By Arafat Hosen Khan
11 December 2012
I am inspired to write this article to support a campaign in progress by the Bangladesh Legal Aid and Services Trust (BLAST) called "Empowering Women: From Fatwa to Freedom". BLAST is one of the leading legal services organisations in Bangladesh, and the only one that provides access to legal aid across the spectrum, from the frontlines of the formal justice system to the apex court since 1993. BLAST provides legal aid-mediation, legal advice and representation-to women and girls, over 90 per cent of its clients, to realise their rights. BLAST conducts awareness trainings for women and girls to learn about their legal rights. Its clients are mainly women and girls, usually living in poverty or extreme disadvantage in our country.
Amongst many others, BLAST recently obtained landmark judgments following public interest litigation, challenging the Forced Veiling of Women and Extra-judicial Punishments through 'Fatwas', and a prohibition on corporal punishment in schools and madrasas. (To know more about BLAST you can visit - http://www.blast.org.bd)
High Court issues a suo motto order: From the early 1990s, the incidence of fatwa being issued by rural clerics or village elders and resulting in corporal punishment being inflicted on women and men drew increasing attention from the media and human rights organisations nationally and internationally. However, almost a decade after the focus on fatwa violence first began, in December 2000, the High Court issued a Suo motto order on certain government authorities on the basis of a newspaper report about another fatwa requiring a woman to undergo an intervening marriage (hilla) on the ground that she had dissolved marital ties with her husband. Acting upon this fatwa, a relative of the woman then reportedly had sexual relations with her, and her husband refused to take her back as his wife.
After hearing all the parties concerned, the High Court Division on January 1, 2001 pronounced its judgement making the rule absolute and holding that the fatwa in question was wrong and further holding that any fatwa, including the instant one, are all unauthorised and illegal. The Hon'ble Court also opined that the legal system of Bangladesh empowers only the Courts to decide all questions relating to legal opinions regarding Muslim laws and other laws as in force. This was a great day for Bangladeshi women who are the victims and sufferers of fatwa.
However, very unusually, two appeals were filed against this judgement, by third parties (who had no involvement in the High Court's case). The Government did not appeal the judgement, nor did it take part in the leave hearing. One of the leave petitioners is an Assistant Mufti at a madrasa, described as being engaged in imparting Islamic Higher Education. The other is Chairman of the Masjid Council, and claims to be a scholar of Islamic Jurisprudence and the Holy Quran and Hadith, who is regularly asked for advice on Muslim family matters and other aspects of Muslim life and in the process issues Fatwas and as such has an interest in the matter. On the basis of appeal the apex court has granted leave to appeal in both petitions.
In these circumstances, while appeal hearing of the above mentioned Suo motto case on fatwa was pending regarding the fatwa case before the Apex Court of Bangladesh, the incidents of fatwa against poor women and girls in Bangladesh increased alarmingly. Throughout 2009, newspapers reported a series of incidents of violence inflicted on women and girls in the name of fatwa by traditional dispute resolution processes (shalish), often involving religious leaders. These incidents had reportedly resulted in women and girls in villages across the country being caned, beaten, lashed or otherwise publicly humiliated within their communities.
The spate of acts of violence against women in several parts of rural Bangladesh are justified by the perpetrators of these crimes on the basis of fatwa given by a local imam or a Maulvi or Maulana. It has been rightly pointed out that violence against women is a crime that cannot be justified on this basis. In addition, and again rightly, it is pointed out that these self-appointed givers of fatwa have no authority for their proclamations. What these statements however fail to clarify is a fundamental misconception about fatwa themselves.
Appellate Court verdict: Finally, after more than 10 years, the Supreme Court of Bangladesh started hearing on the appeal on 01.03.2011, where lawyers against fatwa/extra judicial penalties argued that the pronouncement and execution of certain Fatwas, including those which involve corporal punishment or other forms of humiliating and degrading treatment, is a criminal offence under Bangladesh law, and therefore these appeals raise issues regarding the enforcement of existing criminal laws to protect (primarily women) from violence, and that such Fatwas cannot be protected as part of the right to freedom of religion.
Earlier on February14, 2011, the Supreme Court appointed nine legal experts as amicus curiae (friends of the court) for their opinion on this issue. It also heard the opinions from five of the country's prominent Alims (Islamic scholars), nominated by the Islamic Foundation Bangladesh. The panel of five, however, told the court, banning fatwa will ultimately put a ban on the holy religion of Islam. As a result, all the people of the State would become sinners for lack of adequate knowledge on Islam.
After hearing all concerned in this case, the Appellate Division of the Supreme Court of Bangladesh on May 12, 2011 ruled that fatwa or religious edicts could only be pronounced by persons properly educated in religious matters, but no one could be forced to accept it, in the following terms:
"No person can pronounce a fatwa which violates or affects the rights or reputation or dignity of any person which is covered by the law of the land,"
The verdict added: "[A] 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."
The judgement further pointed out that "no punishment, including physical violence or mental torture in any form, can be imposed or implicated on anybody in pursuance of [a] fatwa."
The above-mentioned verdict of the Apex Court of Bangladesh in the fatwa case and the High Court judgement against fatwa and related advocacy work against fatwa, are definitely one step forward in order to protect women's rights in Bangladesh and this would eventually lead to incremental achievements for legal empowerment of women in the country.
Accordingly, that was a day of celebration for all those who believe in gender equalities and thousands of girls and women across the country who were constantly victimised by the issuance of illegal Fatwas over the years. Now we have a legal power to protect rights of women where they will not be exposed to humiliations ranging from mockery to rape or free from small rituals curtailing their freedom to absolute limitations on what they can do, what they can wear, whom they can marry, and where they can go. And that there will be no use of illegal extra-judicial penalties under the religious veil in the name of fatwa where women were mostly victimised.
It is true that the status of women and equality between men and women has improved over the years considerably in our country. Positive developments have been witnessed in the reduced gender gap in school attendance and in increasing the life expectancy of women and women's participation in political life.
The situation is not very impressive: Nevertheless, despite these positive developments women and girls still suffer extensive systematic discrimination across the country. Still a lot needs to be done in order to achieve women's equal status to men with respect to legal, social (including sexual and reproductive rights) and economic rights. I was going through recent data regarding fatwa victims after having the landmark Judgment. Unfortunately, the situation is not very impressive, we can still find news reports regarding fatwa incidents where women and girls were victimised by fatwa (extra-judicial penalties) across the country.
Now the big question is: Can law alone protect women's rights in our country? I think the very question now we should ask that although some practices have become habitual, is there any moral justification for them? Stereotypes about gender roles have led to practices in our culture of actively preferring and promoting one sex over the other-often boys over girls. Thus gender discrimination.
The way out: So what is the way out? What are the means through which we can achieve gender equality in our country to empower women and to protect their rights?
I think it is time to take a holistic view over the gender equality and set a moral value in respect of every one of our country to realise that gender equality and female empowerment are core development objectives, fundamental for the realisation of human rights and key to effective and sustainable development outcomes. No society can develop successfully without providing equitable opportunities, resources, and life prospects for males and females so that they can shape their own lives and contribute to their families and communities.
Perhaps more importantly, we need to adopt in our national values the language of universal human rights that allows legitimate claims to be articulated with a moral authority which other approaches lack. It is a language which is recognised by the powerful, and which stimulates deep chords of response in many. It is a language which has the potential to empower individuals and communities at the grass-roots level to believe that they have a right to education, to health care or any other right. Human rights speak in broad terms about the fundamental entitlement of all human beings to live in dignity, and in conditions of social justice and thereby provide a foundation from which to establish a set of demands premised on the intrinsic worth of the individual. The human rights approach justifies legitimate claims, not because the realisation of rights such as that to health or life is a means to another end, such as quality child care, environment, development or population policies, but because the realisation of their rights is an important goal in itself.
Human rights not only create entitlements for rights-holders, but they also create duties for the State. States are required to ensure the fulfilment of human rights by acting in a way that enables rights-holders to enjoy the rights to which they are entitled. Human rights require that actions of a legislative, administrative, policy or programme nature are considered in light of the obligations inherent in human rights. Actions which violate or fail to support the realisation of human rights contravene human rights obligations.
However, there is an unwillingness to adopt a holistic approach to infringement of bodily security and gender-based discrimination in a society, or address complex problems in regard to gender roles and relationships and their impact in imposing disadvantages upon women because of their sex.
Gender equality and human rights, if they are to be realised, must be respected, protected and fulfilled in both the public and private realm. And in order to do those universal moral values need to be established in every sphere of our life privately and publicly. Values are our guidelines for living and behaviour. Each of us has a set of deeply held beliefs about how the world should be. For some people, that set of beliefs is largely dictated by a religion, a culture, a peer group, or the society at large. For others, it has been arrived at through careful thought and reflection on experience, and is unique.
Therefore, we need to set or create a values system that disregards the stereotyping of men and women. What they should look like, dress like, how they should behave and so on, can lead to discrimination or even exploitation. What is needed is a values system which is backed by morality and support human rights and a society free from all sort of discrimination towards women and girls.
Arafat Hosen Khan, a Barrister-at-Law, is an Associate at Dr. Kamal Hossain and Associates. He is currently pursuing a MA in Global Ethics and Human Values at the King's College London, UK with Chevening Scholarship awarded and funded by the Foreign and Commonwealth Office (FCO), UK.