A thesis submitted in fulfilment of the requirement for the degree of Doctor of Philosophy in History and Civilization

TRACING THE DEVELOPMENT &

TRANSFORMATION OF RELIGIOUS OPINIONS & THE FATWA INSTITUTION IN MALAYSIA

BY

SITI HADIJA MOHD

A thesis submitted in fulfilment of the requirement for the degree of Doctor of Philosophy in History and Civilization

Kulliyyah of Islamic Revealed Knowledge & Human Sciences

International Islamic University Malaysia

JUNE 2020

ii

ABSTRACT

Malaysia is the only country in the world to have multiple official muftis. In addition to that, Malaysia also puts fatwa and matters related to Islam under state administration rather than under the federal authority. This unique phenomenon has struck a lot of curiosity of its historical roots. Without dismissing the legal perspectives of it but focusing more intensely on the history side of it, this research traces the development of religious opinions and fatwa institution in British Malaya from the commencement of the terms in Pangkor Treaty up until now. The research has asked how had British colonialism in Malaya affected the growth, issuance and development of fatawa and religious matters and how had the measures the British took in Malaya impacted the transformation of the country’s state-based fatwa institution. Other than that, the study has inquired the development and transformation of this institution and its related agencies post-independence until the current day. To answer these questions, the study followed through with evidences from many primary and secondary sources, through inductive analysis and thematic study, all of which to serve the historical narration in question. Many primary manuscripts, memos, newspaper articles, reports, minutes of meetings and court cases were analysed inductively to create the narrative sought in the objectives. Several interviews were also conducted with five of the fourteen contemporary Malaysian muftis. The study has, thus, achieved its objective to highlight the tools and strategies used by the British in intervening with Islamic matters.

Additionally, the study through its investigations has found repeating themes within many different cases and events in regards to the issuance and application of fatwa.

Ultimately, the study has also explored different possibilities, and suggested them as well, in harmonising and standardising the state-based fatwa issuance in Malaysia.

Among the suggestions are to have the National Fatwa Council to be neater and more robust in fatwa research because it gives more confidence to the states to receive it without a lot of questions, and where it will help towards aligning fatwa issuance.

Therefore, the National Fatwa Council is encouraged to provide more exposure to its officers with training, local or international short-term career placement, conducting more fatwa dialogues and so on. In addition to that, adequate research facilities and funds as well as good relations between researchers will help in producing truly quality research. As a long-term measure, the setting up of a Fatwa Coordination Centre should be sought to make the fatwa institution in Malaysia more aligned and able to address the problem of Muslims more effectively.

iii

صَّخلُم ثحبلا

تيالاولا تارادإ اهيف ردصُتو ،ينيسمرلا ينتفلما نم ددع اهيدل تيلا لماعلا في ةديحولا ةلودلا يازيلام اهروذجو ةديرفلا ةرهاظلا هذه ترثاأ دقو ،ةيداتحلاا ةطلسلا نم ًلادب ةيعرش لئاسمو ىواتف اتلا بنالجا ىلع زيكترلا للاخ نمو ،لوضفلا نم اًيرثك ةييخراتلا نود نمو ،ةرهاظلا هذله ييخر

في ءاتفلإا ةسسؤمو ةينيدلا ءارلآا رُّوطت ثحبلا اذه عَّبتتي ؛اهيف ةينوناقلا رظنلا تاهجو داعبتسا رامعتسلاا يرثتأ ةيفيك نع لءاستيو ،مويلا لىإ روكنبا ةدهاعبم مازتللاا ةيادب نم ةيناطيبرلا يالالما ىواتفلا رادصإ ىلع يالالما في نياطيبرلا تاءارجلإا يرثتأو ،اهروطتو ةيعرشلا لئاسلماو ةينيدلا

نع ثحبلا رسفتسا امك ،ةلودلا في ءاتفلإا ةسسؤم لوتح ىلع يالالما في زيلنجلإا اهذتخا تيلا ؛ثحبلا ةلئسأ نع ةباجلإلو ،مويلا لىإ للاقتسلاا دعب نم اتهلااكوو الهوتحو ةسسؤلما هذه روطت لماو رداصلما ضعب نم ةلدأ تدمُتعا ؛ةيتاعوضولما ةساردلاو يئارقتسلاا ليلحتلا للاخ نم عجار

ةيفحصلا تلااقلماو تاركذلماو تاطوطخلما ضعب ليلتح ىرجو ،نيعلما ييخراتلا درسلا ةمدلخ عم تلاباقم تيرجُأو ،دارلما درسلا ةغايصل ؛ةمكلمحا يااضقو تاعامتجلاا رضامحو ريراقتلاو ا نيطولا ءاتفلإا سلمج ءاضعأ نم ةسخم زاربإ في هفده ثحبلا ققحيل ؛نيرصاعلما رشع ةعبرلأ

نم تنَّيبتو ،ةيملاسلإا نوؤشلا في لخدتلل زيلنجلإا اهمدختسا تيلا تايجيتاترسلإاو تاودلأا رادصبإ قلعتي اميف ةفلتخلما ثادحلأاو تلاالحا نم ددع في ٌةرركتم ُعيضاوم قيقحتلا للاخ سنت ثحبلا حترقا ؛هيلعو ،اهقيبطتو ىوتفلا نوكي نأو ،يازيلام في هديحوتو ىوتفلا رادصإ قي

اهيقلتل ةقثلا نم اًديزم تيالاولا حنيم هنلأ ؛ىوتفلا ثابحأ في ىوقأو َّقدأ نيطولا ءاتفلإا سلمج هسفن سللمجا عيجشت عم ،ىوتفلا رادصإ نزاوت في دعاسُي اذهو ،ةلئسلأا نم اًيرثك -

ىلع

بيرقلا ىدلما -

بيردتلا نم ديزم يرفوتل تاراوح نم ديزم ءارجإو ،اًّيلودو اًّيلمح هئاضعلأ

ىواتفلا في ثابحأ جاتنلإ ؛ينثحابلا ينب تاقلاعلا ينتتمو ةبسانلما ةيثحبلا قفارلما معدو ،ءاتفلإا

ةسسؤم يرصتل ؛ءاتفلإا قيسنت زكرم ءاشنإ لىإ يعسلا يغبني ؛ديعبلا ىدلما ىلعو ،ةدولجا ةيلاع

جسنا رثكأ يازيلام في ءاتفلإا

.بركأ ةءافكب ينملسلما لكاشم ةلجاعم ىلع ةردقو اًما

iv

APPROVAL PAGE

The thesis of Siti Hadija Binti Mohd has been approved by the following:

__________________________

Mohd. Helmi Mohd. Sobri Supervisor

__________________________

Fauziah Fathil Co-supervisor

__________________________

Hafiz Zakariya Internal Examiner

__________________________

Wan Kamal Wan Mujani External Examiner

__________________________

Rahimin Affandi Abdul Rahim External Examiner

__________________________

Arshad Islam Chairman

v

DECLARATION

I hereby declare that this thesis is the result of my own investigations, except where otherwise stated. I also declare that it has not been previously or concurrently submitted as a whole for any other degrees at IIUM or other institutions.

Siti Hadija Mohd

Signature ……… Date ………..

vi

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

DECLARATION OF COPYRIGHT AND AFFIRMATION OF FAIR USE OF UNPUBLISHED RESEARCH

TRACING THE DEVELOPMENT & TRANSFORMATION OF RELIGIOUS OPINIONS & THE FATWA INSTITUTION IN MALAYSIA

I declare that the copyright holder of this thesis/dissertation are jointly owned by the student and IIUM.

Copyright © 2020 Student Name and International Islamic University Malaysia. All rights reserved.

No part of this unpublished research may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission of the copyright holder except as provided below

1. Any material contained in or derived from this unpublished research may only be used by others in their writing with due acknowledgement.

2. IIUM or its library will have the right to make and transmit copies (print or electronic) for institutional and academic purpose.

3. The IIUM library will have the right to make, store in a retrieval system and supply copies of this unpublished research if requested by other universities and research libraries.

By signing this form, I acknowledged that I have read and understand the IIUM Intellectual Property Right and Commercialization policy.

Affirmed by Siti Hadija Mohd

……… ………

Signature Date

vii

This work of research is dedicated to Mak, Abah, Ana, Adik, Colin, Iya, Izzat, Ima, Alisha, Nuha & Rayyan. Your love is immeasurable as it is incomparable. I am ever

grateful and undeserving of your affection, support and protection.

viii

ACKNOWLEDGEMENTS

The Mercy of Allah, our Almighty Lord, is boundless. If I had not realized this before the start of this research, I definitely have by now. Through every impossible situation that has left me disappointed, devastated and with very minimal faith in myself, the Merciful Lord has shown me again and again that His love and protection are always surrounding me. I keep finding myself having more than enough to go on and to continue fulfilling the purpose of this study and of my life.

I am in more ways than one very indebted to my main research supervisor, Assistant Professor Dr. Mohd Helmi Mohd. Sobri. He has been undoubtedly a very strong figure to me throughout my research and writing. He has shown absolute kindness through his very polite mannerism. Even in times where I was supposed to be told off for my stubbornness, he would still be choosing all the polite, gentle and kind words to correct my position. He has, masha Allah, a brilliant grasp on the subject and has been very committed to ensure the completion and success of the study. I thank him for his time, commitment and kindness.

I am also very grateful to Prof. Dr. Arshad Islam, who was the first person in this world to believe that I would one day have a PhD in History and Civilisation. Coming from the Biomedicine and the Life Sciences world with years being trained to work in the genetic laboratory, I was secretly dreaming of being a historian as well as a scholar of an inter-disciplinary and inter-departmental background. Before Prof. Dr. Arshad Islam, nobody else believed that I should jump into a different direction. I was almost foregoing my dream of pursuing my passion, history, before I met Dr. Arshad. Being a degree holder of Biological Science himself, he told me that he did not stop himself from pursuing his further education (master’s degree and doctorate) in the humanity field and in history. That short meeting with him on one afternoon in late 2010 had opened my perspectives and had led me to apply for Masters in Human Sciences in History and Civilisation in 2011. 3 years later, I achieved my master’s degree and now I am about to receive my doctorate in History and Civilisation. Thank you, Dr. Arshad!

I will never be tired to tell this story to every person who asks “Why history from biomedical science?”

My gratitude is for Prof. Dr. Hassan Ahmed Ibrahim who was ever so kind to me. I remember being a very young student in his classroom and admiring his knowledge, language eloquence and articulation. Prof. Hassan was one of those people who put me in the map. He always insisted on my opinion in classroom discussion and he always made me smile with his annotation on the papers I submitted to him. Through his confidence in me, I also found confidence in myself. My utmost respect and adoration to you, Prof. Hassan! I would also like to thank Prof. Dr. Ibrahim Zein who chose me to be his PhD student back in 2015. Who would imagine that a distinguished Professor who was also the Dean of the Kulliyyah of Islamic Revealed Knowledge and Human Sciences (KIRKHS) would give a nobody person like myself a call and request that I further my PhD under his co-supervision, as well as to be his Research Assistant and a

ix

part time lecturer for the History Department. I thank him very much for the knowledge he shared and for his guidance and kindness.

My sincere gratitude to Associate Prof. Dr. Hafiz Zakariya, Assistant Prof. Dr, Elmira Akhmetova, Assistant Prof. Dr. Fauziah Fathil, the late Assistant Prof. Dr. Wan Suhana Wan Sulong (may Allah Bless her soul and Grant her paradise) and Prof. Dr. Ataullah Kopanski. I may not have had a lot of opportunity to interact more with your kind selves apart from inside of the classroom being one of your students, but I hope you will know that I am very grateful to have known you and to be blessed the opportunity to learn from you. I wish I was more articulate and assertive in person and was able to let you know my deepest and sincerest appreciation of your shared knowledge and kindness over the years. Thank you very much!

A special acknowledgment and gratitude to a very consistent figure in my life who has stood by my side, for 16 years now - whom has helped me keep my sanity. Diana, through the ups and downs of our 16-year old friendship, you have again and again taught me how to be a good person, how to keep my temper checked and how to have a lot of fun! I hope you know how important you are and your friendship is to me.

My absolute love, gratitude and admiration go to my parents, Mak and Abah for their prayers, understanding, endurance, empathy and love. Life would be unbearable without you. Please know Mak and Abah, every single thing that I do right in this life, I do it for you. Mak and Abah, you are the epitome of parents. Your complete faith in the importance of education has opened a lot of opportunities for all of your children. I hope the completion of this research, the significance of this study and my receiving this doctorate will make you proud of me and of yourselves.

To Ana, Adik, Colin, Iya, Izzat & Ima, I am very lucky to be your sister. I do not even have to earn your love. Your generosity has no borders. Thank you very much for believing in me. I know that you had to let go some of your dreams so that I could achieve mine. Allah will reward your sacrifices in folds as I cannot even imagine being able to return your kindness.

To my nieces & nephew, Alisha, Nuha and Rayyan; you make life so wonderful! The world is much more joyful and beautiful because of you. You bring out the best in me.

You love me in the purest form of love and without any conditions. The loves of my life - you are. Please know that the sky is the limit. You can achieve anything and everything that you set yourselves for.

Once again, I glorify Allah for His endless mercy on us - one of which is enabling me to successfully round off the efforts of writing this thesis. Alhamdulillah!

x

TABLE OF CONTENTS

Abstract ……….………...ii

Abstract in Arabic ………...iii

Approval Page ………...iv

Declaration ………...………....…...v

Copyright ….………...……….……...vi

Dedication.……….……. .vii

Acknowledgements ………....….viii

List of Court Cases ………..….xii

List of Statutes ………...………….xiii

List of Acronyms……….…...xiv

Glossary of Non-English Terms ………. xv

CHAPTER ONE: INTRODUCTION ………...…...1

1.1 Background of the Study………...1

1.1.1 Historical Development of Fatwa ………...2

1.1.2 The Curious Case of the Role of Fatwa in Malaysia ……….…...6

1.2 Statement of the Problem ………....19

1.3 Research Questions ………21

1.4 Objectives of the Study ………..21

1.5 Significance of the Study ………22

1.6 Literature Review ………...24

1.7 Research Methodology ………...35

1.8 Organization of Chapters and Titles ………..38

CHAPTER TWO: THE COURSE OF AUTHORITY & LEGAL STATUS OF ISLAMIC JURISDICTION IN MALAYA IN THE LATE 1800s TO EARLY 1900s ………...…...43

2.1 Introduction: The Coming of the British ……….43

2.1.1 Brief History of the British Sphere of Influence in the Malay Peninsula……….47

2.2 The Pangkor Treaty ………....56

2.3 The Existing Judicial System & Islamic Authority Before the Pangkor Treaty ……….66

2.4 British Officers Contesting the Relevance of Local Governments and their Customary Law ………...71

2.5Assimilating Customary Laws under Civil Jurisdiction ………..…80

2.5.1 Ordinance No. 5 of the Mohammedan Marriage Ordinance ……...83

2.6 Influence of Islamic Laws in the Early 20^th Century in Public and Court Rulings ………...86

2.6.1 Fatwa Ruling on Kedah Co-Operative Society in 1926………….87

2.6.2 The Case of Ramah Vs. Laton 1927 ……….….89

2.6.3 Civil Court in 1940 on Non-Muslim Family Claiming Deceased Muslim Family’s Property ………...……92

2.7 Conclusion. ………..…..93

xi

CHAPTER THREE: THE GROWING ROLE OF INTELLECTUAL

ISLAMIC OPINIONS & FATWA UNTIL 1970 ...……….96

3.1 Introduction ………96

3.2 Intellectual Islamic Reformism in Malaya in the Early 20^th Century …….101

3.2.1 Internal & External Factors that Led to Islamic Reformism in Malaya……….102

3.2.2 The Role of Islamic Opinions & Religious Calling in Selected Publications: Al-Imam & Saudara ………...111

3.3 The Growing Needs for Fatwa & Religious Opinions in the Mid-20^th Century ……….…...116

3.3.1 Conflict of Fatwa & Religious Opinions among Religious Figures..117

3.3.2 Conflicting Fatwa & Religious Opinions on the Status of Lottery Money ………. ………123

3.3.3 The Move for the Exclusivity of Muftis as the Only Entity to Issue Fatwa ………...130

3.4 Conclusion. ………..134

CHAPTER FOUR: MUFTI AND FATWA IN POST-COLONIAL & MODERN DAY MALAYSIA ………. 139

4.1 Introduction……… 139

4.1.1 The Concept of Fatwa Issuance in Modern Day Malaysia ………...142

4.2 Legal Nature of Fatwa in States in Malaysia ……….145

4.3 Dissimilarity of Opinions and Lack of Standardization of State-Based Religious Practices ………152

4.4 Similarities and Differences of Opinions of Contemporary Muftis; The Ultimate Sources of Fatwa ………..159

4.5 Conclusion...………...175

CHAPTER FIVE: CONCLUSION.……….... 183

BIBLIOGRAPHY……….193

xii

LIST OF COURT CASES

Ramah Vs. Laton 1927

Non-Muslim family claiming deceased Muslim family’s property, 1940 Appeal Court Catholic Herald’s appeal to use the name Allah

xiii

LIST OF STATUTES

Selangor’s Prevention of Adultery Regulation (1894) and the Marriage Registration and Marriage Registration Act 1900

English Criminal Code 1902 English Penal Code 1905

Mohammedan Marriage Ordinance (Ordinance no.5, 1880)

Muhammadan Marriage and Divorce Registration Enactment Chapter 197 Co-operative Societies Enactment 1922

Sharia Criminal Offense Act 1997, Laws of Malaysia, Act 559 Jadual Kesembilan, Senarai II, Perlembagaan Persekutuan

Sharia Criminal Offense Act 1997 of Section 99, Laws of Malaysia, Act 560 Islamic Law (Federal Territory) Administration Act 1993, Part III, Appointment of Mufti

Administration of Islamic Law Enactment 1991 Pahang, no. 3

xiv

LIST OF ACRONYMS

FMS: Federated Malay States

JAIS: Jabatan Agama Islam Selangor (Selangor Islamic Department) MAIS: Majlis Agama Islam Selangor (Selangor Islamic Council) MFK: Majlis Fatwa Kebangsaan (National Fatwa Council)

MKI: Majlis Hal Ehwal Kebangsaan Agama Islam (National Islamic Council) NFC: National Fatwa Council

PAS: Parti Islam Se-Malaya (Malayan Islamic Party) UMNO: United Malay National Organisation

S.A.W: Sallallahu Alaihi Wassalaam (peace be upon the Prophet)

xv

GLOSSARY OF NON-ENGLISH TERMS

Adat: Culture and custom Agung: The King

Ahli Sunnah wal-Jamaah: Group that follows the Quran and the Prophet’s traditions Alim: Educated people in the religion

Al-Mujtahidun: Those who perform ijtihad Al-Muqallidun: Those who follow taqlid Aqidah: Belief system

Aqli: Using the thinking faculty

Bilal: The person who calls for prayers at mosques Dakwah / da’wah: Spreading the teaching of the religion Datoh: An honourable title for the Malays

Dua: Prayers

Faraid: Fixed portions allotted to heirs Fasakh: Dissolution of marriage

Fatwa: A ruling on a point of Islamic law given by a recognized authority.

Fiqh: Theory or philosophy of Islamic law Halal: Permissible

Haram: Not permissible Harus: Allowed

Hikmah: Wisdom Hisab: Calculation Ibadah: Worship to God

Iddah: The period observed by women after the demise of her late husband or after been divorced

Ijma’: Consensus

Ijtihad: The process of making a legal decision by independent interpretation of the legal sources, the Qur'an and the Sunnah

xvi

Instibat: The power of decision making of Islamic law based on existing Quranic or Sunnah arguments.

Iqamah: The second call to prayer following the main one Islah: Islamic Reformation

Jawatankuasa Hal Ehwal Islam: Islamic council Jawantaknuasa Fatwa: Fatwa council

Jawi: Malay writing in Arabic letters

Kadi/kadhi/kazi/Qadhi/Qadi: Muslim judge. In the contemporary times, a kadi is usually someone who marries off Muslim couples rather than who decided a court trial.

Kafir: Non-Muslim

Kaum Muda: Youth Faction Kaum Tua: Old Faction

Keffiyyah: Head attire of Muslim men Khalifah: Muslim leader

Khatib: The person who recites the sermons at mosques Khilafiah: Differences in opinions

Koperasi: Co-operative society Kufu’: Having similar values

Majlis Raja-Raja: The Ruler Council Mata-mata: Detective

Mazhab/madhab: Sect

Mufti: A Muslim legal expert who is empowered to give rulings on religious matters.

Muzakarah: Conference Penghulu: Head of a village

Poco-Poco: Traditional dance from the Philippines originated from Jamaica Qiyas: The process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an

Qunut: A type of prayer recited during the morning prayer Raja di-Hilir: One of the Rulers in Perak

xvii

Rakaah: Number of times a person stands in a prayer Rasulullah: The Prophet Muhammad

Riba: Interest

Rukyah: Deciding the beginning of an Islamic month by looking at the new moon Shahadah: The recitation that admit Allah is the only God and Muhammad is His messenger. This recitation makes the reciter a Muslim

Sheikh-ul-Islam: The title for a Mufti

Shirik: The drop of someone’s Muslim status Subuh: The morning prayer

Surau: Small mosques

Tabi’in: The group of people in the generation after the Prophet and his companions.

They did not meet the Prophet but may have met some of the companions Tabi’ Tabi’in: The group of people in the generation after the Tabi’in Tahiyad: The last act before the completion of a Muslim prayer Talaq: Divorce

Taqlid: Uncritical and unqualified acceptance or the conformity of one person to the teaching of another

Tawhid: Islamic faith Tuhan: God or Lord

Ulama: Knowledgeable and credible Muslim scholars Ummah: The Muslim community

Umrah: Small pilgrimage to Mecca Undang-undang: Law

Wahyu: Revelation of the religion to the Prophet from God Wali: A girl’s or a woman’s male guardian

Wirid: Recitation of prayers and praises for Allah and his Prophets Yang di-Pertuan Agung: The King

Zikir: Remembrance of Allah through wirid and prayers

1

CHAPTER ONE INTRODUCTION

1.1 BACKGROUND OF THE STUDY

One of the many things that are unique about Malaysia is the fact that it is the only country in the world that has multiple number of muftis. In fact, the country has fourteen muftis¹ altogether given the fact it is comprised of thirteen states and one federal territory. In reality, out of these thirteen states and one federal territory, Malaysia has only nine states that have a king, or Sultan, or Raja or Yang di-Pertua. These Rulers, are constitutional rulers who serve mostly as the symbol of Islam and of the Malay interest². They are monarch who do not possess absolute power like the monarchs of Brunei and the Kingdom of Saudi Arabia. In fact, much like all the citizens of Malaysia, they are as well citizens and residents who are under the ruling of the parliamentary government of Malaysia whose constituents are elected in a general election every 5 years. Despite this fact, another unique phenomenon in Malaysia is the fact that the Islamic jurisdiction, which is inclusive of the Sharia law, of fatwa issuance and of other matters pertaining to Islam, is actually under the authority of states under the protection, influence, supervision and approval of the state ruler – and not under the direct authority of the federal government³. This means that, each state has their own authority and jurisdiction when it comes to Islam and the application of Sharia law, as well as in the

1 Wan Azhar Wan Ahmad. “Growing Needs for a Grand Mufti.” The Star Online, March 20, 2007, https://www.thestar.com.my/opinion/letters/2007/03/20/growing-need-for-grand-mufti/

2 Ramizah Wan Muhammad, “Sejarah Pentadbiran Kehakiman Islam di Malaysia: Satu Sorotan,” Kanun: Jurnal Undang-Undang Malaysia, 21(1), 2009, 1-2 3 Timothy P. Daniels, Living Sharia: Law and Practice in Malaysia, (University of Washington Press, 2017)

2

issuance of fatwa⁴. Each state ruler or state king, be it their title a Sultan, Raja, Yang di- Pertua has their most right-hand religious advisor, a mufti. This is a traditional role inherited from the old Islamic traditions. The mufti’s role has always been dynamic throughout the different religo-socio-political times and different geographical locations. However, in general, they gave religious and legal advice not only to the ruler, but to anyone who sought their opinions. In addition to that, they also acted as a judge in court, matrimonial officiant, and solution provider to any legal and non-legal matters, scholar and many other roles related to Islamic jurisprudence⁵.

1.1.1 Historical Development of Fatwa

Before Malaysia and its history is discussed in the context of fatwa and Islamic jurisprudence, it is quite necessary to give a quick narration of the historical development of on the concept and traditional history of fatwa in Islam and in its traditional sense as a background understanding for the readers. The word fatwa in Malay comes from the Arabic word al-fatwa or al-futya. It is derived from the words ئتف and ؤتف meaning “ةنابلاا which means an explanation. From the root word al-fatwa or al-futya comes the name of the derivative of al-ifta which means to explain. Thus, the name of the al-ifta derivative is best suited to the concept of al-fatwa or al-futya⁶. Although fatwa and futya have similar meanings, the word fatwa is more widely used.

In the context of the Malay word fatwa has been received in the Malay Muslim community, especially in Malaysia.

4 Sharifah Suhana Ahmad, Malaysian Legal System, (Malayan Law Journal Sdn. Bhd., 2001); Badruddin Ibrahim, Mahamad Arifin & Abdul Rashid el- Hasany, “The Role of Fatwa and Mufti in Contemporary Muslim Society,” Pertanika Journal Social Sciences and Humanities, 23 (s), 2015, 323 5 Daniels, op.cit., 44

6 Mohammed Farid Ali, Principles of Issuing Fatwa (usul Al-ifta) in the Hanafi Legal School: An Annotated Translation, Analysis and Edition of Sharh Uqud Rasm Al-mufti of Ibn 'Abidin Al-Shami, International Islamic University Malaysia, 2013

3

Malaysia practices the direct referring to the Quran and the Sunnah⁷ in making decisions and/or solving a problem in Islam and in all questions pertaining to the concept of Islamic jurisprudence. When one could find a direct answer from either source, the exercise of either or both ijma' (consensus) and qiyas (analogy) is used⁸. Ijma’ refers to the consensus achieved after a thorough research and discussion by those who are experts in Islamic jurisprudence, while qiyas refers to the practice of using similar cases that happened in the past (be it during the times of the Prophet or up until the current time), and how those issues were handled and resolved. In qiyas, the methods and solutions would be referred to and if suitable, extrapolated to the current issue at hands. Both methods are usually closely interrelated and used together. The making use of either or both methods is called an ijtihad whereby the decision or solution that comes out from this process is called a fatwa. Since Malaysia practices the use of fatwa through its 14 state fatwa bodies and muftis, it is crucial to outline the history and general concept of fatwa⁹.

With that said, fatwa has been part of the Islamic jurisprudence system that has existed since the time of Rasulullah s.a.w. The fatwa institution had developed especially during the Omayyad and Abbasid times and it has continued its roles in the Islamic law throughout the Ottoman time and has survived until today¹⁰. Throughout the Islamic history, the responsibility to come out with a fatwa has shown to be one of the most important bases in the Islamic laws and legal systems. It is a legacy of the Prophet s.a.w, his companions and the knowledgeable people in the religion, the ulama'.

During the prophet's time, all matters regarding the religion was referred to him. He was

7 Sunnah means Hadith or sayings and guidance from the prophet s.a.w, and his traditions.

8 Ahmad Hassan. The Doctrine of Ijma in Islam. 1991. Pakistan.

9 Ibrahim et.al, op.cit , 316-322

10 Othman Hajji Ishak, “Fatwa Dalam Sistem Pemerintahan dan Kehakiman” in Mufti dan Fatwa di Negara-Negara ASEAN. Editors: Abdul Monir Yaacob.

Wan Roslili Abd. Majid. 1998. IKIM. Malaysia.

4

the ultimate referral medium as he received direct revelation ('wahyu') from Allah s.w.t.

Hence, the institution of fatwa was not built or developed as it was not a necessity. After the passing of the Prophet s.a.w, arrived the time where it became necessary for the next ones in line, the companions of the Prophet, to be referred to in things that required the position of the religion to be consulted. They were called "Al-Mujtahidun min As- Sahabah" (The diligence among the Companions). However, there were unavoidably differences and variations of opinions due to differences of background and understanding from each companion.

Among the most active companions who had issued fatawa were Abu Bakr As- Siddiq, Umar Al-Khattab, Uthman Ibn Affan, Ali Ibn Abu Talib, Abd Al-Rahman Ibn Auf, Abdullah Ibn Masud, Ubai Ibn Ka'ab, Mu'az Ibn Jabal, Ummar Ibn Yasir, Huzaifah Ibn Al-Yaman, Zayd Ibn Thabit, Abu Al-Darda, Abu Musa Al-Ashaari and Salman Al- Farisi¹¹. After the passing of the Prophet, the Khalifah referred all matters that needed resolving to the Quran and the traditions, Sunnah, of the prophet. If the matters could not be resolved by either resource, or had no example shown during the prophet's time, the Khalifah would refer to other companions if they would have any knowledge that this specific Khalifah may have missed from the Quran and the Sunnah. If, still the matter did not have any solution directly from the Quran and the Sunnah, then the Khalifah would make his own ijtihad to issue a fatwa regarding the certain matter and this fatwa would be issued as a valid law in the Islamic legal system¹². This role of the Khalifah was then being extended to other companions who were local rulers of smaller areas and districts. They were given the responsibility during the time of Khalifah Umar Ibn Khattab to perform the ijtihad as they were very well versed in the Quran and the

11 Othman Haji Ishak. Fatwa Dalam Perundangan Islam. 1981. Malaysia.

12 Ibrahim, et.al., op.cit, 316-322

5

Sunnah, not to take for granted their status as the companions of the prophets when he was alive¹³. However, according the fourteenth century Islamic philosopher and historian, Ibn Khaldun, not all companions were credible in issuing a fatwa, only those who were very well acquainted in the Quran and Sunnah were considered as conceivable to issue a fatwa and to perform ijtihad. The next layer of groups of people who were also Al-Mujtahidun were the Tabi'in and the Tabi' Tabi'in. It was very likely that they also followed the same manner as the Khalifah and the companions in making their ijtihad in matters that required the attention of the religion. As a basic rule, the Quran and Sunnah would be referred to. The next referral would be the ulama.

Ultimately, the leader would come out with a fatwa using his ijtihad based on the resources that he had referred to¹⁴. This system prolonged quite systematically, and synonymously in places where Islam was the official religion, until the tenth century whereby the taqlid understanding arose in the evolvement of the four individual mazhabs; Hanafi, Maliki, Shafi'i and Hanbali. The people of each mazhab would from now be following the ijtihad of each sect, and this manner is considered as taqlid. The people who perform al-taqlid are called al-muqallidun¹⁵.

Since a fatwa is a statement of ijtihad by a mufti or a collection of mufti, the position and quality of the fatwa is very much dependent on the background of the mufti himself¹⁶, as well as of the fatwa institution, if such institution exists in the specific country or region. As mentioned in earlier abovementioned text, a mufti should be someone who is very well acquainted with the knowledge from the Quran and the Sunnah. He should also be someone who is capable to perform the ijtihad. His

13 Kassim Salleh. Ijtihad. Sejarah dan Perkembangannya. 1989. Malaysia.

14 Haji Ishak, op cit

15 Ibrahim, et.al., op.cit, 316-322 16 Haji Ishak, op cit

6

understanding must be both physical, in terms of the physical evidence of knowledge and qualifications, as well as intellectually skillful to come out with solutions by using the Qiyas¹⁷ system. According to Imam Ahmad Ibn Hanbal, there are five criteria that a person or an ifti must have in order to be credible in being involved in the making, developing and issuing a fatwa. He must have a genuine and sincere intentions as a basic criterion. Second, he must possess a loving and affectionate nature, as well as humbleness. Thirdly, he must have a complete confidence in his skills and knowledge as someone with a position to issue a fatwa. Fourth, he must come from a background whereby his financial situation is moderate and suffice for survival. This means that a mufti should not be a poverty-stricken person who may constantly worry about the survival of his life. Also, to be financially stable is important so that the mufti would not be influenced by the ideas and offers of money and power by the rulers and politicians. Lastly, he should have enough information and access to further knowledge about the people, life, culture and behaviour of his society. According to Imam Al- Ghazali, a mufti must have a vast knowledge in the religion. He should be someone who is fair in his judgment and has a profound expertise and awareness in the Hadith knowledge¹⁸.

1.1.2 The Curious Case of the Role of Fatwa in Malaysia

The above background is important to serve as an awareness of the traditional history of fatwa formulation and processes. This is because in the later stages of the research, it looks into how fatwa works in Malaysia through the perspectives of selected muftis’

17 Qiyas means analogy. In order to perform ijtihad and to come out with a fatwa or a solution to an issue, whereby there is no direct reference or example to be followed from the Quran and Hadith, a mufti must be able to compare the problems in hands with similar issues that may have been previously resolved by the Prophet, his companions or by traditional ulama.

18 Ibid. Haji Ishak. 1998, op cit

7

opinions. Their outlook and opinion are in regards to the credibility, and qualifications of a person appointed to be a mufti, as to whether this rule of thumb of traditional mufti and fatwa application is applied in Malaysia or not. The relevance for this is to answer to research question which asks the development and transformation of fatwa and religious opinions in Malaysia, in the modern times. These roles of muftis and the fatwa institution, in Malaysia particularly, have been a topic of interest among many researchers in Malaysia, particularly of those from the legal and Sharia background. As will be seen throughout the literature reviews and the cited secondary sources all through this thesis, many works have actually been done to scrutinize this unique situation in Malaysia. The usual theme that is considered is the lack of harmony and the incumbent and inevitable conflict of opinions and interest when states have different opinions and practices, in regards to Islam particularly on fatwa, from one state to another. However, while many of the previous works are a great contributor and inspiration for this research, it was realized that not a single study has systematically traced the historical evidences of the development and transformation of the roles of muftis and of the roles of other related or equal religious officers. There has also no systematic study to historically trace - era by era - the role, development, and transformation of the fatwa institution and Islamic offices in Malaya from the time of the British occupation up until now. To add to that, there has also not been any study that dedicated its research to trace the intervention of the British, directly or otherwise, to the administration of Islam in Malaya (all the three units; the Straits Settlements, Federated Malay States and Non-Federated Malay States are referred to as British Malaya in general, mostly in this research). This intervention and its subtleness can actually be seen, through the evidences collected and analysed by this research, as early as the 1820s, of which was revived in the 1870s following the decade of the Pangkor