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

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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 Enforcement of Fatwas in Bangladesh and the Violation of Constitutionally Guaranteed Fundamental Rights of Others: Compromising Between Rights 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 ver- sion 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. © koninklijke brill nv, leiden, 2017 | doi 10.1163/15718158-01802002Downloaded from Brill.com09/27/2021 07:48:29PM via free access <UN> 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 re- ligion. 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 author- ity. 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 beat- ings may be carried out in the name of fatwas. Consequently, fatwas as mani- festations 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 in- stance, 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. asia-pacific journal on human rights andDownloaded the law from 18 Brill.com09/27/2021 (2017) 155-171 07:48:29PM via free access <UN> 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 compensa- tion to Serafina’s family by the nine men involved. In addition, the salish deter- mined 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 lead- ers 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 lead- ers 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 par- ish 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 be- ing 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. asia-pacific journal on human rights and the lawDownloaded 18 (2017) from 155-171 Brill.com09/27/2021 07:48:29PM via free access <UN> 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 coun- tries. 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 hus- band’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.
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