Legal Rulings By The National Fatwa Council Cultural Studies Essay

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In the Islamic faith, a fatwā is a religious opinion concerning Islamic law or Sharia issued by an Islamic scholar. In the view of Sunni Islam, any fatwā is non-binding, but for Shia Islam it could be considered by an individual as binding, depending on his or her relation to the scholar who issued the fatwa. The person who issues a fatwā is called a Mufti, i.e. an issuer of fatwa. Most Muslims argue that anyone trained in Islamic law may give an opinion (fatwā) on its teachings, therefore fatwa is not necessarily a formal position.As a juristic concept, "'fatwa' signifies an opinion, verdict, or response, of a learned scholar of Shari'a over an issue in which a response has been solicited. .." According to Farid Sufian Shuaib, he defines fatwa as "... a formal legal opinion given by an Islamic Jurist or a body of Islamic Jurists in an answer to a question submitted to the Islamic Jurist or the body of Islamic Jurists."

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Fatwa on the effect of nominations

In the Federal Territory, it is provided that the Mufti shall, on the direction of the Yang di-Pertuan Agong, and may, on his own initiative or on the request of any person made by letter addressed to the Mufti, make and publish in the Gazette, a fatwa or ruling on any unsettled or controversial question of or relating to Islamic Law.

In Selangor, it is provided that the Fatwa Committee shall on the direction of His Royal Highness the Sultan, and may on its own initiative or on the request of any person by letter addressed to the Mufti ,prepare a fatwa on any unsettled or controversial question of or relating to Hukum Syarak.

On the earliest fatwa on the effect of nominations by Muslims was given by the State of Kelantan in 1962; this was followed by the fatwa of the States of Perak, Pahang, Selangor, Negeri Sembilan , Kedah and the Federal Teritories. In the Federal Territories, the Hukum Syarak Consultative Committee of Wilayah Persekutuan in 2001 issued a fatwa via Federal Government Gazatte dated on 18 January 2001 which stated:"Muslims who are named as nominees by the deceased in any savings scheme in a Savings fund, insurance, fund, board , co-operatives or financial institutions are the executors of the deceased , and are required to divide the property left by the deceased among the heirs who are entitled according too faraid."

At the 117th Conference of Rulers in 1980, the Malay Rulers agreed with the above fatwa of the National Council of Religious Affairs on the effect of nominations made by Muslims and recommended that the Attorney-General amend the laws according to reflect the fatwa. In May 1996, the Federal Government announced that it was drafting "regulations" to make the rules of Islamic inheritance (faraid) mandatory for savings by Muslims in Government institutions such as the EPF, insurances companies and Government-backed co-operatives.

As a result of this policy, amendments are made to the relevant legislation on nominations affecting Muslims. The State of Malacca became the first state to adopt the fatwa of the National Council of Religious Affairs by amending the Administration of Muslim Law Enactment to incorporate the above fatwa.

The comparison of Fatwa Council with other countries

In Europe, The European Council for Fatwa and Research (ECFR) is a Dublin-based private foundation, founded in London on 29 March - 30 March 1997 on the initiative of the Federation of Islamic Organisations in Europe. The Council is a largely self-selected body, composed of Islamic clerics and scholars, presided over by Yusuf al-Qaradawi.

The ECFR aims "to present to the Muslim World and the Muslim minorities in the West particularly" its interpretation of "the manifestation of Allah's infinite mercy, knowledge and wisdom". For the ECFR, the shariah clearly embodies the superior rules in life. The sharia should therefore be respected as superior to civil law and to the democracy: "the Shari'ah cannot be amended to conform to changing human values and standards, rather, it is the absolute norm to which all human values and conduct must conform; it is the frame to which they must be referred; it is the scale on which they must be weighed."

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It wants to achieve these through:

bringing together Islamic scholars who live in Europe

attempting to unify the jurisprudence views between them in regards with the main Fiqh (islamic law) issues, especially with regard to the minority status of Muslims in Europe;

issue collective fatwas which meet the needs of Muslims in Europe, solve their problems and regulate their interaction with the European communities, all according the shariah;

research how issues arisingin Europe can be resolved with strict respect for the shariah.

The ECFR is one of the main channels for the publications of fatwa's by Yusuf al-Qaradawi, a Muslim scholar affiliated with the Muslim Brotherhood, and his main English-language channel.

Among others, it wants to promote, and control, the local education of native imam's for the Muslim minorities in European countries. Amongst others, it participates in such initiatives in France (in cooperation with the European Institute for Humanitarian and Islamic Studies) and the United Kingdom.It also strives to become an approved religious authority before local governments and private establishments in all countries where Muslims are a minority.

According to its Mission Statement the ECFR wants to assume a leading role in all dogmatic and accordingly also in all worldly issues in the worldwide Islamic community, the Ummah. Among others, it wants to address the younger Muslim generations living in outside Islamic countries, especially those in Europe and the United States. It wants to project a relatively contemporary position, all through it is heavily criticized for very undemocratic and non-contemporary positions.

Its fatwas often rely on the four classical Islamic law schools (four schools of Fiqh), as well as all other schools of the people of Islamic law (Fiqh) knowledge, although with exclusion of modernist Islamic scholars in Europe as French ex-great-imam from Marseille, Soheib Bencheikh and Zaki Badawi, president of the London-based Muslim College and a keen promotor of interfaith dialogue (among other publishing regularly together with the Archbishop of York and the British Chief Rabbi).

Its fatwas also insist on a strong priority for religious law over secular law.

On the other hand, it regularly pleads for mutual respect for non-Muslims, and for respect for civil procedures; e.g. marriage is considered valid only if the rights of both spouses are respected and if the civil procedure is followed to (any marriage which is conducted purely in the mosque is not considered Islamic).

Aside from the exclusion of non-Sunni Muslims, and more importantly, other people criticize the ECFR for its fierce refusal to accept separation of church and state as an element of democracy, as well as several principles of democracy. The fatwa's of the ECFR's chairmain, Yussuf al-Qaradawi, are clear on how this tendency in Islam sees democracy and universal human rights:

On the separation of state and church (secularism)"Since Islam is a comprehensive system of `Ibadah and Shari'ah, the acceptance of secularism means abandonment of Shari'ah, a denial of the Divine guidance and a rejection of Allah's injunctions. the call for secularism among Muslims is atheism and a rejection of Islam. Its acceptance as a basis for rule in place of Shari'ah is a downright apostasy." 

On equal rights for women "Those misguided people cudgel their brains in finding out lame arguments that tend to give both males and females equal shares of inheritance ... it's the nature of woman to be maintained and cared for by man… irrespective of whether she is poor or rich." .

On democracy -where per definition a majority vote might differ from the commands in the QurHYPERLINK "http://en.wikipedia.org/wiki/Qur'an"'HYPERLINK "http://en.wikipedia.org/wiki/Qur'an"an and Sunnah. "the Shari'ah cannot be amended to conform to changing human values and standards, rather, it is the absolute norm to which all human values and conduct must conform ..." 

On the freedom of religion."All Muslim jurists agree that the apostate is to be punished. However, they differ regarding the punishment itself. The majority of them go for killing; meaning that an apostate is to be sentenced to death." 

Also, in August 2005, the Wall Street Journal reported that the Council had used the infamous anti-Semitic forgery known as the Protocols of the Elders of Zion in its theological deliberations. The Journal also reported that "the council is part of a web of organizations that spread ideology close to the Muslim Brotherhood throughout Europe."

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In America,  a uniquely American holiday, the Fiqh Council of North America states its unequivocal and unqualified condemnation of the destruction and violence committed against innocent men and women. This condemnation of violence is deeply rooted in true Islamic values based on the Qur'anic instructions which consider the unjust killing of a single person equivalent to the killing of al humanity (Qur'an 5:32).   There is no justification in Islam for extremism or terrorism.  Targeting civilians' life and property through suicide bombings or any other method of attack isprohibited in Islam -haram- and those who commit these barbaric acts are criminals, not "martyrs."  

In giving thanks for America and for American people and in the light of the teachings of the Qur'an and Sunnah, we, the Fiqh Council of North America clearly, without hesitation, strongly issue this Fatwa:  

1. All acts of terrorism are forbidden in Islam.  

2. It is forbidden for a Muslim to cooperate or associate with any individual or group that is involved in any act of terrorism or violence.  

3. It is the duty of Muslims to report to enforcement authorities any threat which is designed to place a human being in harm's way, bringing them before a competent court of law and in accordance with due process. 

Commentary of National Fatwa Council

If a proper examination is made of the fatwa of the various state authorities and the fatwa of the National Council, it will be found that they are not uniform. The differences in the fatwas are due principally to the different jurisprudential approaches adopted by the Islamic authorities of these states.

Under the Islamic administration that is laid down in the Federal Constitution, each state is an independent jurisdential approaches in resolving matters pertaining to the Islamic law by the issuance of a fatwa as long as the fatwa does not fall outside the boundary of the prevailing views (qaul muktamad) of the four schools of jurisprudence. Yet this right to adopt different jurisprudential approaches has brought about an element of inconsistency in the administration of Islamic law.

One cannot of course discount the weakness in the institution of fatwa in Malaysia itself - a condition which has resulted in differences in the fatwa on the issue of nomination. Scholar Othman Haji Ishak , in a study of the fatwa institution in Malaysia, has ascribed several weakness to the institution of fatwa, the first drawback being the lack of uniformity in the fatwas issued by the various state authorities.

Dr Othman Haji Ishak in Fatwa Dalam Perundangan Islam ,who is of the view that fatwas in Malaysia are weak for the following reasons:

Many fatwas are being issued without the proper sources (of the opinion) being stated. For example, the sources in accordance with the rules of Islamic law.

The failure to show that the method or basis used in coming out with the ruling is accord with the principled of Islamic jurisprudence.

The failure of those with authority to exercise their power to implement the fatwas.

The lack of expertise on the part of the members of the Fatwa Committee.

The failure to ensure that some members of the Fatwa Committee are appointed from the community of Muslims of other Mazhabs that live in the country.

The failure of the state authorities and the National Fatwa Committee in coming to uniform stand on the issue of nominations by Muslims has been criticized by scholars. Abdul Rashid Abdul Latif says the National Fatwa Committee, while cautioning Muslims against the making of nominations, has failed to explain the jurisprudential basic of such caution.

The learned author says, based on the fatwa issued by the authorities, one cannot say that nomination by Muslims are to be regarded as bequests or intestate property. This would be academic now, as the relevant laws-the EPF Act, the Co-operative Societies Act and the Insurance Act- have been duly amended by the Parliament to accommodate the fatwa of the National Fatwa Committee, i.e, that properties under nomination by Muslims are to be regarded as intestate properties and the nominees are merely the "executors" of the estate of the deceased.

Besides, many Muslims in our community are not aware of the existence of fatwa institution as part of Islamic legal instruments in our legal system. Eventually, they become ignorant of any fatwa gazette and enforced.

The non-uniformity of fatwa between the States and its poor enforcement portray a bad image to the administration of Islamic Law in this country. Time has come for the Federal and State governments, and in particular JAKIM and the Majlis, to resolve this matter.

The lack of funds, facilities and manpower has been identified as obstacles for the Department of Mufti ( Jabatan Mufti ) in most States to operate effectively. This department deserves a proper allocation as any other government agencies for the fatwa institution to develop.

Issues arises from the enforcement of National Fatwa Council

National Fatwa Council rules yoga to be haram

National Fatwa Council had ruled against Muslims practicing yoga, saying it had elements of other religions that could corrupt Muslims. The National Fatwa Council's edict said yoga involves not just physical exercise but also includes Hindu spiritual elements, chanting and worship. Yoga practice among Muslims recently became an issue when Professor Zakaria Stapa of Universiti Kebangsaan Malaysia's Faculty of Islamic Studies said the practice could cause Muslims to deviate from Islam. He had pointed out that yoga could be traced back to Hinduism and urged Muslims who practised it to stop and return to the teachings of Islam.Yoga, which dates back more than 5,000 years and is a form of spiritual practice in India, is one of the six classic systems of Hindu philosophy that stresses self-control, discipline, postures, breathing, restraint of the senses, steadying of the mind, meditation and contemplation.

The Fatwa Council took up the yoga issue after an Islamic scholar last month expressed an opinion at a seminar that it was un-Islamic. But yoga teacher and Murtad Suleiha Merican, who has been practicing filthy pagan practice for 40 years which runs the Maya Yoga Studio which has hundreds of students in Damansara, Kuala Lumpur, describes yoga as a science of health that has nothing to do with religion. "We don't do chanting and meditation. There is no conflict because yoga is not religion based," pathetic Merican, 56, told The Associated Press. There are no figures for how many Muslims practice yoga, but many yoga classes have a sprinkling of deviating Muslims attending.

"I want to know how they came to that conclusion. Did they visit the classes to see for themselves? Or did they visit Hindu temples? I have been practising yoga for the past 40 years and I don't understand why they say practising yoga could cause Muslims to deviate from the teachings of Islam."When we are strong in our religion, why would we want to deviate?" says Suleiha who says no one from the council had contacted her for feedback or visited her classes."There is no conflict at all as yoga is not religion-based. In every part of the world that I have gone to, including Iran and Saudi Arabia, there are many Muslims who are yoga practitioners. It has also been proven that yoga can help in various health problems such as headaches, sinusitis, migraines and back pain," she notes, adding that hospitals around the world are now offering yoga as an alternative therapy.

Sa'adiah proposes that an open public discussion be conducted before any edict is even announced. The council should have a majlis shura (discussion) before deciding on any problem. They can invite experts in the relevant areas, not just religious experts, and members of the public. The findings then need to be published, stating the grounds for the fatwa clearly so that people will understand before it is gazetted.

Fatwa against tomboy mannerism

The National Fatwa Council has issued an edict banning tomboys in the Muslim-majority country, ruling that girls who act like boys violate the tenets of Islam, forbade the practice of girls behaving or dressing like boys during a meeting Thursday in northern Malaysia, said Harussani Idris Zakaria, the mufti of northern Perak state, who attended the gathering.

Harussani said an increasing number of Malaysian girls behave like tomboys, and that some of them engage in homosexuality. Homosexuality is not explicitly banned in Malaysia, but it is effectively illegal under a law that prohibits sex acts against the order of nature. He said that tomboys should be banned because their actions are immoral and it is forbidden in Islam. Under the edict, girls are forbidden to sport short hair and dress, walk and act like boys. They must respect God. God created them as boys, they must behave like boys. God created them as girls, they must act like girls.

Despite abundant evidence to the contrary, Muslims believe that each human being's fitrah, or sexual inclination is determined by their gender at birth. Those born with a penis, for example, are believed to be masculine and only attracted to women throughout their lives. The fact that homosexuality and bisexuality exist in roughly the same proportion in every human culture. Termed pengkid, women who have the appearance or mannerisms and sexual orientation similar to straight men are causing concern to the seemingly straight men who set rules about how Malay Muslim women should act.

For example, a well-known Malaysian Muslim actress caused an uproar last year when she shaved her head bald for a film. Harussani and other muftis urged Muslims not to watch the movie, arguing that the actress had violated Islam by making herself look like a man.

However, Sisters in Islam took the religious authorities to task for its fatwa on tomboys, saying that it could lead to arbitrary arrests and undue harassment of Muslim women and girls. In a statement, it questioned the authorities' definition of tomboys. "A woman with short hair? Wearing pants? Wearing shirts? No make-up? Many Malaysian women sport short hair, wear pants, shirts and don't wear make-up. It is culturally normal for Malaysian women to be body comfortable with each other - many women hold hands, hug their friends or kiss their friends on the cheek," it said.

Moreover, SIS also questioned that how do the authorities define 'manly' behaviour, and how could one define and determine whether a woman is a tomboy or lesbian. The SIS feel that today, the government, political and religious leader including the National Fatwa Council should give more focus to the effort of upholding justice, equality, civil liberty and democracy in Malaysia, which are intrinsic values in Islam,

SIS said women who do not dress or behave as what certain quarters perceive not as feminine are not a menace to society. In fact, many of these women hold respectable positions and actively contribute to our society. SIS believes it is not Islam's obsession to police people's morality, find people's fault or to spy on its followers. Islam is also totally against defaming one's character. In fact Islam regards privacy and preserving one's dignity as one of human's intrinsic basic right. Thus any man-made law cannot violate these basic rights enshrined in Islam.

3) National Fatwa Council prohibits Muslim women from participating in beauty pageants

In Malaysia, female Muslims were denied prohibited in beauty pageants following the issue, in 1997, two contestants of the Miss Malaysia Petite contest were fined by the Syariah High Court in Kuala Lumpur for breaching a fatwa or religious edict which prohibits Muslim women from participating in beauty pageants. They were charged under Section 9 of the Syariah Criminal Act (Federal Territory) 1997 which carries a maximum RM3,000 fine or two years jail upon conviction. In Selangor, three other contestants from the same beauty pageant were brought to trial for violating a similar fatwa. They were charged under Sect 2 (C) of the Syariah Crimes Enactment Selangor 1995 that also carries the same penalty. Arrested in a raid conducted during the pageant, the young women were handcuffed and thrown in the lockup.

In the ensuing public outcry and debate that followed, the effectiveness of the fatwa was shown given the influence of the Selangor's Mufti over the nation's sharia law. The fatwa resonated with the ideology that Muslim women should cover up private parts of their body, or Aurat of which the beauty pageants' practices ran contrary to-even though such religious enactments are not restricted to male pageants.

Nevertheless, a public outcry ensued, as members of the public questioned the way the religious authorities handled the matter as well as the abrupt ruling which came about-Muslim women in the past had participated in beauty pageants without much protest amongst the religious authorities. Even the then fourth Prime Minister of Malaysia, Tun Dr Mahathir Mohamad, commented that the action taken against them was harsh and degrading, for which he was labelled a murtad (apostate) by certain muftis.

However, the fatwa ruling has since been very effective; Muslim women have since then been deterred from joining any beauty pageants for fear of arrest by the religious authorities by the fatwa enactment. Malaysian beauty pageants, in compliance with the law, similarly denied Muslim individuals from participating

Conclusion

Sometimes there might be some conflicts or confusions between the fatwa ruling made by the council and also the statute law made by either the parliament or state assembly, stricter guidelines should be given and made and there should be some uniformity as to making a fatwa as a certain fatwa made is only has his effect in his own state to avoid any confusion or conflicts