Understanding fatwa in the Malaysian context
The purpose of a fatwa should be to offer an opinion – not to silence alternative views
by Rajen Devaraj
What exactly is a fatwa? Who makes it and what are the legal implications of a fatwa in the Malaysian context?
What is a fatwa?
Linguistically, fatwa means ‘an answer to a question. A fatwa is usually issued in order to resolve an issue when there is some doubt whether a particular practice is permissible (halal) or forbidden (haram) in Islam. In Islamic jurisprudence, a fatwa is the opinion of a scholar based on that scholar’s understanding of Islam, the scholar’s knowledge of the subject in question, and the social milieu that raised the issue or question (Demystifying the Fatwa by Dr. Maher Hathout ). Individual scholars have been known to express differing opinions when addressing the same issue in a changed environment or situation (Muslims in the West Need Contemporary Fatwa by Dr. Taha Alalwani).
In Malaysia, Islam is a state matter. The Sultan is the head of religion in his own state. The Yang di-Pertuan Agong is the head of religion in his own state as well as the head of religion in the Federal Territories and all states without a Sultan. Since religion is a state matter, family and personal laws governing Muslims as well as laws relating to religious offences are promulgated by the respective states in the Federation, rather than by Parliament. Parliament can only pass legislation on such matters when it comes to the Federal Territories.
Islamic affairs at the state level
The manner in which Islamic affairs are organized at the state level is laid out in the Administration of Muslim Law Enactments. These state-based Enactments are generally similar in content – but not identical to one another.
To understand the institutions and mechanisms involved, let us consider the case of Selangor.
The Administration of the Religion of Islam (State of Selangor) Enactment 2003 provides for the creation of the “Majlis Agama Islam Selangor” (Selangor Islamic Religious Council). It is the duty of the Majlis to advise the Sultan of Selangor on all matters relating to Islam, except matters of Hukum Syarak. The Majlis is also responsible for promoting the economic and social development of the Muslim community in Selangor.
All members of the Majlis (excluding the ex-officio members) are appointed by the Sultan of Selangor on the advice of the Menteri Besar. (The Majlis consists of a Chairman, a Deputy Chairman, five ex-officio members (the State Secretary, the State Legal Adviser, the State Financial Officer, the Mufti and the Chief Police Officer) and not more than eight other members, at least five of whom shall be persons learned in Hukum Syarak.)
Advising the Sultan on matters of Hukum Syarak is the responsibility of the Mufti. Appointment of the Mufti and Deputy Mufti is the sole prerogative of the Sultan of Selangor. (In the case of Johore, the Sultan may seek the advice of the Ruler in Council when appointing the Mufti and Deputy Mufti while in the Federal Territories, the Yang Di-Pertuan Agong must consult the Majlis and may seek the advice of the Minister in appointing the Mufti and Deputy Mufti.)
Under the Enactment the power to make a fatwa rests with the Fatwa Committee. The Fatwa Committee consists of the Mufti (who serves as the Chairman), the Deputy Mufti, the State Legal Adviser, two members of the Majlis, an officer of the Jabatan Agama Islam Selangor (appointed by the Majlis), between two and seven fit and proper persons appointed by the Majlis, and an officer of the Mufti’s Department who serves as its Secretary.
Whenever the Committee proposes to make a fatwa the Mufti has to call for the meeting of the Committee for the purpose of discussing the proposed fatwa. Before the Committee makes a fatwa, the Mufti may decide that research should be carried out and a working paper prepared. After the fatwa is prepared, the Mufti will, on behalf of the fatwa committee, submit the fatwa to the Majlis Agama Islam Selangor.
The Majlis will discuss the matter and if it so decides will ask the Sultan for his assent to publish the fatwa in the Gazette. (In Kelantan and Johore, as well, the assent of the Sultan is required before a fatwa can be gazetted. In the Federal Territories however, it appears that the Mufti can make and publish a fatwa in the Gazette without the consent of the Agong.) When the fatwa has been assented to by the Sultan, the Majlis will inform the State Government of the fatwa and the fatwa will be published in the Gazette.
The fatwa upon being published in the Gazette becomes binding on every Muslim in the State of Selangor. The Enactment states that it is a Muslim’s religious duty to abide by and uphold the fatwa, unless he is permitted by Hukum Syarak to depart from the fatwa in matters of personal observance.
In issuing a fatwa, the Fatwa Committee is expected to follow the tenets of the Syafie School. However if the Committee believes that following the tenets of the Syafie school would lead to a situation repugnant to public interests, the Fatwa Committee can turn to the tenets of the Hanafi, Maliki or Hanbali schools. If the Fatwa Committee is of the opinion that none of the four schools can be followed without leading to a situation that is repugnant to public interests, then it can resort to ijtihad (the exercise of independent judgment) in making the fatwa.
When it appears that a proposed fatwa may affect national interests a slightly different procedure is set in motion. (A fatwa is deemed to affect national interests if it touches on any matter, policy, programme or activity which directly affects the interests of the Federal Government, a state government or any of its ministries, departments or agencies)
The Fatwa Committee is required to adjourn its discussions on the fatwa and submit the matter to the Majlis Agama Islam Selangor. The Majlis may decide to refer the proposed fatwa to the National Fatwa Committee, through the Conference of Rulers. But before the matter is referred to the National Fatwa Committee the Majlis has to first get the assent of the Sultan of Selangor.
If the National Fatwa Committee (comprising the Muftis from all the individual states as well as five other Muslim scholars appointed by the Agong) recommends that the proposed fatwa be made - and the Conference of Rulers agrees with the recommendation - the matter will be returned to the Majlis Agama Islam Selangor. It will then be up to the Majlis to decide if it wants to ask the Sultan of Selangor for his assent to publish the fatwa in the Gazette.
This means that even though the National Fatwa Committee recommends that a particular fatwa be made, the ultimate prerogative of whether such a fatwa should be gazetted lies with the Majlis Agama Islam Selangor and the Sultan of Selangor.
Each state has the power to decide what constitutes religious offences and to prescribe punishment for a Muslim who commits such offences. The penalties meted out, however, have to be in accordance with the Muslim Courts (Criminal Jurisdiction) Act 1984. Under the Act, the Syariah Court is only allowed to impose a jail term of up to three years, impose a fine of up to RM5,000 or order that a person be given up to six strokes of the cane.
In the case of Selangor, the Syariah Criminal Offences (Selangor) Enactment 1995 states that any person who defies, disobeys or disputes a fatwa shall be guilty of an offence and shall on conviction be liable to a fine of up to RM3, 000 or sent to jail for up to two years. It was in accordance with this provision that three young Muslim women were arrested by the Jabatan Agama Islam Selangor (JAIS) in 1997 and charged in court for violating the fatwa that forbids Muslim women from participating in beauty contests.
Under the Syariah Criminal Offences (Selangor) Enactment 1995, any person who gives, propagates or disseminates any opinion contrary to any fatwa that is in force is also guilty of an offence. Such a person shall on conviction be liable to a fine of up to RM3, 000 or sent to jail for up to two years.
Having looked at procedure in relation to how a fatwa is made, there are several issues that we might want to think about.
Fatwa as law?
There are a whole range of situations in which Muslims would appreciate having a point of reference as to what is allowed and what is not. Are Muslims allowed to give and receive blood? Are organ transplants allowed in Islam? Is a person allowed to use contraceptives? Can a Muslim make use of a sperm bank? These and many other issues have been addressed by Muslim scholars in Malaysia and the specific answers to these issues can be found at JAKIM’s e-fatwa website: http://ii.islam.gov.my/e-fatwa. (JAKIM stands for Jabatan Kemajuan Islam Malaysia. JAKIM’s website provides a list of fatwa that have been issued by the National Fatwa Council and individual states.)
One can thus appreciate the usefulness of religious edicts - a source of guidance in a rapidly changing world. However is it really necessary that a fatwa be gazetted and have the force of law behind it, leading to a situation where those in breach of the fatwa commit an offence? Would it not be better if a fatwa was not a hard and fast ruling but rather the opinion of religious scholars which the public have the option to refer to when there is a need?
What if one disagrees?
Is it necessary to make criminals out of those who hold a different view? In Selangor, a fatwa stating that smoking is haram was gazetted in 1995. (Incidentally, there are only three states – Selangor, Kedah and Perlis - where there is such a fatwa. Only in Selangor has this fatwa been gazetted.) Technically what this means is that JAIS can arrest any Muslim who smokes in Selangor! Is it reasonable to fine a Muslim or send him to jail merely because he does not agree that smoking should be considered as such a serious an offence?
Members of the public are free to raise questions and express reservations about articles in the Federal Constitution or vehemently criticize Acts of Parliament such as the Internal Security Act. In fact, dissent and constructive criticism are part of our democratic culture. Isn’t it important that this democratic space also extends to the whole arena of religious fatwa?
Having edicts that are sacrosanct and which cannot be criticized has no place in a modern democratic state. The purpose of a fatwa should be to offer an opinion, not to silence discourse.
Whither the role of elected representatives?
Finally, if certain activities are to be criminalized and penalties imposed, shouldn’t such decisions be firmly in the hands of elected bodies like the state legislative assembly and Parliament? The state legislative assembly, by way of law, has given away a lot of power to the Majlis Agama and the Fatwa Committee. As a result of this, the state legislative assembly has absolutely no say - nor is it even informed – when a fatwa is issued and a particular activity suddenly becomes a crime and attracts penalties.
Some might argue that this is merely another case of delegated legislation – not unlike Regulations made by the Minister or by-laws made by some Municipal Council. Such an argument trivializes the unparalleled powers vested in the Majlis Agama and the Fatwa Committee. No one is going to fine you or send you to jail for publicly disagreeing with some municipal by-law in Shah Alam or for publicly criticizing the Human Resources Minister for some Regulation that he has made. In the case of a fatwa that has been gazetted, however, the mere act of expressing a differing opinion is an offence that can lead to a fine or a jail term of up to two years!
The state legislative assemblies and Parliament, institutions that derive their mandate from the rakyat, must be the institutions that deliberate and determine what constitutes an offence. And they must be firmly in control of this process – especially when it involves fundamental liberties. The state legislative assemblies and Parliament have committed a grave error by giving away so much power to unelected and subordinate institutions.
Allow for a plurality of views
Religious scholars have an important role to play in determining how Islam is understood. However, in light of the broad spectrum of views in the Muslim world, what certain religious scholars have to say need not be cast in stone. Moreover, in a democracy other voices have a right to be heard and everyone should be given the freedom to venture an opinion even on religious matters. Indeed, Islam has a rich history of debate and dissent and we as a nation must evolve a system that allows for this plurality of views.
Legislation that allows a fatwa to become law and makes it a crime to dissent stifles the limited democratic space that we have. It also weakens the authority of elected bodies like the state legislative assemblies and Parliament.
The purpose of a fatwa should be to offer an opinion – not to silence alternative views - and the law needs to be amended to create a climate, which strengthens democratic institutions and encourages rather than stifles discussion and debate.
Reference: Islamic Law in Malaysia: Issues and developments by Mohammad Hashim Kamali
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