3 January 2016
from: The Guardian - 18 December 2015
In Bangladesh, women whose actions fall foul of religious conventions have long been subject to punishment by fatwa. Sara Hossain hopes her trailblazing work can tip the balance back in favour of the secular legal system
by Lipika Pelham
Hena Akhter was 14 when she was whipped to death for allegedly having an affair with a married man. There was uproar in local and international media at the time of her death in 2011, followed by a fervent call to outlaw so-called fatwa violence in Bangladesh.
The high court ruled that Hena’s body should be exhumed to determine the extent of the violence to which the young girl was subjected. A second post-mortem examination found that she died of septicaemia due to severe internal injuries. The court ordered an investigation, which led to several arrests, including that of the Muslim cleric who issued the fatwa.
That outcome was only made possible by the pioneering work of Sara Hossain, a prominent barrister in the supreme court of Bangladesh. Her campaign to challenge punishments handed out by village shalish courts under fatwas – religious orders inspired by sharia law – has led to groundbreaking rulings based on secular rather than Muslim values.
“When a fatwa is issued, such as in Hena’s case, the victims’ families are not even aware that such practices are illegal under Bangladeshi constitution,” said Hossain, who was in London recently to attend the Trust Women conference.
“Fundamentalists come to court and say that they have the right to use the religious decree, thereby following one part of the constitution which is Islam, but not the other part, which is secularism.”
Fatwa violence is largely used against women who are accused of defying religious assumptions on sexuality. Punishments can include public lashing, forced veiling, shaving heads, or forcing the accused to walk through the village wearing a garland of shoes around the neck.
The Bangladesh constitution is a peculiar one, with Islam and secularism standing side by side. The prime minister, Sheikh Hasina, made a 15th amendment to the constitution in 2011, introducing a separate provision under which Islam was afforded special status as a “state religion”. Paradoxically, this was done even as an older article prohibiting “granting by the state of political status in favour of any religion” was reinstated.
The judicial system has repeatedly found itself challenged by Islamist elements. However, the secular courts have consistently maintained that adultery or pre-marital sex is not illegal in Bangladesh.
“Fatwa is an opinion, not a decision – it cannot be used to criminalise acts that are not criminal under the existing law,” said Hossain.
Through her work with Bangladesh Legal Aid and Services Trust (Blast), of which she is the honorary executive director, Hossain has also questioned the lingering British colonial practice of subjecting rape victims to degrading physical examinations, and discriminatory personal family laws.
One of her cases involved a school headteacher who was cautioned by an education officer for not being veiled. The court eventually held the officer responsible for unlawful intimidation, ruling that “attempts to coerce or impose a dress code on women clearly amount to a form of sexual harassment”.
Hossain has also challenged the “two-finger test”, another British colonial law still practised in the Indian sub-continent. The test entails examining “the laxity of the vagina” of a girl or woman who has been raped, without seeking her consent, to establish if she was having sex. If the test proved she was, the court could rule that she was not raped. These tests have been performed on girls as young as nine.
Following Hossain’s intervention, the high court asked the health ministry to review case studies presented to the court by Blast to evaluate legal approaches that call into question the character or integrity of women in rape cases. A ruling is expected soon.
“Because most people are not going to know about these court rulings, they must be incorporated into school textbooks,” said Hossain.
Sharia law punishment was outlawed by the high court in 2010. Blast now aims to raise nationwide awareness that fatwas lack legal authority.
“It is the duty of the legal bodies to challenge even isolated cases and reinstitute secularism, an integral part of Bangladesh’s constitution,” said Hossain.
Blast’s projects aim to establish a national legal framework on areas including disability rights, the elimination of child marriage, the recognition of women’s rights to consent and choice, and an increased female presence in the justice system.
Blast and supreme court bar members campaigning at a rally against sexual violence in Bangladesh. Photograph: Blast
Hossain’s work has also brought some important breakthroughs in personal family law for Hindus, Muslims and Christians. Codified during colonial rule, these laws often leave women in dire poverty in the event of divorce or separation. About 80% of Blast’s cases deal with family law.
There’s a long way to go before a unified family law is legislated, but Blast has been running legal clinics where women can seek advice. Some of these are run alongside medical clinics offering free contraceptives. Hossain said the clinics are often more crowded than those providing legal services.
“Our main objectives are to work behind the scenes on issues of rights violation, which include public interest litigation. We would like to establish a daily presence, not just lend our name to high-profile cases,” said Hossain.
Hossain’s work may be lauded as revolutionary by some, but she says she is essentially working within the constitution. Only through the rule of law could exemplary women’s rights precedents be created, she said.