Fatwa, Malaysia and a storm in a teacup
Wednesday, May 16, 2012 - 15:46
Article 3 of the Constitution of Malaysia establishes Islam as the “religion of the Federation”.
However, Malaysia’s law is based on the English common law and Syariah law is applicable only to Muslims.
The Sunni Islam of the Shafi’i school of thought is the official and legal form of Islam in Malaysia.
A fatwa in the Islamic faith is a juristic ruling concerning Islamic law issued by an Islamic scholar. In Sunni Islam, any fatwa is non-binding, whereas in Shia Islam it, could be considered by an individual as binding, depending on his or her relation to the scholar.
The person who issues a fatwa is called, in that respect, a mufti. This is not necessarily a formal position since most Muslims argue that anyone trained in Islamic law may give an opinion (fatwa) on its teachings.
If a fatwa does not break new ground, then it is simply called a ruling.
Fatwa has a vital role in Islam because it helps to explain God’s law in both religious and worldly matters. Due to their major implications of fatwa, legislators are particularly cautious when announcing fatwa.
Fatwa comes from the Arabic root word afta which means “to describe or enlighten”. The al-Wasit dictionary states: “Fatwa; solution to any problem, whether related to Syariah or legal matters; the plural versions are fatawi and fatawa. Istafta means to inquire or to ask for a fatwa and opinion.
A mufti is a government appointed official who has to answer questions relating to syariah and is the person issuing the fatwa.
Another definition of fatwa is the syara' law expounded by a mufti to an inquirer in a non-restrictive form. Hence, the inquirer is not restricted or bound by the law arising from the mufti’s fatwa. The inquirer has the right to seek fatwa from another mufti.
Furthermore, he can apply the fatwa from another mufti, provided the mufti is alim or pious and well qualified to issue fatwa.
Several Muslim intellectuals describe the process of issuing fatwa as “describing Allah’s law generally and comprehensively in accordance with the demands of syara' guidelines.”
A fatwa should always be consistent. Thus, a mufti should not discriminate against people when issuing a fatwa, for example by issuing a different fatwa for different political parties and the public.
A mufti who makes a fatwa founded on rumours and instinct will become a sinner and his action is haram. Such a mufti is sinful because of his blatant lie towards Allah and the Prophet Muhamad.
In a hadith narrated by Muslim bin Yasar he said: “I heard Abu Hurairah saying; 'Rasulullah said: Anyone who makes a fatwa without knowledge will bear the sin of issuing the fatwa'.”
Malaysia’s top clerics, a week ago on Monday, issued a fatwa, deeming it haram for Muslims to participate in demonstrations that cause disturbances in the country, days after thousands defied government orders to stage a rally.
National Fatwa Committee chairman Professor Emeritus Datuk Abdul Shukor Husin said that the committee viewed seriously the issue as some Muslims had resorted to rioting during the opposition-backed electoral reforms demonstrations on April 28.
He said: “Rioting, causing disturbance and damaging public property are all forbidden by Islam. This also applies to any intention to topple a duly-elected government by organising such demonstrations. No one is exempted, and cannot support any efforts that can cause harm, anxiety or unrest among the Muslims to the point of the community becoming split, what more if there is bloodshed.”
Abdul Shukor said Muslims who participated in such demonstrations must repent as Islam never called on its followers to resort to any action that could threaten people’s lives just to pursue a specific agenda.
As the country practised democracy, more discussion channels could be implemented without sacrificing peace, he said.
He said that the meeting also discussed the issue of lesbians, gays, bisexuals and transgenders (LGBT) and decided that no fatwa (edict) was needed on it as it was clearly ‘haram’ in Islam. He reminded Muslims not to be directly or indirectly involved in any movement or campaign that supported LGBT.
“Even showing support or sympathy (for LGBT) is haram. It is the duty of all Muslims to get rid of this menace and if we support something that is not good, it can be said we are abetting it, which is a sin,” Bernama quoted him as saying.
We can only assume that when the National Fatwa Council issued the fatwa, it was clearly aware that a fatwa is not legally binding until gazetted as law at the state level.
Since religious affairs fall under state jurisdiction, the state has to first gazette the fatwa into law. Only then can one be penalised by law if one goes against the fatwa.
Religious affairs directly fall under the Sultan’s purview. Therefore, it is the Sultan who decides if the state will abide by the edict.
This is probably why, despite a nationwide fatwa against smoking, there has been no significant reduction of smokers since the fatwa was issued in 1997.
So, once again, Malaysians, as they usually do, will probably continue to fervently discuss this fatwa and that, but by and large life goes on, beyond and away from the storm in a teacup.
Stephen Doss is a social activist and keen political observer who blogs at stephendoss.blogspot. com and can be found on Twitter at @stephendoss. He is also currently the secretary-general of the Malaysian Interfaith Council and president of the International Social Media Chambers.