Muftis, fatwas and the Federal Constitution

The Mufti (Federal Territories) Bill 2024 makes unacceptable inroads into the doctrine of constitutional supremacy which is the foundation on which this nation is built.

Hamid Sultan Abu Backer, FMT

The word “fatwa” is currently the subject of explosive debate in Malaysia.

In Islam, a fatwa has always been a non-binding opinion issued by a shariah scholar on matters of Islamic law and practice. It was never intended to have any legal consequence in the nature of punishment imposed on a Muslim.

But all that will change if the Mufti (Federal Territories) Bill 2024 is passed into law by Parliament. In my view, the proposal to turn fatwas into enforceable laws is a direct attack on the spine of the Federal Constitution itself.

Under Section 3 of the bill, the mufti is appointed by the Yang di-Pertuan Agong on the advice of the minister in charge of Islamic affairs. That effectively means it is the cabinet, led by the sitting prime minister of the day, who will determine who will take on the role of mufti.

An almost similar process is involved in his removal. That means the mufti’s tenure of office is effectively at the will of the prime minister and his cabinet.

Imagine then what more fundamental or radical regimes could do if they were to take charge.

Under the proposed law, the mufti leads a fatwa committee in discussions about Islamic law and is empowered to issue fatwas at the direction of the king, on the mufti’s own initiative, or at the request of any person.

The bill states that if the fatwa receives the king’s assent, it will be published in the Government Gazette, become binding on all Muslims in the Federal Territories, and must be recognised by all courts.

The bill also makes provision for fatwas issued “in the national interest”, without defining what “national interest” means.

In my view, the Mufti Bill makes unacceptable inroads into the doctrine of constitutional supremacy which is the foundation on which this nation is built.

As I have explained before, our constitution grants the three traditional pillars of government – the executive, legislature and the judiciary – a licence to administer the country.

Our constitution, however, is unique in that it also establishes a fourth pillar, the Conference of Rulers, which has the final say in the administration of the country and the rule of law.

The mufti and his fatwa committee, however, do not exist in the framework of government envisaged by the constitution.

Despite this, the Mufti Bill seeks to give the appointee legislative powers that allow him to enact fatwas as law, bypassing altogether the legislative process which is vested solely in Parliament.

Even worse, Section 11, which requires the courts to recognize the fatwa, removes altogether the check and balance against oppressive laws built into the constitution.

On those grounds alone, how can the Mufti Bill be passed into law?

There are other difficulties.

Shariah jurists even of the same sect do not always agree with each other.

For example, one local Hanafi scholar may differ in his interpretation of Islamic law or his opinion on any matter from another local scholar. Even if local scholars agree on any one matter, their opinion may differ from yet another Hanafi scholar from a different country.

Those of us who have practiced as lawyers and judges know that there is no shortage of differing opinions from one lawyer to the next, and from one judge to another.

In any court case, there is no assurance that a trial judge will see any case in the manner in which the evidence and law are presented to him. On top of that, there may also be differing views of the case among appellate judges.

How can fatwas be any different?

I have been quite familiar with the word “fatwa” from my childhood days, having attended religious classes at the Tamil Muslim mosque cum madrasah in Johor Bahru.

The community there, consisting of Muslims from the Hanafi and Shafi sects who originated from Tamil Nadu in India, would frequently seek the opinion of the imam on various aspects of the practice of Islam.

Some of the questions they would ask him would be as basic as whether a Muslim is allowed to eat durians, whether Muslim children can attend Christian mission schools, whether they could consume ice-cream bought from a Chinese vendor, and even whether a Muslim can share business or residential premises with a non-Muslim.

The answers to many of the questions asked cannot not found in the Quran. On occasion, if the person asking the question has the means and the question is one of importance, my imam would recommend that he seek a written opinion from the Lalpettai Madrasah where he studied.

Lawyers also tend to seek written opinions on certain issues from eminent counsel, but again, there is no guarantee these will win a case in court.

In India of the late 17th century, the Mughal emperor Aurangzeb commissioned the compilation of fatwas about the Islamic faith, which became known as the Fatwa Alamgiri.

Like the Ottoman Code, the Fatwa Alamgiri was intended as a legal code for the administration of justice in his empire. Over time, however, its influence diminished as the British common law became the dominant law.

Curiously, Malaysia appears intent on moving in the reverse direction!

Since Merdeka, the laws of this country have been premised on principles governing the rule of law as set out in the Federal Constitution. Any inroads made into the grundnorm affecting the power granted to both the legislature and the courts is plainly unconstitutional.

It also is incumbent upon our lawmakers to appreciate that the laws they make for Muslims are bound to end up being interwoven into the lives of non-Muslims. Therefore, the impact of these laws on non-Muslims must be debated thoroughly, openly and transparently in Parliament and in all state legislatures that seek to impose similar laws on their subjects.

It would be wrong to brush off the concerns of non-Muslims by simply saying that the law will only apply to Muslims. One needs only to look at the hardship of long-suffering mothers Indira Gandhi and Low Siew Hong to know that it is bound to impact non-Muslims as well.

Muslims themselves are divided by various sects, or madhabs. The majority of Muslims in Malaysia are of the Shafi sect. Nevertheless, any attempt to encroach on the existing practices of other madhabs will, in my view, be a breach of the rule of law. The executive, legislature and judiciary are obliged by their oaths of office to protect those rights.

Ultimately, our constitution does not permit Muslims to rule or be ruled wholly or partly by fatwas.

It falls on all Malaysians to ensure that the government recognises that the legislature alone is the legitimate law-making arm of government, and to protect both Muslims and non-Muslims in accordance with Articles 5 and 8 of the constitution and all human rights conventions.

The Madani government would be prudent to study the objections of Muslims as well as non-Muslims, and to consult institutions such as Suhakam, the Bar Council and the relevant NGOs before moving any further on the Mufti Bill.

If all else fails, then it falls on the rulers to apply their powers under Article 38 of the constitution to intervene and ensure that legislative powers given by the constitution are not compromised, so as to uphold a progressive Malaysian society.