Analysis Of Practice And Method Of Fatwa Standardization In Malaysia And Indonesia

Fatwa Unification Efforts

Fatwa unification efforts had actually taken place since the period of the Sahaba (Companions of the Prophet Muhammad S.A.W). For instance, Ibnu Mas’ud had followed ‘Uthman’s (the then Caliph) ijtihad and left his own ijtihad (Abu Dawud, 2009). Umar al-Khattab had emphasized on Abu Bakar’s ijtihad (Al-Jawziyyah, 2014). In this regard, respecting the leaders who are authoritative, as well as those who are more knowledgeable is one of the methods of unification. Some of the Sahaba had very much welcomed and celebrated the views of pious Sahaba who lived in the same period as them, even though all of them had their own views (Asni, 2016).

Similar concept had taken place during the tabi’in and tabi’ tabi’in periods when the most authoritative views were being followed and taken as official fatwa to avoid khilaf . For instance, during the Abbasid period, the Secretary of State, ‘Abd Allah ibn al-Muqaffa’ had suggested to the Caliph Abu Ja’far al-Mansur to appoint the Book of al-Muwatta' which is written by Imam Malik to be the representation of the Government’s main view, and that Imam Malik’s ijtihad to be formulated as a standard code of law (Sulong, 2014). Likewise, Caliph al-Mahdi and Caliph al-Rashid had intended to use the Maliki’s sect views as official reference. Harun al-Rashid’s Government had appointed Abu Yusof as its chief judge and made the book of al-Kharraj as the main reference (Sulong, 2014). Thereafter, many fatwa and fekah writings were used as references and laws in countries such as the Bani Abbasid Empire, whereby, the book of al-Ahkam al-Sultaniyyah written by al-Mawardi was used as an official reference (al-Muhamid, 2001). This standardization did not only occur in the form of reference sources, but also in terms of the flow of the sects. For instance, during the Ottoman Empire period, Khadive Muhammad Ali Pasha had only appointed mufti from the Hanafi sect (Sulong, 2014).

The efforts of standardizing fatwa did not just stop there. The fuqaha’ and administrators must also understand the method of istinbat based on the exact and standard rules of Syarak , so that the result of ijtihad leads to the same decision. Thus, ‘Abd al-Rahman bin Mahdi suggested to Al-Syafi‘i to write a book explaining the methodology of issuing legal rulings. This is aimed at outlining a standard procedures based on the references of the rules of Syarak , thereby, resulting in the issuing of a standard legal rulings (Sulong, 2014). In addition to that, the standardization of fatwa is also encouraged by the imams of the four sects in implied form, whereby, they had informed the ummah to prioritize the strength of dalil (Dahlawi, 2016).

In this context, the unification of fatwa can occur by focusing on the strengths of dalil , as well as achieving maslahat and maqasid , regardless of the background of the sect (Jasim, 2017). This is based on the argument of maslahah that it facilitates the kadi and Muslim community in knowing about the rules of Syarak , reduces error in ruling, unites the nation’s fatwa by taking the most rajih hukum , and avoids the disadvantages of dispute (Jasim, 2017). The determination of a unification of fatwa decision is the jurisdiction of the ruler under the principle of siyasah al-syar'iyyah . When a leader has established a law, it is obligatory for the society to obey it (Al-Nisa’: 59). Hence, Allah S.W.T orders the ummah to obey the wali al-amr , whether it is pledged to the rulers or to the Islamic scholars. In this case, the fuqaha’ are responsible for the setting up of the legal rulings to be made as laws, whilst the rulers are responsible for enforcing the laws and making them obliged to be obeyed (al-Muhamid, 2001).

The Practice and Method of Fatwa Standardization in Malaysia

In Malaysia, there are 12 official mufti departments, which are headed by the Mufti , and they have the authority to issue a fatwa on the Islamic law through the fatwa committee. The legal istinbat by the State Government official department is carried out collectively ( ijtihad jama’i ). The Mufti and his committee are appointed by the King and the Sultan for the monarchy states and the Yang di-Pertuan Agong for the non-monarchy states (Asni, 2016).

There is no specific qualification that is clearly stated in the Enactment or the States’ Islamic Religious Administration Act in terms of mufti qualification, whether in the fields of expertise, level of academic qualification or in terms of excellency. Notwithstanding the facts, in practical terms, all of the appointed mufti have at least a Bachelor’s Degree (Yaacob, 1998). Based on the hierarchy structure, all states have three standard main positions, that is, mufti, deputy mufti, and secretary. However, there is a difference in terms of the composition of the state fatwa committee, whereby, the Selangor State Fatwa Committee is also comprised of the State Legal Advisor, unlike other states (Section 46). The difference is also in terms of the number of pious Islamic scholars who can be appointed as committee members, whereby, in Kelantan, the number of Islamic scholars who can be appointed as committee members is between eight to 15 persons (Section 33), whilst in Perak only between two to five persons (Section 35). This difference in numbers gives a difference in the strength of expertise and contribution of ideas among committee members.

The efforts of standardizing fatwa at the state and central level are made through standardizing the approach of reference method of the sects’ views. Based on the provisions of the Enactment of Administration of Religious Affairs, each state, except Perlis has to follow qawl mu’tamad of the Shafi’i sect if it leads to public maslahat. However, if the situation is in the contrary, then the qawl mu’tamad of Hanafi sect, Maliki sect or Hanbali sect may be followed (Asni, & Sulong, 2017). Meanwhile, in Perlis (Section 7 ), control over the standardization is not made based on the narrow sectarian, but it is made based on the public interest and current affairs. This is to ensure that the fatwa attained are more precise and rajih , and that the Quran and Sunnah can be maintained as the two main sources in seeking the views that conform to the maslahat in the scope of sectarian views recognized by the ahl al-Sunnah wa al-Jama’ah (Asni, 2016).

Besides that, as a move towards aligning fatwa , the National Fatwa Committee Muzakarah’s (MJFK) recommendations are to be adopted in eight states based on an Enactment. Meanwhile, even though the Federal Territory (Jaafar, 2015), Terengganu (Muda, 2016), and Kelantan (Shukri, 2016) do not have such Enactment, the advice and recommendations of MJFK are adopted by them (Mohamad, 2015). The establishment of MJFK is important because there are separate jurisdictions on religious affairs in each state, and thus, it is indeed distinctive between the states. Thus, the Federal Government has taken the initiative by establishing the National Fatwa Committee (JFK) which serves as the national fatwa coordinator in charge of handling legal issues relating to policies, programs or activities (Yaacob, 1998). Members of the MJFK Fatwa Committee consist of a chairman appointed by the Islamic National Council (MKI), Mufti of every state, nine pious Islamic scholars and professionals, as well as a member of the law profession appointed by the Majlis Raja-Raja.

The fatwa issued by the Mufti through the State Fatwa Committee can divided into two categories, that is, first, an official fatwa is a fatwa gazetted in the State Government Gazette (Section 39) which can be enforced by law, and thus, it is recognized by the court and all parties in the state. Second, the fatwa is issued by the Mufti individually or through the Fatwa Committee, but it is not gazetted in the State Government Gazette. It is only a legal reference and cannot be enforced on any individual, body or court (Asni, 2017). All states allocate punishment for those who violate the gazetted fatwa . For instance, in the Federal Territory (Section 29), any person who act in a manner of insulting the religious authority or denies, violates or disputes the order or instruction of the Yang di-Pertuan Agong as the head of Islam, the Council or Mufti expressed or given through a fatwa , is considered has committed an offence. Upon conviction, the person shall be liable to a fine not exceeding RM3,000 or sentenced to imprisonment for a term not exceeding two years or both. Likewise, the offence of propagating any opinion which contradicts with the fatwa (Asni, 2017).

Based on the information presented, in general, the provisions on the mufti jurisdiction in the states are almost standard and not much different than one another. This is a sequence of efforts towards the standardization of fatwa in specific and the Islamic law in general, which have become one of the agenda of the Federal Government over the states as enacted in the Constitution (Article 76(1)(b)).

The Practice and Method of Fatwa Standardization in Indonesia

In Indonesia, there is no official fatwa institution which is organized by the government - either at the national level or at the regional level. Religious questions will usually be asked directly to the Council of Indonesian Ulama (MUI), Lajnah Fatwa Muhammadiyah or Lajnah Fatwa Nahdhatul Ulama (NU), all of which are non-governmental organizations (Bahri, 2017). Nevertheless, the MUI fatwa are much referred to by the government and the public (Asni, & Sulong, 2017). This is because the existence of MUI is a representation of the combination of Indonesian Islamic scholars, in which, its committee members are among the religious leaders of the Nahdhatul Ulama and Muhammadiyah (Efendi, 2011). Hence, MUI can be considered as dominant and a coordinator of influential fatwa bodies in Indonesia, namely Muhammadiyah and NU (Yahya, 2017).

The MUI branch is established in all regions of Indonesia. Services are provided, whereby, issues directly or indirectly presented by the public are dealt with in order to solve their problems (Bahri, 2017). The MUI creates a special fatwa lajnah named as “Komisi Fatwa (Lajnah Fatwa)” for the issuing of fatwa (Khozainul, 2014), since the MUI also performs other responsibilities, such as issuing halal certificates (Fatwa Munas VII Year 2005 MUI). However, the fatwa presented by the MUI Lajnah Fatwa is only advisory and not compulsory. Despite that, the fatwa presented by the MUI Lajnah Fatwa is usually followed and believed by various parties due to its authority in the field of fatwa . The steps taken by the MUI in issuing fatwa begins with the problems raised by the community or the efforts of the Lajnah Fatwa committee in discussing matters concerning the public. Following that, the Lajnah Fatwa committee will hold a meeting of fellow members to discuss about the questions that have been raised (Khozainul, 2014).

In addition to that, fatwa s are also issued through annual seminar held by the MUI which is also attended by Islamic scholars from various parts of Indonesia. In the annual seminar, issues that require fatwa will be discussed collectively ( jama’i ). For instance, during the national level seminar of the Islamic scholars that was held in 1980, which discussed about the law of switching private parts through surgery, the misdirection of Ahmadiyya, and the Muslims’ marriage with spouse of other religion (Bahri, 2017). After the Islamic scholars have reached a consensus on the issue, the decision will be handed over to the MUI Lajnah Fatwa to be announced publicly (Khozainul, 2014).

In terms of sources of reference, the MUI Lajnah Fatwa refers to the basic reference of the Islamic law, that is, the Quran, Hadith , Ijma’ , and Qiyas . The MUI Lajnah Fatwa does not take a certain sect as a belief which binds the issuing of fatwa decisions (Majelis Ulama Indonesia Provinsi Jawa Timur, 2013). In terms of method, Lajnah Fatwa often looks at the opinions and views of imam s of the sect of muktabar on the matter and his dalil . If it concerns matter of al-ahkam al-qat’iyyah , Lajnah Fatwa will judge based on the Quran and Sunnah . Meanwhile, for issues which raised disputes among the Islamic scholars, Lajnah Fatwa sought to compromise (unify) on the opinion of the sects ( manhaj al-jam`u wa al-taufiq ). If unification is still unreachable, Lajnah Fatwa will use the method of tarjih (opinion polls) on the opinion of the sects based on the muqaranah al-mazhab of Usul Fiqh Muqaran method (Majelis Ulama Indonesia Fatwa No. 25, Year 2012).

Meanwhile, for contemporary questions, whereby, the views of previous Islamic scholars cannot be found in any sect or other mujtahid , Lajnah Fatwa uses the ijtihad collectively ( ijma` jama’i ) to settle a certain law based on the method of bayani, ta’lili through qiyas, istihsan, ilhaq or sad al-zari`ah (Bahri, 2017); Nevertheless, Lajnah Fatwa takes into account the factor of maslahah ‘ammah (public benefit) and maqasid al-syari’ah (the purpose of Shari’a ) in the process of issuing fatwa (Bahri, 2017); The MUI Lajnah Fatwa also cooperate with experts, such as the specialist doctors when it comes to the discussion of problems regarding the halal or the prohibition of baby vaccination (immunization), etcetera (Majelis Ulama Indonesia Fatwa No. 04, Year 2016).

In summary, the elements of standardization are evident in the practice of fatwa in Indonesia. Although there is no specific enactment present in regulating and administering the fatwa in Indonesia, it appears that there are unofficial systems controlling the issuing of fatwa that makes the coordination and standardization of fatwa possible. As of today, the fatwa standardization efforts in Indonesia can be seen through the standardization of method. The MUI Lajnah Fatwa practices similar method of legal istinbat at various levels as a form of fatwa standardization, even though the fatwa issued is not tied to a particular sect. Likewise, the fatwa issued by the MUI either at the central level or branch level are being followed by the other branches. The standardization is obvious when the fatwa issued by the MUI are believed and followed by various parties compared to others (Bahri, 2017).

Besides that, the factor of standardization can also occur when a complex, contemporary problem that has never been discussed before by the previous Islamic scholars arises, in which, the process of ijtihad jama’i will be conducted, whereby, the MUI Lajnah Fatwa committee members will gather in larger numbers. This will result in a mutually agreed fatwa . In fact, the idea of organizing national seminars makes the standardization of fatwa even more effective, since the fatwa is agreed by a large group of Indonesian Islamic scholars who come from all corners of the Indonesian region. Hence, despite the fact that there has been no reform from the perspective of the fatwa administration system as in Malaysia, there is still a fatwa body led by the credible Indonesian Islamic scholars (Yahya, 2017).