Fatwa and its
Islamic Institutions play an enormous role in the country. It enhances the
administration while smoothening the implementation of Islamic law. Once a
fatwa is published in the Gazette, it becomes a binding and enforceable law among
Muslims and the Syariah Courts. Due to this reason, some might assume that
Fatwa could be another form of legislation. This could be a problem because the
Constitution only recognizes the Legislature to enact law. Thus, the question
here is whether Fatwa and its concept is ultra vires to the Constitution?
In Malaysia,
the powers to enact law are vested in the Parliament and state Assemblies.
Article 73 of
the Federal Constitution provides:
In exercising the legislative powers conferred
on it by this Constitution—
(a)
Parliament may make laws for the whole or any part of the
Federation and laws having effect outside as well as within the Federation;
(b)
the Legislature of a State may make laws for the whole or any part
of that State.
According to
this provision, it is clear why some might assume that the Parliament and state
Assemblies are the only institutions responsible for law enacting in the
country.
Article 74 of
the Federal Constitution further provides:
(2)
Without prejudice to any power to make laws conferred on it by any
other Article, the Legislature of a State may make laws with respect to any of
the matters enumerated in the State List (that is to say, the Second List set
out in the Ninth Schedule) or the Concurrent List.
This provision
recognizes the autonomy of the State’s Legislature to enact laws that is
included in the State List.
Item 1 of List
II – State List provides :
1.
Except with respect to the Federal Territories (...) , Islamic law
and personal and family law of persons professing the religion of Islam, (...) the
determination of matters of Islamic law and doctrine and Malay custom.
The State List
includes the matters of Islamic Law to be a part of the State’s jurisdiction. By
extension, a fatwa can be overseen by the state government in Malaysia and it
is strictly a state affair. The State regulates the manners and conducts of
Islamic affairs in their respective states via “The Administration of Islamic
Law enactments”. These enactments are a shared property among all State in the
governance of Islamic Law.
Fatwa is
legislated in two ways:
1)
MKI Fatwa Committee Meeting
This fatwa
legislating process starts with the Majlis Raja-Raja (Conference of Rulers)
ordering the MKI Fatwa Committee to produce a ruling or fatwa about an issue
that was raised by the people. That particular issue shall be reviewed and
investigated. A report shall be produced and presented during the MKI Fatwa
Committee Meeting. When the Meeting has produced a fatwa, that fatwa shall be
ascended to the Conference of Rulers through the National Council of Islamic
Affairs (Majlis Kebangsaan Hal Ehwal Islam / MKI). After the fatwa receives the
royal assent from the Conference of Rulers, it shall be taken to the State
Fatwa Committee. The fatwa will then be gazetted as that State’s fatwa without
any amendments.
2)
MKI Fatwa Committee Muzakarah
This fatwa
legislating process starts with an application by the Muslim community or certain
entities to address an issue. That particular issue shall be reviewed and
investigated. A report shall be produced and presented during the MKI Fatwa
Committee Muzakarah. When the Muzakarah[1] has produced a fatwa, that fatwa shall be
taken to the State Fatwa Committee. A State may decide to whether amend that
fatwa or accept it without amendments and then gazette it as that State’s
fatwa.
This fatwa will
also be ascended to the Conference of Rulers through the National Council of
Islamic Affairs. Experts will be called upon in order to provide their views
and opinions pertaining to any ambiguous issues or provide a thorough briefing
in order to ensure that the Fatwa Committee Members obtain accurate information
before legislating a fatwa.
It is now clear
that fatwa is a binding legislation which entails the force of law. The process
of legislating fatwa in Malaysia is institutionalized in such a way that any
verdict issued and published in the Gazette shall become binding on all Muslims
and the Syariah courts. It is also considered that fatwa is simply another form
of Delegated Legislation. Thus, it can be concluded that fatwa and its legislating
process in Malaysia is constitutional.
Fatwa does not
usurp the legislature of their constitutional powers as was perceived by some
people. In addition, fatwa and its institutions never did prevented the
legislature in carrying out their constitutional duties, since all the laws, including
those regulating fatwa), in the country are product of the Parliament and state
Assembly.
In conclusion,
fatwa and its institutions do not stand as challenges to the legislature and
legislating process of the country. It is here, where we appeal that people
should try to understand that the legitimacy of fatwa is enabled by the
legislative enactments of various states and federal Territories in the country
by which each is validly guaranteed by the Consitution. It is now clear that
there is no gain in challenging the legal status of fatwa in Malaysia.
No comments:
Post a Comment