Airin Hafizah BT Khusaini 1202120 TLB3 PDF

Preview

Summary

Regulation of Fatwa at State and Federal Levels in Malaysia....

Description

THE ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA (LAB2013) SEMESTER 1 (2020/2021)

INDIVIDUAL ASSIGNMENT

Regulation of Fatwa at State and Federal Levels in Malaysia KLB 1 / TLB 3

LECTURER

: PROF DR HJ. ABDUL SAMAT MUSA

NAME

: AIRIN HAFIZAH BINTI KHUSAINI

MATRIX NO

: 1202120

1

CONTENTS

1.0 ABSTRACT…………………………………………………………………………...

3

2.0 INTRODUCTION…………………………………………………………………….

3

3.0 FATWA……………………………………………………………………………….

4

3.1 ORIGIN AND SOURCES ………………………………………………………..

4

3.2 MEANING OF FATWA…………………………………………………………..

5

4.0 FATWA AT STATE AND FEDERAL LEVELS IN MALAYSIA………………….

5

4.1 ENFORCEMENT OF FATWA…………………………………………………...

5

4.2 APPOINTMENT AND FUNCTIONS OF MUFTI AND FATWA COMMITTEE MEMBERS……………………………………………………………………………

7

5.0 CONCLUSION………………………………………………………………………..

9

6.0 REFERENCES………………………………………………………………………..

10

2

1.0 ABSTRACT Islamic law falls under the jurisdiction of the State Legislatures, and that includes fatwa. Fatwa has developed to be a very important source of knowledge for Muslims to practise Islam with ease, generally on all aspects of life. The purpose of this assignment is to discuss about how fatwa is regulated at both state and federal levels in Malaysia. How is it established in the first place? Who possess the power of fatwa issuance? Then there is also discussion on the position of fatwa and how it is governed so there will be a better understanding on the power of mufti, state fatwa committee and fatwa itself.

Keywords : Fatwa, State Fatwa Committee, National Fatwa Committee, Mufti, Jurisdiction.

2.0 INTRODUCTION It is vital to acknowledge the change and consequences that fatwa has brought to our country ever since its implementation here in Malaysia. Fatwa is institutionalized and there are very specific means in order to produce a fatwa. However it can be confusing and it has invited misconceptions on the fatwa issuance itself, as there are quite a number of jurisdictions regulating fatwa at various states in Malaysia. Also, fatwa issued can differ between the states even though the problem that arises is no contrary within different states. This paper will examine the concept of fatwa regulation as a whole, its constitutionality and ends with a conclusion.

3

3.0 FATWA 3.1 ORIGIN AND SOURCES Rulings of Islam are dynamic as the society and community are undeniably exposed to constant changes. That being said, fatwa and institutions established alongside are the best to solve or answer the unsettled problems among Muslims Allah has mentioned in Al Quran1 that the believers should obey Allah and the Prophet as well as the authority in our society, and to refer to al Quran and as Sunnah (Hadith). This is especially when there arises disagreement as the command is the best resolution for human beings. The Prophet’s passing means that the only sources of Islamic rulings are al Quran, and as Sunnah which is the way of Prophet, or simply his words, actions and teachings. It also means that the companions or Muslims can no longer make a reference directly to the Prophet about any issue regarding Islam way of life, leaving them to do ijtihad. This form of solution has been developed ever since and has helped people exercising Islam to solve their difficulties, alongside the origination of fatwa. Other than that, as fatwa is a form of ijtihad, not everyone can come out with religious rulings. As Allah has mentioned in Al Quran, Muslims of faith who are yet to be knowledgeable in Islam shall seek knowledge from those who possess it. In this case, Muslims must refer to Mufti as Mufti is eligible and capable of delivering a fatwa. It is understandable that in issuing any fatwa, a Mufti must be knowledgeable in the sources of fatwa, primarily Al Quran and As Sunnah, alongside numerous area of knowledge needed so he can also use his understanding in accepted means. According to Section 39 of Act 5052, when a Mufti wants to proceed with fatwa issuance, he shall follow the accepted views or qaul muktamad of Mazhab Syafie. However, if he finds that there will be conflict or incompatibility rising from the qaul muktamad of Mazhab Syafie, he shall be able to follow the ones from other Mazhab such as Hanafi, Maliki or Hanbali.

1 2

Surah al Nisa : 59 Administration of Islamic Law (Federal Territories) Act 1993

4

3.2 MEANING OF FATWA The term fatwa literally means an answer in respect of an event3, also a ruling on a point of Islamic law that is given by recognized authority4. It is also related to some phrases mentioned in al Quran such as ifta which can be found in surah al-Nisa verse 176 and surah Yusuf verse 43, which also gives the meaning of Islamic verdict or legal ruling. This phrase has especially been used by Allah in al Quran to refer to issues or questions in need of decision and answers. Meanwhile, fatwa according to Oxford Dictionary is a ruling on a point of Islamic Law which is to be issued by a recognized authority. Hence, the term fatwa can also be defined as a formal Islamic legal ruling or opinion that shall be issued or delivered by a mufti, whenever arises a question regarding Islamic Law submitted to him by any individual or judges of Court.5 Other than that, it is defined technically as the explanation or clarification of the Islamic verdicts or legal ruling concerning matters or questions raised by individuals or general and specific group. Another way of defining it is, it is an opinion on the ground of law by a person who is legally obligated and intellectual, or also called as mukallaf. He must also be able to issue religious ruling with his understanding on Quran, as sunnah (hadith) and other sources of Islamic Law such as ijma’ and Qiyas.

4.0 FATWA AT STATE AND FEDERAL LEVELS IN MALAYSIA 4.1 ENFORCEMENT OF FATWA According to Schedule 9, List II of the Federal Constitution, it is provided that the State Legislatures have the power to administer and in control of Islamic Law in their own state, respectively. Thus, it is crucial to understand the mechanism and regulation of fatwa in Malaysia, as it is carried out differently in various states of Malaysia. However, one thing in common out of all differences here is the states have similar provisions contained in their Enactments, which control the conducts of Islamic Law and affairs including fatwa. Other than that, there are two religious bodies or institutions that have been established to regulate fatwa both at state and national levels, under the Federal Constitution. The first one is the 3

Al-Qardawi Y. (1988). Al-Fatwa bayna al-Indibat wa al-Tasayyub, Cairo Al Maany English/Arabic online dictionary 5 Gilani SY, Younas Gilani SM (2011). Jurists and Legislatures in Islam: Origins and clasisification of Ulama, in contemporay issues in In Islamic Law 4

5

State Fatwa Committee, which is reinforceable through the Acts or Enactments of the Islamic Religious Affairs of the States. The second one is the Fatwa Committee of the National Council for Islamic Religious Affairs Malaysia. The Council is actually under the Malaysia Department of Islamic Development (JAKIM), particularly within the control of the National Council of Islamic Affairs (MKI). The Fatwa Committee of the National Council was established by The Conference of Rulers (Majlis Raja-raja) in Malaysia in 1968 under Regulation 11 of MKI. The objectives of JAKIM establishment are to legislate and standardize the Islamic law, to coordinate the Islamic administration and to adjust and develop the Islamic education in the country.6 Next, when it comes to legislation in Malaysia, the issuance of fatwa issued by each mufti in their respective states, is not legally binding until is gazetted by the states. Moreover, any decision or fatwa will be binding the society only within the said region or state. For example, according to Section 34 of Act 505 and Section 51 of the Administration of The Religion of Islam (State of Selangor) Enactment 2003, when a fatwa has been published in the Gazette, the fatwa shall bind every Muslim resident in the Federal Territories and Selangor respectively. For example, in the case of Abdul Hakim @ Ramizu bin Othman & Ors v Menteri Dalam Negeri, Malaysia7 heard in Kuala Lumpur High Court, the applicants wanted to register their society called ‘Organisasi Hizbut Tahrir Malaysia’ to the Registrar of Societies (ROS) as one of the valid societies in Malaysia. However ROS rejected the application as they referred to a fatwa issued by the Selangor State Fatwa Committee that the said society ideologies were against the teachings of Islam. The fatwa was gazetted under Section 47 of the 2003 Enactment8The appeal nevertheless was dismissed as the court decided according to the gazetted fatwa. Moreover, it is contained in Section 47 of the Administration of The Religion of Islam (State of Selangor) Enactment 2003 and Section 49 of the Administration of Islamic Religious Affairs (Terengganu) Enactment 1422H/2001M, that the fatwa committee has the power to prepare and issue a fatwa when arise unresolved questions related to Islam. Also, it is important to note that the Committee will need to make a reference to the National Council in regard of Islamic affairs or matters that would affect the national interest.

6

JAKIM. Vission, Mission, Objectives, Function and Client Charter Abdul Hakim @ Ramizu bin Othman & Ors v Menteri Dalam Negeri, Malaysia [2018] 12 MLJ 686 8 Religion of Islam (State of Selangor) Enactment 2003

7

6

However the decision by the National Council would not be legally binding on any state either, until it is accepted and gazetted by that particular state. In addition to that, according to Kasan (2001), fatwa can be classified into three groups, including fatwa produced by mufti alongside the Fatwa Committee then gazetted. Next, the fatwa produced by the mufti or through Fatwa Committee but not gazetted. The third one is the personal opinion of mufti or his personal assistant.9 An example of a fatwa that had been legally binding and referred to in court hearing is the case of Commissioner of Religious Affairs, Terengganu & Ors. v Tengku Mariam binti Tengku Sri Wa Raja & Anor10 in Kuala Terengganu Federal Court. The case was an appeal from the judgement of the previous judge, who decided that the wakaf created by the appellant’s relative was invalid. However, the appeal was allowed as the judge took notice of the fatwa issued by a mufti that the wakf was valid. This shows that a mufti’s opinion or fatwa can be used in the court and be legally binding. Lastly, it is under the jurisdiction of the State Legislatures which is the enforcement of fatwa by the time of its issuance. However, it will only become effective and valid when it has followed the provisions contained in the law and Enactments in regard of Islamic law and affairs in the respective states. It is crucial for the fatwa to be gazetted to be legally binding and have legal implication on the society, and not just be a mere opinion of a mufti.

4.2 APPOINTMENT AND FUNCTIONS OF MUFTI AND FATWA COMMITTEE MEMBERS There are two levels of religious institutions regulating the Islamic affairs in Malaysia. The first one is the State Fatwa Committee and the second one is the Fatwa Committee of the National Council for Islamic Religious Affairs Malaysia. In accordance to that, there must be a mufti together with a fatwa committee, to represent each one of 13 states and three Federal Territories of Malaysia. For instance, according to Sections 44 and 46 of the Administration of The Religion of Islam (State of Perlis), a mufti may be appointed by The Duli Yang Maha Mulia Raja Pemerintah, 9 Khairudin, W.M.K.F.W., Anas, W.N.I.WN. & Embong, A.H. (2018). The Binding of Laws to Personal Opinions of Muftis in Malaysia. 10 Commissioner of Religious Affairs, Terengganu & Ors. v Tengku Mariam binti Tengku Sri Wa Raja & Anor [1970] 1 MLJ 222

7

whom he thinks is suitable for the position, and there shall exist a committee known as Fatwa Committee. The committee also shall consists of the Mufti, the Deputy Mufti and six other persons professing the Muslim Religion Ahli Sunnah Waljama’ah including not more than three members of the Majlis and a secretary of the Mufti’s Department appointed by the Majlis. Particularly, the function of mufti is to help or assist Duli Yang Maha Mulia Raja Pemerintah in regard of matters relating to Islam. This provision can be found in Enactments of all states in a uniform manner, under the Functions of Mufti or Authority of Mufti. Meanwhile, the Fatwa Committee of the National Council serves the purposes of acting as an advisory body to the Federal Government, particularly on fatwa and generally Islamic matters, implementing the directives and resolutions of the Conference of Rulers a place for the community and all individuals or bodies to refer to regarding Islamic affairs. Also, the body makes sure that gazetted or approved fatwa at the federal level is to be well distributed and known among the public. The name of the fatwa committee in each state also differs, for example it is called “Fatwa Committee” in Johore, Kedah and Terengganu. Meanwhile in sabah it is called “Fatwa Council” and “Syariah Committee” in the states of Perak, Melaka, Negeri Sembilan, Perlis and Penang. Other than that it is different when it comes to Kelantan and Sarawak where it is called “Jemaah Ulama’” and “Fatwa Board” respectively. Besided that, it is also provided in Regulation 11 of the National Council for Islamic Religious Affairs of Malaysia (MKI) that11 there shall be a Fatwa Committee consists of the following members including Chairman, Mufti or person of each participating State, five scholars selected by the Conference of Rulers and a Muslim member from the Judicial and Legal Service. Last but not least, the Administration of Islamic Law enactments in Malaysian states provide provisions for the appointment of mufti, and also give power to administration and execution of fatwa issuance and decisions on mufti and fatwa committee members, so the Muslim community in this country shall have a better understanding on the religion of Islam.

11

Alias Azhar. (2019). The Role of Islamic Religious Institutions in Halal Consumerism in Malaysia : A Review

8

5.0 CONCLUSION To conclude, the idea of fatwa as a whole n Malaysia generally is to assist people practising the religion of Islam. The mufti, fatwa committee who are responsible and obliged with such power in the issuance of power and gazette have become important and indeed vital aspects so fatwa can be legally binding on the society. Moreover, it is without any doubt that it is necessary to upgrade the system to a better one. As fatwa is a matter of state, it is frightened that disagreements and disputes among scholars and even the community can go haywire. Thus there must be a standardization on fatwa so we can less argue on one same problem.

9

REFERENCES Federal Constitution Administration of Islamic Law (Federal Territories) Act 1993 Administration of The Religion of Islam (State of Selangor) Enactment 2003 Administration of Islamic Religious Affairs (Terengganu) Enactment 1422H/2001M Alias Azhar. (2019). The Role of Islamic Religious Institutions in Halal Consumerism in Malaysia : A Review. International Journal of Innovation, Creativity and Change. 7 (4), 87 – 97. Asuhaimi, F.A., Pauzai, N.A., Makhtar, M. & Asari, K. (2017). The Role and Position of Fatwa in Malaysian Court. Pertanika J. Soc. Sci. & Hum. 25, 227-238. Ibrahim, B., Arifin, M. & Abd Rashid, S.Z. (2015). The Role of Fatwa and Mufti in Contemporary Muslim Society. Pertanika J. Soc. Sci & Hum. 23, 315-326. Khairudin, W.M.K.F.W., Anas, W.N.I.WN. & Embong, A.H. (2018). The Binding of Laws to Personal Opinions of Muftis in Malaysia. International Journal of Academic Research in Business and Social Sciences. 8 (11), 522-529. Magaji, C., Mahamad, A., Abdul, H.A., Mohamad, A.A. (2014). The Concept of Fatwa (Islamic Verdict) in Malaysia and The Constitutional Dilemma : A Legislation or Legal Opinion? International Journal of Business, Economics and Law. 4(3), 11-20. Muhammad, I.M., Siddiq, A.C., Muhammad, J.M. (2015). Islamic Concept of Fatwa, Practice of Fatwa in Malaysia and Pakistan : The Relevance of Malaysian Fatwa Model for Legal System of Pakistan. International Research Journal of Social Sciences. 4 (9), 46-51. Muhammad, I.R., Luqman, A., Paizah, I., Mohd, A.R. (2013). Konflik Fatwa di Malaysia : Satu Kajian Awal. Jurnal Fiqh. 10, 31-56. Rahimin, A.A.R., Paizah, I., Nor, H.M.D. (2009). Ijtihad dalam Institusi Fatwa di Malaysia : Satu Analisis. Shariah Journal. 17 (1), 195-222. Zaini Nasohah. (2005). Undang-undang Penguatkuasaan Fatwa di Malaysia. Islamiyyat. 27 (1), 25-44.

10...