'DEATH FATWA': DEATH OF TOLERANCE?
How valid is the death fatwa in the context of traditional fiqh and Islamic history as well as of Indonesian Islamic religious and political realities?
According to traditional fiqh (Islamic jurisprudence) as well as to the common practice in the early history of Islam, the fatwa was valid only if it was issued by an independent, but recognized and authoritative mufti, a Muslim jurist capable of giving, when requested, a non-binding opinion (fatwa), on a point of Islamic law.
Later, the position of mufti arose and became institutionalized as a response to the ever increased need among Muslims for legal opinion and advice from scholars well-versed in various aspects of Islamic law.
Thus, in the Mamluk Egypt and Ottoman Empire, the mufti occupied an official structure and position under the sultan. With this institutionalization, the fatwa was valid only when it was issued by the office of the mufti, which generally consisted of a number of ulema who were authoritative experts in various aspects of Islamic law.
In the 19th and 20th century as legal codes of European origin were introduced to the Muslim world, and as secular states were established in the Islamic world, the office of the mufti was abolished.
As a result, the mufti's role became "unofficial" since he operated independently in the Muslim society, and his fatwa was limited primarily but not exclusively to sphere of personal law. Therefore, the fatwa also became "unofficial" and unbinding "personal" religious ruling of certain ulema, rather than "official" which, in consequence, could be supported and enforced by the Muslim rulers.
The institution of mufti is not known in Indonesia since the coming and spread of Islam up until today. There was of course the institution of shaykh al-Islam in such sultanates as Aceh. But the latter institution did not specifically play the role of the mufti; rather he was a religio-political advisor to the Sultan.
With the abolishment of practically of all sultanates in the archipelago by the Dutch colonial ruler, the fatwas were generally issued by independent ulema either living in the pesantren (boarding schools) or in the society at large.
Since the early 20th century, with the rise of Muslim organizations such as Muhammadiyah, Persis, Nahdlatul Ulama (NU) and others, the fatwas were (and still are) issued by a special body in the respective organization with a special responsibility for issuing legal advice.
In post-independent Indonesia, the Ministry of Religious Affairs and the Council of Indonesian Ulema (MUI) have also played a role in the issuance of fatwa. As a rule, the special fatwa body in all of these institutions consists of a number of ulema, learned in the intricacies of Islamic law. While the ministry has no special fatwa body, its religious rulings such as the beginning and the end of fasting (Ramadhan) are by and large based on the legal opinions of the fatwa body of most of large Muslim organizations.
It is important to point out that each of this fatwa body could issue a different fatwa or legal advice in certain issue, depending on their interpretation of certain naql (verses of the Koran and sayings of the Prophet or hadith) and on their reading of classic fiqh books.
-- Azyumardi Azra