The Role and Relevance of Fatwa in Malaysia and Pakistan: A Comparative Analysis, Slides of Law

Download The Role and Relevance of Fatwa in Malaysia and Pakistan: A Comparative Analysis and more Slides Law in PDF only on Docsity! International Research Journal of Social Sciences______________________________________ ISSN 2319–3565 Vol. 4(9), 46-51, September (2015) Int. Res. J. Social Sci. International Science Congress Association 46 Islamic concept of Fatwa, Practice of Fatwa in Malaysia and Pakistan: The Relevance of Malaysian Fatwa model for legal system of Pakistan Muhammad Ifzal Mehmood1, Siddiq Ali Chishti2 and Muhammad Junaid Mughal2 1Ahmad Ibrahim Kulliyyah of Law, International Islamic University Malaysia 2Department of Usuluddin and Comparative Religion, KIRKHS, IIU Malaysia Available online at: www.isca.in Received 6th August 2015, revised 28th August 2015, accepted 11th September 2015 Abstract Fatwa is a Muslim religious practice which helps to mould the thoughts and actions for a particular community or person on any special issue, which effects social, economical and personal interest. The institution of fatwa plays a vital role in the contemporary society where different people and different legal regimes exist. It can be utilized as an instrument of social, political and religious control. In Malaysia, a fatwa has been institutionalized and has been used in all spheres of administration and activities related to human endeavour. On the other hand Pakistan is also an Islamic country and its constitution is Islamic. Fatwa in Pakistan is not institutionalized. There are a lot of problems raised in Pakistan and reason is that there is no any Islamic legal institution to administer that issue. There is a need to take Malaysia Fatwa as a model to give legal status and give judiciary the power to implement that Islamic verdict. Keywords: Fatwa, Mufti, Malaysia, Pakistan, Legal Opinion. Introduction The term Fatwa literally means, “the answer in respect of an event”1. That is the notification of the decision of the law in respect of a particular rule. It is defined technically as, “the elucidation of the legal rules in respect of an issue as a reply to a question of a questioner- irrespective of whether such a question is specific or general and whether the question is raised by individuals or a group. In other words, it is an opinion on a point of law expressed by a mukallaf (one who is legally obligated) who is intellectually sound and has attained the age of discretion and is able to deduce religious ruling from the Qur’an, hadith, ijma‘ and qiyas together with the instrumental sciences. Islamic Republic of Pakistan has been divided into different sects and masalik. Each of them has its own madaris that are producing muftis in a greater number who have authority of issuing fatwa in the light of the traditional rulings2. Constitutionally, the legislative authority is Parliament whose majority of the members is illiterate and unaware regarding both aspects of the knowledge inter alia modern sciences and Qur’anic sciences. To recognize Shari’ah validity of any law made by the Parliament, Council of Islamic Ideology has been established whose recommendations have no binding force3. The third source of legislation is judiciary which has authority to legislate through the process of interpretation. The function of the interpretation has been assigned to the High Courts, Federal Shari’at Court and the Supreme Court of Pakistan. So far as concerned, the task of issuing fatwa in Pakistan, it has been exercising by a great number of muftis. For a correct understanding of the activity of issuing fatwa it is better to have a bird eye view of the historical development of this process. While on other hand in Malaysia fatwa has been considered as a religious verdict that assists in regulating Muslim conduct of activities in the country. The Federal constitution of Malaysia vested the responsibility for enacting laws in the hand of parliament at the Federal level and the state Assemblies at the state level4. Fatwa has been used as a tool for clarification of issues in Malaysian Judicial, political and economic sectors. Once it is published in the Gazette, it becomes a strap and enforceable phenomenon in Malaysia. This research covers Malaysia model of fatwa for implementation in Pakistan. Fatwa in Islamic Law The concept of Fatwa is not a new phenomenon in Islamic law. It has enacted from the Quran: whereas Allah has commanded the Muslim faithful who are not knowledgeable in Islam to always seek knowledge from those who posses it5. This legal basis has been reiterated by many scholars while tracing the genesis of fatwa in Islam. In fact, most of the Muslims scholars have been capitalizing on the above verse to explain much about the concept of fatwa6. The term fatwa (Islamic legal Verdicts) is an Arabic term which is related to some compound words and phrases revealed in the Qur’an such as ifta (issuing Islamic verdict), istefti (request for an Islamic verdict), mufti (a person who issues an Islamic verdicts) and yufti (he issues an Islamic verdict). In the Qur’an, the almighty Allah has used the terms at several occasions, especially in making reference to the concept of asking questions with a view to providing the responses. Fatwa according to the English/ Arabic Dictionary is a legal opinion issued by Islamic scholars. In the Oxford Dictionary (2013), it has been mentioned that the word fatwa originated International Research Journal of Social Sciences____________________________________________________ISSN 2319–3565 Vol. 4(9), 46-51, September (2015) Int. Res. J. Social Sci. International Science Congress Association 47 from the term “ifta” (to decide a point of law), and it can simply be defined as a ruling on a point of Islamic Law which is to be issued by a recognized authority. Thus the term fatwa could be defined as a formal Islamic legal opinion issued by a jurist- consult (mufti) in response to questions submitted to him by private individuals or judges7. The phenomenon of fatwa has been around since the very inception of Islam with the revelation of Qur’an. This fact is affirmed by the presence of the terms in the Qur’an that indicate that the Prophet (peace be on him) was asked questions e.g yastaftenuka (they ask seek your opinion/ instruction/ Advice) and yas alunak (they ask you). To which Qur’an would respond with legal or theoretical assertion depending on the nature of inquiry8. Muhammad Riyadh, 20th century scholar from Morocco, asserts that the phenomena of ifta (i-e process of fatwa production) was facilitated by the manner in which Qur’an was revealed in one event but was disclosed in instalments over many years, this facilitated dialectic interaction between the Qur’anic discourse and people religious and social needs. The dynamics of inquires that arose from people concerns and the subsequent response of the Qur’anic discourse to those inquires demonstrate the dialectical aspects of this discourse, this in turn created the atmosphere for religion consultation that later become the discursive impetus for the activity of ifta in Islam. There are approximately nine verses in the Qur’an that begins with either of the two ifta phrases that are of legal nature. The question posed and responses given are on variant social, economic and political topics. A sample of those issues include the nature of determining time for ritual practice, the legality of fighting during the sacred months, the legality of alcohol and gambling and how to give charity, how to dispense the wealth of orphans, sexual conduct during menses, types of lawful food spoils of war treatment of women and orphans and division of inheritance9. This proves that fatwa as a legal practice derives its bases from the Qur’an. In other words, fatwa gained its acceptability as a valid form of legal practice and law production because it was something that was enunciated and practice by the authoritative discourse of Islam (i-e Qur’an). Once validated, ifta become the foundational practice for the establishment of whole legal tradition. Qur’an is the primary discursive source for fatwa, the prophetic practice was instrumental in establishing ifta as a legal practice in Islam. This is understood that the Qur’an is viewed as a divine text and hence needs no rational justification to support its position, although the Prophet (peace be on him) authority is also from a theoretical point of view unquestioned in Islam, nonetheless, his authority is derived from the Qur’anic discourse and therefore it seems as a derivative and not to be seen as absolute in the same manner as Qur’an. There are few illustrations when Prophet (peace be on him) used reasoning to support his fatwa. First in fatwa to His wife Maymunnah on the legality of benefiting from the skin of a dead sheep. Maymunnah mistakenly, expended the range of objects that are legally prohibited by a verse of Qur’an, which prohibits the eating of the meat of dead sheep that had not been properly slaughtered, to include prohibition of the utilization of its skin. In this incident we see that prophet used a sort of hermeneutical reasoning to justify his legal position by showing, how the text of Qur’an should be understood. Another example of where the use of reasoning in a fatwa is even more pronounced when the Prophet (peace be on him) used analogy, to justify some of his fatawas. Umar (RA) asked about the permissibility of kissing while fasting, the Prophet (peace be on him) responded by making an analogy to the performance of the ritual washing of one’s mouth as being something allowed during fasting and hence on the same ground argues for the acceptance of the act of kissing while fasting. The point of this analogy is that if swishing water to clean one mouth without willingly injecting it does not break ones fast, neither should kissing one’s spouse during fasting is an act of love so long as it does not produce sexual excitement which is against the spirit of fasting. Contemporary Situation of Issuing Fatwa in the Muslim World: The current situation of all over the Muslim world is that the process of ifta’ has become a central institution of the Muslim societies to resolve the contemporary issues of the Ummah. Many of the Muslim governments appoint religious scholars on the reserve seats in their legislative bodies. The situations of modern mufti, the public and private, vary from state to state. Some formal institutions of fatwa have been established in many countries, e.g. World Muslim League in Mecca, Fatwa Committee of OIC and the Council of Islamic Ideology in Pakistan10. Many specialized committees of muftis are also working which answer the quires of the people and provide solution to their contemporary problems, Likewise, Dar al-῾Ulum in India is performing the function of issuing fatwa. The Concept of Fatwa in Malaysia: The history of fatwa in Malaysia could not be divorced from discussion on the history of Islamic law in the country. Islamic matters in Malaysia are matters upon which state governments are vested with powers to control, through their respective religious leaders (sultans) and Islamic institutions11. However, at the same time the Federal government at the centre also established some religious coordinating bodies to oversee and control all the Islamic activities which are going on in the country. Thus, Malaysia Department of Islamic Development “Jabatan Kemajuan Islam Malaysia” (JAKIM) is the main Federal Government agency in Malaysia that is saddled with the responsibility of managing Islamic affairs in the country. Among its objectives inter alia include: the establishment of an institution that can be responsible for management and coordination of fatwa in the country; and also the coordination of fatwa that can be issued in different states for the purpose of developing the process of collective ijtihad (Ijtihad jami’i) in the country. Broadly, JAKIM serves different roles in Malaysia, among it functions include: to legislate and standardize the Islamic law in Malaysia; to coordinate the Islamic administration in the International Research Journal of Social Sciences____________________________________________________ISSN 2319–3565 Vol. 4(9), 46-51, September (2015) Int. Res. J. Social Sci. International Science Congress Association 50 Umar (RA) held many contemporary issues in the light of the objectives of the provisions of the Qur’an and Sunnah rather than their literal meanings such as the case of three divorces at a time, suspension of cutting hand during famine, retaining of the conquered land of Iraq in the state treasury for the interest of the future generations, issue of paying zakat to new Muslims and many more14. Likewise, Abu Hanifah ever preferred the principle of public interest over literal meaning of the text and solved many contemporary issues broadly in the light of the changed context and changed needs of the people. Unfortunately majority of our muftis neither agree to reinterpret the Qur’anic texts and Sunnah nor think about modification of earlier fatawa in the light of their objectives and public interest to compete the challenges of the modern world. Defining the scope of capitalist banking interest: The other issue is the problem of defining the scope of capitalist banking interest and its analogy on riba. Whether the contemporary capitalist banking interest is equal in status to riba or not? The question arose two centuries ago but the Muslims did not realize its seriousness until the present time. During the time of the Prophet (peace be on him) riba had to occur due to loan transaction and resulted in the exploitation of the poor segment of society who borrowed money from the rich segment to fulfil their basic necessities (daruriyyat) and could not pay it back as they consumed loan for their survival. In fact riba is the only financial transaction which has been declared prohibited by Allah Almighty through revelation with the threat of severe punishment. Without scientific understanding of the provisions regarding riba in its original context and without any sound analogical deduction, the hukm of riba practiced by Arab has been imposed upon the interest of the capitalist banking interest by majority of the contemporary Muslim by ignoring the fact that the issue of riba was taken by the companions as an ambiguous issue how can its hukm be applied to the modern banking interest? ῾Umar (RA) is reported to have wished might the Prophet (peace be on him) had defined riba in explicit terms. Like present at that time there were different types of interest and riba and only those types of interest were made prohibited by Allah almighty and His last messenger (peace be on him) which were exploitative by nature. While discussing the issue, Ibn Qayyim held that Shari’ah demands only a just distribution of wealth or resources and that the private interest must yield to the public interest. Any rule which goes from justice to injustice, grace to trouble, and maslahah to mischief and from prudence to futility can never be a part of Shari’ah even though it is included therein by argumentation. Where a just and well ordered society is established, wherein economic justice finds a proper place and expression then notwithstanding the nature of the working process, it will be treated as part of Shari’ah and faith, and it shall be pleasure of Shari’ah and authority. Conclusion The concept of fatwa in Malaysia is beyond a mere legal opinion of a mufti. Hence it is binding piece of legislation that attracts a force of law. The fatwa making process in Malaysia is institutionalized in such a way that any verdict issued and published in the Gazette and binding on all Muslims and Shari’ah courts. It has been considered as another form of making legislation in the country but in a delegated manner. Unlike Pakistan which is also Islamic country. There is a council made in the name of Islamic Ideology, its function is to advice the legislature whether a law is repugnant to Islam. But their power is limited and there is no any implementation authority. It is quite necessary that Pakistan should take Malaysia as a model country for the institutionalization of Fatwa. To make the activity of fatwa as a purposeful enterprise, the Council of Islamic Ideology should bring certain changes in its structure and interpretive policy. It should be free of all types of political and religious interventions. The members of the Council should be from the intellectuals, scientists, engineers, academician and scholars. The mode of issuing fatwa should be ijtihad al-maqasidi (purposive interpretation) and contextual interpretation to provide ease to people and to remove hardship from them rather than literal interpretation. Refrences 1. Al-Qardawi Y., Al-Fatwa bayna al-Indibat wa al- Tasayyub, Cairo (1988) 2. Razi Naseem, Fatwa as a Non-State Legal System: A Critical Analysis from the Perspective of Pakistani Society, Journal of Islamic Studies and Culture, 7-18 (2014) 3. Constitution of Islamic Republic of Pakistan, (1973) 4. Chirom M., The concept of Fatwa (Islamic Verdict) in Malaysia and the Constitutional Dilemma: A legislation or Legal Opinion?, International Journal of Business and law, 11-20 (2014) 5. Al Qur’an 16:43 6. Chirom M., Role of Fatwa in the Fight against Terrorism: The Relevance of the Malaysian Fatwa Model to the anti- Boko Haram Crusade, Journal of Law and Social Sciences, 34-38 (2014) 7. Gilani S.Y., S.M. Younas Gilani, Jurists and Legislatures in Islam: Origins and clasisification of Ulama, in contemporaty issuesin In Islamic Law. New Dlhi: Serial Publication (2011) 8. Omer Awas, Fatwa; the Evolution of an Islamic legal practice and its influence on Muslim Society (Doctoral Dissertation), Accession No. 3623102. (2014) 9. Al Qur’an 2:219, 2:189, 2:219, 2:220, 2:222, 5:4, 8:1, 4:127 and 4:176 International Research Journal of Social Sciences____________________________________________________ISSN 2319–3565 Vol. 4(9), 46-51, September (2015) Int. Res. J. Social Sci. International Science Congress Association 51 10. Mas’ud M.K., Islamic Legal Interpretation ed. Brinkley Mesick. Karach: Oxford University Press (2005) 11. Al Hilali M.T.-u.-d., Translation of the Meaning of Qur'an, in the English Laguage . Madina : King Fahad Complex (1982) 12. Department of Islamic Development Malaysia (JAKIM) "JIKIM Functions" available at http://www.islam.gov.my /en/jakim-fuctions last accesed 24/07/2015. (n.d.) (2015) 13. Mas’ud, Muhammad Khalid. Islamic Legal Interpretation ed. Brinkley Mesick. Karach: Oxford University Press, (2005) 14. Council of Islamic Ideology Pakistan. Ijtihad: A Quarterly Journal , 81-94 (2007) 15. Yusuf, A. (1302 A. H)