The establishment of fatwa institutions can be traced back to before Independence. Each state’s Islamic council housed its own mufti, and a mufti also served as judge (kadi) and presided over cases at the syariah court. From a legal perspective, the personal views of a mufti are not considered as fatwas. An official fatwa can only be issued collectively through the respective states’ fatwa committee chaired by the mufti. A fatwa is only binding upon Muslims in the state it is issued, provided it receives the sultan’s consent and completes its gazette period. The problem is that fatwas often conflict at the national and state levels, thus becoming a source of confusion to the Muslim masses.
The Federal Constitution empowers each state to manage its own Islamic affairs. This is in line with the position of the respective sultans as heads of the religion of Islam, except in Penang, Malacca, Sabah, Sarawak and the Federal Territories. The Yang di-Pertuan Agong and the respective sultans hold the highest position in matters relating to Islamic affairs. The Islamic Religious Council is established in every state to advise the Yang di-Pertuan Agong and the respective sultans in matters relating to Islam.
The administration of Islamic laws in each state empowers them to establish a fatwa committee to assist the Mufti Department in issuing fatwas. All members of the committee, including muftis and deputy muftis, are appointed by the respective sultans and Yang di-Pertuan Agong. At the federal level, the National Fatwa Council is set up by the Conference of Rulers in accordance with the national rulings on Islamic affairs.
In carrying out its duties, the National Fatwa Council conducts two types of meetings: First, under the order of Conference of Rulers; and, second, for discourse, or muzakarah, which is held occasionally without the order of the Conference of Rulers.
Conflicting fatwas were issued at the national and state level concerning the Emotional Spiritual Quotient (ESQ) Leadership training module. The Federal Territories’ fatwa committee, in its meeting of Aug 27, 2009, simply banned the ESQ module, considering it harmful to the Muslim faith. Perlis quickly followed suit.
Yet, at its meeting on June 16, 2010, the National Fatwa Council allowed ESQ organisations to continue their activities on condition that they appoint syariah advisers to monitor their activities. The Pahang and Penang fatwa committees echoed the national council’s stand.
Another example is of investment in Amanah Saham Bumiputera (ASB)/Amanah Saham Nasional (ASN). Selangor and Penang prohibited ASB/ASN due to their apparent involvement in interest (riba) transactions — thus not syariah-compliant. In contrast, the National Fatwa Council concluded at its meeting (February 1 to 3, 2008) that investing in ASB/ASN is permissible due to the absence of alternatives and the dire economic necessities of the Muslims.
Religious rulings by states in regard to smoking also varied between abominable (makruh) and forbidden (haram). Kedah and Selangor declared smoking to be generally forbidden, while Pahang only banned smoking in places of worship. At the national level, the National Fatwa Council banned smoking completely.
In the previous examples of “national vs states”, we can also observe inter-state fatwa conflicts, with some cases more apparent than others.
One of the more polarising cases between states is the zakat of income. For example, Selangor and Perak have very different positions on the obligatory status of zakat of income. On May 9, 2001, Selangor passed a fatwa which makes zakat of income obligatory for Selangor Muslims. On the contrary, the Perak fatwa committee proclaimed that zakat of income is non-obligatory because it does not fulfil the requirement period of one-year hijrah (haul). The Federal Territories Religious Council’s ruling is similar to Selangor, with a fatwa gazetted on April 29, 1999, making zakat obligatory on any income, including salary, allowances and bonus.
The National Fatwa Council made it optional at first (Dec 9, 1992), but later made it compulsory (June 22, 1997) to Muslims earning a steady income. In regard to calculations, the National Fatwa Council, in a May 7, 2003, meeting, determined that zakat payment is to be based on 2.5 per cent nisab (minimum) of one-year hijrah (haul).
The confusion arising from conflicting fatwas has sparked discussions for standardising fatwas across states and institutions. However, arriving at a common fatwa would be challenging considering the diverse backgrounds and experiences of 14 muftis and their respective 14 state fatwa committees. The state fatwa committees are usually reluctant to follow fatwas issued by the National Fatwa Council. They have two simple reasons: (a) that Islamic affairs are within the exclusive jurisdiction of states and sultans; and, (b) that the Federal Constitution has clearly provided in the Ninth Schedule, List II State List and Article 74 (2) for such jurisdictions.
Notwithstanding the exclusive constitutional rights conferred on the states to issue fatwas, standardising fatwas can be a beneficial step to mitigate confusion among Muslims, and also to prevent nationwide inconsistencies in religious rulings. Hence, the author recommends a form of resolution that would increase the role of the National Fatwa Council in standardising fatwas across states and institutions. In practice, state fatwas may be brought up to the National Fatwa Council before their public issuance. Since the National Fatwa Council already includes representatives from each of the states, this national-level institution can be a platform for fatwa standardisation and formulation of guidelines for that purpose.
Dr Mohamed Azam Mohamed Adil is deputy CEO of the International Institute of Advanced Islamic Studies (IAIS) Malaysia