The Fate of 'Nurjahans' and the Constitution of Bangladesh

Sultana Kamal

Almost by accident, because of efficient journalistic role played by one of the dailies of Sylhet, we came to know about the fate of Nurjahan. Nurjahan was a woman of 21 in Chatakchara of Sylhet district. Instigated by the 'Fatwa' given by the self appointed religious leader Moulana Mannan, Nurjahan was buried in the ground up to her chest to be stoned publicly for allegedly having committed adultery. Nurjahan had earlier been divorced by her husband. She was found guilty by the local salish led by Moulana Mannan, for contracting an illegal second marriage when she married a fellow villager. This marriage was arranged by her parents. The salish sentenced her and her second husband to death public stoning. Her parents were also held responsible for this 'un-Islamic' act and were sentenced to 50 lashes each. Nurjahan survived the stoning, but committed suicide in humiliation. Pressurised by some of the women's and human rights organisations, the local police filed a case against the Moulana and his followers on charges of abetment of suicide and arrested each of them. The case is still pending.

Another Nurjahan of Faridpur became the victim of medieval violence by being burnt to death in the dark of the night. She was found guilty of adultery by the salish which included her unemployed husband who was totally dependent on Nurjahan for his survival. She was tied to a stake and kerosene was poured over her until she burnt to death.

Fiorza of Satkira was similarly tried by a salish and was sentenced to 100 lashes, being accused of a love affair with a Hindu boy and committing fornication with him.

Kadbanu of Rangpur was impregnated by one of the influential persons of the village who promised to marry her but later denied the relationship. Kadbanu went to seek remedy to the village elders charging that she had been deceived by that man's promise of marriage. The members of salish, for obvious reasons, decided against Kadbanu pronouncing her guilty of adultery and punishing her to death by public stoning. She was, like Nurjahan, buried waist deep in the ground in her pregnant condition under the hot September sun waiting to be stoned. Some sympathetic women rescued her from that situation. She was then asked by the salish to leave the village forever within 7 days. Since then Kadbanu has been on the run.

These incidents took place on by one over the period of 9 month. They were illegally carried out by self appointed dispensers of justice. Salishes are usually constituted by members of a society, mainly rural, who clearly have no legal authority to try criminal cases. All criminal proceedings are to be regulated by the provisions of the Code of Criminal Procedure or specific acts passed by the parliament. To take part in a criminal trial by a salish therefore violates national law and all norms of fundamental rights accredited by the constitution. These are only the few cases that we have come to know; many more have actually failed to reach the media.

One should know that the Bangladesh Constitution has clear directives against such activities. If the Constitution is to be respected by the government, the legal administration and the people of the country as an inviolable document, one wonders, how could such transgression of the law be allowed to pass without effective judicial action?

Part III of the Constitution states that every citizen irrespective of religion, race, caste, sex or place should be entitled to protection of law. Articles 31, 32, 35(1), (3) and (5) specifically directs that every citizen is entitled to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law. This is stated as an inalienable right of every citizen and in particular no action detrimental to the life, liberty, body reputation or property of any person shall be taken except in accodance with law. Article 35(1) says no person should be convicted of any offence except for violation of a law in force at the time of the commission of the act as an offence, nor be subjected to a penalty greater than, or different from, that which might have been inflicted under the law in force at the time of the commission of the offence. 35(3) reaffirms that every person accused of a criminal offence shall have the right to trial by an independent and impartial court of tribunal established by law. 35(5) says no person shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment.

Moreover the salish wrongly projected the offence dealt with by them as offences against the state. But in fact these offences are not listed under the same head in the criminal procedure code. Adultery is an offence in marriage and women are not punishable in cases of adultery.

Judged in the light of the constitutional principle as well as the existing legal code pertaining to the issues mentioned above the salish members have beyond doubt infringed upon the fundamental rights of the people concerned. When article 35(3) is read with the articles 31, 32, 35(1), and 35(5), we can easily see that the 'judges' of Nurjahans have not limited themselves to the act of illegally taking the laws into their hands. They have also infringed upon the rights of the people to be protected and tried only in accordance with law. Thus they have also violated the sense of security of the ordinary citizens.

Courtesy: Ain O Salish Kendra, Dhaka