The Mufti (Federal Territories) Bill 2024 has ignited significant debate, raising concerns from constitutional, democratic, and legal perspectives. One must ask: Why is this Bill necessary when the Administration of Islamic Law (Federal Territories) Act 1993 [Act 505] already exists?
Under Act 505, in order for a fatwa to become binding in Selangor, it must pass through several layers of approval, including the state mufti, the fatwa committee, the Majlis Agama Islam Selangor, and finally, the Sultan of Selangor. Once published in the state’s Official Gazette, the fatwa becomes binding law, enforceable in the syariah court. This process offers multiple layers of scrutiny and safeguards.
However, the new Mufti Bill appears to bulldoze many of these protections, potentially opening the door to unchecked government and religious authority. Let’s examine several critical points:
1. The Role of the Malay Rulers and Constitutional Safeguards
The Federal Constitution clearly outlines the role of the Malay Rulers as Heads of Islam within their respective states. Article 3(2) establishes that each state’s Sultan holds religious authority, while Article 3(5) designates the Yang di-Pertuan Agong as the Head of Islam for the Federal Territories of Kuala Lumpur, Labuan, and Putrajaya.
Although the Mufti Bill 2024 ostensibly retains the Yang di-Pertuan Agong’s role as the Head of Islam for the Federal Territories, it centralises religious authority in a way that risks bypassing the Malay Rulers’ broader constitutional role. Clause 4 acknowledges the advisory role of the mufti to the Yang di-Pertuan Agong, but the Bill ultimately shifts significant power to unelected officials.
This restructuring risks upsetting the delicate balance of power within the Federal Constitution, potentially undermining the historical and symbolic role of the Malay Rulers in Islamic affairs and further blurring the lines between the Civil and Syariah Courts.
2. The Undemocratic Nature of the Bill
A major concern with the Mufti Bill is that it empowers unelected officials—specifically the mufti and the Fatwa Committee—to issue legal rulings (fatwas) that could bind all Muslims in the Federal Territories once gazetted. This grants the mufti legislative-like power, bypassing the democratic process entirely.
Zaid Ibrahim has aptly critiqued this provision, pointing out that laws—whether religious or secular—should be enacted by elected representatives through a transparent legislative process. The democratic system, with its checks and balances, is essential for maintaining public trust and accountability. Delegating the power to issue binding religious laws to unelected bodies risks overreach and contradicts the principles of representative democracy that the Federal Constitution is designed to protect.
3. Importance of Gazetting Fatwas for Scrutiny
The gazetting process is a crucial step in ensuring transparency and accountability, allowing for public and parliamentary scrutiny before a fatwa becomes binding law.
While this step offers some procedural safeguards, it remains insufficient. As Syahredzan Johan pointed out, many states already follow similar processes, but the fundamental problem remains: once a fatwa is gazetted, it binds all Muslims in the Federal Territories. There is no formal mechanism for elected representatives or civil society to engage meaningfully in the process before the fatwa is enforced. This undermines the principle of scrutiny by elected officials, which is essential to ensuring that all laws are balanced and fair.
Rather than granting more unchecked power to the mufti and Fatwa Committee, there should be a more rigorous process in place. Fatwas should be subject to legislative scrutiny, debate, or approval before they become binding. This would reinforce democratic accountability to the people and their elected representatives.
4. Constitutional Transgressions
The Mufti Bill 2024 risks breaching several key provisions of the Federal Constitution. While Article 74(1) authorises Parliament to legislate on Islamic matters within the Federal Territories, the Bill’s structure may conflict with Articles 3(5) and 34(1), which establish the Yang di-Pertuan Agong as the Head of Islam—not the mufti or Fatwa Committee—in these territories.
Moreover, the Bill seems to lack sufficient checks to ensure that the personal liberties guaranteed under Article 5 of the Federal Constitution are protected when religious rulings become law. This is particularly significant given the potential for fatwas to extend into personal lifestyle choices, as Zaid Ibrahim has warned.
Section 3 of the Bill introduces the definition of Ahli Sunah Waljamaah, specifying that a Sunni is someone who follows the principles of Ash’arism and Maturidism in respect of aqidah. While I am not an expert in Islamic theology, I find it concerning that certain schools of thought, though long accepted in Malaysia, may soon fall afoul of the law. While it is necessary to address dangerous strains of Islam, attempts to impose orthodoxy must not erode personal rights and freedoms.
Another significant departure from Act 505 is that the new Mufti Bill no longer allows for personal opinions that depart from a fatwa. What happens if someone disagrees with a fatwa but does not violate it? Are we now criminalising private thought in Malaysia?
5. Revisions Needed to Uphold the Federal Constitution and Democratic Values
This Bill needs to be reconsidered. Instead of introducing parallel legislation, the government should amend Act 505. The essential reforms should include:
• Preserving the role of the Malay Rulers as Heads of Islam within their respective states and the Federal Territories.
• Upholding the principles of representative democracy by ensuring that no unelected body or individual can create binding laws without oversight.
• Strengthening the gazetting process by making fatwas subject to legislative scrutiny to ensure transparency and accountability.
• Most importantly, ensuring that these reforms respect the Federal Constitution’s guarantees of freedom of religion, individual liberties, and the rule of law.
If the goal is to improve the framework of Islamic law in Malaysia, this must be done in a way that respects both democratic principles and the Constitution. As it stands, the Mufti Bill falls far short of these crucial standards.
