The legality of pronouncing ‘fatwa’ in Bangladesh is before the honourable appellate division of the Supreme Court of Bangladesh. A local Moulvi had declared his neighbour’s marriage to his wife void because of oral pronouncement of talaaq expressed a year earlier and based on that had forced ‘hilla’ marriage of the women. The High Court division while declaring such divorce to be non-binding also declared pronouncement of fatwas as illegal being unconstitutional.
A ‘fatwa’ is an opinion, more particularly a legal opinion. Being one’s opinion, a fatwa in Islamic jurisprudence is fundamentally non-binding. In Islamic law, for an opinion to be appropriately termed as ‘fatwa’, it must come from a Mufti (a consulting canon-lawyer in Islam, who upon application gives fatwa or legal opinion on points of canon-law- Encyclopaedia Britannica). Mufti is the active participle of the word ‘afta’ which means to decide a point of law. Even a mufti’s fatwa is not binding. Some schools of thought suggest that a fatwa might be binding only on the Mufti issuing it. The Islamic Fiqah Academy (IFA) in Saudi Arabia is the most prominent body in the Muslim world to decide on various religious matters. It is established under the organization of Islamic Countries (OIC) and has members from most Muslim countries. Even fatwa issued by the IFA is not binding and cannot be directly enforced. A fatwa can only become binding and enforceable when it is given to a Qadi or a Judge in assistance in a case before him and he accepts that fatwa and puts it in his verdict. Without the sanction of a Qadi or a Judge, fatwa is not binding or enforceable and no punishment can be given based on such fatwa. During the Muslim period in the Indian sub-continent, Muftis appeared before the courts regularly to assist the Qadi decide on points of law. The most famous collection of fatwa in this region was compiled during the reign of Emperor Aurangazeb under the name Fatwa-e-Alamgiri (1663). Another famous collection is the ‘Hedaya’. Both are authoritative work.
It is very saddening to see the misuse of fatwa in Bangladesh by a section of village elders who have no or little knowledge about Islamic law. However, these types of practices are not unique to Muslims alone or to Bangladesh. The Hindu village panchayets in many villages of India and tribal regions of Pakistan-Afghanistan border are infamous for having a parallel quasi-judicial system based on local customs and practice. It is not uncommon for such village councils to deliver and execute death penalties based on insufficient evidence, often by cruel means. Such practices are illegal under any constitution of the Indian sub –continent and also in Islamic law – specially where proper courts have full jurisdiction to decide such matters.
The people of rural Bangladesh are ignorant and lack access to justice. It is not easy to stop this. People in villages go to their village Moulana or Moulvi all the time to seek guidance on various religious matters. Neither the Moulvi nor the villagers are aware of the formers capacity to decide matters of Shari’ah and pass verdicts. But this problem cannot be solved by declaring fatwa as illegal. Rather, the enforceability of fatwa without the sanction of a court should be declared illegal. Expression of opinion and thoughts is a guaranteed fundamental right under the constitution and the same applies to fatwa as well.
Awareness should also be raised among the rural population and the village Moulvis regarding the misuse of religious authority. A verdict from the Supreme Court affirming the High Court division’s judgment and thereby making issuance of fatwa illegal will create more problems than it will solve. The illiterate ignorant people of rural Bangladesh lack the capacity to interpret such issues; otherwise they would not have fallen into such error in the first place. With more than 85% of the population being Muslims, perhaps it would be a good idea to have a formal body with the authority of issuing fatwa, as in India and Saudi Arabia. With proper authority vested in a body, such indiscriminate misuse of fatwa may cease.