Striking A Pose (Of Crime And Punishment)
THE recent ruling by the National Fatwa Council on yoga has resulted in a range of responses, from dismay to unqualified and devoted acceptance. I must admit to bewilderment in part because of all the pressing issues that confront Muslims in this country, many of which directly pertain to matters of social justice, yoga was one of the least expected amongst those that demanded urgency. It would have been useful for the Council to have directed its mind and resources to matters of faith that complement efforts aimed at the nurturing of an inclusive, just and compassionate society.
That being said, a ruling has been made. I say ruling because until and unless the ruling is endorsed by the fatwa committees of the various states and the Federal Territories and then gazetted (published in the official government journal), the ruling is not a fatwa.
The administration of Islam is a matter that falls within the exclusive purview of the state under the Federal Constitution and, as such, where fatwas are concerned within the sole domain of the state fatwa committee. In this context the National Fatwa Council allows for policy consultation at a federal level to facilitate a more unified vision of the practice of Islam, each state being legally entitled to pursue its own vision.
Within the state, it is for the Majlis Agama to take steps to gazette a ruling of the state fatwa committee. The resultant fatwa is prescribed by the respective state law as being binding on all Muslims as a dictate of Islam. They are duty bound to abide by and uphold the fatwa unless permitted by Islamic law to depart from it in matters of personal observance, belief or opinion. The burden of establishing that an exemption is permissible is however on the individual as state Islamic criminal law provides that acting contrary to fatwa is a criminal offence.
It is significant that despite a fatwa being for all purposes and intents a ‘law’ the breach of which is punishable, there is no need for rulings to be referred to the State Legislative Assembly before they are gazetted and become binding as fatwa. Seen in this light, it could be said that the Majlis Agama and the fatwa committee are therefore legislating.
The pressing question arises as to how this can be sanctioned in view of our Constitution having put in place a system of law-making centred on legislatures constituted by duly elected representatives. The making of binding fatwa in the manner provided for is a glaring anomaly from the dictates of the democratic processes enshrined in the Federal Constitution.
It is this very concern that drove a team of us to taking up two challenges in the Federal Court involving persons allegedly having been involved in deviationist Islam not too long ago. Amongst other things, our clients had been charged with acting contrary to fatwa; charges that for the reasons explained above took us to heart of law making.
In its decision earlier this year, the Federal Court disagreed with us and upheld the validity of the fatwa making process. With respect, in so concluding, the Federal Court in effect allowed for a subverting of Parliament, and the accountability the institution is intended to promote, in this extremely crucial aspect of the constitutional framework by giving licence to the religious bureaucracy to autonomously fashion a parallel system of law outside the established legislative structure and the supervision it envisages. I clarify here that I do not intend to cast aspersions on the qualifications, character or aims of the members of the respective majlis-majlis and fatwa committees. The implications of the decision of the Federal Court are however not easily reconciled with the very purpose of legislative power being constitutionally entrenched in the legislature, and the value of this entrenching to wider society.
The rakyat elected representatives to the legislature to ensure that our respective views were presented and taken into consideration as well as to allow us to have oversight over the processes that ultimately shape our lives. Our representatives should be making law as well as overseeing its making.
Legislature cannot be permitted to delegate its essential legislative function in any field, even to a well-intentioned specialist committee. This is not just about Islam; it is equally about all the other fields that specialist committees might be created for in the same way.
The limited numbers of a committee cannot compare to the full weight of the august houses of Parliament. That some of those in parliament may be of questionable competence, some might say sanity, is of no relevance as it is the underlying principle that is in issue. Allowing for a divesting of legislative power and control is most certainly a state of affairs that will wholly undermine democracy and true nation building.
Consider it from a different perspective. Would a State Legislative Assembly have enacted the offence of practicing yoga? I have my doubts, not least for the heated debates that the tabling of a bill to create the offence would have resulted in. If this were the case, then how is it that the system allows for the criminalising of yoga by the ruling of a committee and the mere gazetting of that ruling?
On the other hand, if a state fatwa committee were to produce an expert opinion that was then made the basis of a bill tabled in legislature, would it not be conceivable that with logic and reason, the bill would be carried? More work might have to be done, as explanations would have to be made that much clearer and factual basis of concerns set out coherently. However, considering that laws are being made, these are necessary prerequisites in any event for such grave efforts.
In the meanwhile I wait with bated breath for the next fatwa. Who knows, it may be about corruption.
MIS
That being said, a ruling has been made. I say ruling because until and unless the ruling is endorsed by the fatwa committees of the various states and the Federal Territories and then gazetted (published in the official government journal), the ruling is not a fatwa.
The administration of Islam is a matter that falls within the exclusive purview of the state under the Federal Constitution and, as such, where fatwas are concerned within the sole domain of the state fatwa committee. In this context the National Fatwa Council allows for policy consultation at a federal level to facilitate a more unified vision of the practice of Islam, each state being legally entitled to pursue its own vision.
Within the state, it is for the Majlis Agama to take steps to gazette a ruling of the state fatwa committee. The resultant fatwa is prescribed by the respective state law as being binding on all Muslims as a dictate of Islam. They are duty bound to abide by and uphold the fatwa unless permitted by Islamic law to depart from it in matters of personal observance, belief or opinion. The burden of establishing that an exemption is permissible is however on the individual as state Islamic criminal law provides that acting contrary to fatwa is a criminal offence.
It is significant that despite a fatwa being for all purposes and intents a ‘law’ the breach of which is punishable, there is no need for rulings to be referred to the State Legislative Assembly before they are gazetted and become binding as fatwa. Seen in this light, it could be said that the Majlis Agama and the fatwa committee are therefore legislating.
The pressing question arises as to how this can be sanctioned in view of our Constitution having put in place a system of law-making centred on legislatures constituted by duly elected representatives. The making of binding fatwa in the manner provided for is a glaring anomaly from the dictates of the democratic processes enshrined in the Federal Constitution.
It is this very concern that drove a team of us to taking up two challenges in the Federal Court involving persons allegedly having been involved in deviationist Islam not too long ago. Amongst other things, our clients had been charged with acting contrary to fatwa; charges that for the reasons explained above took us to heart of law making.
In its decision earlier this year, the Federal Court disagreed with us and upheld the validity of the fatwa making process. With respect, in so concluding, the Federal Court in effect allowed for a subverting of Parliament, and the accountability the institution is intended to promote, in this extremely crucial aspect of the constitutional framework by giving licence to the religious bureaucracy to autonomously fashion a parallel system of law outside the established legislative structure and the supervision it envisages. I clarify here that I do not intend to cast aspersions on the qualifications, character or aims of the members of the respective majlis-majlis and fatwa committees. The implications of the decision of the Federal Court are however not easily reconciled with the very purpose of legislative power being constitutionally entrenched in the legislature, and the value of this entrenching to wider society.
The rakyat elected representatives to the legislature to ensure that our respective views were presented and taken into consideration as well as to allow us to have oversight over the processes that ultimately shape our lives. Our representatives should be making law as well as overseeing its making.
Legislature cannot be permitted to delegate its essential legislative function in any field, even to a well-intentioned specialist committee. This is not just about Islam; it is equally about all the other fields that specialist committees might be created for in the same way.
The limited numbers of a committee cannot compare to the full weight of the august houses of Parliament. That some of those in parliament may be of questionable competence, some might say sanity, is of no relevance as it is the underlying principle that is in issue. Allowing for a divesting of legislative power and control is most certainly a state of affairs that will wholly undermine democracy and true nation building.
Consider it from a different perspective. Would a State Legislative Assembly have enacted the offence of practicing yoga? I have my doubts, not least for the heated debates that the tabling of a bill to create the offence would have resulted in. If this were the case, then how is it that the system allows for the criminalising of yoga by the ruling of a committee and the mere gazetting of that ruling?
On the other hand, if a state fatwa committee were to produce an expert opinion that was then made the basis of a bill tabled in legislature, would it not be conceivable that with logic and reason, the bill would be carried? More work might have to be done, as explanations would have to be made that much clearer and factual basis of concerns set out coherently. However, considering that laws are being made, these are necessary prerequisites in any event for such grave efforts.
In the meanwhile I wait with bated breath for the next fatwa. Who knows, it may be about corruption.
(Malay Mail; 25th November 2008)
MIS
Subsequent to this article being submitted for publication yesterday, the Perak State Religious Department has acknowledged that it is necessary for His Highness the Sultan of Perak and the state Fatwa Committee to consider the matter before the policy can be implemented in the state of Perak. The Sultan of Selangor has also indicated reservations (see here). The gazetting of a fatwa requires the assent of the Sultan.
PROFUSION LEADING TO MORE CONFUSION
ReplyDeleteWhen rules and guidelines are in profusion
People are bound to be led into confusion
With various thoughts thrown into diffusion
Leading different groups to greater division
(C) Samuel Goh Kim Eng - 251108
http://MotivationInMotion.blogspot.com
Tue. 25th Nov. 2008.
What is the ruling for Shi'as in Malaysia? What if the edicts vary with the school of thought of Shafi'e? Is the existence of Shi'as living in Malaysia simply not acknowledge so it will go away? Are we Shafi'e just because we are born in Malaysia? Do we forsake our ancestral and inherited doctrines, rituals and practises?
ReplyDeleteDoesn't the beauty of Islam lie in its diversity?
From my understanding, even Abu Tallib at the end of his tether didn't forsake his ancestral beliefs...even at the behest of our beloved messenger PBUH?
Tak tahu lah kenapa ramai org yg memang walaupun belajar tinggi-tinggi sampai ke universiti boleh jadi bodoh dan cetek fikiran.. baca la betul2 keseluruhan fatwa yg dikeluarkan itu.. kepada org ISLAM.."adakah perkara yg melibatkan AKIDAH itu bukan satu isu yg penting??".. PEMELIHARAAN AKIDAH ITU ADALAH TERPENTING DALAM ISLAM.. jadi fatwa yg melibatkan YOGA adalah dikeluarkan kerana bertujuan untuk melindungi AKIDAH.. tetapi jika diamalkan senaman itu tanpa MANTERA atau doa2 yg tak sepatutnya memang la boleh cuma jgn terpengaruh dgn amalan YOGA AGAMA HINDU..itu sahaja..
ReplyDeleteKepada yg BUKNA ISLAM .. pengharaman YOGA ini adalah utk umat ISLAM bukan kamu pun jadi jgn sibuk..
Dan kepada umat ISLAM yg nak amalkan YOGA teruskan lah cuma buang semua perkara-perkara yg syirik..
Sama seperti ARAK dan BABI dan DEDAH AURAT yang memang HARAM dan di SEBUT dalam KITAB SUCI ALQURAN tetapi masih ramai umat ISLAM yg minum ARAK lagi ada yg turut makan BABI dan terlalu ramai yg dedah aurat..jadi FATWA itu satu peringatan kalau nak buat tu buat la dah dilarang..pandai buat pandai la menjawab dgn ALLAH..
Yang UMAT ISLAM sendiri pun yg melompat membantah meneriak berkenaan fatwa tu FAHAM ke maksud fatwa itu sendiri?? Tahu ke di mana sumber AlQURAN dan HADIS yg dirujuk untuk mengharamkan YOGA dan PENGKID itu??
Yang BUKAN ISLAM pulak jgn masuk campur hal agama orang kerana umat islam tak masuk campur pun berkenaan macam mana kamu nak amalkan agama kamu..
wassalam
Wassalam
the fatwa mengharamkan the non-muslim elements such as chanting and also the unification with god etc.. this is against islamic teachings. what;s the fus? imtiaz, you either are not that clever abour yoga, or about islam. either way you can still do what u want.
ReplyDeletethe chinese are not angry on the fatwa/ruling that muslim cannot eat babi... and the malays/muslims are not angry on the fatwa/ruling by hindu that beef/cow is haram/sacred, cannot be slaughtered or eaten.. again what's the fuss?
Really do not understand the sentiments!!
ReplyDeleteAre you guys against the fatwa or the majlis fatwa.
Everybody conveniently jump into conclusion because experts in the likes of SIS etc seem to be against the fatwa.
Nobody from the Muslim Community says anything when a group of Indians and Chinese girls were chanting insults against the fatwa on PENGKID!
Why? It’s not cool isn’t it?
Now suddenly even the majlis structure, power and functions are also under scrutiny.
Why are we easily hyped-up? Which part of the fatwa is wrong actually?
non-muslims speak up because we are all affected by questionable acts of varying degrees perpetrated in the name of islam that serve to perpetuate the misconception of islam as a regressive or, at worst, violent religion.
ReplyDeletein the face of growing acts of terror and twisted 'jihad' committed by so-called muslims--witness mumbai--our ulamas are only capable of pronouncing rulings on a practice that has long evolved into a beneficial and popular form of exercise for the well-being of mind and body?
even if non-muslims are 'forbidden' to comment on the sad state of affairs in the islamic world, our thoughts remain, and so will our prejudices. that will only serve to spread the islamophobia raging in the west.
in not striving to adapt to modernity (if it all seems a struggle, learn from international islamic scholars who are doing a great job interpreting the Text to remain relevant in today's context) or care about what others think, muslims appear to be isolating themselves--in an age when political, economic, social and geographical barriers are breaking?
that's why i value organisations like sis and people like imtiaz, who point to the humanist, progressive and just face of islam, stressing substance over form.
were it not for sis, I would still think of islam as a religion that discriminates against women, no thanks to horrifying 'injunctions' interpreted through a patriarchal lens--among others, the myth about rape prosecution requiring four witnesses, when it actual fact it was for adultery (and those who accuse falsely are the ones who are flogged, not the accused) and polygamy as a restriction rather than a privilege in light of the promiscuous context then.
but authorities here only see islam as a punitive religion rather than one that is open, welcomes diversity and encourages ijtihad.
- siew eng
Dear Malik, which case by the Federal Court were you referring to?
ReplyDeleteSIEW NG
ReplyDeleteJust curious…how on earth does a Fatwa on Yoga affects the non-Muslim?
Sherhow,
ReplyDeletethe judgment was in re Sulaiman Takrib. The decision is as yet not reported in the journals (I think) but can be found at http://www.kehakiman.gov.my/judgment/fc/latest.shtml (look for Sulaiman Takrib).
MIS
malik
ReplyDeletedream on about fatwa on corruption.
UMNO will be decimated if there is such a fatwa!
Thanks for asking, Damansara.
ReplyDeleteFor now, this guy speaks for me: Must exercise separate us as well?
http://www.malaysiakini.com/letters/94075
And here's a 'thanks' for Malaysia, my country, from an Iranian woman who does yoga.
Should a Pious Muslim Practice Yoga?
http://www.time.com/time/world/article/0,8599,1862306,00.html
In short, I'd really like to look at everyone as a human being. Let nothing divide me and my friends, least of all something as personal as faith. Food is already touchy and involves compromise from both sides, but understandably more from the non-believer's part. But yoga, too?
- Siew Eng