High Court order shouldn't be in vain

Published on Friday, August 28, 2009

Ripan Kumar Biswas Ripan.Biswas@yahoo.com

After pleading guilty in March, 2009, Bernard Madoff, who began stealing investors' money in the early 1990s and took as much as $50 billion from investors around the world, was sentenced to 150 years in federal prison for masterminding the largest Ponzi scheme in U.S. history.

But a 14-year-old boy in Bangladesh was sentenced to lose his eyes by the influential locals out at an arbitration for stealing a mobile phone set. Several national dailies in Dhaka on July 17, 2009, reported that Sultan Khan, the father of the alleged boy Miru, was forced to gouge his own son's eyes as a punishment for stealing a mobile phone set at Bhanga upazila, Faridpur. While the Miru's case represents a cruel inhumane action, one incident of Chapainawabganj, Rajshahi represents how much influential the local leaders are! A ruling local politician kept a young man hanging from a tree for five hours and even refused to give him a glass of water as the young man earlier filed a case against his supporters regarding the stealing of some irrigation equipment.

Although in the case of Miru, the local law enforcement agencies and other government bodies later said the reports were not true as the boy only sustained injury to his right eye, but both the punishment imposed on them are all a reminder of medieval barbarism and a clear sign of common trend of extra judicial punishments in the rural areas of Bangladesh.

Extra judicial punishments are more severe against women in Bangladesh . Vigilantism against women accused of moral transgressions occurred in rural areas, often under a fatwa, and included punishments such as whipping. This is leading to newer more specific forms of violence against women; violence which requires the support of the village elite who are in a position to order (fatwa jari) the burning or stoning of a woman, regardless of existing legal institutions. In the latest instance as reported national dailies in Dhaka on June 29, 2009, Peyara Begum, a 45-year-old widow and mother of five of Debidwar upazila in Comilla, was whipped 200 times under a fatwa for her alleged extramarital relations with a local resident. On May 22, 2009, Rahima Akhtar, a woman in a village of Moulvibazar , Sylhet, was whipped 39 times before she fell unconscious by the order of village elders as she talked to a non-relative male on the street. Fatwa has been the cause of many a woman's ruination in Bangladesh .

Despite the outrage and protests focused in the leading media and forum, the women's groups, civil society, and enlightened citizenry, the examples of this kind barbarisms, extra judicial punishments, or fatwas are accelerating from one place to another, one village to another village. Though a division bench of the High Court ruled on January 1, 2001 (during the Bangladesh Awami League tenure) that all fatwas are unauthorized and illegal, but the government's inaction very often fuels extra judicial punishments and emboldens the obscurantist and self-seeking clerics to impose fatwas with their perverse interpretation of religious doctrines. The court went on to say that the very issue of fatwas should be made a punishable offence.

But we all are glad to know that the High Court (HC) On Tuesday, August 25, 2009 ordered the government, law enforcers, and local government bodies including all Union Parishads and Paurashavas to take immediate measures to investigate promptly any report received of the issuance and imposition of an extra-judicial penalty such as beating or lashing by any person or body, including a Member of Chairman of any Union Parishad or Paurashava, and to take appropriate measures against any person found responsible, also to provide security and protection to any victim.

The rule was issued by a Division Bench of HC comprising Justice Mahmud Hossain and Justice Quamrul Islam in a public interest writ petition filed by five human rights, women's rights and development organizations, in the context of a series of reports of women and men being subjected to extra-judicial punishments including whipping and caning during the course of rural "Shalish (sentence)," often in the presence of or with the active participation of members or chairman of Union Parishads.

A fatwa is a legal pronouncement in Islam made by a mufti, a scholar capable of issuing judgments on Sharia (Islamic law). Fatwas are asked for by judges or individuals, and are needed in cases where an issue of fiqh (Islamic jurisprudence) is undecided or uncertain. Lawsuits can be settled on the basis of a fatwa. According to the human rights activists, Fatwa' is the name (wrongly) given to informal arbitration decisions made by some Imams/Muslim clerics, based on usually extreme or misinterpretation of Islamic Principles.

In Bangladesh , the legal system empowers only the courts to decide all questions relating to legal opinion on Muslim and other laws in force. But in rural Bangladesh , mullahs usually use this fatwa as a weapon to be powerful where the tentacles of the law do not quite reach the common folk. Sometimes this results in extrajudicial punishments, often against women, for perceived moral transgressions. In addition, Islamic militants in Bangladesh have been fighting tooth and nail for a long time to hold onto the power of delivering fatwa.

On the other hand, extrajudicial punishment is physical or mental punishment without the permission of a court or legal authority, and as such, constitutes a violation of basic human rights such as the right to due process and humane treatment.

In rural areas, religious leaders impose flogging and other punishments on women accused of violating strict moral codes. During 2008, religious leaders issued twenty fatwas in Bangladesh , demanding punishments ranging from lashings, hilla or forced marriage, exclusion from the community, and other physical assaults to shunning by family and community members, according to a report from the U.S. Department of State. A total of 39 fatwa-related incidents took place across the country in the recent past, local media reported.

The United Nations has adopted the Universal Declaration of Human Rights as well as eight other charters, which are binding on all the member states, with a view to safeguarding the freedom, rights and status of the peoples of all nations. Besides, the Constitution of Bangladesh incorporates 23 articles pertaining to the fundamental rights of its citizens. The Constitution of newly independent Bangladesh adopted in 1972 incorporated the substance of the Universal Declaration of Human Rights and other relevant documents of the United Nations. But the manner in which human rights has been constantly flouted in Bangladesh , is clearly imprinting a flagrant infringement of the human rights charters of the United Nations as well as the country's Constitution.

In January 2002, in response to the courts striking down a fatwa, the leader of the Jamat-e-Islami and the defenders of fatwas and extrajudicial punishments proclaimed, "Courts won't be allowed to control fatwas; instead fatwas would control the court." Human rights organizations and the enlightened citizenry including Bangladesh Mahila Parishad called on the government to enact a law under which issuing fatwa (religious edict) should be considered a criminal offence.

While we expect everyone to understand that the fatwas or extrajudicial punishments are nothing but a misinterpretation of religious ethos and exploitations of religious sentiments of simple people, we do expect that the government body including civil administration and the law enforcement agencies shouldn't stay away from the atrocities committed in the name of dispensation of justice.

Friday, August 28, 2009, New York Ripan Kumar Biswas is a freelance writer based in New York

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