Fatawa in Malaysia 1960-1985 Third Coulson Memorial Lecture

in Arab Law Quarterly
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Abstract

To summarise, the British legacy on Shari'a comprised: (1) Sharia in Anglo-Muhammadan precedent; (2) Sharia as a part of "native law"; and (3) Shari'a as an element of Malay sovereignty. So far as private law was concerned, it was restricted to family law, wakaf and (in some places only) mosque attendance and payment of zakat. It was also circumscribed by custom in all places. Between 1945 and 1957, at the approach to independence a considerable rationalisation of this legacy was achieved in the following ways. First, in the Federation, which came into being in 1957, each of the component states retained all rights over religious matters in each individual state. This was and remains specified in the Federal Constitution. Second, beginning in 1952 each state produced its own "Administration of Islamic (or Muslim) Law Enactment".4 While the individual Enactments vary in some details, and some are rather more elaborate than others, they all deal with three elements. These are: (1) An explanation of substantive rules of Shari'a (family law); (2) The structure and jurisdiction of Shari'a courts; and (3) The official determination of Islamic principle. The position now, therefore, is that Islam has: (1) A constitutional reference; and (2) A legislative and judicial form. It has become incorporated into the institutions of the state of Malaysia. From the point of view of this article the most important provision of the legislation is that dealing with what I have called the "official determination of principle". By this I mean to refer to the "Majlis Ugama Islam ..." or "Council of Religion" (the exact title varies from state to state) which each state has. The function of the Majlis is to aid and advise the Ruler on matters of Islam and Malay custom. The exact composition of the Majlis varies from state to state but the single most important duty is to issue fatawa, usually through the medium of a "Shariah Committee" or Fatawa Committee (terms and compositions vary) of the Majlis. A fatwa, once formally published in the State Gazette is binding on all Muslims in the state. Fatawa may be issued only by properly appointed persons through the medium of the appropriate committee(s). This, in short, is the constitutional and legislative structure. I shall now turn to the fatawa themselves.

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