[ms] Conflict between Fatwa and Decision of Sharia Advisory Panel in Muamalat Case of Malaysian Court

Abstract

Disputes over Islamic law are generally decided by judgment in the Sharia court. However, for issues related to muamalat and Islamic banking disputes, the jurisdiction of judging is determined by the civil courts. Moreover, conflict arises when the fatwa which has long been gazette as the supreme law could not play its authority in court because its authority is determined upon decision by the Sharia Advisory Council of Bank Negara Malaysia and Security Commission. This article aims to discuss the position of fatwa and decision of the Sharia Advisory Council to be recognized as authority in court in discussing muamalat cases. Hence, document analysis method is used in clarifying the position of fatwa authorization and the Sharia Advisory Council as well as reports of court cases in judging the muamalat issues. The study found that even the fatwa has long been gazette nevertheless it is not recognized as the main authority when it comes to judging the muamalat cases. The paper also clarifies the position of Sharia Advisory Council of Bank Negara Malaysia and Security Commission as the recognized legal body that becomes the ultimate reference for any dispute of muamalat cases in court. Civil courts are more empowered in judging cases related to muamalat and Islamic banking as compared to the gazette fatwa at the state level. This article argues that legislative need to be further improved for a more effective role of fatwa and decisions of the Sharia Advisory Council in judging the muamalat cases. Moreover, more opportunity for jurisdiction should be given to the Sharia court in dealing with muamalat issues such as takaful and Islamic banking.