POSITION OF FATWA UNDER POSITION OF FATWA UNDER THE MALAYSIAN LEGAL THE MALAYSIAN LEGAL

SYSTEMSYSTEM Origin and definition of fatwaOrigin and definition of fatwa Composition and functions of State Composition and functions of State and and National Fatwa CommitteesNational Fatwa Committees Issuance and enforcement of fatwaIssuance and enforcement of fatwa Status of fatwa in the Syariah and Status of fatwa in the Syariah and Civil CourtsCivil Courts Appointment, functions and Appointment, functions and qualifications of a qualifications of a Mufti and Fatwa Committee membersMufti and Fatwa Committee members

ORIGIN AND DEFINITION ORIGIN AND DEFINITION OF FATWAOF FATWA

Fatwa is very important because it Fatwa is very important because it explains God’s law and interprets itexplains God’s law and interprets it

As fatwa relates to Allah’s laws the As fatwa relates to Allah’s laws the Muslim jurists or muftis are very Muslim jurists or muftis are very cautious when dealing with the cautious when dealing with the issuance of fatwaissuance of fatwa

The Quran strictly warns those who The Quran strictly warns those who debate on Allah’s law in ignorancedebate on Allah’s law in ignorance

The Muslims have the obligation to The Muslims have the obligation to obey God and the Prophet and those obey God and the Prophet and those in charge of with authority. This in charge of with authority. This means the obligation to refer to the means the obligation to refer to the Quran and Sunnah in any dispute that Quran and Sunnah in any dispute that arises (Al-Nisa’ : 59)arises (Al-Nisa’ : 59)

Requirement to obey God and His Requirement to obey God and His Apostle is also found in the Apostle is also found in the Constitution of Madinah (Article 42)Constitution of Madinah (Article 42)

After the Prophet passed away and when After the Prophet passed away and when there was no specific ruling in the there was no specific ruling in the Quran and Sunnah, the companions and Quran and Sunnah, the companions and jurists exercised their own ijtihad to jurists exercised their own ijtihad to find solutions to new problems. This find solutions to new problems. This resulted in the development of Islamic resulted in the development of Islamic lawlaw

Fatwa is a form of ijtihadFatwa is a form of ijtihad Historically, according to Ibn Qayyim, Historically, according to Ibn Qayyim, there were more than 130 companions there were more than 130 companions involved in the issuance of fatwa involved in the issuance of fatwa including female muftis e.g. Sayyidatuna including female muftis e.g. Sayyidatuna AishahAishah

Originally, fatwa is something between Originally, fatwa is something between a a MuftiMufti and and MustaftiMustafti. It was based on . It was based on individual individual iftaifta’ or ’ or ijtihad fardiijtihad fardi.

Currently, ijtihad is based on ijtihad jama’i (collective opinion and deliberation) through fatwa committee

Basically, it was based on questions or quries about Islamic law or religious rulings on certain problems which require solutions

The origin of ifta’ or fatwa is found The origin of ifta’ or fatwa is found in the Quran. E.g :in the Quran. E.g :** al-Nisa’ (127, 176) al-Nisa’ (127, 176)** Yusuf (43, 46) Yusuf (43, 46)** al-Baqarah (189, 215, 217, 219) al-Baqarah (189, 215, 217, 219)

Meaning of fatwaMeaning of fatwa** To describe or enlighten (afta lahu To describe or enlighten (afta lahu al-amr or abana lahu)al-amr or abana lahu)** Solutions / answers to problems Solutions / answers to problems whether syariah or legal matters whether syariah or legal matters (luqhawi)(luqhawi)** Syariah law expounded by a Mufti to Syariah law expounded by a Mufti to an inquirer in a non-binding manner an inquirer in a non-binding manner (Istilahi)(Istilahi)

Fatwa is a formal legal opinion on Fatwa is a formal legal opinion on Islamic law. It is considered a Islamic law. It is considered a fardhu kifayahfardhu kifayah

Fatwa is an answer to noble / new / Fatwa is an answer to noble / new / unprecedented cases issued by a unprecedented cases issued by a qualified and authorised body or qualified and authorised body or individual. It is a unique process individual. It is a unique process which is different from qada’which is different from qada’

COMPOSITION & FUNCTIONS COMPOSITION & FUNCTIONS OF STATE AND NATIONAL FATWA OF STATE AND NATIONAL FATWA

COMMITTEESCOMMITTEES Under the Federal Constitution fatwa is a Under the Federal Constitution fatwa is a state matter – the issue of determination state matter – the issue of determination and ascertainment of and ascertainment of hukum syarakhukum syarak is is vested in the various states including vested in the various states including the Federal Territoriesthe Federal Territories

Different fatwa bodies in Malaysia which Different fatwa bodies in Malaysia which are variously called :are variously called :** Lujnah Fatwa, Fatwa Committees, Jamaah Lujnah Fatwa, Fatwa Committees, Jamaah Ulamak, Islamic Legal Consultative Ulamak, Islamic Legal Consultative Committee (J. Perundingan Hukum Syarak) Committee (J. Perundingan Hukum Syarak) and Jawatankuasa Syariahand Jawatankuasa Syariah

Fatwa Committees are established under Fatwa Committees are established under the various enactments of the statesthe various enactments of the states

E.g. S.37 of the Administration of E.g. S.37 of the Administration of Islamic Law (Federal Territories) Act Islamic Law (Federal Territories) Act 1993 provides that there shall a 1993 provides that there shall a committee to be known as the Islamic committee to be known as the Islamic Legal Consultative Committee. The Legal Consultative Committee. The committee consists of the committee consists of the ** Mufti (Chairman) Mufti (Chairman)* * Deputy MuftiDeputy Mufti** 2 members of the Majlis nominated by 2 members of the Majlis nominated by the Majlisthe Majlis** Not less than two fit and proper Not less than two fit and proper persons to be appointed by the Majlispersons to be appointed by the Majlis** Secretary Secretary

Composition of members differ from state Composition of members differ from state to anotherto another

In states, a Mufti is appointed by In states, a Mufti is appointed by Rulers, and in the Federal Rulers, and in the Federal Territories by the YDPATerritories by the YDPA

An official fatwa is conclusive and An official fatwa is conclusive and enforceable. In the states it should enforceable. In the states it should be sanctioned by a Ruler and YDPA be sanctioned by a Ruler and YDPA and conference of Rulers in case of and conference of Rulers in case of national fatwanational fatwa

A fatwa is enforceable when it is A fatwa is enforceable when it is gazetted as a lawgazetted as a law

In simple cases, the Mufti would In simple cases, the Mufti would normally issue the fatwa himselfnormally issue the fatwa himself

In controvercial and complicated In controvercial and complicated problems, the Mufti (chairman) would problems, the Mufti (chairman) would call the Committee to discuss the call the Committee to discuss the mattermatter

S. 37 of the Administration of Islamic S. 37 of the Administration of Islamic Law (Federal Territories) Act 1993 Law (Federal Territories) Act 1993 provides that the Mufti can ask for provides that the Mufti can ask for further studies and research and may further studies and research and may direct a working paper to be prepareddirect a working paper to be prepared

FUNCTIONS OF STATE FUNCTIONS OF STATE FATWA COMMITTEESFATWA COMMITTEES

To aid and advise the Ruler or To aid and advise the Ruler or the YDPA in all matters of the YDPA in all matters of hukum hukum syaraksyarak and the Mufti shall be and the Mufti shall be the chief authority Islamic law the chief authority Islamic law mattersmatters

To discuss and issue a ruling on new To discuss and issue a ruling on new problems on which there is no ruling problems on which there is no ruling in the Quran and Sunnah :in the Quran and Sunnah :** Direction Direction** Own iniative Own iniative** Request of any person Request of any person

To amend, modify or revoke any To amend, modify or revoke any previous fatwaprevious fatwa

Advise the Majlis on the discharge Advise the Majlis on the discharge of its duty to ensure its activities of its duty to ensure its activities comply with Islam (additional comply with Islam (additional function for Terengganu)function for Terengganu)

NATIONAL FATWA NATIONAL FATWA COMMITTEECOMMITTEE

Jawatankuasafatwa (JKF) was Jawatankuasafatwa (JKF) was established in 1970 under provision established in 1970 under provision II Peraturan Majlis Kebangsaan Bagi II Peraturan Majlis Kebangsaan Bagi Hal Ehwal Islam Malaysia (MKI)Hal Ehwal Islam Malaysia (MKI)

Objectives :Objectives :** Consider, decide and issue a fatwa on Consider, decide and issue a fatwa on any matters of the religion of Islam any matters of the religion of Islam referred to it by the Conference of referred to it by the Conference of Rulers; andRulers; and** Forward any views of the committee to Forward any views of the committee to MKI which will channel the MKI which will channel the recommendation to the conference of recommendation to the conference of RulersRulers

JKF meeting was rarely held. On the JKF meeting was rarely held. On the other hand, Muzakarah Jawatankuasa Fatwa other hand, Muzakarah Jawatankuasa Fatwa (MJKF) has been held more often (6 times (MJKF) has been held more often (6 times per year)per year)

MEMBERSHIP OF MEMBERSHIP OF JKF & MJFKJKF & MJFK

A chairman appointed among its membersA chairman appointed among its members Mufti of each state or representative Mufti of each state or representative representing states in religious affairsrepresenting states in religious affairs

5 Muslim scholars by the Conference of 5 Muslim scholars by the Conference of RulersRulers

A member from Judicial and Legal A member from Judicial and Legal Services appointed by the Conference of Services appointed by the Conference of Rulers; andRulers; and

Director General of JAKIMDirector General of JAKIM

COORDINATION COORDINATION OF FATWAOF FATWA

JKF and MJKF should observe the JKF and MJKF should observe the following guidelines :following guidelines :* * Religious problems / issues which Religious problems / issues which are local in nature but related to are local in nature but related to Muslim affairs in Malaysia as a whole Muslim affairs in Malaysia as a whole * * Religious issues of a certain state Religious issues of a certain state which may have occurred elsewhere which may have occurred elsewhere ** Religious issues which are local, Religious issues which are local, forwarded by any members of state forwarded by any members of state Fatwa CommitteesFatwa Committees

A fatwa which has a national A fatwa which has a national interest can only be made by the JKFinterest can only be made by the JKF

This is provided in the state This is provided in the state enactment, E.g. S. 51 of the enactment, E.g. S. 51 of the Administration of Islamic Law Administration of Islamic Law Enactment 2003 (Selangor) provides Enactment 2003 (Selangor) provides that if the State Jawatankuasa Fatwa that if the State Jawatankuasa Fatwa finds that the fatwa to be issued finds that the fatwa to be issued touch matters of national interest, touch matters of national interest, the committee shall postpone the the committee shall postpone the issue and refer it to the Majlisissue and refer it to the Majlis

SOURCES OF FATWASOURCES OF FATWA Sources of Islamic LawSources of Islamic Law In Malaysia, fatwas in all states, In Malaysia, fatwas in all states, except Perlis, must be based on the except Perlis, must be based on the prevailing views (qaul mu’tamad) of prevailing views (qaul mu’tamad) of Shafie SchoolShafie School

If such view leads to a situation which If such view leads to a situation which is against or repugnant to public is against or repugnant to public interest, the Mufti may follow the interest, the Mufti may follow the qaul qaul mu’tamadmu’tamad of other Sunni Schools of other Sunni Schools

If such view is against the public If such view is against the public interest, the Mufti may exercise his interest, the Mufti may exercise his own ijtihadown ijtihad

In Perlis, the Syariah Committee shall In Perlis, the Syariah Committee shall follow the Quran and Sunnah, but if the follow the Quran and Sunnah, but if the opinion is against public interest, the opinion is against public interest, the Majlis and the committee shall refer Majlis and the committee shall refer such fatwa to the Ruler for his such fatwa to the Ruler for his decisiondecision

The general practice in MJKF and JKF is The general practice in MJKF and JKF is to refer to the sources of Islamic Law to refer to the sources of Islamic Law and apart from referring to Mazhab and apart from referring to Mazhab Shafie, the committee refer extensively Shafie, the committee refer extensively to the views of other mazhabs, and even to the views of other mazhabs, and even in Perlis, views of ulamak were in Perlis, views of ulamak were referred to when making decisionsreferred to when making decisions

ENFORCEMENT ENFORCEMENT OF FATWAOF FATWA

Fatwa process in Malaysia is highly Fatwa process in Malaysia is highly regulated under State and Federal Lawsregulated under State and Federal Laws

In Sabah and Kedah, provisions concerning In Sabah and Kedah, provisions concerning Mufti and fatwa are enacted in separate Mufti and fatwa are enacted in separate enactments. Generally, their provisions enactments. Generally, their provisions are the same with those found in Part III are the same with those found in Part III of the Administration of Islamic Law of the Administration of Islamic Law Enactments in other statesEnactments in other states

Fatwa and Muftis are governed by state Fatwa and Muftis are governed by state enactments and Federal Act and Syariah enactments and Federal Act and Syariah Criminal Offences Act 1997 for Federal Criminal Offences Act 1997 for Federal TerritoriesTerritories

There are other written law which involves There are other written law which involves Muftis, e.g. S. 45 of Evidence Act 1950 Muftis, e.g. S. 45 of Evidence Act 1950 which allows the Civil Courts to obtain which allows the Civil Courts to obtain expert evidence including on expert evidence including on hukum syarakhukum syarak (e.g. Dalip Kaur and Pesuruhjaya Hal Ehwal (e.g. Dalip Kaur and Pesuruhjaya Hal Ehwal Agama Islam Terengganu)Agama Islam Terengganu)

Fatwa only binds the Muslims and has no Fatwa only binds the Muslims and has no legal effect on non-Muslimslegal effect on non-Muslims

Fatwa is binding on every Muslim resident in Fatwa is binding on every Muslim resident in a particular state or Federal Territories a particular state or Federal Territories

A fatwa which has been published in the A fatwa which has been published in the gazette shall be authoritative laws for the gazette shall be authoritative laws for the Syariah Courts of a particular state that Syariah Courts of a particular state that gazetted it.gazetted it.

Fatwa only binds Syariah Courts but not the Fatwa only binds Syariah Courts but not the Civil CourtsCivil Courts