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Fatwa legal, not to be imposed

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The Supreme Court yesterday declared fatwa or Islamic religious edict legal in "religious matters", but it categorically said fatwa cannot be used to punish anyone.

Fatwa also cannot be issued to violate or affect the rights or reputation or dignity of any person which are covered by the law of the land.

"No punishment including physical violence and/or mental torture in any form, can be imposed or inflicted on any body in pursuance of fatwa," the Appellate Division of Supreme Court (SC) said in its verdict.

The SC ruled that only "properly educated persons" may issue fatwa, but may not force anyone to accept it. Any coercion or undue influence in any form to force it on anyone is forbidden, the SC ruled categorically.

The High Court (HC) in January 2001 declared fatwa illegal, after bigots forced a woman to engage in a Hilla marriage in Naogaon. Hilla marriage is a system in which if a man divorces his wife and then wants to remarry her, she has to marry a third person before her ex-husband can marry her again.

In another verdict in 2010, the HC banned punishment of any person using fatwa.

Fatwa came to limelight after it was used to punish mainly women in village arbitrations.

All six judges who formed the Supreme Court bench yesterday could not agree on the verdict, so it was passed by a majority decision.

Chief Justice ABM Khairul Haque announced the verdict of the majority, endorsing in part two separate appeals filed against the HC verdict that had declared all kinds of fatwa illegal.

BACKGROUND
A Bangla newspaper reported in 2000 that Sahida, wife of Saiful of village Atitha in Kirtipur union parishad under Sadar upazilla of Naogaon, was forced to Hilla marry her husband's paternal cousin Samshul on a so-called fatwa by Hazi Azizul Huq, who said her marriage to her husband had been annulled consequent to an incident about one year ago when the husband out of anger had uttered the word "talak" meaning "divorce". But as they continued to live together, there union was illegitimate, Azizul claimed, and he issued the fatwa that Sahida must Hilla marry a third person before remarrying her real husband.

When the incident came to the HC's notice, it issued a ruling on the government asking to know why fatwa should not be declared illegal.

Two human rights organisations -- Bangladesh Mahila Parishad and Ain O Salish Kendra -- became parties to the case and argued against fatwa before the HC.

After the 2001 HC verdict, two persons Mufti Mohammad Toyeeb and Abul Kalam Azad filed two appeals with the SC against the verdict.

The SC had heard ten senior lawyers and Islamic scholars before it passed yesterday's verdict.

REACTIONS
Counsels for both the state and the petitioners yesterday expressed satisfaction with the SC verdict.

Attorney General Mahbubey Alam told reporters that the Appellate Division modified the 2001 HC verdict, but prohibited all kinds of physical and mental punishments, and violation of law and the rights of people in the name of fatwa.

He said Hazi Azizul Huq'a fatwa in Sahida's case remains illegal.

Barrister Abdur Razzaq, one of the counsels for the petitioners, said only competent persons may issue fatwa, but nobody can take the law in his or her own hands in the name of fatwa.

"I feel that only persons with Kamil degree should be able to issue fatwa, as they have proper knowledge about it," he told The Daily Star.

He said it will be clear what will be the qualification for being able to issue fatwa after the full text of the SC verdict is published.

Advocate Nazrul Islam, another counsel for the petitioners, said the SC's declaration that fatwa is legal is right, as fatwa is a Quranic provision.

But the legal rights of any person cannot be damaged in the name of fatwa, he added.

He also said vigilance will be required so that anti-Islam people may not take any stand against the SC observations.

Meanwhile, the lawyers who were involved in litigating last year's fatwa case in the HC, said HC's last year's verdict that all kinds of extrajudicial punishment in the name of fatwa are illegal, was indirectly upheld by the SC yesterday.

Last year's HC verdict came following separate writ petitions filed by rights organisations -- Bangladesh Legal Aid and Services Trust (BLAST), Ain o Salish Kendra (ASK), Bangladesh Mahila Parishad, BRAC Human Rights and Legal Services, and Nijera Kori -- and four Supreme Court lawyers Advocate Salahuddin Dolon, Barrister Mahbub Shafique, Advocate AKM Hafizul Alam, and Barrister Imaran-ul Hye.

Barrister Mahbub Shafique told The Daily Star that there is no scope for issuing any fatwa beyond the Islamic arena following the SC verdict.

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