CASE STUDIES: COLLECTIVE IJTIHAD ON HEALTH ISSUES

Until the beginning of the twentieth century, ijtihad in Indonesia was performed by individual Muslim scholars. In the second quarter of the twentieth century, the practice of ijtihad as performed by the scholars in groups began.

Although fatwas issued by certain individual scholars could still be observed, the tendency was for more and more scholars or clergies to identify themselves with one of those two poles: with the Nahdlatul Ulama or the Muhammadiyah. A new development emerged when in 1975 the Council of Indonesian Ulama (Majelis Ulama Indonesia or MUI) was established. Both the traditionalist and the modernist are represented in the MUI, through which they issue joint fatwas.^[1104]

The three Indonesian Islamic organisations who practise collective ijtihad have responded to medical and health issues. The fatwa on medical science on matters such as vasectomy and tubectomy, cornea transplant, euthanasia, pills for menstrual prevention and IUD was issued. The nature of ‘collective’ in the process of issuing fatwas is as follows:

1. The Islamic organisations received questions from the Islamic communities or government on health issues.

2. They will have early discussion amongst their internal scholars.

3. If they require clarification or more explanation from doctor, practitioners or related parties, they will invite those people to the next meetings.

4. The fatwas are issued after they have considered all Islamic legal arguments, along with other considerations provided by medical doctors and other stakeholders.

As discussed above, a fatwa from one organisation may differ from those of other organisations. A fatwa issued from the national organisation my also be different from one given by the provincial organisation. Again, a fatwa from one provincial branch may be at variance with one from another province, even though both belong to the same organisation. Therefore, it is possible in Indonesia to have many fatwas covering one case.

A. On AIDS

The MUI has been involved in a campaign against Acquired Immunode­ficiency Syndrome (AIDS). The Minister of Health, Adhyatma, said in November 1991 that cooperation with the MUI was important as the council could help enhance the people’s awareness of the dangers of AIDS through a religious approach. However, KH Hasan Basri, the General Chairman of the MUI, expressed his disagreement with an official anti-AIDS campaign, recommending the use of condoms in free sexual intercourse, because this implied that the government condoned the sort of sexual behaviour that was abhorrent to Islam. He said that the policy could incite people to commit adultery.

B. On Sterilisation

From 25 to 28 November 1989, the NU held its 28th Congress in Pesantren al-Munawwir, Krapyak, Yogyakarta. The great interest attracted by the organisation was apparent from the fact that the Congress was opened by President Soeharto and addressed by several ministers and the Chief of the Armed Forces (1988-93), General Try Sutrisno.

The Congress had to make pronouncements on the Islamic legal aspects of several modern phenomena. Thus it decided that tayammum (dry ritual ablution with dust or sand), as practised on board aeroplanes, is not legal, nor is inter-religious marriage (mixed marriage) from the viewpoint of Islamic law. Sterilisation for the purpose of birth control is allowed as long as the anatomy of the body is not destroyed. Transplant­ation of organs is allowed, but bequeathing one’s organs is not recog­nised. In addition, euthanasia is forbidden by Islamic law.

It should be noted here that in meetings held in June 1979 and October 1983, the MUI stated that vasectomy and tubectomy are forbidden in Islam, except in emergency cases such as to prevent the spread of disease or to save the life of the person undergoing vasectomy or tubectomy. However, the NU stated in November 1989 that these procedures are allowed as long as the anatomy of the body is not destroyed and the procedure can be reversible. This 1989 NU fatwa differed from a previous one (April 1960) of the NU which stated that ‘if family­planning is done by destroying the possibility of having children, then it is not permitted, except in an emergency case’.^[1105] The Muhammadiyah issued a fatwa on this matter in 1968, which stated firmly that sterilis­ation is forbidden.^[1106]

C. On Cornea Transplant

The MUI issued a fatwa on corneal transplants in June 1979. This was requested by the Red Cross, and the MUI ruled that cornea donation was lawful, provided that firstly, it was agreed to and witnessed by close relatives, and secondly, the removal of the cornea was carried out by qualified surgeons.^[1107]

The NU had earlier issued a fatwa in 1962 that corneal transplants were not permitted. This fatwa was very forthright in stating that the fatwa of the Egyptian Mufti in this case was not right.^[1108] In 1981, approximately two years after the fatwa of the MUI, a similar case was again put before the Muslim scholars. After having enough information on the new technology, the NU reviewed its 1962 fatwa, providing two answers: firstly, it is not permitted, based on two books of fiqh: Ahkam al-Fuqaha, Vol. III, p. 59 and Hashiah al-Rashidi ‘ala Ibn al-‘Imad, p. 26; and secondly, it could be mubah (permissible) provided that the cornea transplant was needed and the donor and the recipient were Muslims.

D. On a Pill for Preventing Menstruation

Another example showing how fatwas relate to social issues is the fatwa on the use of pills for preventing menstruation. Many Muslim women complain that because of menstruation, they cannot complete their performing of the Hajj (pilgrimage) or fasting in Ramadan. According to Islamic law, women who are having their period must not engage in fasting, prayer and pilgrimage. However, there is a new technology to delay menstruation for a while by taking appropriate pills. Many Muslim women have asked the MUI for a ruling on the use of the pills in this situation.

The MUI at its meeting, held on 12 January 1979, decided that the use of pills to prevent menstruation for the purpose of completing the performance of the Hajj was mubah (permissible). The use of pills to prevent menstruation for the purpose of completing fasting during the month of Ramadan was haram (forbidden). However, for women who have difficulty of performing fasting on days other than those during the month of Ramadan, the use of the pills is mubah. The lawfulness of the use of pills for purposes other than those described above depends on the motivation of the users. If it is intended to do things that can lead to violations of Islamic laws, it is haram.^[1111]

E. On IUD (Intra-Uterine Device)

The IUD as a form of birth control is popular, being used by millions of women worldwide.

Hosen believed that this argument had to be corrected, because the seeing of the woman’s genitals is itself not forbidden, if it is done by her husband. Thus the seeing of the genitals is forbidden not because of the seeing itself but as a precautionary measure, to prevent adultery. In other words, the prohibition of the seeing of the woman’s sexual organs should be classified as a forbidding for preventive purposes (hurrima li sadd al-dzara’i).^[1113]

According to Hosen, in the science of usul al-fiqh there is a difference in the degree of enforcement between prohibition based on hurrima li dzatih and those based on hurrima li sadd al-dzara’i. What is prohibited on the basis of the former cannot become permitted except in emergency circumstances which endanger the life of human beings (ma hurrima li dzatih ubiha li darurah). For example, pork is not permitted for the essence, but may be consumed by a Muslim only in a life-threatening emergency situation where there is no other food.^[1114]

Conversely, what is forbidden for preventive purposes can become permitted if the need arises without resort to emergency measures (ma hurrima li sadd al-dzara’i ubiha li hajah). Hosen said that in the case of the use of IUDs for family planning in Indonesia, the need is already obvious. He concluded that it was on the grounds of such a need that the 1983 fatwa on family planning was issued, in which the prohibition of the use of IUDs by the fatwa of 1971 was lifted. Therefore, the MUI issued a fatwa, in 1983, that using IUDs is now permitted.^[1115]

V.