Juristic opinion in the Muslim legal tradition is human-made, changing over time and in different circumstances to ensure that justice is always done.
THERE are hundreds, if not thousands of fatwas issued by the various State Fatwa Councils and the National Fatwa Council. And many of them differ from each other.
Many states have declared smoking as haram; Selangor and Penang gazetted this fatwa which makes it then a criminal offence for any Muslim to smoke in those two states.
I must say I haven’t heard of anyone being arrested and charged with the offence. The criminal justice system and the prisons might just be overwhelmed given the tens of thousands of Muslims who continue to merrily smoke in those states.
Selangor, Pahang and Penang have issued fatwas that declare Amanah Saham Bumiputra (ASB) and Amanah Saham Nasional (ASN) as haram (forbidden), contradicting the National Fatwa Council which states it is harus (permissible). Just recently, Selangor reversed its fatwa on ASB to declare it is now harus.
So who is right and who is wrong? All fatwas are justified in the name of Islam. So when there are so many fatwas on the same issue, some making it haram, some harus, some gazetted, some not, some states have them, some don’t, what then is the “Islamic” position on any particular issue?
This would not pose a problem if like other Muslim countries, the Malaysian authorities have the wisdom to leave it to the conscience of the individual to decide which opinion and which teaching they want to follow and leave it to God to decide in the end whether that person has committed a sin by obeying or disobeying.
But in this country, there are many in religious and political authority who are determined to impose on everyone that only their opinion is the one and only truth and then conveniently use God’s name to demand compliance.
I have not read any scholarly article that states fatwas are the word of God or are the law of the land and therefore cannot be challenged. They are opinions of the religious learned within a particular social context to help Muslims lead a life according to the teachings of Islam. They may be right, they may be wrong, and they can change when circumstances change.
They are not binding as we can see with the diversity of fatwas in Malaysia itself and the changes of opinion the Fatwa Councils make. If the fatwa makes sense to the realities of your life, you follow it, if it does not, you can ignore it or go to another alim (wise person) for another opinion.
This is the richness, the dynamism and the compassion of the Muslim legal tradition.
In the end, it is God that decides if you have been a good Muslim or not. Not the state, not the mufti, not any human being.
And yet we have many men in authority in this country who declare that it is mandatory not only for Muslims to obey a fatwa but for the courts to abide by it.
Instead of welcoming the compassion, the reasonableness and the rule of law upheld by the Court of Appeal decision on children born within six months of their parents’ marriage, they condemn it as against Islam. Whose Islam? What Islam?
Perlis has issued a fatwa declaring that such a child can bear the name of the father.
Does that make members of the Fatwa Council of Perlis deviant for having a different fatwa from the National Fatwa Council?
The Quran is clear on the doctrine of personal responsibility.
Surah Al-Anaam, 6:164 states, “No person earns any sin except against himself, and no bearer of burdens shall bear the burden of another”.
If we as Muslims are truly compassionate as God commands us to be and as we invoke in the name of God the Compassionate and the Merciful dozens of times when we pray and embark on various actions, isn’t this guidance from the Quran enough for us to interpret and apply in practice that no innocent children should bear the sins of their parents?
In an age when so many fathers abandon their children, fail to provide financially, let alone make time to care, love and guide their children, why do these men insist that fathers who are determined to be responsible for their children be denied the right to do so?
Because of Islam? Again, I ask, whose Islam, what Islam? There is nothing in the Quran that states a child born within six months of their parents’ marriage cannot bear the name of the father.
In fact, the Quran calls on children to be named after their biological fathers. While the context of revelation may be different, the eternal principle of justice, fairness, and no harm done can still be applied.
So it is juristic opinion (fiqh) that these men are actually using to justify their position. Since they proclaim to know Islam, they should know too that fiqh is human-made and changes over time and in different circumstances to ensure that justice is always done. That is the dynamism of Islamic jurisprudence that our supposedly learned leaders disregard wilfully.
Just as the Selangor Fatwa Council changed its fatwa on investing in ASB from haram to harus on the basis that 66% of PNB investments are now syariah compliant, surely the same principle of changing circumstances can be applied to so many other contested issues confronting the Muslim community today.
What were the circumstances that led to the fiqh opinion that children born out of wedlock or born within six months of their parents’ marriage cannot bear the name of the father?
What are the circumstances today? What does the law of the land say since we live in a democratic state and not a theocratic state?
What do international human rights instruments that we have ratified say, since we want to be a part of the international system?
What are the implications for the rights and dignity of these children when they have to carry a different name from their younger siblings, when the father cannot be a wali (custodian) to the daughter’s marriage, when he cannot sign any documents on behalf of his children, when the children do not have to be provided for by their father and cannot inherit from their father?
How do such denials of rights serve the principle of “best interest of the child”, which is also a Muslim juristic principle that many countries, including Malaysia, have used to reform discriminatory Muslim family laws?
It is not just Islamic principles and notions of justice and compassion that are ignored for an ideological project to assert the supremacy of a dogmatic, punitive brand of Islam over the Constitution, even the Government’s own laws are ignored.
Those opposed to the Court of Appeal judgement invoke Islam to condemn, and to cause hurt and harm to innocent lives.
Those of us who believe in a compassionate, forgiving and just God, and who believe in the Constitution and the rule of law, must stand up and be counted.
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