Sisters in Islam calls on the government to review the fatwa as an instrument of mandatory and binding rule-making in Malaysia. Our call is made on the grounds that fatwa having the automatic force of law:

- have no basis in Islamic legal theory and practice;

- conflict with the federal constitution; and

- result in confusion, selective prosecution and victimisation in their enforcement.

Firstly, fatwa are theological and legal reasoning given by the mufti or the ulama to enlighten and educate the public so Muslims can arrange their affairs in accordance with Islamic teachings.

What is a voluntary and optional concept throughout the history of Islam and in the current practice of other Muslim countries has been turned into an instrument of law and coercion in Malaysia.

This is unprecedented in Islamic jurisprudence and violates a fundamental principle in Islam in that change must occur gradually through education and not through force.

The Grand Imam of Al-Azhar in Cairo Muhammad Sayyid Tantawi and Saudi Arabia's Vice-Minister of Justice Sheikh Abdul Mohsen Al-Obaikan have gone on record to say that fatwa are not binding.

Secondly, fatwa having the automatic force of law disregards constitutional limitations on legislation on Islamic matters and violates fundamental liberties guaranteed under the constitution.

Fatwa issued by the mufti and approved by the state fatwa committee and the sultan only need to be gazetted to become law. They are not tabled for debate in the legislative body.

In addition, the Shariah criminal offence laws state that any violation of a fatwa is a criminal offence. Any effort to dispute or to give an opinion contrary to the fatwa is also a criminal offence.

In his paper ‘Jurisdiction of State Authorities to Punish Offences Against the Precepts of Islam: A Constitutional Perspective’, Malaysian constitutional law expert Prof Shad Faruqi argues that the power of the states to create and punish offences against the precepts of Islam should be confined to the areas explicitly mentioned in Schedule 9, List II, Item 1, under the federal constitution and that Schedule 9 must conform to fundamental rights guaranteed under the federal constitution.

Thirdly, fatwa which regulate a citizen's life to the smallest detail is so wide in its impact that it becomes unenforceable. Such laws could only lead to select prosecution and victimisation, as they cannot be enforced fully and equally.

Islamic jurisprudence expert Prof Muhammad Hashim Kamali argues that when statutory law rules on matters that essentially belong to the realm of morality and may be deemed to belong to the sphere of personal choice and liberty, the expected result of such lawmaking would be confusion and difficulty over enforcement.

This is likely to erode the credibility and survival of both the laws and the lawmaking process, as can be seen with the controversies that erupt over the enforcement of these laws in Malaysia.

The ongoing debate and controversy surrounding the recent fatwa on tomboys and yoga have brought to fore opinions and trends that are unprecedented in the history of Muslim societies and jurisprudence, and alarming in multi-faith and democratic Malaysia.

Given that under the Shariah criminal offence laws, one cannot defy, disobey or dispute a fatwa , does it mean that questioning Jakim director-general Wan Mohamad Sheikh Abd Aziz’s view that an appeal against the yoga fatwa is akin to appealing ‘to God to change the rules according to our whims and desires’ can be considered insulting Islam and the religious authorities and therefore a criminal offence?

Would it be an offence to disagree with Kelantan Menteri Besar Nik Aziz Nik Mat when he said questioning fatwa is the same as questioning God? If Minister in the Prime Minister's Department Ahmad Zahid Hamidi has forbidden people from questioning the tomboy fatwa , will Malaysians be charged if they still say that fatwa is unconstitutional?

Can Malaysian citizens – Muslims and those of other faiths – register their concern about the impact of fatwa on their lives without it being labeled as affecting national security and triggering retaliation among Muslims, as said by the Inspector-General of Police Musa Hassan?

Can detention without trial laws be used on those who raise questions about fatwa , as called for by Malay-Muslim NGO Pewaris?

Given these concerns, Sisters in Islam urges the government and religious authorities to consider all differing views and be guided by the principles of justice, equality and public interest when putting into practice precepts of Islam.

In coming up with fatwa, the National Fatwa Council must take into consideration the multi- cultural, multi-racial and multi-religious identity of the country and the needs of Malaysian Muslims in contemporary situations.

If the purpose of fatwa is to provide opinions and reasoning to guide Muslims in their affairs in accordance with Islamic teachings, then fatwa made in the name of Islam cannot result in confusion and injustice and bring the Islamic authorities, the fatwa -making process and Islam itself into disrepute.

In a country that is multi-ethnic and modern like Malaysia, it is imperative that the government examines these urgent concerns and take due consideration when making and gazetting fatwa in the name of Islam.

The writer is Programme Manager (Research and Publications), Sisters in Islam and writes on behalf of the organisation.