Dear Dr.Raashed,
Recently I had a chance to read an article by you on Fatwa and its relevance to civil laws in Bangladesh. Since I strongly believe in the freedom of speech, which I very much doubt Islam does, I have respect for your opinion but totally disagree with all what you have said in the article. The problem with Islamic scholars that they always does not want to be involve in serious discussions on issues with Islam. They are always afraid that by doing so they may lose their so called imaan.
I want to ask you on what basis you want parallel medieval tribal edicts what you call Fatwa with an already existing legal system in Bangladesh. Bangladesh is not a country ruled by a Taliban system therefore asking for fatwa's to be a part of law is just an attempt to bring anarchy in a nation which is poor and still rule of law needs to be established.
How educated people like you talk like an illiterate village mullah who has no knowledge beyond a few suras of Koran which he can't even translate properly. I find this attitude is a determined effort to mix politics and religion, a lethal brew to create confusion and anarchy.
By doing so you are not serving Islam in any way. The Muslims are in a bad shape because they are being pushed to adapt a lifestyle not supported by pragmatic ideas. Islam is being used by the so called Islamic scholars to create fear not enlightenment. In the name Allah vicious thing are propagated to create a notion that fear is the key. The level of intolerance is so high that Islam has lost all credibility in the non Muslim world.
For every misfortune the west is being held responsible blocking the window for any soul searching.
Remember that no community in the world will ever go forward if they continue to blame others for their problems.
I hope you will respond to me and confront me if I am wrong.
Regards
Akbar Hussain
Canada
Banning the Fatwa a Miscarriage of Justice!
Dr. R. Raashed
(Ph.D. School of Law, Macquarie University Sydney, Australia)
Managing Director,
Islamic Information Services Australia (Legal and General)
The legal system in Bangladesh is an extension of the British Westminister legal regimes and procedures. In a country where some 90% of population is Muslim, it's a failure on the part of the country's political system that this colonial misfit still being forced upon the public some after sixty five years from the independence. Through independence the British colonial rule was rejected by the population yet, the cunning and the shrewd among the nation wouldn't let it depart from its fate. The colonial masters are on foot guarding their agents and interest quarters in Muslim countries. But it is no pride that as a nation we have failed to distinguish between a friend and a foe. Guised under the garbs as the judiciary or executives, the stooges are happy for the servitude and indeed, are colonized at heart. Banning the Islamic Fatwa in the courts of Bangladesh represents a feature for the colonial past and hence, a distinct failure at the same time.
As a slogan, the colonial stooges maintain entrenched love and loyalty for what they call the secular and religiously neutral identity. In reality however, their love and bias for the colonial legacies are intense. In the context of Bangladesh, it is to be juxtaposed with what the Qur'an (02:165) puts as Muslims' love for God should have been much stronger. This contrast will explain the reason why the judgment at point instigated the formidable opposition. Given the demography of the country, the judges of the courts in Bangladesh, must reflect the wishes and aspirations of people through their judgments. Banning the Islamic Fatwa would thus represent an assault on public interest.
A judgment is never an individual view of the judge on an issue before him/her. Instead it must reflect the realistic application of a legal instrument in its holistic consideration. The legal instrument in this sense is the written law which in every sense is also a trust in the custody of a judge or a tribunal. But a huge gap between the law in this sense and its application is a true picture for most of the judiciary and executives in Bangladesh. This is also true of many other Muslim countries. This article is only an analytical approach to the legal reality in Bangladesh and hence does not intend to hurt the public prestige of the relevant courts. In relation to the judgment banning the Fatwa, its text is important. But its context is rather crucial and thus, demands a neutral readership.
Through their judgment of banning Islamic Fatwa in a blanket form, the two judges of the High Court in Bangladesh have in fact struck through the hearts of 90% Muslims in the country. Worse still the duo of the tribunal have failed to appreciate this aspect of their decision. The naivety rooted in this judgment is apparent from the two judges' approach to the law in isolation from the social reality. A shallow approach to law such as this is a liability for the nation it was meant to serve. We may think of a novice in other offices, but in the application of law there is no provision for the apprentice judges. Said simply, the mediocrity has therefore, no place in law and legality. To secure the justice, not only the best and the brightest should practice the law, but also, the legal mechanism in the country must cater for this. Undoubtedly, banning the Islamic Fatwa in a blanket form drew a bad picture of legal reality in Bangladesh. Fortunately, however the Appeal Court did comprehend the gravity of the consequences and suspended its operation pending the outcome of the appeal. It is obviously a very limited comfort. We must accept that those initiating the appeal for this ominous judgment deserve being applauded. The hearing of the appeal is now continuing and hence, the relevance of this commentary.
A word of caution: While reaching conclusions, we will not prejudge the religious affiliation of His Hon. Justice Golam Rabbani and his partner in the tribunal Justice Najmun Ara Sultana. The excuse to reprimand this critique under the provision as "contempt of the court" does not arise. The tribunal consist of these two judges banned the Islamic Fatwa in Bangladesh in 2001. It is however, our solid right to judge the merit behind their decision given the damages it caused to the hearts of millions of Muslims in the country and beyond. We already know that the Arabic names do not necessarily make anyone a Muslim or a believer, to be precise. For an individual to be a believer or otherwise is absolutely a personal choice. Hence in our derivations, no expectation would be built on the ground of the two judges' religious persuasion. By accepting the membership to a tribunal, they two judges have obviously adopted the liability for their judgment's professional integrity being critically and vehemently scrutinized. Throughout this commentary, our focus will therefore, remain on this aspect of the judgment's professional cohesion and integrity.
We have a reason to presuppose that the two judges in this case are traditionally trained on the issues of law and legality in Bangladesh. Hence, they were expected to uphold the basic principles of justice for all while delivering a judgment in a case of nationwide significance. While making a judgment in such a sensitive case, what went missing was the very essence of the legal sensibility on the part of the two judges. The judgment miserably failed to protect the value system of Bangladesh as a Muslim majority nation that its constitution envisaged to protect. As the judgment of banning the Fatwa was delivered in 2001, the saga of the 5th amendment cancellation in 2010 was never an issue then. This judgment has also failed on being sensitive to the national feelings and emotion of 90% Muslims in the country. We don't dispute that there may well be the cases where the institution of the Islamic Fatwa have been misused. Consequently, the subjects are victimized. It may well be true that not all those issuing the Fatwa in Bangladesh do have the due credentials to do so. This being the reality, the institution of issuing the Fatwa should have been regulated with the appropriate directives being issued by the court to the executives.
As a rule of thumb, the legal procedures aim at protecting fairness by de jure (by law) or by defacto (by the issues of fact) mechanisms. The Westminister system of legislature which has been the source of legal culture in Bangladesh is based on this basic principle. By applying a blanket ban on practice of duly made out Islamic Fatwa the two judges of the High Court have clearly failed on this account as well. This failure provided a clear case where the incompetent judges performing to the opposite direction of their appointment and office. This judgment can only be described as substandard. The misuse of Fatwa by those that are not duly qualified may warrant that this institution is regularized. Instead of applying a blanket ban, the court may in fact have won the appreciation of all by codifying the practice. This goodwill however, remained totally absent from this judgment and hence is the challenge of its professional integrity. In absence of this, the only option remaining open is either the misinformed ill will of the tribunal to the institution of Fatwa or worse still, an instance of outrageous incompetence.
Let's now focus on the judgment itself and analyse critically its legal aspects. This decision although suspended later on by the Court of Appeal, has recently been brought before the appeal court for the review. At the outset we must accept that the decision on this case is fraught with consequences. This judgment should have cared for the impact it is going to have on the public. Handling the religious emotion without the due care and most importantly, interfering with the fundamental legal instrument of the Islamic fatwa have the impetus to plunge the nation into civil war. The Islamic edicts issued in personal or collective issues, by the duly qualified Islamic scholars can never be eradicated. Anyway considered, it is an issue of natural justice. It is one of the most fundamental pillars of the Islamic Shair'a and hence, above the court of law's jurisdiction.
The constitution of Bangladesh provides for the freedom of choice and religion. By the operation of this supreme law as a legal instrument therefore, the constitution also provides the guarantee that Muslims in the country are free to seek the scholarly made out Islamic opinions where relevant, with a freedom to abide by them as well. The judgment has also failed to comprehend the true understanding of the Fatwa in Islam. When put in this perspective, the judgment banning the Islamic Fatwa in fact, defeats the operational provision of Bangladesh constitution whereby it guarantees the freedom of choice and religion. The Westminister system of administering justice represents a series of legislative procedures all of which are committed to reflect the wishes and aspirations of people in a country. This legal principle is engrained and deeply rooted in any democratic system that seeks to emulate the Westminister system.
The court of Justice Golam Rabbani and Justice Najmun Ara Sultana has also failed on this ground. Venturing out to impose a blanket ban on Islamic Fatwas is a clear mark of short-sightedness on the part of this judgment. To say the minimum, this type of summary justice reflects the phenomenon as the miscarriage of justice itself in the system. This judgment has rightfully brought about the shame of injustice upon the nation that is paying for these judges. While deliberating, the tribunal has clearly failed to look into the law in its holistic nature and application. Should we then propose that a judgment should be merit checked before delivering? May be we should! A piecemeal approach to the law and its institutions, albeit easy, is bound to defeat the purpose behind the law. The judgment banning the Islamic Fatwa is an outstanding example.
It is in this context that when established beyond doubt, the intention of the law makers also becomes a strong legal instrument in the Westminister system of administering justice. Maintaining an overall outlook to the legal institutions needs a sound culture of absolute adherence to legality alone. The seat of justice is in the heart of the judges. But where the judges are corrupt or incompetent, the legal institution administering justice must take all the blames for the failure. The judges are also human beings and thus, are susceptible to being swayed by the fear or favour while fostering a particular orientation in a judgment.
It is an open truth that the legal institutions in Bangladesh are found to be cardinally corrupt in public opinion. But is it in fact true that they are indeed corrupt, is a million dollar question! The mechanism for disciplining the deliberate failure on the part of the judges must also be in place. Bangladesh where the judges are appointed along the line of political loyalties, paying back for such appointments is bound to victimize first the conscience of a neutral bystander. Prior to allocating a case that deals with the issues of public conscience and interest, the High Court should therefore, do a bit of in-house cleaning exercise. An audit of competency and neutrality in a judge should therefore precede the final allocation of such a case.
A Disqualified Law Minister:
Bangladesh where the merit based appointment of judges is at stake, the audit of competency must determine first, whether a single judge or a tribunal is competent enough to handle the case at hand and comprehend its consequences. The past ideo-political affiliation of the judges should be the deterrent from assigning to them a case that may encroach upon the bounds of neutrality. Once a government dubbed as the most corrupt on earth boasts the law and order, it becomes nothing but a laughing stock. People in Bangladesh are either, Muslims, Hindus, Buddhists, Christians or nature worshippers. The only fabric that binds them all is belief in a religion, revealed or otherwise. The atheists thus, constitute a sheer minority in the make-up of its population. A minister for women's rights and welfare should be a woman herself. For the same reason, an atheist is an outright misfit for the law ministry. Short of realizing this, a government is either naive or a part of criminal complicity against the public interest.
Appointing the law minster of a highly religious nation such as Bangladesh, a self confessed communist who by definition is also the atheist, is an outright misfit and indeed, a grotesque blasphemy. In a sense, this is the hypocrisy on the part of a government that undertakes the obligation to guarantee public aspirations. Instead of interfering with the peoples' choices, this huge inconsistency is the debacle that the High Court should look into first. Without dealing with this inconsistency head on, administration of true justice will continue to be a mirage and daydream. The audacity to uphold the institution of justice at any cost needs the brave-hearted professionalism and the legal scholarship in the judges. When a judgment fails, the justice seekers do pay with their rights. But more importantly, losing the neutrality in the system of justice administration is indeed, a grave ominous sign for a religiously diverse country like Bangladesh. Should we then trust a fox with our chickens? May we then conclude that when the conscience becomes corrupt, justice is lost from the inception?
The constitution of Bangladesh needs to be re-done:
Let's now refer back to the judgment of blanket banning the Islamic Fatwa by the tribunal under the scrutiny. From observing the procedures of appeal, it appears that the attorneys on both sides of the application have got their approach to the case totally wrong. The attorney of the plaintiff sought to argue the case from the pure Islamic point of view, which has no place before the court in Bangladesh. The Westminister system of administering justice may therefore be excused if it decides to look at such submissions at askance. In fact, the future of this case lies squarely in arguing it on the basis of law makers' intention behind drawing up the constitution. The holistic approach to this supreme law of the nation will only guide the appeal court that the judgment of the tribunal was dangerously, localized and superficial and thus, needs to being scrapped at once.
It is almost annoying to note that the court appointed ten lawyers as amicus curiae (the friends of the court without any substantive credentials on Islamic law. The arguments rendered by some of its members are devoid of legal substance and hence, are ludicrous. To start with, the concept of referring a court to the amicus curia is based in the Vatican and thus rooted very much in the Christian culture of Catholicism. Making such a church based concept the jury in deciding the outcome of the Islamic Fatwa is and outright ridicule! It is a glowing example of ignorance on the part of the High Court in Bangladesh in deciding the prerequisites before setting a competent appeal process.
Equally disturbing is the submissions of the attorney for the defendant who in naivety, opted to argue his case also from the localized view of the constitutional provisions. By this approach he in fact failed to establish any real relevance. If it is true that the defense attorney had in fact contribution to draw up the current constitution of Bangladesh, he should have been disqualified on the basis of conflict of interest. His argument is almost blasphemous as to who is the source of the real power by the constitution. Ironically however, the judgment under the appeal hammer of the court, had failed in the first place, to uphold the provisions of the constitution itself.
To start with, the constitution of Bangladesh has not gone through the stringent procedures of public plebiscites and hence, it is urgently needed to be done again. In its current form, it can be described as a temporary legal document dedicated to care for the interest of an emerging nation. It clearly lacks the commitment to cater for the wide ranging interests of Bangladesh as a nation. Without undertaking a genuine and widespread public consultation, a constitution will serve nothing but an elitist approach to the law and legality. This is the guilt that Bangladesh as a Muslim nation continued to live for the last forty one years. It will indeed be a national pride for a forward looking government in future to set the foundation of the nation right to re-cast a realistic constitution based on true and wide-scaled public consultation. In fact, it can be a good public agenda for campaigning re-election by a strong political party now. Prior to this, speaking of a true representative justice system in Bangladesh will continue to be a daydream.
· Dr. Raashed is the author for "The Book that Contains No Doubt" due to be published soon!
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[Disclaimer: ALOCHONA Management is not liable for information contained in this message. The author takes full responsibility.]
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