LETTER | Read FT Mufti Bill thoroughly, be rational

LETTER | The Mufti (Federal Territories) Bill 2024, when passed by Parliament, will become an Act to provide for matters relating to the mufti, the determination of matters of Islamic law and doctrine and related matters.

The preamble to the bill reads as follows:

“WHEREAS Parliament may make laws regarding the government and administration of the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya, including Islamic law therein to the same extent as provided for in item 1 in the State List as provided in the Federal List under item 6(e) of List I of the Ninth Schedule of the Federal Constitution.”

The bill will be passed and enacted as law pursuant to Article 74(1) of the Federal Constitution. In other words, it will be law mandated by the Federal Constitution.

Clause 1(2) of the bill states that the law will only apply to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.

So how will the law “turn Malaysia into an Islamic state overnight”, as claimed by 14 Sarawak- and Sabah-based groups?

The groups also claimed that the bill would violate the Malaysia Agreement 1963 (MA63) and constitute a direct attack on the nation’s secular system.

How is that so?

Clause 4 of the ill is on the functions of the mufti and deputy mufti. Clause 4(1) reads as follows:

“The mufti shall aid and advise the Yang di-Pertuan Agong in respect of all matters of Islamic law, and in all such matters shall be the chief authority in the Federal Territories after the Yang di-Pertuan Agong, except where otherwise provided in this Act.”

I read the above to mean the mufti is the chief authority to aid and advise the king in respect of all matters of Islamic law.

The term “Islamic law” has the meaning assigned to it in Section 2(1) of the Administration of Islamic Law (Federal Territories) Act 1993 [Act 505] - that is, Islamic law according to any recognised Mazhab.

Article 3(5) of the Federal Constitution provides that the ling is the Head of the religion of Islam in the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya. The religion of Islam encompasses more than just Islamic law.

So, how is it that clause 4(1) “derogates from (sic) the position of the king as the head of Islam in Malaysia as provided for in Articles 3(5) and 34(1) of the Federal Constitution”?

In any case, the mufti is the chief authority on Islamic law after the king.

Clause 4(1) should be lauded as it removes the minister, a political appointee who may not make the cut as an authority on Islamic Law, as the authority to advise the king in respect of all matters of Islamic Law - the king being a constitutional monarch who acts on advice.

Now, let’s look at Clause 10 on the procedure of issuing fatwa. It is in Part IV of the bill on the Issuance of Fatwa. It reads as follows:

10. Procedure of issuing fatwa

(1) Mufti may, before making and issuing any fatwa -

(a) direct any person to carry out a study or research relating to the issue or question concerned;

(b) summon any relevant person to provide an explanation in relation to the study or research which has been carried out or in relation to the issue or questions raised; and

(c) direct the person who has carried out the study or research to prepare a fatwa research paper.

(2) If the mufti finds that a fatwa needs to be issued pertaining to the issue or question, the mufti shall direct a meeting of the Fatwa Committee to be summoned for the purpose of discussing the proposed fatwa.

(3) After the proposed fatwa is approved by the Fatwa Committee, the mufti shall make a recommendation to the Yang di-Pertuan Agong for his assent for the publication of the fatwa in the gazette.

(4) The fatwa which has been assented by the Yang di-Pertuan Agong shall be published in the Gazette.

(5) The procedure of issuing fatwa under this section shall be applicable to fatwa issued under Sections 13 and 14 of this Act.

(6) Any other ruling of Islamic law which is not published in the gazette shall remain to be respected and be guidance of Islamic law for Muslims in the Federal Territories.

The word fatwa is not defined in the bill. But it is clear from the above that there is a difference between fatwa and proposed fatwa.

A fatwa is a proposed fatwa that is approved by the Fatwa Committee, which is then recommended by the mufti to the king for His Majesty’s assent which is to be published in the gazette.

It is this fatwa that is to be (a) binding on, abided and upheld by every Muslim in the Federal Territories and (b) be recognised by any court in respect of all matters stated in the fatwa (Clause 11).

One can say that Clause 10 above is an improvement to Section 34 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505). The section on fatwa reads as follows:

34. Fatwa

(1) 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.

(2) No statement made by the mufti shall be taken to be a fatwa unless and until it is published in the gazette pursuant to subsection (1).

(3) Upon publication in the gazette, a fatwa shall be binding on every Muslim resident in the Federal Territories as a dictate of his religion, and it shall be his religious duty to abide by and uphold the fatwa unless he is permitted by Islamic law to depart from the fatwa in matters of personal observance, belief, or opinion.

(4) A fatwa shall be recognised by all courts in the Federal Territories as authoritative of all matters laid down therein.

Section 34 above makes no reference to the king, unlike Clause 10. But it must be stated that Section 34 allows for a Muslim to depart, if permitted by Islamic law, from a fatwa in matters of personal observance, belief, or opinion.

A further improvement can, therefore, be made to Clause 10.

Let this be said: Clause 10 makes it clear that the king is the chief authority on Islam and Islamic law.

So, again, how is it that the bill derogates the king as the head of Islam in Malaysia?

Read the bill clause by clause, subclause by subclause. And be rational.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.