provided by Part iii of the Constitution.57 The hcd has the authority to issue relevant orders to correct a legal wrong or to enforce legal obligations.58 In the Preamble of the Constitution of Bangladesh, the supremacy of the Constitution is referred to as an expression of the will of the people of Bangla- desh.59 It is stated in Article 7(2) that the Constitution is the sole embodiment of the people’s will and is the supreme law of the country. Any other law that does not conform to the Constitution shall, to the extent of its inconsistency, be considered void.60 Article 7 of the Constitution of Bangladesh is one of the basic features of the Constitution.61 Article 26(2) states that the State cannot develop any law that is not consistent with provisions of Part iii (fundamental rights), and that if any such law is made it would, to the extent of its inconsistency, be considered void. The supremacy of the Constitution, as declared in Article 7, needs to be maintained and preserved by some authority and in an entrenched constitution, the judiciary should no doubt have that authority.62 The Supreme Court of Bangladesh was introduced through Article 94 of the Constitution, following

55 Art 44(1). 56 Ibid. 57 Art 102(1). 58 Art 102(2). 59 Preamble, [4]. 60 Khondker Delwar Hossain, Munshi Ahsan Kabir and Others v Bangladesh Italian Marble Works Ltd., Dhaka, Civil Petition for Leave to Appeal Nos. 1044 & 1045 of 2009, 57 (Md Tafazzul Islam, cj); A.T. Mridha v State 25 dlr (1973) 335, 344, [10] (B.H. Chowdhury, J); Md. Shoib v Government of Bangladesh 27 dlr (1975) 315, 325, [20] (D.C. Bhattacharya, J) and Anwar Hossain Chowdhury v Bangladesh 1989, 18 clc (ad), [58] (Badrul Haider Chowdhury J); Kudrat-E-Elahi Panir v Bangladesh 44 dlr (ad) (1992) 319, [72] (Mustafa Kamal, J). 61 Khondker v Bangladesh Italian Marble Works (n 60) 57 (Md Tafazzul Islam, cj). 62 Ibid 60, 62 (Md Tafazzul Islam, cj).

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168 Bhuiyan the decision by the people of Bangladesh to establish such a court.63 The laws that have been enforced and those that have been passed by the Legislature,64 in addition to the activities carried out by the Executive,65 are scrutinised by the Supreme Court of Bangladesh on the basis of its judicial review power.66 The public bodies are virtually kept away from judicial scrutiny according to the principle that only the ‘person aggrieved’ can take legal action on all issues, such as issues of great significance to the public. Because of this system, many people in Bangladesh are not able to enforce their rights. Hence, the Su- preme Court of Bangladesh formally recognised the notion of public interest litigation (pil) in the case of Dr Mohiuddin Farooque v Bangladesh.67 Despite the fact that the Supreme Court of Bangladesh has the power to review legislative as well as executive actions, it does not gain a higher position than the other two branches of government of the Republic.68 The Constitution created the Supreme Court of Bangladesh and granted it the authority to carry out judicial review. The judges of the Supreme Court of Bangladesh have pledged to preserve and secure the Constitution; hence, they have the responsibility to point out any provisions of the law that they deem to be inconsistent with the Constitution.69 Therefore, the judiciary only uses this power as a regulator of the public will.70

63 Ibid 66–67 (Md Tafazzul Islam, cj). 64 The Bangladesh Parliament lacks the omnipotence of the British Parliament. See ibid 69 (Md Tafazzul Islam, cj). 65 Unlike the President of the United States, the President of Bangladesh is not the executive head, a role assumed by the Prime Minister similar to the British Prime Minister. 66 Khondker v Bangladesh Italian Marble Works (n 60) 69 (Md Tafazzul Islam, cj). See also (Captain) Jamil Huq and 11 Others v Bangladesh and Others (1982) 34 dlr 125, 129 (per Kem- aluddin Hossain cj). This power of judicial review of the Supreme Court of Bangladesh is similar to that in the United States, Pakistan, and in India. Khondker v Bangladesh Italian Marble Works (n 600) 69 (Md Tafazzul Islam, cj). It is noted that the Supreme Court of Bangladesh is barred from reviewing money bills. For more on money bills, see Article 81 of the Constitution of Bangladesh; Taiabur Rahman, Parliamentary Control and Govern- ment Accountability in South Asia: A Comparative Analysis of Bangladesh, India and Sri Lanka (Routledge 2008) 95. 67 (1997) 17 bld (ad) 1. To know more about pil see Md Jahid Hossain Bhuiyan, ‘Access to Justice for the Impoverished and Downtrodden Segment of the People through Public In- terest Litigation: A Bangladesh, India and Pakistan Perspective’ (2007) lawasia Journal 1. 68 Khondker v Bangladesh Italian Marble Works (n 60) 69 (Md Tafazzul Islam, cj). 69 Ibid 69–70 (Md Tafazzul Islam, cj). 70 State v Zia-ur-Rahman pld 1973 sc 49, 70 (Hamoodur Rahman, cj).

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Compromising between Rights 169

Thus the Parliament of Bangladesh needs to follow the Constitution of Ban- gladesh including the fundamental rights provisions when they enact a law. If any law is inconsistent with fundamental rights that law shall be void. So if the Parliament of Bangladesh through an Act violates the rights of minorities, the Act shall be declared void by the Supreme Court. The declaration of such legislation as void by the Supreme Court means that the Supreme Court is dis- charging its obligations under the Constitution, which guarantees fundamental rights, and it does not mean that the judiciary of Bangladesh is supreme over Parliament. In Bangladesh, Parliament is supreme as the Constitution de- clares that all powers in the Republic belong to the people. Thus democratic pluralism is the basic constitutional norm in Bangladesh. The fundamental rights contained in the Constitution of Bangladesh – such as freedom of religion, freedom of expression or freedom of association – declare ‘very general standards’ regarding an individual’s status in society.71 James Allan argues that these fundamental rights provide an emotionally appealing statement of rights and protection in indistinct and broad terms. He notes that even though fundamental rights exist at ‘Olympian heights’, their impact does not. They are ‘down in the quagmire of detail of’ creating the boundaries regarding religious freedom and the convictions of religious groups that infringe on the rights of others. If fundamental rights are to be ex- amined within a context pertinent to the particular case, judges take decisions that mark social policy boundaries.72 According to Allan, ‘in this quagmire of detail’, awarding rights in the context-specific case at hand, conflicts and dis- agreements often surface regarding how these rights play out. He claims that full consensus and close unanimity is only present at the ‘Olympian heights’. He also asserts that when unelected judges determine real life cases, the sole differences pertain to moral opinion. Those whose personal views are not in agreement regarding how rights should be ranked in relation to each other, who should be awarded those rights and if and when they should give in to the wider social interests cannot be disregarded as ‘unreasonable, morally blind, evil or in need of re-education.’73 In the case of conflict regarding where to construct difficult boundaries pertaining to the degree and weight of rights, the judges vote and are ‘five votes beat four.’74

71 James Allan, ‘An Unashamed Majoritarian’ (2004) 27 Dalhousie lj 537, 543. 72 Ibid. 73 Ibid 544. 74 Ibid 546.

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170 Bhuiyan

Allan supports the concept of majoritarian democracy and notes

Whatever line the unelected judges may draw, the majoritarian says it is better for the elected legislators to draw it whether he agrees with the result or not. He is prepared to win some, but also to lose some … He thinks that part of living in a healthy society is that when contentious issues arise, including issues surrounding rights, deciding by voting, by “letting the numbers count” is preferable to deciding by letting an aristocratic judiciary decide.75

This perspective is justifiable. The lawmakers who are elected by the people of Bangladesh should have the final say on rights and to make reasonable expla- nations with respect to these rights. In addition, they should be the ones who determine reasonable boundaries when faced with the dilemma of detail. If fundamental rights provisions in the Constitution of Bangladesh, conflict to some extent in practice, then ranking is necessary if a court is to resolve the conflicts in accordance with law. Though the Constitution contains some unrestricted (absolute) rights, it is hard to conclude that the Constitution ranks rights relative to one another. Therefore, this option might not applicable in Bangladesh. So when there is any conflict between rights such as a conflict between freedom of religion and freedom of expression then these conflicts can only be resolved politically, i.e., democratically. So it can be said that these rights are not absolute or immutable. The majority in Parliament can legislate a compromise. This is precisely what the Fifteenth Amendment in the Bangladesh Constitution did when it included secularism after the judgment by the Supreme Court of Bangladesh. Fundamental rights are part of the basic structure of the Constitution of Bangladesh therefore, Parliament cannot abrogate fundamental rights. Thus the doctrine of basic structure can ulti- mately stop Parliament from abrogating the rights of an unpopular religious minority. It is clear that people’s rights will, in particular situations, come into conflict. Accordingly, no rights are absolute, so compromises that can preserve each person’s rights as much as possible need to be found. As a general rule, it is better for Parliament to make these compromises. The Constitution, however, protects certain rights and restrains Parliament from abrogating those rights. The problem remains that since the Constitution of Bangladesh says nothing more than that everyone has a right to ‘freedom of religion’ or ‘freedom of

75 Ibid 550.

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Compromising between Rights 171 speech’, it does not provide any guidance on what is appropriate legislative balancing.

4 Conclusion

Though fatwa is an Islamic right and is legal for religion-based purposes, it is subject to the limitation of the religious freedom provision of the Constitution of Bangladesh. Since Bangladesh is a plural nation, it needs to adhere to the principle of religious pluralism, guarantee religious freedom and ensure effec- tual protection and safeguards for religious communities. However, religious freedom is not absolute. Bangladesh places some restrictions on the freedom to manifest one’s religion to guarantee a peaceful co-existence of different religions. Conflicts might arise between freedom of religion and other rights. In such cases, Bangladesh needs to resolve disputes between rights politically that is, through democratic pluralism.

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