Ijtihad & Fatwa

Definition of Ijtihad

1. Ijtihad literally means expending of maximum effort in the performance of an act.

Meanwhile, it technically defined as an effort made by the Muslim jurists in seeking
knowledge of the rules (ahkam/hukm) of the syariah through interpretation. Al Amidi defines
ijtihad as to spare no effort in the quest of discovering the supposed rules of the Shariah in the
sense that the mujtahid leaves no stone unturned. On the other hand, Ibn al-Haj defines ijtihad
as the exertion of the mujtahid’s whole effort in his attempt to establish the anticipated rules
of the Shariah. Simply said, the ijtihad continues to be the main instrument of interpreting the
divine message and relating it to the changing conditions of the Muslim community in its
aspirations to attain justice, salvation and truth.

4. Ijtihad is measured by its harmony with AQ and Sunnah.

Value (HUKM) of Ijtihad

1. The practice of ijtihad: a religious duty

2. Opinion of majority jurists (the jurist has different opinion on its value):

- Fardhu kifayah i.e. a collective obligation of all qualified jurists. (obligation of a group of
jurists)

- Fardhu ‘Ain (personal obligation) of the qualified jurist in urgent cases.

- Mandub (recommended) in all cases where no particular issue has been referred to the
jurist.

- Haram (forbidden), when it contradicts the decisive rules of the AQ, Sunnah and Ijma.

Proof (HUJJIYAH) of Ijtihad

1. Sunnah

The Hadith of Muaz b. Jabal (refer)

“When a judge exercises Ijtihad and gives a right judgment, he will have two rewards, but if
he errs in his judgment, he will still have earned one reward.” // The famous tradition of
Muaz Ibn Jabal to legalize the validity of Ijtihad is quoted to ascertain the applicability of
Ijtihad when there is no clear proof for the said matter.
“Strive and endeavour (ijtihad), for everyone is ordained to accomplish that which he is
created for.”
“Ulama’ to be the successors of the prophet”.
2. Al-quran

An-Nisa’:59
“O, you who believe obey Allah and obey His Messenger and those who are in authority
among you.”

Al ‘Ankabut: 69
“And those who strive for Us - We will surely guide them to Our ways. And indeed, Allah is
with the doers of good.

Origin and Definition of FATWA

 The term fatwa is "opinion" or “answer of a question”. The word fatwa originated
from the term “ifta” (to decide a point of law), and it can simply be defined as a ruling
on a point of Islamic Law which is to be issued by a recognized authority. Thus, the
term fatwa could be defined as a formal Islamic legal opinion issued by a mufti in
response to questions submitted to him by private individuals or judges.’
 In Malaysia, fatwa has been considered as a religious verdict that assists in
regulating Muslim conduct of activities in the country. The Federal constitution
of Malaysia vested the responsibility for enacting laws in the hand of
parliament at the Federal level and the state Assemblies at the state level.
Fatwa has been used as an instrument for clarification and coordination of issues
in Malaysian judicial, political and financial sectors. Once it is published in
the Gazette, it becomes a binding and applicable in all Muslim.
 It is an authoritative legal opinion given by a mufti (legal scholar) in response to a
question posed by an individual or a court of law. A fatwa is typically requested in
cases not covered by the fiqh literature and is neither binding nor enforceable.
 Fatwa is very important because it explains God’s law and interprets it.
 As fatwa relates to Allah’s laws the Muslim jurists or muftis are very cautious when
dealing with the issuance of fatwa.
 The Quran strictly warns those who debate on Allah’s law in ignorance.
 The Muslims have the obligation to obey God and the Prophet and those in
charge of with authority. This means the obligation to refer to the Quran and
Sunnah in any dispute that arises (Al-Nisa’: 59)
 Requirement to obey God and His Apostle is also found in the Constitution of
Madinah (Article 42)
 After the Prophet passed away and when there was no specific ruling in the
Quran and Sunnah, the companions and jurists exercised their own ijtihad to
find solutions to new problems. This resulted in the development of Islamic law.
 Fatwa is a form of ijtihad.
 Historically, according to Ibn Qayyim, there were more than 130 companions
involved in the issuance of fatwa including female muftis e.g. Sayyidatuna Aishah.
 Currently, ijtihad is based on ijtihad jama’i (collective opinion and deliberation)
through fatwa committee.
  Basically, it was based on questions or queries about Islamic law or religious rulings
on certain problems which require solutions.

The origin of ifta’ or fatwa is found in the Quran. E.g :

* al-Nisa’ (127, 176)
* Yusuf (43, 46)
* al-Baqarah (189, 215, 217, 219)
Meaning of fatwa
* To describe or enlighten (afta lahu al-amr or abana lahu)
* Solutions / answers to problems whether syariah or legal matters (luqhawi)
* Syariah law expounded by a Mufti to an inquirer in a non-binding manner (Istilahi)
 Fatwa is a formal legal opinion on Islamic law.
 Fatwa is an answer to noble / new / unprecedented cases issued by a qualified and
authorised body or individual. It is a unique process which is different from qada’
(courts institution).

Qualification of Jurists

1. Knowledge of arabic language

- To enable scholars to have a correct understanding of the Quran and Sunnah. Al-Shatibi:
“Since the opinion of the mujtahid is a proof (hujjah) for a layman, this degree of authority
necessitates direct access to the sources and full competence in Arabic.

2. Knowledge of al kitab (AQ)

- He must know the Makki and the Madani contents of the Qur’an, the occasions of its
revelation (asbab al-nuzul) and incidences of abrogation therein. He must have a full
understanding of the legal contents of (ayat al-ahkam).

3. Knowledge of Sunnah as a whole, especially with reference to the ahadith al-ahkam. He

must also know the incidences of abrogation in the sunnah, the general and the specific,
(‘amm and khass), the absolute and the qualified (mutlaq and muqayyad), and the reliability
or otherwise of the narrators of Hadith.

4. Knowledge of Ijma’

- The mujtahid must know the substance of ijma’. He should be able to verify the consensus
of the Companions, the Successors, and the leading Imams and mujtahidun of the past so that
he will not issuing an opinion which is contrary to certain ijma.

5. Knowledge of maqasid al syariah (objectives of syariah)

- Consists of the masalih (consideration of public interest) particularly the five principles,
(religion, life, intellect, lineage and property) as the recognized objectives of the Lawgiver.

6. Aptitude for ijtihad

- Have the ability and proper knowledge and skills in Islamic jurisprudence in general to
exercise ijtihad.

7. An upright person (adil)

- The mujtahid must be an upright (adil), trustworthy person who refrains from committing
sins and whose judgement the people can trust in.

General Process of Ijtihad

 The jurist acquires necessary qualifications,

 The jurist understands the different forms of elaboration of the texts (AQ and
Sunnah),
 The jurist understands abrogation (naskh) and identifies the occasions on which rules
have been repealed in the AQ.
 The jurists exercises all 3 modes of ijtihad i.e. :
- the jurist stays as close as he can to the texts,
- When the 1st mode of literal construction is exhausted by the jurist, he turns to
secondary method(s).
- The jurist exercised preference (tarjih) and reconciliation (jam’) among apparently
conflicting sources

Role and Function of Scholars / Mufti

1. Mufti, is Islamic legal authority who gives a formal legal opinion (fatwa) in answer to an
inquiry by a private individual or judge relating to Syariah. // A fatwa normally requires
knowledge of the Quran and Hadith as well as the knowledge of exegesis and collected
precedents in solving the problematic legal matter.

2. Have the intellectual capacity to analyze and research past fatwas as well as make rational
choices.

3. Should not be content with only extracting and narrating fatwas from other Muftis.

4. Fatwa varies from one Mufti to another, depending on the mastery level of the Mufti.
Consequently, a person who wants to obtain a fatwa should select a person based on his level
of mastery and taqwa. A person who knows two opposing fatwas is not free to apply the more
favorable fatwa. Rather, the person has to select according to tarjih (evaluation) by weighing
the Mufti’s level of mastery, taqwa and piety.
Position of Ijtihad and Fatwa under the Malaysian Legal System

IT’S POSITION IN MALAYSIA

1. Ijtihad is primarily a legislative function, and today the state(s) has the power over
legislation.

2. An opinion issued by a jurist has no binding effect unless it is accepted by the state,
converted into law through legislation and gazetted in media.

3. In normal circumstance, the court will directly refer to Quran and Sunnah as primary legal
source. However, the court, in certain cases may recognise an opinion and carry weight in
their decisions/judgments.

4. Enforcement of fatwa: It is issued under the states’ authority as provided under List II FC
(States List).

Current status: The role is carried out by the National Fatwa Committee (NFC) and State
Fatwa committee (SFC).

5. Legal status: S 34 and S 39 Administration of Islamic Law (FT) Act 1993 provided that
only the fatwa gazetted in media can be enforced and recognised by Islamic court,
hence, having binding force on all Muslims residing in the related state.

6. The approved (gazzetted) fatwa is validated by the Syariah court of the state.

Problem arise i.e. no codification for all states in Malaysia.

7. The fatwa must be validated by the state Shariah Court where the fatwa is gazetted. The
state jurisdiction over the enforcement of fatwas actually contributes to the difficulty in
standardising fatwas throughout Malaysia. To date, there have only been several cases where
all states declared and gazetted an identical fatwa. For example, in the ban of Aurad
Muhammadiyah’s books and the al-Arqam group, all states agreed to accept and to
gazette fatwas produced based on the resulting decision from the National Fatwa
Committee Conference and certified by the Majlis Raja-Raja (Conference of Rulers).

Composition & Functions of State & National Fatwa Committees

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

2. Different fatwa bodies in Malaysia which are variously called:

* Lujnah Fatwa, Fatwa Committees, Jamaah Ulamak, Islamic Legal Consultative Committee
(J. Perundingan Hukum Syarak) and Jawatankuasa Syariah.
* Fatwa Committees are established under the various enactments of the states

* E.g. S 37 of the Administration of Islamic Law (Federal Territories) Act 1993 provides that
there shall a committee to be known as the Islamic Legal Consultative Committee. The
committee consists of the

- Mufti (Chairman)

- Deputy Mufti

- 2 members of the Majlis nominated by the Majlis

- Not less than two fit and proper persons to be appointed by the Majlis

- Secretary

##Composition of members differ from state to another.

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

* An official fatwa is conclusive and enforceable. In the states it should be sanctioned by a

Ruler and YDPA and conference of Rulers in case of national fatwa.

* A fatwa is enforceable when it is gazetted as a law.

* In simple cases, the Mufti would normally issue the fatwa himself.

* In controversial and complicated problems, the Mufti (chairman) would call the Committee
to discuss the matter.

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

Functions of State Fatwa Committees (SFC)

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

2. To discuss and issue a ruling on new problems on which there is no ruling in the Quran and
Sunnah:

* Direction

* Own initiative

* Request of any person

3. To amend, modify or revoke any previous fatwa

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

5. For the fatwas to be enforced by the states, it must be endorsed by the State Fatwa Council
(SFC).

6. Nevertheless, issues arose i.e. the State Fatwa Council may alter the fatwa although the
case/issue been decided at the national level (i.e. NFC).

Note: Legal decisions/edicts (fatwas) issued by National Fatwa Council (NFC) are not all
binding (except when it is endorsed and enforced by the states).

7. Fatwa or legal edicts which are given and not endorsed and enforced is known as “Fatwa
Muzakarah”, although they are valid and a considered views in Syariah law perspective.

Example of “Fatwa muzakarah”: human cloning (11 March 2002), SMS Divorce (27 August
2003).

8. The State Fatwa Council has the rights whether to enforce or not the legal edicts (fatwa).

NATIONAL FATWA COMMITTEE (NFC)

1. Jawatankuasa fatwa (JKF) was established in 1970 under provision II Peraturan Majlis
Kebangsaan Bagi Hal Ehwal Islam Malaysia (MKI).

2. Objectives:

* Consider, decide and issue a fatwa on any matters of the religion of Islam referred to it by
the Conference of Rulers; and

* Forward any views of the committee to MKI which will channel the recommendation to the
conference of Rulers.

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

Membership of JKF & MJFK

 A chairman appointed among its members

 Mufti of each state or representative representing states in religious affairs
 5 Muslim scholars by the Conference of Rulers
 A member from Judicial and Legal Services appointed by the Conference of Rulers;
and
 Director General of JAKIM
Coordination of Fatwa

1. JKF and MJKF should observe the following guidelines:

* Religious problems / issues which are local in nature but related to Muslim affairs in
Malaysia as a whole

* Religious issues of a certain state which may have occurred elsewhere

* Religious issues which are local, forwarded by any members of state Fatwa Committees

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

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

Source of Fatwa

1. Sources of Islamic Law

- In Malaysia, fatwas in all states, except Perlis, must be based on the prevailing views (qaul
mu’tamad) of Shafie School.

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

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

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

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

Enforcement of Fatwa and Court

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

2. In Sabah and Kedah, provisions concerning Mufti and fatwa are enacted in separate
enactments. Generally, their provisions are the same with those found in Part III of the
Administration of Islamic Law Enactments in other states.
3. Fatwa and Muftis are governed by state enactments and Federal Act and Syariah Criminal
Offences Act 1997 for Federal Territories.

4. There are other written law which involves Muftis, 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).

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

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

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

8. Fatwa only binds Syariah Courts but not the Civil Courts.

9. A Mufti cannot be sued when he gives his views/opinions on hukum syarak (syariah legal
edict/fatwa) in any courts (civil/syariah): S 35 Administration of Islamic Law Act (FT).

*Eg of cases:

- Dalip Kaur [1992] 1 MLJ 1 (apostasy case) = In the case of Dalip Kaur v Pegawai Polis
Daerah, Balai Polis Daerah, Bukit Mertajam & Anor, the Court needed the expertise of
Islamic experts to give an opinion whether a deceased person was a Muslim and hence the
need to refer the matter to the Islamic religious authorities for an opinion on the religious
status of the deceased. But in this case, the appellant is still alive and had sworn a statutory
declaration and affidavits to state that she now professes the religion of Christianity and
therefore there is no necessity for any Islamic authorities to decide whether she is an apostate
from Islam.

- Isa Abdul Rahman [1995],

- Hjh Halimatussaadiah Hj Kamaruddin v Public Services Commission, Malaysia & Anor
(violation of civil service ethic case)

10. The gazzetted and enforced fatwas at the state level are binding and must be followed by
the muslim. Eg : S 12 Syariah Criminal Offences Act FT 1997.

CAN THE SHARIAH COURTS EXERCISE OWN DISCRETION AND CREATIVITY OR

REFER TO FATWA IN MAKING LEGAL DECISION?

1. The power of the Shariah courts’ judges and the possibility of developing the law through
judicial reform, particularly in cases are needed where strict compliance to statutory
provisions may prejudice the interest of the public.

2. This is based on the premise that the Shariah allows further interpretation and expansion of
the texts so that the legislation could meet the needs of the particular time and place.

3. Al Quran, al Nisa’:4: ‘O you, who believe, stand out firmly for justice as witnesses to
Allah, even as against yourselves or your parents or your kin and whether it be against the
rich and poor. For Allah can best protect both. Follow not the lusts of your hearts, lets you
swerve and if you distort justice or decline to do justice, verily Allah is well acquainted with
all that you do’. = The above clearly illustrates the sole objective of decision-making process
that is to accord justice to both litigating parties. This is not an easy process as parties’
emotions, in most occasions, may be full of anger and revenge.

4. Hadith: You bring to me for judgment your disputes and some of you perhaps being more
eloquent than others, so I give judgment on their behalf according to what I hear from them.
Bear in mind in my judgment if slice off anything for him from the right of his brother he
should not accept it, for I sliced off for him a portion of Hell (Sunan Abu Dawud, Kitab al
Aqdiyyah, Vol. III, p. 1016)

5. Hadith: When the Prophet sent Muadh ibn Jabal as a governor and a judge in Yaman, the
Prophet asked him “according to what will you judge?” He replied “according to the Book of
Allah”. “And if you find nothing therein?” “According to the Sunnah of the Prophet of
Allah”. “And if you find nought therein?” Then I will exert myself to form my own
judgment”. And thereupon the Prophet said “Praise be to Allah Who has guided the
messenger of His Prophet to that which pleases His Prophet” = The above hadith gives a clear
message as to the important of judicial interpretation which must be exercised diligently
through ijtihad.

6. In elaborating the understanding on the hadith in the present context, Ahmad Ibrahim
commented that: ‘the principles of justice in Islam are contained in the Quran and Sunnah,
whose teaching is absolutely binding on Muslims, and cannot be amended or modified by any
human being whether they are the executive, the legislature or the judiciary. It is the duty of
the executive to enforce the Islamic law and for this purpose if any administrative
measures are needed to implement the law, these can be enacted by the legislature in the
form of human laws. The judiciary has the function of deciding and applying the law as
contained in the Quran and Sunnah or where necessary using the ijtihad of the jurist in
the past and in the present’.

- This observation indicates a strong urge to exercise ijtihad whenever necessary to suit
the demand of the society. Both ijtihad and judicial creativity are methodologically
essential for a just decision.

7. Umar has left a detailed procedure for a just decision in his historic letter to his judge
Abu Musa al Ash’ari in Basrah.
The content of the letter reads:
Jurisdiction is to be administered on the basis of the Qur’an and Sunnah. First understand
what is presented to you before passing any judgment. Full equality for all litigants: in the
way they take places in your presence and in the way they look at them, and in your
jurisdiction. In that way no highly placed person would look forward to your being unjust nor
would a weak one despair of you fairness. The burden of proof is the responsibility of he
plaintiff and the oath is upon the denying party. Compromise is always the right of litigants
except if it allows what Islam has allowed. Clear understanding of every case that is brought
to you for which there is no applicable text of the Quran and Sunnah. Yours then is the rule of
comparison and analogy, so as to
distinguished similarities and dissimilarities and thereupon seeking your way to the judgment
that seems nearest to justice and apt in the eyes of Allah. Never succumb to anger or anxiety
and never get impatient or tired of your litigants.

- The message put across in the letter does not depart from the rule that has been set earlier by
the Prophet. However, the institution of judiciary became more eminent in Saidina Umar’s
time where he himself has to exercise ijtihad upon new emerging issues.

Factors that contributed to the success of judicial exercises:

- The mufti and the court choose the interpretation of law that led away from
confrontation and conflicts and towards harmony in the community as well as protection of
its weaker members; i.e. by looking into their position in the society where a class and social
position mattered very much.

- Flexibility and independence of judgment, creativity and compassion to concrete legal

problems in the communities. Eg.: The Qadi could be the initiator for sulh settlement. It has
already a practice where concluded orally and outside the court were considered binding by
the qadis. This mutual recognition and interaction between the court indicates that neither
views operated in isolation by adopting various pattern of interaction between Shari‘ah,
kanun (law) and ‘urf (custom).

- Muslims are governed by religious law is highly significant to be emulated in the

modern Islamic judicial system as human inter-personal relations. Hence this judicial
activism is also reflected in collection of fatwas. A research on the extensive available fatwa
literatures will provide many insights into Muslim daily life during different periods of
Islamic history.

Codification of Law and Fatwa

- Shari‘ah develops extensively on ijtihad as the Quran does not contain a code of law and
general in approach. The Prophet (s.a.w.) himself does not favour Muslims to be bound too
much with his rulings and the decisions are based on actual happenings.
- The codification of law has helped the judiciary to decide based upon clear provisions
in the legislation and people may understand clearly their rights and duties.
- However, the codified law should not be regarded as the only source of reference on the
basis that the Hukum Syarak remains the final reference. Hukum Syarak is defined as the law
following the four major schools of laws as clearly stated in the Islamic family Law
Act/Enactment in Malaysia.
- Based on this provision it is the legislative intent (maqasid) that matters in order to provide
enough space for the judiciary to exercise discretionary power exclusively in matters where
justice could not be served by applying the law literally. This is particularly relevant in the
Shari‘ah context as the development of the law substantially designed to suit the objectives of
Shari‘ah (maqasid Shari‘ah) that is to protect the interest of the people and to remove
hardships (Yusuf Qaradawi, 1990).

- In the local context, the judgment given in Syed Abdullah Shateri v. Shariffa Salmah (1959)
reflects a scholarship quality of judicial activism where there was a legal battle between the
daughter and her own father who had married her to her cousin without her consent after the
father objected to the daughter’s plan to marry her boyfriend. The father bring the matter to
the Shari‘ah court as the daughter refused cohabitation and married to her cousin. The Appeal
Board provided that as the parties were Shafi’is, the law as formulated by Shafi’is madhab
should be followed. The Board concluded that the marriage is valid. However, the Board was
fully aware that such marriage could not survive as the daughter strongly opposed to the
marriage and the husband did not appear to have taken an active interest in the matter.
Therefore, for the interest of the girl, a fasakh was arranged at the request of the girl and the
husband which eventually ended with a khulu’ divorce.

- In the above case, there were more people will be affected by the ruling includes the
daughter, the boyfriend and the husband who was not interested with the marriage if only the
father’s interest to be considered following the strict application of the legislation. This
judgment is in line with the spirit of Shar‘ah that gives priority on the maslahah and even the
great Imam Shafi’i himself is flexible in his approach to the extent of giving different
opinions in different situations. Al Muzani the disciple of al Shafi’i states that the Imam
‘forbade his disciples to follow him blindly, for it is always necessary to look into matters of
religion for one self, to exercise earnestly the spirit of inquiry and then arrive at a sound
conclusion’.

- Al Muzani himself being the disciple of al Shafi’i sometimes differs from his teacher.
Obviously, the above judgment in Syed Abdullah Shateri has all these observations. Though
this case does not involve a conflict of opinions between mazhabs, the conclusion that is
adopted by the court reflects its judicial creativity in resolving the dispute.

Ramah vs. Laton [1927] 6 FMSLR 128, Norhairy Cheong Abdullah @ Cheong Foo Siong
[2010] 3 LNS 15, Halijah Abdul Rahman v. Zambree Baharom [2009] 1 CLJ (Sya) 402,
Nor Aniza bte Idris v. Mohammad Fauzi bin Ahmad [2006] 3 ShLR 102

- It is clear that there are matters which are left to the judge to resort to the best available
resources before the decision is made.
- For example in Islamic family law, the status of triple talaq pronounced in a single occasion
has not been statutorily provided.

- The common approach is to apply Shafi’is view, a predominant mazhab in Malaysia. The
Shafi’i’s view on this issue inclines towards Saidina Umar’s approach that is to regard such
talaq as effective of three talaqs. The purpose is to prohibit a person from pronouncing talaq
unjustifiably by looking into its consequences that such divorce is irrevocable unless and
after the wife married another man, get the marriage consummated and divorced. This
requirement served as a penalty to the husband who has exceeded the limit of talaq. Thus,
literal application of the law may cause serious difficulty to the parties whose emotion
outweighs rationality.

- For example, in case Re Muhammad Hussin and Hazimah (1990)

In this case, the husband had pronounced three talaqs in a single word due to his anger which
was caused by his wife’s attitude. The subordinate court decided to apply the law literally and
resulted in three talaqs to be declared effective. Both appeal against the decision of the
subordinate court, praying for the Appeal Board to declare the divorce as one talaq. Though
the issue of mazhab has not been listed as the grounds for appeal, the Appeal Board decided
to consider the mazhab (Hanafi mazhab) that the party’s belong to as significant in allowing
the appeal. The decision to remove the hardship based solely upon the opinion of mazhab
may not be the best solution as the party who belongs to Shafi’is will be at the disadvantage.
Therefore, an inquiry into the facts in question is material to decide on the award and the
judgment of the court should go beyond the boundaries of mazhab.

- In another development, the codification of law is meant to serve as guideline in resolving

the dispute. The details are left in the hand of judges to interpret the law and address its
meaning in line with the intention of the legislation.

- For example with regards to the position of nafkah for the divorced wife, the law does not
specifically address whether the entitlement should depend on whether the party is the
Shafi’is or the Hanafis.

- The law mainly imposes on the husband to pay maintenance to the wife or the divorced
wife. However, the application of the law reflects the influence of madhab in determining
whether the divorced wife is entitled to such claim. This due to the fact that under the Shafi’i
‘s view the wife who is divorced by irrevocable divorce, i.e. judicial divorce as well as
divorce by three talaqs is not entitled to claim for maintenance during iddah as there is no
possibility for the parties to resume conjugal relation. On the other hand, the Hanafi allows
the divorced wife to claim maintenance during iddah in any form of divorce which is viewed
as a form of protection in terms of financial support after divorce. (maqasid Shariah).

- Both opinions have valid justification as far as the theory is concerned. However, in actual
cases, the adoption of Shafi’i view in its literal sense may cause the difficulty to the divorced
wife whose husband is the sole financial provider. The situation could be even worst if she
has no family members to lend support after divorce which is supposed to be the case in the
Shari‘ah family system.

- Thus, it is reasonable to say that the judge should adopt purposive approach in interpreting
and applying the law rather than to insist on the literal understanding. Thus, removing
hardship should be one of the important considerations in interpreting the law and this
approach undoubtedly consistent with the spirit of Shari‘ah.

- Other aspects: method of ruju’ (reconciliation), mut’ah.

- The above discussion explains both the importance of having codification of law as well as
the practice of judicial activism.

- The role of judges is significant in exploring into the factual situation and applies the law
appropriately into the context. The practice of the past proves significant co-relation between
judicial activism and administration that have been perceived as vulnerable member of the
society, had received the utmost benefits.

- Thus, the interpretation of the law in its context by using maqasid approach should be the
practice in any given situations.

Conclusion

 Ijtihad and Fatwa in legislative scope:

- Since ijtihad is primarily a legislative function controlled by the state, an opinion
issued by a mujtahid would have no significance unless it is accepted by the state and
converted into law through legislation.
- The dilemma faced by the Fatwa Institution : the codification and the enforcement of
the fatwas issued by the NFC of M’sia.
- Different views by the state Muftis raised confusions among the muslims.
- Propose to have a uniformity in its mechanism so that all fatwas issued by the NFC
are binding to all states.
- Propose to have a National Mufti (Mufti Negara).