In the 1997 Miss Malaysia Controversy, two contestants of the Miss Malaysia Petite Contest were fined by the Syariah (Ar. sharīʿa) High Court in Kuala Lumpur for breaching a fatwā, or religious edict, which prohibited Muslim women from participating in beauty pageants. The National Fatwā Council of Malaysia issued the opinion on 15 January 1996 and published it into law on 9 February 1996 under the Administration of Islamic Laws (Federal Territories) Act. The fatwā stated that it is both “haram” (Ar. ḥarām), or forbidden by Islamic principles, and “sinful” for a Muslim to join, organize, or contribute in any way to a beauty pageant. In the Malaysian state of Selangor, three other contestants from the same beauty pageant were brought to trial for violating a similar fatwā issued by that state. After their arrest pursuant to a raid conducted during the pageant, the young women’s stories went public. The incident attracted a range of public responses, from disbelief to dismay regarding the lack of transparency in the passing of the edict, the treatment of the women arrested, the grounds of the fatwā, and, most importantly, its status as legally binding.
The fatwā-making process in Malaysia remains controversial among the Malaysian populace. Understanding that process and its significance is critical to comprehending the contours of contemporary debates regarding Islamic law in Malaysia. In this post, I explore the legally binding status of fatāwā (pl. fatwā) in Malaysia as well as the complex system that governs the institutionalization of a fatwā’s authority there.
Although Malaysia has thirteen states and federal territories each with their own Islamic law courts that are able to make their own interpretive choices in adjudication of disputes involving Muslims in personal status law cases, I will focus on the state of Selangor. This focus permits me to delve into the institutional structures through which fatāwā get converted into law.
Selangor, like each state in Malaysia, has enacted an Islamic family law act, a syariah offense act, a syariah criminal procedure act, a syariah court civil procedure act, a syariah evidence act, and an administration of Islamic law act. These enactments are established on a state-by-state basis rather than federally passed nation-wide under the constitutional rule conferring on each state the ability to establish its own rules and regulations governing Islamic law and its own courts to adjudicate disputes about Islamic law. To pass statutes related to Islamic law at federal and state levels, either the executive branch or members of the legislature must propose draft statutes. Statutes are first proposed by the state’s legal advisor and approved by the state’s executive council before being sent to the state’s law-making organs. Then the bill is debated in the legislature, and if passed, is sent to the head of the state or territory. If approved at that level, or deemed approved based on time lapse, a bill will be published in that state or territory’s official gazette. Generally, statutes enter into force immediately upon publication.
Islamic legislation, however, is not passed solely through the legislative process described above. Such statutes can also be passed into law through a state’s official muftī (issuer of fatāwā). In Malaysia, most states have used “Administration of Muslim Law” acts to create official positions for a “state muftī” and have given this official powerful law-making authority. In the statutes that describe the process of appointing muftīs, there is not much detail of their necessary qualifications beyond being a “fit and proper person.” Once muftīs are appointed by the heads of state, the state muftī or fatwā committee that includes the muftī can issue interpretations of Islamic law on almost any topic that, once published in the official gazette, are binding on Malaysian Muslims and enforced by the state’s syariah courts. This background describes the way in which the fatwā in the Miss Malaysia Petite Contest turned into state law.
Under the Administration of the Religion of Islam Enactment 2003 for the State of Selangor, the muftī is the chairman of a state fatwā committee. Membership includes the muftī, deputy muftī, state legal adviser, two members of the Majlis nominated by the Majlis, and an officer of the Islamic Religious Department of Selangor who is well versed in hukum syara’ (Ar. ḥukm sharʿī) or Islamic doctrine to be appointed by the Majlis. Membership also includes not less than two persons and not more than seven “fit and proper persons” appointed by the Majlis, and an officer of the muftī’s department appointed by the Majlis as secretary.
According to the same Enactment, the process of turning a fatwā into state law in Selangor involves the following: 1) the muftī’s request for research or a working paper to prepare a fatwā; 2) the muftī’s convening of a meeting of the Fatwā Committee for the purpose of discussing the proposed fatwā; 3) the preparation of the fatwā by the state Fatwā Committee; 4) the muftī’s submission of the fatwā to the Majlis; 5) the Majlis’s deliberation of said fatwā , and an optional choice to refer the fatwā to the Sultan of Selangor for assent in its publication in the Gazette. If the Sultan approves the fatwā, the Majlis informs the State Government, which then publishes the fatwā in the Official Gazette.
Thus, in order for the fatwā to become binding state law in Selangor, the state muftī, the fatwā committee, the Majlis Agama Islam Selangor, and the Sultan of Selangor must approve of it. After it is published in the Official Gazette of the state, it becomes binding law to be applied in the state syariah courts. Violation of the terms of fatāwā can lead to a punishment of up to three years in prison, six strokes of a cane, or a fine of up to RM 5000 (roughly equal to $1200 USD). These consequences make the issuance of fatwās significant to individual Muslims in Malaysia. (NB: Some fatāwā passed by the Fatwā Committee are also non-binding, and carry fewer, if any, consequences.)
In the fatwā-to-law process is marked by political factors that determine which research questions garner the focus of the committee and the muftī and which become published fatāwā. Why, for example, in the Miss Malaysia Controversy, was it necessary for a fatwā forbidding participation by Muslims in such pageants to be legally binding? What social and political factors make some opinions on Islamic expectations for conduct punishable as opposed to others? What factors drive the gendered implications of issuing a fatwā against participating in a beauty pageant? These are some of the questions that emerge when examining the Malaysian Islamic legal system.
In the end, the state muftī and the Fatwā Committee’s ability to define and establish binding Islamic laws on all Malaysian Muslims calls into question a democratic process for establishing law in Malaysia. Scholars such as Yuki Shiozaki also have written about fatāwā in each state historically being passed to regulate in an authoritarian manner what the Malaysia state saw as “deviant groups” to control in times of political upheaval. These mechanisms for turning fatāwā into law make that possible. While Malaysia’s fatwā-making presents an interesting contribution to codified versions of Islamic law, activist groups and scholars in Malaysia continue to ask whether the criminalization of disobedience to a fatwā is consistent with Islamic legal theory and practice, or even standards of the democratic values that Malaysia espouses in its constitution.
 Teoh El Sen, Beauty Pageant Row Shines Spotlight on Fatwa, Astro Awani (July 25, 2013), http://english.astroawani.com/malaysia-news/beauty-pageant-row-shines-spotlight-fatwas-18984.
 See Const. of Malaysia, List II.
 Farid Shuaib, The Islamic Legal System in Malaysia, 21 Pacific Rim Law & Policy Journal 85 ( 2012): https://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/1094/21PRPLJ085.pdf?sequence=1.
 Administration of the Religion of Islam, Enactment No. 1 of 2003, Section 44 (State of Selangor, Malaysia).
 Yuki Shiozaki, The Historical Origins of Control over Deviant Groups in Malaysia: Official Fatwá and Regulation of Interpretation, 22 Studia Islamika 205 –32 (2005).
 See Sisters in Islam Challenges Fatwā on Liberalism and Pluralism, Sisters in Islam, last modified 31 Oct. 2014, http://www.sistersinislam.org.my/news.php?item.1300.50.