The Mufti Bill will be tabled for a second and third reading in the next Parliament meeting, scheduled to begin on Oct 14. — FAIHAN GHANI/The Star
THE much talked-about Mufti (Federal Territories) Bill 2024 is not entirely new, but it has caused a stir online after Minister in the Prime Minister’s Department Senator Datuk Dr Mohd Naim Mokhtar announced that it will be tabled for a second and third reading in the next Parliament meeting, scheduled to begin on Oct 14.
The Mufti Bill, as it is popularly known, will define the role and the responsibilities of the Mufti in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
Among the duties written out in the Bill is that of the Mufti advising the King on Syariah Law (Section 4), the issuance of fatwas (Section 10), committees to check on fatwas (Section 7), lunar sightings (Section 22) and matters related to the Islamic religious education under Section 26.
The Bill has raised controversy especially regarding the adherence to the Sunni denomination and the al-Asyairah and al-Maturidiyah schools of theology. (See Below)
Some parties have said that the Bill is unconstitutional and threatens to undermine individual freedoms and human rights.
Constitutional experts say what is being proposed is to consolidate all matters related to Mufti and his institution into a single Act which will apply only to the Federal Territories.
They explain that although the Federal Constitution does guarantee freedom of religion under Article 11(1), there are provisions for the states to oversee and control the practice and propagation of the Muslim faith itself.
The experts also point out that the Mufti Bill does not prevent legal challenges against rulings by the Mufti of Federal Territories.
They, however, call for the Bill to embrace the Federal Constitution’s principle of inclusivity by accepting other Islamic schools of thought to foster better unity among the Muslims in the country.
Clause by clause by constitutional experts
According to constitutional law expert Dr Muhammad Hameedullah Md Asri of Universiti Malaya, Clause (4) of the same Article allows the State law, or in the case of Federal Territories, federal law to control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.
“This is akin to the freedom of speech, which too has a number of exceptions – it is not absolute freedom.
“The Bill under its Section 3 introduces the definition of 'Ahli Sunah Waljamaah'. A Sunni is defined as a person who, in respect of aqidah, follows the principles sources from the Ash'arism and Maturidism streams,” says Hameedullah.
He further points out that a fatwa, when gazetted, shall be binding on every Muslims in the Federal Territories according to Section 11(1)(a) of the Bill.
“Under the existing Syariah Criminal Offences (Federal Territories) Act 1997, there are a number of provisions which make it an offence to say, do or produce something against the fatwa.
“For example, this might be considered as propagating 'false doctrine' under Section 4(1) of Act 559 and the guilty person may be subject to fine, or imprisonment or whipping or the combination thereof.
“The question is, of course, not merely about restricting the definition of Sunni to only al-Asyairah and al-Maturidiyah but also, how are they going to treat those who recognise and adhere to another school of thought?
“Are they excluded from Ahlus-Sunnah wa'l-Jama'ah?” Hameedullah argues.
He says if the teachings are so fundamentally wrong and contrary to the basic principles of Islam, then those practising and propagating them can certainly be excluded as deviations.
Hameedullah, however, calls on the legislators to look further into the Bill so as to embrace the principle of “inclusivity” found in Article 3(1) of the Federal Constitution as this will undoubtedly foster unity in the Muslims community rather than further divide them.
Another constitutional expert, Datuk Assoc Prof Dr Wan Ahmad Fauzi Wan Husain, says that to understand the Mufti Bill, one must study the Federal Constitution’s jurisprudential and legal history analysis pertaining to Article 3(1) and Article 3(4).
The International Islamic Thought and Civilisation (ISTAC-IIUM) expert says that this would then resolve ambiguities in interpreting the position of Islamic law in Malaysia.
“The incorporation of Article 3(4) that states, ‘Nothing in this Article derogates from any other provisions of this Constitution’, had ultimately addressed the concern raised by the Malay rulers regarding the inclusion of ‘Islam as the religion of the Federation’ in early drafts of the Constitution.
“This was due to the inherent responsibility of the Malay rulers to protect the faith of Muslim and freedom of religion among their subjects in their respective states.
"Their attitudes were stipulated in the Memorandum of the Malay Rulers dated Sept 12, 1956, articulating their commitment to safeguarding Muslim faith, asserting that matters of Islamic beliefs, including religious freedom and tolerance, should remain under state jurisdiction,” explains Wan Ahmad Fauzi.
He points out that the Constitutional Working Party Committee 1957 proposed that Islam would be recognised as the religion of the Federation, with the Yang di-Pertuan Agong as the head of religion, without undermining the authority of the Malay Rulers in their respective States.
“The Mufti Bill was introduced to ascertain syariah laws within the space of Muslim personal law in the Federal Territories.
“Article 3(5) designates the King as the Head of Islam in Kuala Lumpur, Labuan, and Putrajaya, allowing Parliament to regulate Islamic affairs and establish an advisory council.
“The Federal Territory Islamic Religious Council (MAIWP) was formed to assist the Agong in maintaining Muslim faith according to proper teachings, benefiting both a Muslim and the Muslim community in Kuala Lumpur, Labuan and Putrajaya only.
“Expertise in Islamic law is critical for the roles of Mufti and the Fatwa Committee, where personal preferences should not influence these roles. While local customs dictate schools of thought to be followed in preventing divisions among Muslims, the door for ijtihad (juristic reasoning) remains open.
“The Mufti Bill adheres to the Shafi'e school of thought, reflecting the long traditions respected in the Malay context. Although it prioritises the Shafi'i school, references to other schools are permitted if suitable guidance is lacking, provided they align with Ahlus Sunnah wa Jamaah to avoid disunity and unnecessary conflicts,” says Wan Ahmad Fauzi.
He explains that while Malaysia practises democracy in governance, democracy does not extend to religious matters that require specialised knowledge.
“Sovereignty within our Federal Constitutional framework lies with the Malay Rulers. The Federal Constitution of 1957 was institutionalised by them, and continues to seek their sovereign assent for any legislative acts, not the populace.
“Concerns that the Mufti Bill would prevent legal challenges against Mufti's rulings are misconstrued. In fact, the application of any Mufti's ascertainment of Syariah laws is still subject to the court of competent jurisdiction in administering its relevance to any legal issues and facts.
“The immunity granted to Muftis in the Bill is comparable to the notion that judges cannot be sued for their rulings. It has long been accorded in such circumstances.
“Finally, fatwas do not become legally binding immediately; they require a gazetting process to be formalised, indicating that a Mufti's announcement does not equate to immediate legal authority. In this regard, the King is acting on the advice of MAIWP as stipulated in Article 3(5),” Wan Ahmad Fauzi notes.
The ones for and against the Mufti Bill
Sunday Star also looks at the – often contrasting – perspectives of Syariah law experts Federal Territories Syariah Bar president Datuk Zainul Rijal Abu Bakar and Sisters in Islam (SIS) executive director Rozana Isa on the controversial Mufti Bill.
> Would this Bill, if passed as an Act, be applicable to all states?
Zainul: No. Section 1 of the Bill clearly states that the Act only applies to the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
Rozana: No, this Bill would only be applicable to the Federal Territories only.
Zainul is all for the passing of the Bill. — Sinar Harian
> Do the state have laws similar to the Mufti Bill?
Rozana: Not that we know of. From SIS's experience advocating for Islamic family law reform, usually, federal territories (FT) bill becomes the blueprint for other states to consider adopting the bill and provisions passed at the FT, and states have the mandate to change and amend the provisions accordingly.
Zainul: It is up to each state whether to follow (adopt the bill) or create similar legislation. States have the right not to enact specific mufti ordinances. The Federal Constitution provides that matters concerning Islam are within the jurisdiction of the states.
Rozana has her reservations on the matter. — The Star
> Is the Bill unconstitutional and goes against the basic structure doctrine?
Zainul: The argument that the Mufti Bill contradicts the basic structure doctrine should be dismissed because the application of that doctrine is still in doubt, and there is no clear legal provision regarding its application either in the Federal Constitution or in any enacted laws.
Rozana: Yes, the Bill is unconstitutional and goes against the basic structure doctrine.
Candidates of Mufti have to disclose their school of thought and the Islamic streams in which they believe. Candidates with different schools of thought will never have the chance to be Mufti even though no specific denomination is mentioned in Article 3. This risks violating Articles 5 and 8 of the Federal Constitution which protect personal liberty and guarantee equality.
The role of the aqidah consultant (Section 29 of Mufti Bill), who will be tasked with advising on cases of apostasy or perceived deviations from religious belief.
There is already an existing aqidah consultation unit with very specific functions, thus raising the question why there is a need to legislate person(s) as aqidah consultant. This role will likely lead to coercion in personal matters of faith, infringing on the right to religious self-determination.
> Does this Bill, if passed, relinquish the powers of the King as the head Islam?
Zainul: No, Section 4 of the Act states that the role of the mufti and deputy mufti is to assist and advise the Yang di-Pertuan Agong on all matters of Syariah law, while serving as the primary authority on all Syariah law matters in the Federal Territories. We cannot assume the YDPA to be well-versed in Syariah law, thus the mufti and deputy mufti must be knowledgeable in Syariah to provide assistance and advice. There are strict qualifications for one to be appointed as mufti, to ensure that he is genuinely knowledgeable.
Rozana: This is a grave concern given that the Bill states that the Mufti functions to aid and advise the YDPA on Islamic matters. Furthermore, the Mufti is the chief authority in the Federal Territories after the YDPA.
> Does the Bill provide a ‘blank cheque’ to the mufti to exercise his powers in the issuance of fatwas?
Zainul: The mufti has to adhere to a set of procedures for issuing fatwas. Section 7 outlines the list of members of the fatwa committee, while Section 10 details the process for making fatwas. It will not be the mufti's sole initiative.
The mufti issues fatwas only on matters related to Syariah law. While the mufti can express opinions on Syariah law, these opinions are not binding.
Rozana: In the issuance of fatwa, the King’s role is to give assent for fatwa that needs to be gazetted. Otherwise, the Mufti and the Committee have the power to issue ungazetted fatwa. The concern is on Section 11 where potentially ungazetted fatwa becomes binding and recognised.
In addition, they are able to issue fatwa on the grounds of national interest (Section 13).
They have immunity from suits and legal proceedings as per Section 32 and are able to decide on charging and exemption of fees for services rendered as per Section 30.
