THE POSITION

OF FATWA IN THE
MALAYSIAN
LEGAL SYSTEM

TOPIC 7
ADMINISTRATION OF
ISLAMIC LAW IN
MALAYSIA
1
LAB2013
 • Definition of Fatwa
• Relationship between fatwa and ijtihad
• Origin of fatwa
• Composition and Functions of State and
Content 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.

2
 • Fatwa is generally a legal opinion or ruling on
a matter of Islamic Law issued by an Islamic
Scholar known as a Mufti.
Definition • Al-Badakshi - a legal decision on Hukum Syara’
issued by a Mujtahid.
of Fatwa • DG McDonald – A formal legal opinion given by
a Mufti in answer to a question submitted to
him either by a judge or a private individual.

3
 • Mohd Daud Bakar - 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
Cont.. about Islamic law requiring solutions issued
by qualified and authorized body or individual.
• The person who is responsible to issue fatwa
is Mufti.

4
 • Islamic law developed through the practice of
ijtihad.
Relationshi • The Companions and generations after demise
of Prophet saw. practiced ijtihad in tackling
p Between and addressing solutions to new issues where
there was no specific or express ruling made in
Fatwa & the Quran and Sunnah.

Ijtihad • Among prevalent form of ijtihad practiced is

fatwa.

5
 • 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
Cont.. any necessity, it is not called fatwa but a mere
ijtihad.

6
 • The origin of fatwa The origin of fatwa
is found in the Quran.
Origin of  Al-Nisa’ verses 127, 176

fatwa  Yusuf verses 43, 46

 Al-Baqarah verses 189, 215, 217,
219

7
Compositi
on and • The State List of the Federal Constitution
provides exclusive jurisdiction to the States to
Functions administer Islamic Law including to establish
Fatwa Committee.
of State • The said provision positioned fatwa as a state
matter making the issue of determination and
and ascertainment of hukum syarak vested in the
respective states including the Federal
National Territories.
Committee
s

8
 • These fatwa Committees referred by the
respective state enactments through various
names such as Jawatankuasa Fatwa,
Jawatankuasa Undang-undang Majlis, Jamaah
Ulama and Lujnah Fatwa.
Cont..
• The standard English terminology used in the
State Enactments for this body is Islamic Legal
Consultative Committee.

9
 • Fatwa Committee in every state is established
under the respective Administration of Islamic
Law Enactments of the states.
• There is no grand Mufti in Malaysia but 14
Muftis representing each state.
Cont..
• For the FT. S.37(1) 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.

10
 • S.37(2) The committee shall consists of
:
a. Mufti (Chairman)
b. Deputy Mufti
c. 2 members of the Majlis nominated by the
Majlis
Cont.. d. Not less than two fit and proper persons to
be appointed by the Majlis
e. Secretary - an officer from the Islamic
Religious Department to be appointed by
the Majlis

(Composition of members may differ from states)

11
 • In states, a Mufti is appointed by Rulers, and
in the Federal Territories by the YDPA.
• E.g. S.32 AILFTA 1993 The YDPA on the
Cont.. advice of the Minister after consulting the
Majlis, appoint fit and proper persons to be
the Mufti and Deputy Mufti of the F.T.

12
 • An official fatwa is conclusive and enforceable.
Enforceabil In the states it should be sanctioned by a Ruler,
while in the FT the YDPA and conference of
ity of Rulers in case of national fatwa.
fatwa? • A fatwa is enforceable when it is gazetted as a
law.

13
 • In simple cases, the Mufti would normally
issue the fatwa himself.
• In controversial and complicated problems,
the Mufti (chairman) would call on the
Committee to discuss the matter and
eventually issue a fatwa on it.

Cont.. • Any reference made to Fatwa Committee

would mean reference to Mufti.
• S. 37(6) 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 before he issues a
fatwa.

14
 1. To aid and advise the Ruler or the
YDPA;
 in the case of the FT’S, Penang, Malacca,
Sabah & Sarawak in all matters of Hukum
Function of syara’.
 Mufti shall be the chief authority in Islamic
State Fatwa law matters in respective states after the
Ruler or the YDPA.
Committees  See s.33 AILFTA 1993 – aid and advise YDPA
in all matters of Islamic Law and shall be
chief authority in the FT after YDPA.

15
 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 Mufti shall on the
Direction of the YDPA, and may on his own
Cont.. initiative or the request of any person made
by letter addressed him, make and publish a
fatwa or ruling on any unsettled or
controversial question relating to Islamic
law.

16
 3. To amend, modify or revoke any
previous fatwa issued by the same Fatwa
Committee or the previous Committees.
S.36 AILFTA 1993 – Mufti may amend,
Cont.. modify or revoke any fatwa that has been
issued earlier by him or by any previous
Mufti.

17
 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.
Cont..
5. Advise the Majlis on the
discharge of its duty to ensure its
activities comply with Islam (additional
function for Terengganu).

18
 • Jawatankuasa Fatwa Kebangsaan (JKF)/
National Islamic Consultative Committee
was established in 1970 under the
administration of the Secretariat of Majlis
Kebangsaan Bagi Hal Ehwal Ugama Islam
Malaysia under provision II Peraturan Majlis
National Kebangsaan Bagi Hal Ehwal Islam Malaysia
(MKI).
Fatwa
• 1984 placed under Bahagian Hal Ehwal
Committee Islam (BAHEIS) and 1997 placed under
Jabatan Kemajuan Islam Malaysia (JAKIM)
Jabatan Perdana Menteri.
• The Committee was established under the
authority of the Conference of Rulers the
highest authority in Islamic matters at
Federal level.

19
 Aimed at:
• Discussing any major contemporary issues
Functions relating to the religion of Islam at national
level and eventually issue a fatwa on it.
of National
• Unifying and standardizing contradicting
Fatwa Fatwas in Malaysia.

Committee • Advising the YDPA on all matters regarding

hukum syara’.

20
 1. A chairman appointed among its members
2. Mufti of each state or representative
Membershi representing states in religious affairs
p of 3. 5 Muslim scholar appointed by the
Conference of Rulers
National 4. Director General or member from Judicial and
Fatwa Legal Services appointed by the Conference of
Rulers; and
Committee 5. Director General of JAKIM

21
Coordinati • Jawatankuasa Fatwa Kebangsaan
observes the following guidelines:
on of  Religious problems / issues which are local
in nature but related to Muslim affairs in
Fatwa by Malaysia as a whole.

National  Religious issues of a certain state which may

have occurred elsewhere.
Fatwa  Religious issues which are local, forwarded
by any members of state Fatwa Committees.
Committee

22
 • A fatwa which has a national interest can only
be made by the National Fatwa Committee.
• This is provided in the state enactment, e.g. S.
51 of the Administration of Islamic Law
Enactment 2003 (Selangor) provides that if
Cont.. the State Jawatankuasa Fatwa finds that the
fatwa to be issued is touching matters of
national interest, the committee shall
postpone the issue and refer it to the Majlis.

23
 • Though representatives of all states attend the
National Fatwa Committee, a Fatwa issued by
Binding the National Committee has no binding effect
Effect of on states.

Fatwa To • States has absolute the right to accept or not.

• Item 1 list II, 9th Schedule of the FC- Islamic
States? law and Muslim personal and family law are
state legislative matters.

24
 • Muzakarah of Muftis organized by the National
Council of Islamic Affairs Malaysia in 1978
agreed that to standardise fatwas for all states:
Efforts to • reference should be made to authoritative
Standardiz religious books only
• All Fatwas issued in one state should be
e Fatwas informed to the other states
• Standardise fatwas-welfare lottery, bank
interest, smoking. Non uniformity prevalent.

25
 • Basic -sources of Islamic Law
• In Malaysia, fatwas in all states, except Perlis,
Sources/ must be based on the prevailing views (qaul
muktamad) of Shafie School.
Basis of • If such view leads to a situation which is
Fatwa against or repugnant to public interest, the
Mufti may follow the qaul muktamad of other
Sunni Schools.

.26
 • If such view is still against the public interest,
the Mufti may exercise his own ijtihad.S.39 (1),
(2),(3) AILFTA 1993.
• 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.
Cont.. • E.g. in the use of local currency to replace the
use of rice in zakat fitrah payment which is in
accordance to opinion of Hanafi.

27
 • The Administration of Religion of Islam
Enactment 2006 provides that the basis of
issuing a fatwa is al-Quran and Sunnah.
• Enactment did not impose on any specific
mazhab to be followed.
Situation • May follow any mazhab which the committee
in Perlis view most conducive to local society.
• Views of ulama’ were referred to when
making decisions.

28
 • If opinion contrary to public interest, have to
refer matter to the ruler before issuing fatwa.
• In issuing fatwa, mufti have to take into
consideration the Malay Customs of the state.

Cont.. • Refer s.54 (1), (2) Administration of Religion

of Islam Enactment 2006.

29
 • Fatwa process in Malaysia is highly regulated
Enforceme under State and Federal Laws.

nt of • In Sabah and Kedah, provisions concerning

Mufti and fatwa are enacted in separate
Fatwa in enactments. Generally, their provisions are the
same with those found in Part III of the
Malaysia Administration of Islamic Law Enactments in
other states.

30
 • Fatwa is not binding and enforceable until
or unless it is published in the States
Gazette.
State Gazette establishes the force of law for
Cont.. fatwas.
S.34(2) AILFTA 1993 – No statement made by
Mufti shall be taken to be a fatwa unless and
until it is published in the Gazette.

31
 • Fatwa 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 effect to non-Muslims.
S.34 (3)AILFTA 1993 – upon publication in
Cont.. the Gazette, a fatwa shall be binding on
every Muslim resident in the FT and shall be
his religious duty to abide and uphold the
fatwa.

32
 • Shall have force within the State
boundaries of the respective State
Legislative Assembly.
See s 34 AILFTA 1993 – “Muslim resident
in the Federal Territories.”

Cont.. • 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.
See s.34(4) AILFTA 1993 - “shall be
recognized by all courts in the Federal
Territories.”

33
 • State has full discretion to accept or
reject a fatwa issued by the National
Consultative Committee.

 List II State List FC Para 4.1.1

 Starting 2003 Selangor has agreed to
fully adopt fatwa issued by the National
Cont.. Fatwa Committee.
 s.52 Administration of Religion of Islam
(State of Selangor) 2003 which was
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.

34
 • Fatwa only binds the Syariah Courts and
not the Civil Courts.
• There are other written law which involves
Muftis, e.g. S. 45 of Evidence Act 1950 which
Cont.. allows the Civil Courts to obtain expert
evidence including on hukum syarak (e.g.
Dalip Kaur and Pesuruhjaya Hal Ehwal
Agama Islam Terengganu)

35
 • Generally a fatwa is not binding on the civil
courts.
• However, the practice of the civil courts
referring questions on Islamic law arising in
the civil courts to the mufti continues to exist
Status in till today.
Civil courts? • The said practice is illustrated under sec 38
AOIL(FT)A 1993 - if there is question of
Islamic law requiring a decision arises in the
civil courts, the civil court may request the
opinion of the Mufti on the question and mufti
may certify his opinion to the court.
 • Tengku Mariam binte Tengku Sri Wa Raja &
Anor v. Commissioner for Religious Affairs
Terengganu [1969] 1MLJ 110 the High Court
Judge was of the view that even if the civil
Cited Cases courts had sought a fatwa, the civil court
retained its discretion as to how much of such
fatwa it should accept, and may decline to be
bound by it.
• Re Dato’ Bentara Luar Hj. Yahya v. Hassan
bin Othman [1982] 2MLJ 264, it was
observed by the court that even though the
civil court was not bound to accept a muftis
fatwa(as the civil court was entitled to
expound what was the Islamic law was on the
said given matter) the civil court was equally
not bound to reject the opinion stated in the
fatwa.
• The court went further to say that fatwa being
the opinion expressed by the highest Islamic
authority in the state who had spent his
lifetime in the study and interpretation of
Islamic law, the court had no reason to justify
the rejection of the opinion, especially when
the civil court judges themselves were not
trained in the system of Islamic jurisprudence.
• Although the matter falls within the
jurisdiction of the civil courts and
although a fatwa is not binding on the
civil court, the civil courts normally
seek the opinion of the muftis on
questions involving Islamic law and
decide in accordance with the mufti’s
decision.
• Dalip Kaur v. Pegawai Polis Daerah, Balai
Polis Daerah, Bukit Mertajam [1992] 1MLJ 1
In this case the Supreme Court directed the
Judicial Commissioner to refer certain
questions of Islamic law to the Kedah Fatwa
Committee.
The Judicial Commissioner referred the
questions to the said fatwa committee and
after receiving the fatwa, he confirmed his
earlier findings and decision at the High Court.
The Supreme Court held that clear directions
from the fatwa Committee should be adhered
to.
• Halimahtussadiah v Public Service
Commission, Malaysia & Anor [1992] 1MLJ
513
• This is a case regarding the constitutionality of
the dismissal of a female public servant who
wore purdah when on duty in contravention
of a government circular.
• The Mufti of FT was called upon to give his
fatwa in the High Court.
• The High Court judge said that as the Mufti had
spent his whole life in the study, teaching and
interpreting the Islamic law, he found no
compelling reason to reject the views
expressed by the Mufti as highest Islamic
authority in FT .
• Isa Abdul Rahman v Majlis Agama ISLAM
Pulau Pinang [1996] 1 CLJ 283
• Mufti of Penang and a member of the State
Fatwa Committee was called upon to give
expert evidence by the High Court. The High
Court Judge opined that members of the fatwa
committee were more qualified than civil court
judges in matters of Islamic Law.
• The SC was of the view that when a civil court
hearing a case within its jurisdiction is poised
with a question regarding Islamic law, the
parties involved may call experts in the
religion of Islam to give evidence at the
hearing or the court may refer questions to the
fatwa committee to certainty on the matter.
 • Even though fatwa does not bind the civil
courts, majority of decided cases indicate that
once a fatwa is called upon by the courts, the
Conclusion fatwa issued is highly respected, accepted and
observed by the civil courts with exceptional
of a few.
STATUS OF FATWA IN
CIVIL COURTS
CONTINUATION FOR TOPIC 7
LAB2013 PENTADBIRAN UNDANG-UNDANG DI
MALAYSIA
 What is a fatwa?

• 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.
• DG Macdonald - a formal legal opinion given by a mufti
in answer to a question submitted to him either by a
judge or a private individual.
• Mohd Daud Bakar- a unique process in Islamic law
involving two parties, namely a party who asks the
question (Mustafti) and a competent party who answers
the question (Mufti).
• Among the famous form of ijtihad practised by the
companions and the later jurists to find solutions for
more complicated new cases where no specific or
expressed ruling found in Quran and Sunnah.
 Conceptual Understanding?

• Fatwa always involves a question and 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.
• A fatwa in Malaysia is binding not in its capacity as a
fatwa but because it is a legal instrument.
 GENERAL PROVISIONS

• Sec 34(1) AOIL(FT)A 1993 states the mufti shall on the

direction of the YDPA, on his own initiative or on the
request of any person made by a letter addressed to him,
make and publish in the Gazette, a fatwa or ruling on any
unsettled or controversial question relating to Islamic law.
• Sec 34(2) AOIL(FT)A 1993 No statement by the mufti
shall be taken as a fatwa unless and until it is published in
the gazette.
• Sec 34(3) upon publication in the gazette, a fatwa shall be
binding on every muslim resident in the FT as a dictate of
his religion and it shall be his religious duty to abide and
uphold the fatwa unless he is permitted by bIslamic law
to depart from the fatwa in matters of personal
observance, belief or opinion.
 Status in Civil courts?

• Generally a fatwa is not binding on the civil courts.

• However, the practice of the civil courts referring questions
on Islamic law arising in the civil courts to the mufti continues
to exist till today.
• The said practice is illustrated under sec 38 AOIL(FT)A 1993 -
if there is question of Islamic law requiring a decision arises in
the civil courts, the civil court may request the opinion of the
Mufti on the question and mufti may certify his opinion to
the court.
 Cited Cases

• Tengku Mariam binte Tengku Sri Wa Raja & Anor v.

Commissioner for Religious Affairs Terengganu [1969]
1MLJ 110 the High Court Judge was of the view that even
if the civil courts had sought a fatwa, the civil court
retained its discreation as to how much of such fatwa it
should accept, and may decline to be bound by it.
• Re Dato’ Bentara Luar Hj. Yahya v. Hassan bin Othman
[1982] 2MLJ 264, it was observed by the court that even
though the civil court was not bound to accept a muftis
fatwa(as the civil court was entitled to expound what was
the Islamic law was on the said given matter) the civil
court was equally not bound to reject the opinion stated
in the fatwa.
• The court went further to say that fatwa being the
opinion expressed by the highest Islamic authority in the
state who had spent his lifetime in the study and
interpretation of Islamic law, the court had no reason to
justify the rejection of the opinion, especially when the
civil court judges themselves were not trained in the
system of Islamic jurisprudence.
• Although the matter falls within the jurisdiction of the
civil courts and although a fatwa is not binding on the
civil court, the civil courts normally seek the opinion of
the muftis on questions involving Islamic law and
decide in accordance with the mufti’s decision.
• Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit
Mertajam [1992] 1MLJ 1
In this case the Supreme Court directed the Judicial Commissioner
to refer certain questions of Islamic law to the Kedah Fatwa
Committee.
The Judicial Commissioner referred the questions to the said fatwa
committee and after receiving the fatwa, he confirmed his earlier
findings and decision at the High Court. The Supreme Court held
that clear directions from the fatwa Committee should be adhered
to.
• Halimahtussadiah v Public Service Commission,
Malaysia & Anor [1992] 1MLJ 513
• This is a case regarding the constitutionality of the
dismissal of a female public servant who wore purdah
when on duty in contravention of a government circular.
• The Mufti of FT was called upon to give his fatwa in the
High Court.
• The High Court judge said that as the Mufti had spent his
whole life in the study, teaching and interpreting the
Islamic law, he found no compelling reason to reject the
views expressed by the Mufti as highest Islamic authority
in FT .
• Isa Abdul Rahman v Majlis Agama ISLAM Pulau Pinang
[1996] 1 CLJ 283
• Mufti of Penang and a member of the State Fatwa
Committee was called upon to give expert evidence by
the High Court. The High Court Judge opined that
members of the fatwa committee were more qualified
than civil court judges in matters of Islamic Law.
• The SC was of the view that when a civil court hearing a
case within its jurisdiction is poised with a question
regarding Islamic law, the parties involved may call
experts in the religion of Islam to give evidence at the
hearing or the court may refer questions to the fatwa
committee to certainty on the matter.
 CONCLUSION

• Even though fatwa does not bind the civil courts, majority
of decided cases indicate that once a fatwa is called upon
by the courts, the fatwa issued is highly respected,
accepted and observed by the civil courts with
exceptional of a few.