Sara Hossain is a leading Bangladeshi human-rights barrister, practising in the Supreme Court of Bangladesh. She is a partner at the law firm of Dr Kamal Hossain and Associates, serves pro bono as the honorary director of the Bangladesh Legal Aid and Services Trust and is a member of Ain o Salish Kendra (ASK), a human-rights organisation. She has previously served as a member of the Advisory Committee of the Women’s International Coalition on Gender Justice as well as co-editing the book Honour: Crimes, Paradigms and Violence Against Women (2005, Zed Books). Masoud Golsorkhi spoke to Hossain about her most recent cases at the Supreme Court, secularism and women’s rights.
Interview: Masoud Golsorkhi
Portrait: Ashraful Hadi
Masoud Golsorkhi Your case on fatwa violence in the Bangladeshi Supreme Court has brought you some attention here in the UK.
Sara Hossain The case has a long history and it is really about two sets of cases. The attention in the UK suggests that this is a very recent case and that we’re sitting here in Bangladesh battling fatwas constantly, which is not really the case. I mean, it’s very different from Iran, for example, or countries where fatwas have legal validity. In our case the situation arose in the early 1990s. Cases were coming to prominence of rural, informal groups of people in villages (the shalish, which also has a benign and more everyday function of simply resolving disputes) and their issuing supposed fatwas to discipline women and men – usually women – and imposing humiliating punishments like wearing garlands of shoes, being ostracised from the village, caned or whipped. So women’s groups were very active in protesting these. And then back in about 2001, the High court gave a judgement saying that all fatwas were illegal, after two organisations got involved and argued that fatwas were a problem because they sought to impose these extralegal punishments and were being imposed by bodies that didn’t actually have any legal authority behind them. We argued that all fatwas need not be illegal. The fatwa, so long as it’s just an expression of religious opinion, is OK. But, you know, you can’t just have a blanket ban and you can’t arrogate this authority to yourself. So we intervened in that case and then it went to the Supreme Court. It was pending there for about ten years.
Now in the meantime, in late 2009, we went back to court again and that’s really the case that I led; a series of these fatwas were being reported in the press and of really quite absurd situations: a Muslim woman speaks to a Hindu man in a rural village, and the woman has a fatwa issued on her that she should be caned. So we went to court again and we took interpretations of our constitution and of international human-rights law, and we also got an expert opinion from a religious scholar on Islamic law called Khalid Masoud. He was making exactly this point, that, under Islamic law, a fatwa is an expression of opinion and that it depends very much on the context whether that fatwa has any broader legal validity or not, and whether it should be recognised by the courts or the legal system. And we argued that in our legal system in Bangladesh, where we have a secular constitution, the only area where religious law is recognised is in relation to family law. Not only Muslim law, but Hindu law and Christian law are recognised in this respect. So we said that a fatwa cannot be used to impose punishments on anybody, and certainly these individuals who were imposing them had no authority to do so. So we got this big landmark judgement and then the old Supreme Court case finally came up for hearing. And at the time when that case came up for hearing, the Hena case had just happened – Hena had just died after a fatwa was executed on her [Hena was a 14-year-old girl who was accused of adultery and ordered to receive 101 lashes, she later died of these injuries].
The reason we were in the Supreme Court in the first place was that two self-described muftis had also gone up there on appeal, saying that they had a fundamental right to freedom of expression, which includes the giving of fatwas. And they had a very intriguing argument, right? So their argument was that although the Bangladesh constitution includes secularism as a fundamental principle, it also makes Islam the state religion. On that basis they wanted to argue that since Islam is the state religion, all fundamental rights must be interpreted in the light of Islam. They argued that their fundamental right to free expression includes the right to give fatwas. On the other hand, we were saying thay they have the right to give fatwas, but they don’t have the right to give any fatwa that causes any harm to any other person and they don’t have the right to give a fatwa that imposes anything on any other person. People can choose whether to listen to your fatwa or take it as an opinion. That is the reason the Hena case was so important. At that point, in the immediate aftermath of her death, even the people representing the so-called muftis could no longer really make any kind of argument saying we can give any fatwa we want whenever we want. The first thing they had to do during the hearing was pretty much concede the big point, which was, of course, that Hena’s killing was wrong. Full stop. And that fatwas cannot be given as a form of punishment.
MG The Bangladeshi constitution was clarified with regards to secularism in 2011. Is that right?
SH Yes, that’s right. Our original constitution of 1972 was purely secular and there was no question of Islam being a state religion. When we were under military rule in the 1980s, Islam was brought in as a state religion. And now more recently, in 2011, our current parliament did not repeal that change, despite a Supreme Court ruling mandating this. So we have this rather peculiar situation where we have secularism embedded in the constitution and we also have Islam being pronounced as the state religion. It would seem, at least on the face of it, quite contradictory. How do we interpret that? We haven’t yet had any other case that has had to interpret that.
MG I think that problem is present in the constitution of almost every Islamic country that I can think of, because there is at least an expression of respect for sharia law, while civil law is given its own structure and processes. As a lawyer, do you absolutely believe that sharia law cannot coexist with civil laws?
SH I definitely believe we should reform our laws in the light of equality and should remove from our system every aspect of sharia law that continues to perpetuate any form of discrimination. And not just sharia law, but other religious laws that often do that. Interestingly, here it only applies to family law; we don’t have sharia for criminal law or any other area. And I think what’s interesting for us is our demographics, where the majority of the population is Muslim. We are a secular country, we’ve actually had reforms of Muslim family law, but we haven’t had many reforms in Christian or Hindu law. Christian and Hindu women are worse off in terms of not having divorce rights, while Muslim women do. Again we have a peculiar contradiction there. I feel personally, and so do the organisations I work with, that we’re all committed to the idea that we should have progressive secularisation of our laws founded on the principle of equality.
MG So are you actually calling for an amendment to the Bangladeshi constitution to clarify this position? Or do you think it’s a process that the Supreme Court can just work out?
SH It’s a constitutional amendment, so the process would be for parliament to actually change it. When the government enacted the most recent amendment, the 15th amendment, it didn’t take the opportunity to get rid of this provision about Islam being the state religion, so it seems improbable that parliament will take any action right now, but that would be one obvious path. And the other path would be for the Supreme Court to strike it down, but there is little immediate possibility of this being brought up before the court.
MG Is there a legacy of British colonial law that contributes to this?
SH Yes, the British colonial system created this structure of recognising different codes of family laws and personal laws and this carried on into the postcolonial system. We had a very sharp break after the Liberation War and the new constitution marked that break by not only pronouncing secularism, but also going much further by prohibiting any political organisation that was based on religion, as well as guaranteeing freedom of religion, freedom of expression and equality as well as affirmative action to ensure women’s rights. I think the constitution did make a sharp break with the colonial tradition, but our legislation hasn’t followed suit and this work of reviewing the personal laws and seeing whether they are or are not consonant with the constitution – that exercise hasn’t yet been done in a very systematic way. The law commission did start it, but it hasn’t come forward yet with proposals for systematic amendments.
MG You’ve said before, and in your book about international crimes against women, that British colonial law had provisions that were disproportionately prejudiced against women.
SH Again, the colonial laws were discriminatory in different ways. For example, the Christian person laws were the same as English laws back in the Victorian period. English laws moved on, but we retained the same Victorian law where, for example, Christian women don’t have rights to divorce, and adultery is an offence. So yes, discrimination is also embedded in a lot of the colonial legislation that remains.
MG Then there are honour crimes, which are typically associated with Muslim communities around the world.
SH The whole notion of “honour” crimes is much less common here than, say, northwest Pakistan, or even northern India and places like Punjab, where honour killings are quite common. We really have not had that history or tradition of those kinds of extreme acts here in Bangladesh. I think that in Bangladesh we would say that situations like forced marriage or denial of choice of marriage and some of these fatwa cases can potentially be seen as honour crimes. Our penal code talks about provocation, but it doesn’t embed or use the terminology of honour in that way.
MG It’s interesting that you brought the opinion of religious leaders into your Supreme Court case.
SH I think the way we did it was a little bit different. We got an expert opinion from a scholar based in the Netherlands who is a scholar of comparative Muslim law. We considered this an important strategy to show that Muslim law is not one fixed thing. That it depends on what society and what state it’s in. It depends on the state structure; It depends on the constitutional system; it depends on that country’s history and traditions. We really wanted to make the argument that it wasn’t so much about asking what Muslim scholars or muftis in Bangladesh might think; it was about looking at the comparisons and understanding the constitution and legal system in Bangladesh, and what space does a fatwa find in that? It’s not the same as Egypt or Malaysia or Indonesia or Iran, where each has different traditions and systems. The person we quoted was Professor Khalid Masoud, who’s done a whole treatise on the place of fatwa, which is what we relied on in the end.
MG And what about the attacks on proponents of secular values and freedom of speech, in particular, bloggers. Where do you think these are coming from?
SH There’s an attempt to push things in a different direction. Precisely because many of the so-called secular writers and atheist bloggers being attacked were also people who had been, in addition to their writings on religion, commenting on and writing around the issue of war crimes, and seeking accountability for the groups and individuals who had supported or enabled such crimes – that’s, in my view, a major reason for their coming under attack.
MG How do you feel about the position of women in Bangladesh in recent times? One reads from far away about events like the fire at the Rana Plaza and then how Hefazat-e-Islam is saying that you shouldn’t let your women go to work because of events like these.
SH I think the whole commitment to development and to women’s empowerment has been pretty consistent as far as the state in Bangladesh is concerned for several decades now. Post-Liberation, from 1971 onwards, you saw the growth of NGOs, and leading organisations like Grameen Bank doing micro-credit and development. These organisations were completely about bringing women out and enabling financial and legal empowerment. In the 1990s there were attacks on these organisations, like when the Grameen Bank buildings were torched, or the BRAC [Bangladesh Rural Advancement Committee] organisation’s silk-production projects for women were attacked – as these required women’s mobility and visibility in public spaces. These groups were a threat to the traditional power base of more fundamentalist groups, but there has now been an almost unbroken record of supporting initiatives around women’s empowerment. The garment industry has made an enormous difference in the visibility of women and I think – and hope – that’s a pretty much unstoppable trajectory. §