DECEMBER 9 — Our nation is built upon the foundation of the Federal Constitution — a safeguard designed to prevent government overreach, curb the misuse of privilege, and establish clear boundaries for governmental actions. It serves not as a tool to restrict the fundamental liberties of citizens but as a framework to protect those freedoms, ensuring they are limited only in the interest of public welfare and the maintenance of public order.
Laws are meant to serve the Rakyat by enhancing their quality of life, not by imposing restrictions on their thoughts, creating unnecessary barriers in their daily lives, or curtailing their personal freedoms through state-sanctioned punitive measures. The Mufti Bill, which grants unelected officials the power to legislate without transparency or due process, exemplifies the dangerous erosion of democratic principles and constitutional rights. Such laws risk undermining the fundamental freedoms of Malaysians, fostering a culture of control rather than empowerment, and silencing diverse perspectives crucial for a progressive society.
On Thursday, December 5, the Syariah Court Civil Procedure (Federal Territories) (Amendment) Bill 2024 and the Administration of Islamic Law (Federal Territories) (Amendment) Bill 2024 were passed after their third readings. Among the significant amendments is the repeal of Part III of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505), which previously outlined the framework for the gazetting of fatwas.
Critical constitutional and procedural concerns remain despite efforts to engage with the government on the Mufti Bill 2024. The Minister for Religious Affairs, Dato’ Setia Dr. Haji Mohd Na’im bin Mokhtar, has championed these amendments as advancements for the Syariah system and the Muslim community.
Despite numerous inquiries, detailed explanations remain elusive, heightening public unease over the implications of these legislative changes. While several civil society organisations have issued statements addressing the matter, critical questions persist unanswered.
Key issues of concern
1. Excessive delegation of legislative power to unelected officials
For a proposed law to become enforceable, it must undergo a rigorous process within Parliament or the State Legislative Assembly, including debates, readings, assent from the Yang di-Pertuan Agong (YDPA), and eventual gazettement. In contrast, a fatwa can attain the force of law without following this democratic process — bypassing debates or readings in Parliament or the State Assembly. While previously, fatwas in the Federal Territories required YDPA assent under Section 34 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505), this safeguard has been repealed. Alarmingly, the new Section 11 of the Mufti Bill 2024 fails to clarify whether a fatwa must be gazetted before it becomes binding and legally recognised, further eroding transparency and accountability. This raises several critical issues:
- Fatwas will now bind all Muslims, including visitors and travellers in the Federal Territories, infringing upon personal beliefs and practices.
- Muslims will no longer have the ability to exempt themselves from fatwas that contradict their mazhab or practices.
Our nation is built upon the foundation of the Federal Constitution — a safeguard designed to prevent government overreach, curb the misuse of privilege, and establish clear boundaries for governmental actions. — Picture by Yusof Mat Isa
Questions for the government:
Why were the exemptions under Section 34(3) of Act 505 removed?
Under Section 34(3) of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505), a fatwa becomes binding on all Muslim residents of the Federal Territories upon its publication in the Gazette. It is regarded as a religious duty for Muslims in these territories to adhere to the fatwa, which is also recognised as authoritative by all courts in the Federal Territories on matters within its scope. However, exceptions may be made, allowing Muslims to depart from the fatwa in issues of personal belief, opinion, or observance, provided such departures are permissible under Islamic law.
Act 505 serves as the legislative framework for the administration of Islamic law in the Federal Territories, encompassing the constitution and organisation of the Syariah Courts. With the removal of this any and all Fatwas issued essentially become binding.
How does the government reconcile this with the Quranic principle of no compulsion in religion (Surah Al-Baqarah 2:256)?
2. Expanded recognition of fatwas
The replacement of “all courts” with “any court” in the Mufti Bill raises the alarm over the potential for fatwas to be applied in Civil courts, and jurisdictions beyond the Federal Territories, including Native Courts. This undermines the constitutional separation of powers and risks creating:
- Legal confusion between Civil and Syariah jurisdictions.
- Infringements on the rights of non-Muslims, who may be affected indirectly by policies influenced by fatwas.
Questions for the government:
- Does the government intend to expand the application of FT fatwas to Civil courts or nationwide?
- Will the Mufti Bill clearly define “court” to ensure jurisdictional boundaries are respected?
3. Lack of clarity on gazetted and non-gazetted fatwas
The absence of provisions differentiating between gazetted and non-gazetted fatwas introduces dangerous ambiguity. This could lead to arbitrary enforcement and erosion of public trust in the legal system.
Questions for the government:
- Will the Mufti Bill explicitly state that only gazetted fatwas are binding and recognised?
- How will the integrity and fairness of fatwas be ensured without clear procedural guidelines?
4. Broader implications
The removal of Part III of Act 505 and the Mufti Bill 2024 will have far-reaching consequences:
- Judicial overreach: The undefined jurisdiction of fatwas risks disrupting the judicial process, particularly in cases involving Syariah and Civil law conflicts.
- Impact on society: Policies shaped by restrictive fatwas could marginalise non-Muslims and discourage intellectual and religious discourse.
- Constitutional violations: Extending the jurisdiction of MAIWP beyond the Federal Territories risks violating Malaysia’s federal structure and constitutional limits.
Legislative process and lack of consultation
The government’s approach to these amendments has been marked by a troubling lack of consultation and transparency. Changes of this magnitude require:
- Inclusive dialogue with Islamic scholars from diverse schools of thought.
- Input from legal experts to address potential conflicts between Syariah and Civil jurisdictions.
- Representation from Malaysia’s multicultural society to ensure that all voices are heard.
Questions for the government:
- Will the government suspend the Mufti Bill and DR.18/2024 until comprehensive stakeholder consultations are conducted?
Conclusion
The removal of Part III of Act 505 and the introduction of the Mufti Bill 2024 represent an alarming consolidation of power that undermines constitutional safeguards, individual freedoms, and Malaysia’s pluralistic values. To address these concerns, we demand the following:
- Reinstatement of exemptions: Restore the protections and exemptions under Section 34(3) of Act 505.
- Jurisdictional clarity: Limit the recognition of fatwas to Syariah courts within the Federal Territories.
- Transparency: Ensure full transparency in issuing fatwas.
- Stakeholder consultation: Conduct transparent and inclusive discussions with all relevant parties before proceeding with these amendments.
Without these measures, the proposed changes could push Malaysia away from its identity as a moderate, multicultural democracy toward an authoritarian state dominated by unelected officials wielding unchecked religious authority.
The government must uphold constitutional principles, safeguard the rich diversity of Islamic practices, and protect the nation’s democratic foundation.
* About Sisters in Islam
Sisters in Islam is a non-governmental organisation working towards advancing the rights of Muslim women in Malaysia within the framework of Islam, universal human rights principles, constitutional guarantees, as well as the lived realities and experiences of women.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
