+

Administration of Fatwa in Malaysia

Zulkifli Hasan, PhD

CONTENT
n

Definition of Fatwa

Relationship between fatwa and ijtihad

Origin of fatwa

Composition and Functions of State and National Committees

Issuance and Enforcement of Fatwa

Status of Fatwa in the Syariah and Civil Courts

Appointment, Functions and Qualifications of a Mufti and

Fatwa Committee Members.

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.

Al-Badakshi - a legal decision on Hukum Syara issued by a

Mujtahid.

fatwa (legal opinion) or ifta is defined as the elucidation of a

legal ruling with no binding effect .

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).

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.

The person who is responsible to issue fatwa is Mufti.

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.

Relationship between fatwa & ijtihad

nIslamic law

ij6had.

developed through the practice of

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.

nAmong

fatwa.

prevalent form of ij6had prac6ced is

Fatwa and Ijtihad

n

Test to be applied?

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.

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

Jurisdiction

nThe

State List of the Federal Cons6tu6on

provides exclusive jurisdic6on to the States to
administer Islamic Law including to establish
Fatwa CommiRee.

nThe

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.

10

Separation between MAJLIS and

Mufti
n

the separation of administration of the Religious Council, the Mufti

and the Shariah Court

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.

(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)

11

Different Terminologies
nThese

fatwa CommiRees referred by the

respec6ve state enactments through various
names such as Jawatankuasa Fatwa,
Jawatankuasa Undang-undang Majlis, Jamaah
Ulama and Lujnah Fatwa.

nThe

standard English terminology used in the

State Enactments for this body is Islamic Legal
Consulta6ve CommiRee.

12

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.

13

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 t and proper persons to be appointed
by the Majlis
(e) Secretary - an ocer from the Islamic Religious
Department to be appointed by the Majlis
(Composi)on of members may dier from states)

14

Appointment
nIn states, a MuYi is appointed by Rulers, and in

the Federal Territories by the YDPA.

neg. S.32 AILFTA 1993 The YDPA on the advice of

the Minister aYer consul6ng the Majlis, appoint

t and proper persons to be the MuYi and
Deputy MuYi of the F.T.

15

Enforceability of Fatwa
nEnforceability of fatwa?
nAn ocial 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.

nA fatwa is enforceable when it is gazeRed as a

law.

16

Pronouncement of Fatwa
nIn simple cases, the MuYi would normally issue

the fatwa himself.

nIn controversial and complicated problems, the

MuYi (chairman) would call on the CommiRee to

discuss the maRer and eventually issue a fatwa
on it.

nAny reference made to Fatwa CommiRee would

mean reference to MuYi.

17

Issuance of Fatwa
n A

fatwa can be issued either upon the muftis own

initiative; or

n under
n upon

the instruction of the Yang di Pertuan Agong; or

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

18

Research and Fatwa

nS.

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.

19

Function Of State Fatwa Committees

1.To aid and advise the Ruler or the YDPA in the case of
the FTS, 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.

20

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.

21

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.

22

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).

23

Offence to violate the Fatwa

nS9

of the Shariah 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.

24

Communication of an opinion or view

contrary to the Gazetted fatwa

n S

12 of Shariah 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.

+ nS13 of the Shariah 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.

25

26

National Fatwa Commitee

nJawatankuasa 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).

27

n1984

placed under Bahagian Hal Ehwal

Islam (BAHEIS) and 1997 placed under
Jabatan Kemajuan Islam Malaysia (JAKIM)
Jabatan Perdana Menteri.

nThe

Committee was established under the

authority of the Conference of Rulers the
highest authority in Islamic matters at
Federal level.

28

Functions
nAimed

at:

nDiscussing

any major contemporary issues

relating to the religion of Islam at national
level and eventually issue a fatwa on it.

nUnifying

and standardising contradicting

Fatwas in Malaysia.

nAdvising

the YDPA on all matters regarding

hukum syarak.

29

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.

+Membership Of National Fatwa Committee

nA chairman appointed among its members
n MuYi

of each state or representa6ve

represen6ng states in religious aairs

n5 Muslim scholar appointed by the Conference of

Rulers

nDirector

General or member from Judicial and

Legal Services appointed by the Conference of
Rulers; and

nDirector General of JAKIM

30

31

Coordination Of Fatwa By National

Fatwa Committee
nNFC observe the following guidelines :
n Religious problems / issues which are local in nature but

related to Muslim aairs in Malaysia as a whole.

nReligious issues of a certain state which may have

occurred elsewhere.
nReligious issues which are local, forwarded by any
members of state Fatwa CommiRees.

32

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 states Fatwa Committee Secretary, to be
gazetted.

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.

33

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.

.34

Approach
nBasic -sources of Islamic Law
nIn

Malaysia, fatwas in all states, except Perlis,

must be based on the prevailing views (qaul
muktamad) of Shae School.

nIf 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.

35

Qaul Muktamad

Section 54. Qaul muktamad to be followed.

(1) In issuing anyFatwaunder section 48, or certifying an opinion

under section 53, theFatwaCommittee shall ordinarily followqaul
muktamad(the accepted views) of theMazhab Syafie.

(2) If the Fatwa Committee is of the opinion that following theqaul

muktamadof theMazhab Syafiewill lead to a situation which is
repugnant to public interest, theFatwaCommittee may follow theqaul
muktamadof theMazhab Hanafi, MalikiorHanbali.

(3) If theFatwaCommittee is of the opinion that none of theqaul

muktamadof the fourMazhabsmay be followed without leading to a
situation which is repugnant to public interest, theFatwaCommittee
may make theFatwaaccording to ijtihad without being bound by
theqaul muktamadof any of the fourMazhabs.

36

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

Shafii 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 Shafii
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.

37

Fatwa in Perlis
nThe

Administra6on of Religion of Islam

Enactment 2006 provides that the basis of
issuing a fatwa is al-Quran and Sunnah.

nEnactment

did not impose on any specic

mazhab to be followed.

nMay

follow any mazhab which the commiRee

view most conducive to local society.

n Views of ulama were referred to when making

decisions.

38

nIf

opinion contrary to public interest, have to

refer maRer to the ruler before issuing fatwa.

nIn

issuing fatwa, muYi have to take into

considera6on the Malay Customs of the state.

nRefer s.54 (1), (2) Administra6on of Religion of

Islam Enactment 2006.

39

Enforcement Of Fatwa In Malaysia

nFatwa

process in Malaysia is highly regulated

under State and Federal Laws.

nIn Sabah and Kedah, provisions concerning MuYi

and fatwa are enacted in separate enactments.

nthe Sabah Fatwa Enactment No. 7 / 2004.

nGenerally,

their provisions are the same with

those found in Part III of the Administra6on of
Islamic Law Enactments in other states.

40

Q3: Fatwa is not binding and enforceable

nUn6l

or unless it is published in the States

GazeRe

nState

GazeRe establishes the force of law for

fatwas.

nS.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.

41

Q4: Fatwa to Non-Muslim

nFatwa 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 eect to non-
muslims.

nS.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.

42

Q5: Jurisdiction
nS hall

have f orce within the State

boundaries of the respective State
Legislative Assembly.
nS 34 AILFTA 1993 muslim resident in
the Federal Territories.

43

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 Shariah

Court where the fatwa is gazetted.

44

Q7: Civil Court?

nFatwa

only binds the Syariah Courts and

not the Civil Courts.

nThere

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)

+ Titular Roman Catholic ArchbishopOf Kuala

45

Lumpurv.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.

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

HC: he word Allah was not restricted to Muslims alone and the prohibition
was unconstitutional.

COA: upheld the governments 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.

FC: Appeal dismissed.

46

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 states Fatwa
Committee.

47

Eg. Fatwa on Smoking

nSmoking is haram from the Islamic point of view (Muzakarah

Decision of the Fatwa Committee, 23 March 1995).

nSelangor has accepted and gazetted this as a fatwa.

nKedah (Minutes of Meeting, MAIK Fatwa Committee 1995).
nPerlis (Perlis State Fatwa Decision 1995;
nSarawak State Fatwa Decision 1995.
nPahang, 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,

48

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.

49

Q9: Standardisation of Fatwas

nMuzakarah

of Muftis organised by the National

Council of Islamic Affairs Malaysia in 1978
agreed that to standardise fatwas for all states:

nReference

should be made to authoritative

religious books only

nAll

Fatwas issued in one state should be

informed to the other states

nStandardise

smoking.

fatwas-welfare lottery, bank interest,

+ 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 nds 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

50

n S51: (1)

Notwithstanding the powers of the Fatwa Committee 51

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.

+ 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.

52

53

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

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.

The determination of the date for the beginning of Ramadhan, the

day for Aidil Fitri and the day for Aidil Adha.

54

nSection
n(1) The

52:

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.