No extra-judicial penalty in the
name of 'fatwa'
In a landmark judgment for women's rights, the High Court has declared that “Imposition and execution of extra-judicial penalties including those in the name of execution of Fatwa is bereft of any legal pedigree and has no sanction in laws of the land.” The Court cited the constitutional mandate of equality and the state's international human rights treaty obligations to ensure women's right to live free from violence. The bench comprised of Justice Syed Mahmud Hossain and Justice Gobinda Chandra Tagore directed that persons responsible for imposition of extra-judicial punishments and their abettor(s) shall be held responsible under the relevant sections of the Penal Code and other laws. They further directed the law enforcing agencies, Union Parishads and Pourashavas (municipalities) to take preventive measures against the issuing of such “fatwas” in their concerned areas, and to take legal steps for prosecution in case of such occurrences, as appropriate. They directed the Ministry of Local Government to inform all law enforcing agencies, Union Parishads and Pourashavas of the unconstitutional nature of such penalties. In a particularly significant step, the Bench directed the Ministry of Education to introduce educational materials in the syllabi of all educational institutions particularly in madrassahs on the supremacy of the Constitution and rule of law.
The full text of the judgment, pronounced in Court on 8 July 2010, has recently been made public. This judgment was given analogously in three separate writ petitions filed during 2009/2010 with respect to the continued failure of state authorities to address the incidence of extra-judicial penalties being issued in the name of fatwa. The first petition was filed jointly by five human rights and women's rights groups, Ain o Salish Kendro (ASK), Bangladesh Mohila Porishod, Bangladesh Legal Aid and Services Trust (BLAST), BRAC, Nijera Kori. The second and third petitions were filed by two lawyers, Salahuddin Dolon and Mahbub Shafique. Sara Hossain, with Masuda Rehana Rosy, Taufiqul Islam and Abantee Nurul appeared for ASK/BLAST/Mohila Parishad/BRAC/Nijera Kori, while Salahuddin Dolon and Mahbub Shafique appeared in the cases in which they were petitioners.
Through 2010, newspapers reported a series of incidents of violence inflicted on women and girls in the name of 'fatwas' 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. They included
-a woman in Comilla being subjected 39 lashes, and hospitalised, then admitted to the one stop crisis centre, after a shalish over a dispute regarding acknowledgement of paternity of her child born out of wedlock.
-a woman and man in Hobiganj being subjected to 101 lashes for 'breaching social norms' and her husband being directed to divorce her
-a woman being subjected to 101 Lashes for refusing her uncle's sexual advances
-the wife of a madrassah teacher in Naogaon district being subjected to a hilla (intervening) marriage, and she and her husband being subjected to 101 lashes and then refused medical treatment, after he reportedly pronounced talak (repudiation).
-a woman in Srimongol was subjected to 101 lashes for 'talking to a man on the road'.
-a woman in Nilphamari district had her hair forcibly cut and was compelled to leave her village with her two children, for refusing sexual relations with a locally influential person, the son of the elected Union Porishad Chairman.
-a woman's family were ostracized from their village due to their refusal to submit her to a hilla marriage after her husband pronounced a divorce, and their son was forced to leave the local madrassah, and the local mosque refused to allow them to share iftar.
Despite sporadic responses from law enforcement agencies, and in some cases high-level interventions by the Prime Minister's Office providing medical treatment to the survivors, no systematic efforts were undertaken to address such cases.
In July 2009, a constitutional challenge was filed against the state's failure to take action to prevent such incidents or to investigate them, and to prosecute and punish those responsible. The petitioners were five human rights women's rights and legal services organisations ASK, BLAST, Bangladesh Mohila Porishad, BRAC Human Rights and Legal Services and Nijera Kori (Writ Petition No. 5863/2009). The petitioners were represented by Ayesha Khanam of the Bangladesh Mohila Porishad, Sultana Kamal, Executive Director of ASK, Farida Yeasmin, Deputy Director Legal Aid of BLAST, Faustina Pereira, Director of BRAC HRLS, and Khushi Kabir, Coordinator of Nijera Kori.
On 25 August 2009, the Court directed the Government (Ministry of Local Government and Rural Development, law-enforcing agencies and the Union Parishads and Pourashavas) to take immediate measures against extra-judicial penalties issued in the course of traditional dispute resolution processes (salish), and to show cause as to why their failure to prevent or investigate and prosecute such illegal acts should not be declared to be without lawful authority. Two further incidents of such extra judicial punishments were reported even after the Court's intervention. This gave rise to two other writs filed by two Supreme Court lawyers, Salahuddin Dolon and Mahbub Shafique respectively:
Salahuddin Dolon v. Bangladesh (Writ Petition No.754 of 2010): This case was filed after reports of a 16 year old girl in Brahmanbaria being subject to 101 lashes and her father fined and threatened with ostracism, after she was raped. She had been married to another person and had a small child.
Mahbub Shafique v. Bangladesh (Writ Petition No.4275 of 2010): On 8 July 2010, the High Court gave its judgment disposing of all three petitions. It declared infliction of all kinds of extra judicial punishments, including those imposed or inflicted by local salish in the name of 'fatwa' to be illegal and without any lawful authority. 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.
Source: Bangladesh Legal Aid and Services Trust.