Fatwa in Malaysia - Islamic Law

1. Should the statement made by Mufti should be taken as Fatwa
Generally, Mufti refers to is an Islamic scholar who is an interpreter or
expounder of Islamic law. On the other hand, Fatwa refers to the legal opinion
or interpretation that a qualified jurist or mufti can give on issues pertaining to
the Islamic law.
In Malaysia however, the opinion or the Ijtihad made by Mufti would
have no significance and will not be considered as Fatwa unless it is accepted
by the state and gazetted into law through the process of legislation.
As in the Federal Constitution under the 2nd list of the 9th Schedule, it has
stated that Islamic matter shall be placed under the State Authority. Therefore,
there will be no unanimity of Islamic ruling in Malaysia as different states
conform to different rulings made by the state Mufti. For example, for the
Federal Territories, under Section 34 (3), of the Administration of Islamic Law
1993, the Fatwa which has been gazetted by State only binds the people living
in the territory.
Besides being approved by the process of legislation, Fatwa also must
be validated by the Sharia Courts of the state where the fatwa is made.
While, regarding the Fatwa made by the Mufti which has not been
recognised and enforce, it should be clear that Fatwa is a form of Ijtihad
therefore, it is permissible to follow. As in the case of Isa Abdul Rahman v
Majlis Agama Islam Pulau Pinang, the civil courts has request for opinion from
the Mufti however, there are two conflicting opinions. Later, the Mufti of
Penang suggested to the court to follow either any of the Fatwa as it is a form
of Ijtihad which is permissible to be followed.
This statement can be proof by various sources of law. Firstly, in al
Quran Surah an-Nisa (4:59) – “…obey Allah and obey the Messenger and Ulul
Amri (those in authority among you)”. Based on the verse, the term ulul amri
refers to the Islamic scholars or the Mufti. Therefore, any rulings made by
them either being approved or not, it shall be followed.
Nelfi Amiera Mizan
Multimedia University

2. Besides that in Surah at-Tawbah (9:112) - “it is not for the believers to
go to battle all at once…because a group remaining to obtain understanding in
the religion and warn their people”. From this verse, the term the believers
refers to the Islamic scholars and they must be separate while going to the
battle as the remaining of them id needed to guide the people. Therefore, it is
correct to state that the rulings made by Mufti shall be followed.
Moreover, there are also some hadith which proof that the Ijtihad made
by Mufti are binding proofs.
First, PM states that “when a khadi 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.” By this hadith, it can be said that although the
rulings made by the scholars contains an error, it is still rewarding.
Secondly, PM also had stated that “ulama’ to be the successors of the
prophet”. Therefore, all Ijtihad made by scholars shall be followed by the
people.
There are also various unapproved fatwa (Fatwa Muzzakarah) that has
been made through National Fatwa Council which has not been gazetted by
the State Fatwa Council.
Some of them include the prohibition of human cloning in any ways as it
is contrary to the creation of Allah and the validation of SMS Divorce by the
husband. In order for this fatwa to be legal it must be sent to the respective
states to be gazetted. However, usually not every state will gazette the Fatwa
and making such confusion towards the people. For example, the Fatwa
regarding the prohibition of smoking, only Selangor has legally gazetted the
ruling and making it binding.
As this had caused much confusion, some alteration of law should be
made in order to synchronise the Fatwa made by Mufti so that it will be
applicable by all of the Muslim in Malaysia. By that, there is some suggestion to
establish a National Mufti Council so that every opinion made by a Mufti
regardless which state he represents will have the same effect towards all
Muslims in Malaysia.
Nelfi Amiera Mizan
Multimedia University

3. Despite of all the procedure, Ijtihad made by scholars should be upheld.
Nelfi Amiera Mizan
Multimedia University