Fatwas shouldn’t be law

SISTERS in Islam calls on the government to review the fatwa as an instrument of mandatory and binding rule-making in Malaysia. Our call is made on the grounds that fatwas having the automatic force of law:

> has no basis in Islamic legal theory and practice;
> conflict with the Federal Constitution; and
> result in confusion, selective prosecution and victimisation in their enforcement.

Firstly, fatwas are theological and legal reasonings given by the mufti or the ulama to enlighten and educate the public so Muslims can arrange their affairs in accordance with Islamic teachings. What is a voluntary and optional concept throughout the history of Islam and in the current practice of other Muslim countries has been turned into an instrument of law and coercion in Malaysia.

This is unprecedented in Islamic jurisprudence and violates a fundamental principle in Islam: that change must occur gradually through education and not through force.

The Grand Imam of Al-Azhar in Cairo, Muhammad Sayyid Tantawi, and Saudi Arabia's Vice-Minister of Justice, Sheikh Abdul Mohsen Al-Obaikan, have gone on record to say that fatwas are not binding.

Secondly, fatwas having the automatic force of law disregards constitutional limitations on legislation on Islamic matters and violates fundamental liberties guaranteed under the Constitution. Fatwas issued by the mufti and approved by the state Fatwa Committee and the Sultan, only need to be gazetted to become law. They are not tabled for debate in the legislative body.

In addition, the Syariah Criminal Offences laws state that any violation of a fatwa is a criminal offence. Any effort to dispute or to give an opinion contrary to the fatwa is also a criminal offence. In his paper Jurisdiction of State Authorities to Punish Offences Against the Precepts of Islam: A Constitutional Perspective, Malaysian constitutional law expert Prof Shad Faruqi argues that the power of the states to create and punish offences against the precepts of Islam should be confined to the areas explicitly mentioned in Schedule 9, List II, Item 1, under the Federal Constitution. He also argues that Schedule 9 must conform to the fundamental rights guaranteed under the Federal Constitution.

Thirdly, fatwas which regulate a citizen's life to the smallest detail is so wide in its impact that it becomes unenforceable. Such laws could only lead to select prosecution and victimisation, as they cannot be enforced fully and equally.

Islamic jurisprudence expert Prof Muhammad Hashim Kamali argues that when statutory law rules on matters that essentially belong to the realm of morality, and may be deemed to belong to the sphere of personal choice and liberty, the expected result of such lawmaking would be confusion and difficulty over enforcements. This is likely to erode the credibility and survival of both the laws and the lawmaking process, as can be seen with the controversies that erupt over the enforcement of these laws in Malaysia.

Historically unprecedented
The ongoing debate and controversy surrounding the recent fatwas on tomboys and yoga have brought to fore opinions and trends that are unprecedented in the history of Muslim societies and jurisprudence, and alarming in multi-faith and democratic Malaysia.

Under the Syariah Criminal Offences laws, one cannot defy, disobey or dispute a fatwa. Does this mean that questioning the view of Jakim director-general Datuk Wan Mohamad Sheikh Abd Aziz (New Straits Times, 24 Nov 2008) — that an appeal against the yoga fatwa is akin to appealing "to God to change the rules according to our whims and desires" — is considered insulting Islam and the religious authorities and hence, a criminal offence?

Would it be an offence to disagree with Kelantan Menteri Besar Datuk Nik Aziz Nik Mat when he said questioning fatwas is the same as questioning God (Bernama Online, 17 Nov 2008)?

If the Minister in the Prime Minister's Department Datuk Seri Ahmad Zahid Hamidi has forbidden people from questioning the tomboy fatwa (Bernama Online, 10 Nov 2008), will Malaysians be criminalised if they still say that a fatwa is unconstitutional?

Can Malaysian citizens — Muslims and those of other faiths — register their concern about the impact of fatwas on their lives without it being labelled as affecting national security and triggering retaliation among Muslims, as stated by the Inspector-General of Police Tan Sri Musa Hassan (New Straits Times, 13 Nov 2008)?

Can laws allowing for detention without trial be used on those who raise questions about fatwas, as called for by Malay-Muslim NGO Pewaris (Utusan Malaysia, 24 Nov 2008)?

Given these concerns, Sisters in Islam urges the Government and religious authorities to consider all differing views and be guided by the principles of justice, equality and public interest when putting into practice precepts of Islam. In coming up with fatwas, the National Fatwa Council must take into consideration the country's multi-cultural, multi-racial and multi-religious identity, and the needs of Malaysian Muslims in contemporary situations.

If the purpose of fatwas is to provide opinions and reasonings to guide Muslims in their affairs in accordance with Islamic teachings, then fatwas made in the name of Islam cannot result in confusion and injustice and bring the Islamic authorities, the fatwa-making process and Islam itself into disrepute. In a country that is multi-ethnic and modern like Malaysia, it is imperative that the government examines these urgent concerns and take due consideration in making and gazetting fatwas in the name of Islam.

Masjaliza Hamzah
Programme Manager (Research and Publications)
Sisters in Islam