Laws need to be flexible
PENANG mufti Datuk Wan Salim Wan Mohd Noor feels that people should not take some laws in the state syariah enactment “too literally’’.
‘‘You must understand the intent and purpose behind the law. People should use wisdom and their judgment.
“We are not rigid. If someone is in a coffeeshop talking to friends about Islam, surely we won’t pick them up for committing an offence? If you think that, it means you don’t understand the law and you are taking things literally.
‘‘The rationale behind the law on tauliah (credentials) is because we do not want people to go around spreading deviant beliefs or teachings that can confuse people,” he says.
Under the Syariah Criminal Offences Enactment and Act, almost all states deem it is an offence if someone speaks about ‘‘matters on Islam” in the state without getting a tauliah from the respective state. The letter of the law says that Muslims without a tauliah are only allowed to speak about Islam within their homes, and only with family members.
State religious authorities have used this
tauliah law to haul up, question, ban, charge and sentence some well-known personalities.
Popular Perlis mufti Datuk Seri Mohd Asri Zainul Abidin has been banned from speaking and preaching in Selangor, Johor and Terengganu; Umno’s Youth exco member Dr Fathul Bari Mat Jahya, a well known preacher, was charged in 2012 in the Negri Sembilan syariah court for giving a religious talk in the state without a tauliah.
He is also one of 16 religious preachers banned by the Johor religious authorities late last year.
Shah Alam MP Khalid Samad was talking about his experiences in the Gaza in a surau in Kapar, and the Selangor Syariah Court charged him with speaking without a
tauliah and fined him RM2,900.
The Parti Amanah Negara MP is in danger of losing his Parliamentary seat because Article 48 of the Federal Constitution stipulates that an elected representative will lose his or her seat if he or she is fined more than RM2,000 or jailed for more than a year.
Penang’s Wan Salim acknowledges that state religious authorities could use this law as a political tool to stop certain preachers, scholars, politicians or people they do not like or agree with.
“But we don’t do that in Penang. We don’t have such a ban. Penang is open. We want our people to have a broad perspective on Islam and a diversity of views.
“For example, if you go into a restaurant, there are many kinds of food and drinks to choose from. You can’t eat or drink it all. So you pick what you like and what suits your taste.
“It is the same with religion. There are many views. And we want to pick what is suitable for Penang and which is of benefit to our people in the state.’’
He says people who have studied Islam for years and are experts in their field can speak on religion in public places in the state. And Penang does not ban preachers like Dr Asri or Dr Fathul Bari.
“Only if there is a complaint do we step in to give advice.’’
Wan Salim says Penang still retains the
tauliah law because the state does not want people with odd and unconventional views to go to mosques and public places and spread their views because this might not go down well with other Muslims and might result in unease and quarrels.
It is the practice of political parties like Umno, PAS, Amanah, and PKR to talk about Islam during their assemblies, conventions and meetings. Is this then not a violation of the tauliah requirement because the delegates and speakers there might not be experts in religion and might not have a
tauliah from that state?
But Wan Salim says this is perfectly OK. ‘‘We are not that rigid. They can talk and give their views about Islam. What they can’t do is make a ruling on the religion.’’
PAS president Datuk Seri Hadi Awang tabled a motion in Parliament in November last year to introduce a private member’s Bill to amend the Syariah Court (Criminal Jurisdiction) Act 1965 (popularly referred to as RUU355) to increase punishments to a maximum of 30 years of jail, RM100,000 fine and 100 lashes.
Speaking without a tauliah, expressing an opinion contrary to a fatwa, and showing defiance and contempt towards a religious authority are all syariah criminal offences. Currently, the punishments for these offences are limited to a maximum of three years jail, RM5,000 or/and six lashes.
It is not known if the punishment for these particular offences would be enhanced should Hadi’s Bill pass in Parliament.
A fatwa is a religious opinion that religious authorities discuss and come up with that touches on issues that crop up from time to time in Muslim society. The state then can choose whether the fatwa should remain as an opinion and advice or they can gazette it. If a fatwa is gazetted, it has the bite of a law. And under syariah law, it is an offence to express an opinion contrary to a fatwa.
Fatwa can be quite diverse.
It can range from things like whether DNA testing can be used to determine the paternity of a child and whether investing in Amanah Saham Nasional and Amanah Saham Bumiputra is halal (permitted) or haram (forbidden) to things like whether Muslims can celebrate Valentine’s Day, participate in candlelight vigils, wish non-Muslims during their festivals, or participate in Pokemon Go.
Since these are not spelt out specifically in the Quran and Hadith (traditions and sayings of the Holy Prophet), how does a state come up with a fatwa and what is the process?
In Penang, the state fatwa committee meets six times a year.
The committee’s secretary Mohd Hanif Omar says the committee is made up of 12 members including the mufti, deputy mufti, secretary, seven members appointed by the mufti, and two named by the state religious council.
The secretary then looks at current issues that require a fatwa.
“Sometimes the public will ask us for a fatwa on an issue, like mosques using loudspeakers to read Quran verses before the start of subuh morning prayers.’’
Mohd Hanif says the process begins with the fatwa committee secretary preparing a working paper on the issue. The research for the working paper is done using two sources: the Mufti’s Buhuth unit and, when the issue involves medicine, food and other things, outside professionals.
When the working papers are ready, the secretary then calls the committee together for a meeting.
The working paper is either presented by the secretary himself or by the fatwa “applicant’’, which could be made up of various agencies through the fatwa committee members.
Mohd Hanif says the committee will then make a decision on the various working papers put before them. It will also ratify decisions made at its previous meetings. Once the meeting is over, the secretary prepares the proposal ( sighah) for acceptance of the fatwa that has been agreed upon.
This is then sent to the state legal advisor to look through, and it is amended if necessary.
After that, it is sent to the Penang state secretary to obtain royal assent from the King. When that is obtained, it is sent to the state legal adviser to be gazetted.
Mohd Hanif says fatwa that are gazetted are those that need enforcement, such as
deviant teachings, false doctrines, issues to do with wakaf (property or endowment given for religious or charitable purposes) or prohibited books. Fatwas offering advice and guidance, he says, are normally not gazetted.
“The whole fatwa process takes three to four months from beginning to end.”
Mufti Wan Salim feels that even a gazetted fatwa is not written in stone. After all, those issuing fatwas are human so mistakes or oversights are possible.
“That is why a fatwa cannot be rigid. A fatwa is not based on the Quran and Hadith, so if we see it is not suitable we can amend or change it.
“There are provisions in the state enactment for this.
“Sometimes, what is suitable in one place might not be suitable somewhere else. Or sometimes, what was appropriate for a particular point in time no longer is. So we can change the decision.’’
Wan Salim says when a fatwa is issued at national level, it is common for states to use their discretion to see if it is appropriate to enforce in their own state and if it needs adjustments.
“There could be differences based on the composition of people. The situation in a state like Kedah and Kelantan is different from the situation in Penang, and it is normal to take these factors into consideration.’’
“Like the Pokemon Go fatwa, there is nothing in the Quran or Hadith on that. So it is left to the individual states to make a decision, based on public interest.
“If states feel something, or a particular behaviour or action, can jeopardise peace and disrupt public order, they can say it is no good.
“This is in keeping with the spirit of the religion because religion was revealed for the good of the people.
“But fatwa is not something that is rigid. It is flexible. It is elastic.’’
Wan Salim, however, feels there is no need to seek feedback from the public before issuing a fatwa, as suggested by syariah counsel Fahda Nur Ahmad Kamar (see story on page 28).
‘’We don’t ask members of the public for their views because they don’t know about Islamic law and rules. So we don’t need to get their views.’’
He says if there are concerns, the fatwa committee will hear of them through committees at mosques and the suraus.
“If they voice their concerns, we will respond. And we have gatherings where the fatwa committee interacts with the public and answers questions they may have.’’