Administration of Fatwa in Malaysia
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+ Administration of Fatwa in Malaysia Zulkifli Hasan, PhD
description
Administration of Fatwa
Transcript of Administration of Fatwa in Malaysia
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Administration of Fatwa in Malaysia
Zulkifli Hasan, PhD
+CONTENT
n Definition of Fatwa
n Relationship between fatwa and ijtihad
n Origin of fatwa
n Composition and Functions of State and National Committees n Issuance and Enforcement of Fatwa
n Status of Fatwa in the Syariah and Civil Courts
n Appointment, Functions and Qualifications of a Mufti and Fatwa Committee Members.
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+ DEFINITION OF FATWA
n Fatwa is generally a legal opinion or ruling on a matter of Islamic Law issued by an Islamic Scholar known as a Mufti.
n Al-Badakshi - a legal decision on Hukum Syara’ issued by a Mujtahid.
n fatwa (legal opinion) or ifta’ is defined as the elucidation of a legal ruling with no binding effect .
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n A unique process in Islamic Law as it involves two parties, namely a party who asks the question (Mustafti) and a competent person who answers the question (Mufti).
n It can be concluded - fatwa as an answer to questions or queries in unprecedented cases about Islamic law requring solutions issued by qualified and authorised body or individual.
n The person who is responsible to issue fatwa is Mufti.
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n SS 47 and 48 Administration of The Religion of Islam (State of Selangor) 2003: Statement given by Mufti (the head of fatwa committee) which is published, and gazetted and known to the public through media.
n S 49, Administration of The Religion of Islam (State of Selangor) 2003: the fatwa gazetted can be enforced and recognised by Syariah court, hence, having binding force on all Muslims residing in the related state.
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+Relationship between fatwa & ijtihad
n Islamic law developed through the practice of ij6had.
n The Companions and generations after demise of Prophet saw. practiced ijtihad in tackling and addressing solutions to new issues where there was no specific or express ruling made in the Quran and Sunnah.
n Among prevalent form of ij6had prac6ced is fatwa.
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+Fatwa and Ijtihad
n Test to be applied?
n Fatwa always involves a question and an answer to a new case. If a ruling on Hukum Syara’ is issued without any query or without any necessity, it is not called fatwa but a mere ijtihad.
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+Origin of fatwa
n The origin of fatwa The origin of fatwa is found in the Quran.
1. al-‐Nisa’ verses 127, 176
2. Yusuf verses 43, 46
3. al-‐Baqarah verses 189, 215, 217, 219
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+Jurisdiction
n The State List of the Federal Cons6tu6on provides exclusive jurisdic6on to the States to administer Islamic Law including to establish Fatwa CommiRee.
n The said provision posi6oned fatwa as a state maRer making the issue of determina6on and ascertainment of hukum syarak vested in the respec6ve states including the Federal Territories.
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+Separation between MAJLIS and Mufti
n the separation of administration of the Religious Council, the Mufti and the Shariah Court
n S 34 AIFLA 1993, provides: (1) The Mufti shall, on the direction of the Yang di-Pertuan Agong, and may, on his own initiative or on the request of any person made by letter addressed to the Mufti, make and publish in the Gazette, a fatwa or ruling on any unsettled or controversial question of or relating to Islamic Law.
n (2) No statement made by the Mufti shall be taken to be a fatwa unless and until it is published in the Gazette pursuant to subsection (1)
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+Different Terminologies
n These fatwa CommiRees referred by the respec6ve state enactments through various names such as Jawatankuasa Fatwa, Jawatankuasa Undang-‐undang Majlis, Jamaah Ulama and Lujnah Fatwa.
n The standard English terminology used in the State Enactments for this body is Islamic Legal Consulta6ve CommiRee.
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+Establishment under the Administrative of Islamic Law Enactment
n Fatwa CommiRee in every state is established under the respec6ve Administra6on of Islamic Law Enactments of the states.
n There is no grand MuYi in Malaysia but 14 MuYis represen6ng each state.
n For the FT. S.37(1) of the Administra6on of Islamic Law (Federal Territories) Act 1993 provides that there shall a commiRee to be known as the Islamic Legal Consulta6ve CommiRee.
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+Composition of Fatwa Committee
n S.37(2) The commiRee shall consists of :
n (a) MuYi (Chairman)
(b) Deputy MuYi
(c) 2 members of the Majlis nominated by the Majlis
(d) Not less than two fit and proper persons to be appointed by the Majlis
(e) Secretary -‐ an officer from the Islamic Religious Department to be appointed by the Majlis
(Composi)on of members may differ from states)
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+Appointment
n In states, a MuYi is appointed by Rulers, and in the Federal Territories by the YDPA.
n eg. S.32 AILFTA 1993 The YDPA on the advice of the Minister aYer consul6ng the Majlis, appoint fit and proper persons to be the MuYi and Deputy MuYi of the F.T.
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+Enforceability of Fatwa
n Enforceability of fatwa?
n An official fatwa is conclusive and enforceable. In the states it should be sanc6oned by a Ruler, while in the FT the YDPA and conference of Rulers in case of na6onal fatwa.
n A fatwa is enforceable when it is gazeRed as a law.
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+Pronouncement of Fatwa
n In simple cases, the MuYi would normally issue the fatwa himself.
n In controversial and complicated problems, the MuYi (chairman) would call on the CommiRee to discuss the maRer and eventually issue a fatwa on it.
n Any reference made to Fatwa CommiRee would mean reference to MuYi.
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+Issuance of Fatwa
n A fatwa can be issued either upon the mufti’s own initiative; or
n under the instruction of the Yang di Pertuan Agong; or
n upon request from any person: or
n when a written request is made to the Religious Affairs Commissioner. (Section 25, Terengganu Islamic Affairs Administration Enactment 1986).
n Any issue that bothers on fatwa or matters related thereto, are to be directed to the office of the mufti but not the Islamic Religious Council
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+Research and Fatwa
n S. 37(6) of the Administra6on of Islamic Law (Federal Territories) Act 1993 provides that the MuYi can ask for further studies and research and may direct a working paper to be prepared before he issues a fatwa.
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+Function Of State Fatwa Committees
1.To aid and advise the Ruler or the YDPA in the case of the FT’S, Penang, Malacca, Sabah & Sarawak in all maRers of Hukum syara’.
MuYi shall be the chief authority in Islamic law maRers in respec6ve states aYer the Ruler or the YDPA.
See s.33 AILFTA 1993 – aid and advise YDPA in all maRers of Islamic Law and shall be chief authority in the FT aYer YDPA.
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2.To discuss and issue a ruling on new problems on which there is no ruling in the Quran, Sunnah and Ijma’ .
S.34 AILFTA 1993 – The MuYi shall on the Direc6on of the YDPA, and may on his own ini6a6ve or the request of any person made by leRer addressed him, make and publish a fatwa or ruling on any unseRled or controversial ques6on rela6ng to Islamic law.
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3. To ammend, modify or revoke any previous fatwa issued by the same Fatwa Committee or the previous Committees.
S.36 AILFTA 1993 – Mufti may ammend, modify or revoke any fatwa that has been issued earlier by him or by any previous Mufti.
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4. Make an order that a study and research is to be conducted on any issue submitted to him.
S. 37 AILFTA 1993 – before mufti makes a fatwa, he may cause such studies or research to be conducted as he may direct and a working paper prepared.
5. Advise the Majlis on the discharge of its duty to ensure its acHviHes comply with Islam (addiHonal funcHon for Terengganu).
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+Offence to violate the Fatwa
n S9 of the Shari‟ah Criminal Offences Act 1997 “Any person who acts in contempt of religious authority or defies, disobeys or disputes the orders or directions of the Yang di-Pertuan Agong as the Head of the religion of Islam, the Majlis or the Mufti, expressed or given by way of fatwa, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.
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+Communication of an opinion or view contrary to the Gazetted fatwa n S 12 of Shari‟ah Criminal Offences Act 1997
(1) “Any person who gives, propagates or disseminates any opinion concerning Islamic teachings, Islamic Law or any issue, contrary to any fatwa for the time being in force in the Federal Territories shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.”
n (2) The Court may order that any book, pamphlet, document or recording referred to in subsection (1) be forfeited and destroyed, notwithstanding that no person may have been convicted of an offence connected therewith.
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+n S13 of the Shari‟ah Criminal Offences Act 1997
n “(1) Any person who: (a) prints, publishes, produces, records, distributes or in any other manner disseminates any book, pamphlet, document or any form of recording containing anything which is contrary to Islamic Law; or (b) has in his possession any such book, pamphlet, document or recording, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.
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+ National Fatwa Commitee
n Jawatankuasa Fatwa Kebangsaan (JKF)/ Na6onal Islamic Consulta6ve CommiRee was established in 1970 under the administra6on of the Secretariat of Majlis Kebangsaan Bagi Hal Ehwal Ugama Islam Malaysia under provision II Peraturan Majlis Kebangsaan Bagi Hal Ehwal Islam Malaysia (MKI).
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n 1984 placed under Bahagian Hal Ehwal Islam (BAHEIS) and 1997 placed under Jabatan Kemajuan Islam Malaysia (JAKIM) Jabatan Perdana Menteri.
n The Committee was established under the authority of the Conference of Rulers the highest authority in Islamic matters at Federal level.
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+Functions
n Aimed at:
n Discussing any major contemporary issues relating to the religion of Islam at national level and eventually issue a fatwa on it.
n Unifying and standardising contradicting Fatwas in Malaysia.
n Advising the YDPA on all matters regarding hukum syarak.
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+Jurisdiction: S 7 of MKI Regulations
n a) To discuss, deliberate and manage any issues referred to the Council by the Majlis Raja-Raja, any State Government or State Islamic Religious Council or member of the Council, for the purpose of providing advice or recommendation.
n b) Providing advice to the Majlis Raja-Raja, State Government or State Islamic Religious Council on any matter relating to Islamic Law or the administration of Islamic Law and Islamic education, for the purpose of improving, coordinating or encouraging the standardisation in law or administration.
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+Membership Of National Fatwa Committee
n A chairman appointed among its members
n MuYi of each state or representa6ve represen6ng states in religious affairs
n 5 Muslim scholar appointed by the Conference of Rulers
n Director General or member from Judicial and Legal Services appointed by the Conference of Rulers; and
n Director General of JAKIM
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+Coordination Of Fatwa By National Fatwa Committee
n NFC observe the following guidelines : n Religious problems / issues which are local in nature but related to Muslim affairs in Malaysia as a whole.
n Religious issues of a certain state which may have occurred elsewhere.
n Religious issues which are local, forwarded by any members of state Fatwa CommiRees.
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+NFC Fatwa Procedure
n Article 5 Item (7) of the National Council Fatwa Determination Procedure Manual affirms: n Fatwas relating to shariah law have been agreed upon by the Fatwa
Council, and consented to by the Majlis Raja-Raja, must then be submitted by the National Council for Malaysian Islamic Affairs Secretary to each state’s Fatwa Committee Secretary, to be gazetted.
n Fatwas that have been referred (rafak) and consented to by the Majlis Raja-Raja shall be submitted by the National Council for Malaysian Islamic Affairs Secretary to be gazzetted.
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+Q1: Status of Fatwa
n Though representatives of all states attend the National Fatwa Committee, a Fatwa issued by the National Committee has no binding effect on states.
n States has absolute the right to accept or not.
n State has full discretion to accept or reject a fatwa issued by the National Consultative Committee.
n Item 1 list II, 9th Schedule of the FC- Islamic law and muslim personal and family law are state legislative matters.
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+Approach
n Basic -‐sources of Islamic Law
n In Malaysia, fatwas in all states, except Perlis, must be based on the prevailing views (qaul muktamad) of Shafie School.
n If such view leads to a situa6on which is against or repugnant to public interest, the MuYi may follow the qaul muktamad of other Sunni Schools.
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+Qaul Muktamad
n Section 54. Qaul muktamad to be followed.
n (1) In issuing any Fatwa under section 48, or certifying an opinion under section 53, the Fatwa Committee shall ordinarily follow qaul muktamad (the accepted views) of the Mazhab Syafie.
n (2) If the Fatwa Committee is of the opinion that following the qaul muktamad of the Mazhab Syafie will lead to a situation which is repugnant to public interest, the Fatwa Committee may follow the qaul muktamad of the Mazhab Hanafi, Maliki or Hanbali.
n (3) If the Fatwa Committee is of the opinion that none of the qaul muktamad of the four Mazhabs may be followed without leading to a situation which is repugnant to public interest, the Fatwa Committee may make the Fatwa according to ijtihad without being bound by the qaul muktamad of any of the four Mazhabs.
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+Q2: Mazhab?
n If such view is still against the public interest, the Mufti may exercise his own ijtihad.S.39 (1),(2),(3) AILFTA 1993.
n However, where a mufti realizes that adhering to the Shafi‟i Madhhab, may lead to a situation that contravenes the public interest or interest of the Nation, the mufti will resort to the schools of thought other than the Shafi‟i School.
n The practice of Fatwa Committee shows that apart from main referral to mazhab Syafie, the opinions of other mazhabs would also be taken into consideration and adopted.
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+Fatwa in Perlis
n The Administra6on of Religion of Islam Enactment 2006 provides that the basis of issuing a fatwa is al-‐Quran and Sunnah.
n Enactment did not impose on any specific mazhab to be followed.
n May follow any mazhab which the commiRee view most conducive to local society.
n Views of ulama’ were referred to when making decisions.
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n If opinion contrary to public interest, have to refer maRer to the ruler before issuing fatwa.
n In issuing fatwa, muYi have to take into considera6on the Malay Customs of the state.
n Refer s.54 (1), (2) Administra6on of Religion of Islam Enactment 2006.
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+Enforcement Of Fatwa In Malaysia
n Fatwa process in Malaysia is highly regulated under State and Federal Laws.
n In Sabah and Kedah, provisions concerning MuYi and fatwa are enacted in separate enactments. n the Sabah Fatwa Enactment No. 7 / 2004.
n Generally, their provisions are the same with those found in Part III of the Administra6on of Islamic Law Enactments in other states.
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+Q3: Fatwa is not binding and enforceable
n Un6l or unless it is published in the States GazeRe
n State GazeRe establishes the force of law for fatwas.
n S.34(2) AILFTA 1993 – No statement made by MuYi shall be taken to be a fatwa unless and un6l it is published in the GazeRe.
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+Q4: Fatwa to Non-Muslim
n Fatwa is binding based on its capacity as a legal instrument of Islamic law enforceable in Malaysia and not in its capacity as fatwa per se and have no legal effect to non-‐muslims.
n S.34 (3)AILFTA 1993 – upon publica6on in the GazeRe, a fatwa shall be binding on every muslim resident in the FT and shall be his religious duty to abide and uphold the fatwa.
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+Q5: Jurisdiction
n Shall have force within the State boundaries of the respective State Legislative Assembly. n S 34 AILFTA 1993 – “muslim resident in
the Federal Territories.”
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+Q6: Syariah Court
n A fatwa which is passed by a state Legislative Assembly/ the Parliament in case of FT, shall be binding on the Syariah Courts of the particular state. n S 34(4)AILFTA 1993- “shall be recognised by all
courts in the Federal Territories.”
n A fatwa must be certified by the state Shari’ah Court where the fatwa is gazetted.
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+Q7: Civil Court?
n Fatwa only binds the Syariah Courts and not the Civil Courts.
n There are other wriRen law which involves MuYis, e.g. S. 45 of Evidence Act 1950 which allows the Civil Courts to obtain expert evidence including on hukum syarak (e.g. Dalip Kaur and Pesuruhjaya Hal Ehwal Agama Islam Terengganu)
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+ Titular Roman Catholic Archbishop Of Kuala Lumpur v. Menteri Dalam Negeri & Ors
n Non-Islamic Religions (Control of Propagation Amongst Muslims) Enactment has restricted the use of the word Allah. S 9 forbids the word „Allah‟ to be used by non-Muslims in any matter related to their religions.
n Fatwa issued and Gazetted on the 18th February 2010 by the State mufti, banning and prohibiting non Muslims from using the word “Allah” in their publications and religious activities
n HC: he word “Allah” was not restricted to Muslims alone and the prohibition was unconstitutional.
n COA: upheld the government‟s ban against the use of the word “Allah. The use of the word “Allah” is not an integral part of the Christian faith and practice.
n FC: Appeal dismissed.
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+Q8: Difference in Fatwas between States
n Difference in fatwas between states on a particular legal problem can create confusion to the public.
n No individual state can be forced to accept a fatwa issued by the National Fatwa Council.
n An inclination for the states to amend the fatwa text once it has been brought back to the state and decided on by the state’s Fatwa Committee.
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+Eg. Fatwa on Smoking
n Smoking is haram from the Islamic point of view (Muzakarah Decision of the Fatwa Committee, 23 March 1995).
n Selangor has accepted and gazetted this as a fatwa.
n Kedah (Minutes of Meeting, MAIK Fatwa Committee 1995).
n Perlis (Perlis State Fatwa Decision 1995;
n Sarawak State Fatwa Decision 1995.
n Pahang, smoking is haram within the vicinity of a mosque or
surau: to erect sign boards indicating that mosques and suraus are non-smoking areas (Minutes of Meeting,
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+Eg. Malay Unity and the Use of the word Islam n NFC 22nd of March 2001: There is no
restriction in the use of the word Islam by any organisation, and in fact it is encouraged
n the Federal Territories, Penang, Melaka, Perak, Negeri Sembilan, Johor and Kedah - have gazetted it as a fatwa.
n Selangor, Kelantan and Perlis, the fatwa have been received, but have not been gazetted.
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+Q9: Standardisation of Fatwas
n Muzakarah of Muftis organised by the National Council of Islamic Affairs Malaysia in 1978 agreed that to standardise fatwas for all states:
n Reference should be made to authoritative religious books only
n All Fatwas issued in one state should be informed to the other states
n Standardise fatwas-welfare lottery, bank interest, smoking.
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+ Fatwa on national interest
n A fatwa which has a na6onal interest may be issued by the Na6onal Fatwa CommiRee.
n S. 51 of the Administra6on of Islamic Law Enactment 2003 (Selangor) provides: if the State Jawatankuasa Fatwa finds that the fatwa to be issued is touching maRers of na6onal interest, the commiRee shall postpone the issue and refer it to the Majlis.
n The state fatwa committee should adjourn session in respect of any matter that affects the national interest, in order to consult with the Sultan through the state Council of Islamic affairs (Majlis Agama Islam) for further proceeding to the National fatwa committee
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+n S51: (1) Notwithstanding the powers of the Fatwa Committee under section 47, whenever it appears of the Fatwa Committee that a fatwa proposed to be made is related to matters affecting national interest, the Fatwa Committee shall adjourn its discussions on the proposed fatwa and submit the matter to the Majlis. (2) After deliberating upon the matter, the Majlis may make a recommendation to His Royal Highness the Sultan for his assent to refer the proposed fatwa to the National Fatwa Committee, through the Conference of Rules.
n (3) Without prejudice to the generality of subsection (1), a fatwa shall be deemed to be related to matters affecting national interest if the question is related to any matter, policy, programme or activity which directly affects the interest of the Federal Government, a State Government or any of its ministries, departments or agencies.
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+ n (4) If the Sultan gives his assent under subsection (2), the Majlis shall, before the fatwa is referred to the National Fatwa Committee, inform the State Government of the reference. (5) When a proposed fatwa has been referred to the National Fatwa Committee, the Committee shall present its advice and recommendations to the Conference of Rulers in accordance with subsection (2) on the matter.
n (6) If the National Fatwa Committee advises or recommends that the proposed fatwa be made, with or without any modification as it may recommend, or advises or recommends another fatwa on the same matter and the Conference of Rules have agreed with the advice and recommendation of the National Fatwa Committee, the Majlis shall consider the advice and recommendation and thereupon may course the fatwa according to such advice and recommendation to be published in the Gazette without any amendment or modification, and the provision of section 48, except subsection 48(7), shall apply thereto.
n (7) A fatwa published in the Gazette shall be accompanied by a statement that the fatwa is made under this section.
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+Provision for the standardisation of fatwa
n Starting 2003 Selangor has agreed to fully adopt fatwa issued by the National Fatwa Committee. s.52 Administration of Religion of Islam (State of Selangor) 2003
n Followed by Perlis in 2006 to adopt the Fatwa that has been issued by the National Committee provided it has been agreed by the Conference of Rulers.
n The determination of the date for the beginning of Ramadhan, the day for Aidil Fitri and the day for Aidil Adha.
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+n Section 52:
n (1) The Fatwa Committee shall adopt any advice and recommendation of the National Fatwa Committee which affects any act or observance which has been agreed upon by the Conference of Rules as an act or observance which extends to the Federation as a whole pursuant to Article 38 (2)(b) of the Federal Constitution. (2) The advice or recommendation adopted by virtue of subsection (1) shall be deemed to be a fatwa and section 48, except subsection 48(7), shall apply thereto.
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