Methods on How Fatwa was proposed and gazetted

Methods on How Fatwa was proposed and gazetted.

Generally fatwa means answers of muslim scholars based on their knowledge on the primary source of Islamic law on a particular issue that is raised. Mainly it is to resolve an issue when there is a doubt on Islamic religious practice that is permissible(halal) or forbidden (haram)[1]. Therefore, there are some methods in publishing and binding of the fatwa in Malaysia. The gazetted fatwa are to be obeyed and abide by all the Muslims in that state and also the Syariah Court for that state.[2]

The first step to be taken, before making a fatwa is to form a Fatwa Committee that is in charge for the making of a fatwa. The fatwa committee stands by Mufti as the Chairman, Deputy Mufti as the State Legal Advisor, two members of the Majlis Agama Islam, an officer from the Jabatan Agama Islam of each state, two to seven people that is fit and are well appointed by the Majlis Agama Islam and lastly an officer from the Mufti Department who perform his task as the secretary of committee.

The second step, secretarial duties is the responsibility to handle the call or to invite every member of the council for bermuzakarah. Each of them will be called if there is a new issue that has arisen and will then return to their respective states to take decisions as a result of discussions at national level. The Secretariat is also listed in this organization and it is the responsibility of the Secretariat and International Affairs Division, JAKIM[3]. Before the committee decides on a fatwa the Mufti would be carrying out a research and a paper works to determine the purpose, the bindingness of the fatwa towards Muslims and to make sure that it is not overruling the primary source of Islamic Law that is Al-Quran and Sunnah.

In National level, the procedures of making a fatwa is different compare to state level. It involves a fatwa for a nation and the states that are to be placed under the jurisdiction of the national fatwa. In addition, there has been a Kebangssan Fatwa Council to monitor and coordinate the Fatwa Committee states, especially in a big problem or issue involving the question of the country or the faith of Muslims themselves. Among the issues that have been settled or decided is whether lawful or unlawful Amanah Saham Malaysia, holding al-Arqam, the anti hadith and other.

The third step, is the consideration of Fatwa Committee on the Fatwa that has been decided. Here each member will use their expertise in finding the answer to the case or issue arising under the laws of productive resources such as the Qur'an, the Sunnah, consensus, qiyas and ijtihad(personal legal reasoning)[4].

After the consideration of the Fatwa Committee, the Mufti on behalf of the Committee will bring the decide Fatwa to the Majlis Agama of each state to be discussed or debated with each member of the council at the state level.

Even though there is a fatwa that was decided by the National Fatwa Committee, but still there is a tendency for each state to amend the text of the fatwa after it was brought back to the states respectively, and are determined by the state fatwa committee respectively. Despite the fatwa made ​​at the national level is a decision of the majority of the mufti who is a member, but the changes still occur when it is discussed at the state level even if the fatwa is a majority decision of the mufti. The state that is chosen to do a research on the Fatwa is Selangor[5].

Therefore, after the Majlis had discussed about the Fatwa Majlis Agama Islam have to get the state Sultan royal assent to be gazetted or to be published. In addition, before the royal assent of the Sultan the Conference of Rulers must be agree on the Fatwa that has been proposed by the Mufti. In the state of Kelantan and Johor Bahru the Sultan royal assent is a necessary to be gazetted. However, in the Federal Territories the Mufti can publish the Fatwa in the Government Gazette without the Yang Di-Pertuan Agong royal assent.

After the royal assent of the Sultan was given, the Majlis Agama Islam informs the State Government about the Fatwa and the Fatwa will be published in the Government Gazette. The Fatwa published will be binding to the all Muslims in the particular state. Thus, the Fatwa is more binding and persuasive the Muslims in Selangor. The Enactment states that all Muslims duty is to abide and uphold the Fatwa unless he is permitted by Hukum Syarak to expelled himself from the Fatwa because of his personal observance.[6]

Setting fatwa specified in the law that has been decided based on the evidence before it is no longer necessary qat'ie someone refers fatwa. This is because the law void fatwa clearly determined based on the proposition that qat'ie more clearly and completely.

In addition, the ruling determined only referred to problems that there is no law. This is an effort to take care of issuing fatwas and human betterment that is not too inconvenient. Therefore, the determination of the law to be respected and cared for in order to be a reference to the next generation[7].

Other than that, the Fatwa Committee is expected to follow the tenets of the Syafie School. However if the Committee believes that following the tenets of the Syafie school would lead to a situation repugnant to public interests, the Fatwa Committee can turn to the tenets of the Hanafi, Maliki or Hanbali schools[8].

In the case of a conflict of fatwa opinions involving two people of mufti or more in the same problem, the committee members will choose a fatwa that was decided by the mufti of the more pious and devout. When the two muftis have similarities in these properties must also follow the fatwa that was decided by the mufti of the more assertive and exercise the care and caution in issuing fatwa. If both are the same curiosity in these matters, then can choose what fatwa to be followed[9].

In another case, when a mufti who follow his fatwa has died, his position will be replaced by another new mufti. When he issued a fatwa new and different turns with the fatwa was made by the previous mufti of the same problem, then the scholars motion has different opinions on the fatwa which should be followed. For those who think the law should follow the ruling made ​​by the mufti who had died, they reasoned that the law is not void because the deceased was not a fatwa mufti. While that opinion needs to follow the law made ​​by the new mufti argued that there is at that time was more aware of the environment and current needs. This is because the life or death of a mufti is not a major factor either for use or leave the fatwa[10].

Tentative conclusion, we are able to know that the institution of fatwa is an institution that is very useful and indispensable in solving all the problems of society whether it is big or small problems, fatwa institutions will also issue a new law for the problem. Therefore, institutions should always be lifted fatwa country status as an important institution in the country and it also shows the importance of a country with a majority Muslim community to keep sharia law in their lives.

[1] http://aliran.com/archives/monthly/2005a/2h.html

[2] 'Apa Itu Fatwa?' (E-Fatwa ) <http://www.e-fatwa.gov.my/apa-itu-fatwa> accessed 9 August 2014

[3] http://usulfiqh20102011.blogspot.com/2011/04/fatwa-prosedur-dan-pengamalannya-di.html

[4] http://usulfiqh1.blogspot.com/2010/04/prosedur-pengeluaran-fatwa-peringkat.html

[5]http://www.ikim.gov.my/index.php/en/utusan-malaysia/6750-prosedur-sebelum-mufti-keluarkan-fatwa

[6] Understanding fatwa in the Malaysian context. (2005). Retrieved July 26, 2014, from http://aliran.com/archives/monthly/2005a/2h.html

[7] http://www.ukm.my/juum/JUUM 2006/Prosedur_Mengeluar_dan_Menguatkuasa_Fatwa

[8] http://www.e-fatwa.gov.my

[9] http://ww2.utusan.com.my/utusan/special.asp?pr=PR11&y=2004&dt=0102&pub=Utusan_Malaysia&sec=Rencana&pg=re_02.htm

[10] http://usulfiqh1.blogspot.com/2010/04/prosedur-pengeluaran-fatwa-peringkat.html