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The Star - In a Twist Over Fatwa Ruling
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By HARIATI AZIZAN

A fatwa is an answer to a question when there is doubt on whether or not a particular practice is permissible in Islam. But the question is whether it should be a spiritual guideline or a tool to criminalise the offender.

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. Unsurprisingly, their stories were splashed on the front covers of the newspapers the next day.The incident attracted a range of public response, from disbelief to dismay.A grouse was the lack of transparency in the edict  many were not even aware it existed.
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Siti Suheila: When we are strong in our religion, why would we want to deviate?

Others were appalled at how the authorities conducted the enforcement.Even the then Prime Minister, 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.

Since then, various fatwas have been issued but none has been as explosive as the recent fatwa on the ancient Indian form of exercise, yoga.The reactions it drew were so emotional that it led to the Department of Islamic Development Malaysia (Jakim) director-general Datuk Wan Mohamad Sheikh Abdul Aziz in an attempt to draw the line to retort,

“Can we appeal to God to change the rules according to our whims and issues?" Then three royal houses and the PM had to step in to command calm among the public.The Sultan of Selangor Sultan Sharafuddin Idris Shah lightly rapped the council for not consulting the Conference of Rulers before issuing the controversial edict.

He said in a press release that he hoped that in the future, any fatwa on an issue that affects the general public would be referred to the Rulers Conference prior to being announced.

“This is to ensure that the method of channelling a fatwa is implemented in a wise manner to avoid any confusion or controversy," he said.One cause for confusion, says religious adviser to the Prime Minister, Tan Sri Dr Abdul Hamid Othman, is because many do not understand what a
fatwa is.
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Fatwa can be defined linguistically as “an answer to a question", he explains,
“but the question is on an issue concerning the life of the Muslims. A fatwa is usually declared when there is some doubt whether a particular practice is permissible (halal) or forbidden (haram) in Islam.

"The National Fatwa Council, he adds, has been entrusted to deliberate on these “questions" in depth and come out with edicts on them. And in an evolved world like ours, he adds, such a council plays an important role in providing “guidelines" for these grey areas to Muslims. Non-Muslims, he stresses, have nothing to fear as fatwas do not concern them.As Islam is a state matter in Malaysia, the fatwa has to be gazetted by the individual states before they have a force of law.Once it is law, it is a crime to dispute, defy or disobey the fatwa underr the Syariah Criminal Offences Enactments.

However, stresses Dr Abdul Hamid, even though it has not been gazetted, a religious ruling should be respected as a ruling when it is declared, as learned scholars of Islam have deliberated on it before it is declared.And herein lies the confusion.

Says Syariah lawyer Sa'adiah Din, the religious authority often treats the fatwa as absolute when there should be an avenue for the public to question and voice their concern on the matter before it is gazetted. “For instance, at this juncture, people should be able to go or write to the council and submit their opinion in a memorandum or write to the council to voice their views on the yoga fatwa," she says.

Sa'adiah opines that even an edict that has been gazetted can be challenged under the rule of law.

“A fatwa ruling is not divine and those who feel that they have a strong case can dispute the fatwa by filing a challenge in the Syariah High Court to prove that it is unenforceable or unIslamic," she says, adding nonetheless that no such case has been filed.

Islamic non-governmental organisation (NGO) Jamaah Islah Malaysia (JIM) president Zaid Kamaruddin concurs.

“A fatwa is a recommendation which the council had to deliberate on based on their findings. Although it carries weight as an edict, like any other government decision, we can question it, voice our opinions, but maybe because it is a religious edict, people are more sensitive about it," he says.

Zaid recalls the fatwa on smoking that was gazetted in a few states in 1995, “Interestingly, that did not cause this much of a hullabaloo. I think the environment we find ourselves in now has changed, we have more access to information, people are more aware of their rights, that is why more came out to voice their opinion on the yoga fatwa.

The National Fatwa Council has to accept this and change its method of dealing with the public. Pas research chief Dr Dzulkefly Ahmad agrees that the council should have communicated the ruling better.

“They should not have made a blanket ban but laid down what is or is not permissible about yoga. This allows a Muslim to be critical of their own faith and empowers them to make judgments based on convictions."

Many agree that the council needs to be more open about its grounds for the fatwa.As declared by council chairman Datuk Dr Abdul Shukor Husin, the declaration of yoga as haram was done after serious and in-depth discussions among the council members who met in October. He said that after studying the matter, including the history and purpose of yoga, the council decided that it was inappropriate for Muslims as it could affect one's faith.

The few yoga instructors Sunday Star interviewed, however, remain unclear on how the research was conducted.A long-time yoga instructor, Datin Suleiha Merican, 56, is one who would like to learn more about the council's reasoning and arguments for its fatwa on yoga.

“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.

Suleiha, who runs the Maya Yoga Studio which has hundreds of students in Damansara Perdana, Kuala Lumpur, describes yoga as a science of health that has nothing to do with religion.

“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.

When contacted, Dr Abdul Shukor declined to comment.Abdul Hamid nevertheless assures that every research conducted before a fatwa is decided is thorough. “For example, on the latest issue, yoga, the researchers would have followed a few yoga sessions and talked to instructors and practitioners before they presented their findings to the council, he says, noting that the research is done discreetly, hence, not many know about it.

“It is definitely not done hastily, the research is done thoroughly before we deliberate on an issue. We just don't publicise it," he remarks.

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," she argues.

Islamic NGO Sisters in Islam, however, feels that the Government should review the fatwa as an instrument of mandatory and binding rule in Malaysia. “Our call is made on the grounds that fatwa having the automatic force of law has no basis in Islamic legal theory and practice. It conflicts with the federal constitution and often, the decree causes confusion," says its programme manager (Research and Publications), Masjaliza Hamzah.

She highlights that Malaysia is one of the few countries, if any, to make fatwa legally binding. “We are not anti-fatwa but in other parts of the Islamic world, Islamic jurisprudence and history of Islam, fatwa has never had legal standing. They don't criminalise someone for going against a fatwa as is practised in Malaysia," she says.

A fatwa, which regulates a citizen's life to the smallest detail, is so wide in its impact that it becomes unenforceable, Masjaliza adds. “Such laws could only lead to select prosecution and victimisation, as they cannot be enforced fully and equally. Don't get me wrong, we can still have a central fatwa-making body to provide guidelines for the people but we don't have to make it a criminal offence to go against a fatwa."

Dr Abdul Hamid, however, disagrees. “Going against a fatwa is a crime because it is a crime against religion. When you believe in Islam you are bound by its laws. For example, you can't walk around naked in public," he says.

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