Last week, two courageous judges of the Bangladesh High Court in Dhaka, a man and a woman, handed down a judgment of great significance to all Muslim-majority countries that claim democratic statehood. They said that religious fatwas or edicts purporting to be Islamic law issued by maulvis, maulanas, muftis or other religo-political leaders are illegal and should be liable to punishment as any other illegality. The court had taken notice of the plight of a rural housewife who was verbally divorced by her husband and then forced to marry another as decreed by a local mullah.
It held that “fatwa means legal opinion which means legal opinion of a lawful person or authority. The legal system in Bangladesh empowers only the courts to decide all questions relating to legal opinion on Muslim and other laws in force…we therefore hold that any fatwa including this one is unauthorized and illegal…Giving a fatwa by unauthorized person or persons, even if it is not executed, must be made a punishable offence by Parliament immediately…” The court admonished the District Magistrate who did not take “cognizance of the said offence under Section 190 of the Code of Criminal Procedure” and hoped that this would serve “once for all as a warning to the other district magistrates, magistrates and police officers”.
In parting, the court wondered “why a particular group of men, upon getting education from madrassas or forming a religious group, are becoming fanatics with wrong views” and suggested that perhaps there might be a “defect in their education and their attitude”. It then went on to recommend the introduction of the Bangladesh Muslim Family Ordinance in the curriculums of madrassahs and schools as well as during Friday prayer sermons. It suggested a “unified education system and an enactment to control freedom of religion subject to law, public order and morality within the scope of Article 41(1) of the Bangladesh constitution. “The state must define and enforce public morality. It must educate society”, held the court.
According to Amnesty International, “dozens of fatwas are issued each year in Bangladesh by the rural clergy at village gatherings after receipt of complaints, usually against women who assert themselves in village family life. They impose flogging and stoning and other humiliating punishments such as shaving of heads, insults and beatings. They are also often involved in their execution”. The motive, says AI, is often financial because fatwas can be a source of income for the fatwabaz (those in the business of issuing fatwas) who justify their deeds in the name of religion. At least 10 women have committed suicide or been killed as a result of such fatwas in the last two years.
Fatwa is an old Islamic instrument of expressing religious opinion based on the “school of thought” of the mufti (fatwa-giver). The mufti was once a state officer who gave official state opinion when the state was represented by an Amirul Momineen. Today, however, the state in most Muslim countries like Bangladesh and Pakistan is represented by a host of institutions whose scope is defined in a Constitution, among which parliament is the sole law-maker and giver while the judiciary is the sole interpreter and opinion-giver of all laws. In modern parlance, if parliament is the Amirul Momineen, the courts are the grand muftis. Therefore there is no room for mullahs or anyone else to issue fatwas or edicts purporting to have the weight of Islamic law behind them.
The practice of issuing fatwas was never altogether abandoned by the mullahs in most Muslim countries even after they adopted democratic statehood. In due course, sectarian and “school” differences of opinion gave rise to various types of fatwas, usually of tafkir (apostasy) of rival sectarian leaders. In the sub-continent, for example, Sir Syed Ahmad Khan, the great Muslim modernizer of the 19th century, was subjected to a number of “united fatwas” of many “Islamic” schools of thought. Nor was the great 20th century poet Allama Mohammad Iqbal spared.
In Pakistan, the fatwa has come to mean an opinion, exhortation or command issued by an individual, group or party whose belief structure is based on any one of the various sects of Islam. So we have dissenting fatwas on foreign policy, murderous fatwas against the United States, threatening fatwas against various women and human rights NGOs, etc. We can even recall a particularly bullying fatwa against our courageous colleague, Ardeshir Cowasjee, issued by a mullah in Karachi at the behest of a former chief minister of Sindh who was annoyed with the columnist for opposing his land-grabbing schemes. In essence, such fatwas are attempts to silence dissenting opinion by inciting the public to violence against the target.
Unfortunately, our courts have rarely demonstrated the same courage vis a vis such fatwas as the Bangladesh High Court. Nor has the Pakistani state successfully learnt to cope with the phenomena of fatwas, some of which have damaged the credibility of the country and served to create a “negative” image abroad by encouraging violent vigilantist practices and undermining the writ of the state. Therefore we should take a leaf from the Bangladesh High Court judgment and set our house in order.