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Muslim Personal Laws and the Accommodation of Minorities: The Need to Better Balance Individual Rights and Group Autonomy in Singapore

  • Noor Aisha Abdul Rahman

Abstract

The accommodation of religious personal law systems is an issue that has arisen in many countries with significant Muslim minorities. The types of accommodations can range from direct incorporation into the state legal system to mere recognition of religious tribunals as private organs. Different forms of accommodation raise different types of legal, social, and political issues. Focusing on the case of Singapore, I examine one form of accommodation which entails the direct incorporation of this law regulating marriage, divorce, and inheritance for Muslims into the state system. Administered by the Administration of the Muslim Law Act, 1966, the Muslim law binds Muslims unless they abjure Islam. The resulting pluralistic legal system is deemed necessary to realize the aspirations of and give respect to the Muslim minority community, the majority of whom are constitutionally acknowledged as indigenous to the country. This Article examines the ramifications of this arrangement on the rights and well-being of members of this community in the context of change. It argues that, while giving autonomy to the community to determine its personal law and advancing group accommodation, the arrangement denies individuals the right to their choice of law, a problem exacerbated by traditionalism and the lack of democratic process in this domain. Consequently, the Muslim law pales in comparison to the civil law for non-Muslims. The rise of religious resurgence since the 1970s has but compounded the problem. How the system can accommodate the Muslim personal law without compromising the rights of individual Muslims is also discussed.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial licence (https://creativecommons.org/licenses/by-nc/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Footnotes

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Noor Aisha Abdul Rahman is the Head of the Department of Malay Studies at the National University of Singapore.

Footnotes

References

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1 For an examination of the range of contestation, see Rex Ahdar & Nicholas Aroney, The Topography of Shari’a in the Western Political Landscape, in Shari’a In The West (Rex Ahdar & Nicholas Aroney eds., 2010).

2 General Household Survey, Sing. Dep’t. Stat. (2015), https://www.singstat.gov.sg/-/media/files/publications/ghs/ghs2015/indicators.pdf.

3 Kevin Tan & Thio Li-Ann, 50 Constitutional Moments that Define a Nation 73 (2015).

4 Id.

5 Ahmad Nizam bin Abbas, The Islamic Legal System in Singapore, 21 Pac. Rim L. & Pol’y. J. 163 (2014).

6 Tuty Raihanah Mostarom, The Singapore Ulama: Religious Agency in the Context of a Strong State, 42 Asian J. Soc. Sci. 561 (2014).

7 For a discussion on Singapore’s management of religion, refer to Eugene Tan, Keeping God in Place: The Management of Religion in Singapore, in Religious Diversity in Singapore 55–82 (Lai Ah Eng ed., 2008).

8 See Parliament of Singapore, Report on the Select Committee on the Administration of Muslim Law Bill (1966). See also Singapore Parliamentary Debates, 24 Singapore Parliamentary Reports (SPR), at cols. 1–42 (Dec. 13, 1965); 24 SPR, at cols. 770–73 (Dec. 30, 1965); 25 SPR, at cols. 237–47 (Aug. 17, 1966).

9 Noor Aisha Abdul Rahman, Muslim Personal Law and Citizens’ Rights: The Case of Singapore, 7 Asian J. Comp. L. 129–33 (2012).

10 See Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (2001).

11 See Secularism, Islam and Modernity: Selected Essays of Alam Khunmiri (M.T. Ansari ed., 2001).

12 Anver M. Emon, Conceiving Islamic Law in a Pluralist Society: History, Politics and Multicultural Jurisprudence, Singapore J. Legal Stud. 331 (Dec. 2006).

13 On the problem of rigid mode of thinking amid change, see Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (2001). See also Abdullah A. An-Naim, Islamic family Law in a Changing World: A Global Resource Book (2002).

14 See, for instance, the debate on the Human Organ Transplantation Act of 1987, which provided for Muslims to opt-in, unlike non-Muslims who had to opt-out of the Act, should they refuse to donate. The adverse ramifications of the law on Muslims for at least three decades was conditioned by the fatwa of MUIS enunciated in 1973, which forbade the donation of human organs without qualifications, which the government deferred to in excluding Muslims from HOTA, unless they opted in, irrespective of competing views within the community. For an insight into the debate on the issue viz-a-viz the fatwa, see Syed Hussein Alatas, Biarkan Buta (1974).

15 Administration of Muslim Law Act §89 (1968), https://sso.agc.gov.sg/Act/AMLA1966 [hereinafter AMLA].

16 Singapore Government Printer, Report of the Select Committee on the Administration of the Muslim Law Bill (1966).

17 Muslim Religious Council of Singapore, Kumpulan Fatwa, 16 (1991).

18 Administration of Muslim Law Act §§ 60, 111 (1968), https://sso.agc.gov.sg/Act/AMLA1966 [hereinafter AMLA].

19 Noor Aisha Abdul Rahman, Muslim-non-Muslim Marriage in Singapore, in Muslim-non-Muslim Marriage: Political and Cultural Contestations in Southeast Asia 302–06 (Gavin W. Jones et al. eds., 2009).

20 Ahmad Ibrahim, The legal Status of Muslims in Singapore, Malayan L. J. 64–65 (1965).

21 Ahmad Ibrahim, Islamic Law in Malaya 187 (1965).

22 Wael B. Hallaq, Sharia: Theory, Practice, Transformation 462–63 (2009).

23 See Re Abu Samah bin Md Dros, 5 Singapore Syariah Appeals Report 31 (1990).

24 Saheeda Banu v. Osman Mohamed Sabeer, Singapore Syariah Appeal Board (Appeal No. 12/2011) (2012).

25 Latifah bte Hassan v. Jumari bin Yaacob, Syariah Court (148/77).

26 Yaacob Ibrahim, Minister for Communications and Information, Minister-In-Charge of Cyber Security, and Minister-In-Charge of Muslim Affairs, closing speech at the second reading of the Administration of Muslim Law (Amendment) Bill in Parliament, Strengthening the Administration of Muslim Law Act (Aug. 1, 2017), https://www.mccy.gov.sg/about-us/news-and-resources/parliamentary-matters/2017/aug/strengthening-the-amla.

27 AMLA § 50.

28 AMLA § 111(2)(a).

29 AMLA § 115.

30 Fulfilling the Trust: 50 Years of Shaping Muslim Religious Life in Singapore 70 (Norshahril Saat ed., 2018).

31 Mohamed Ismail bin Ibrahim v. Mohammad Taha bin Ibrahim, 4 SLR 756 (2004).

32 Shafeeg bin Salim Talib v. Fatimah bte Abud bin Talib, SGCA 11 (2010).

33 Norshahril Saat, Fulfilling the Trust: 50 Years of Shaping Muslim Religious Life in Singapore 67–70 (2018).

35 AMLA § 58(1).

36 Refer to Abdul Rahman BMH, Majelis Ugama Islam Singapura and the Administration of Muslim Law Act: A Critical Review (2008) (unpublished Academic Exercise), Faculty of Law, National University of Singapore.

37 Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13, https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article16 [hereinafter CEDAW].

39 Michele Brandt & Jeffrey A. Kaplan, The Tension between Women’s Rights and Religious Rights: Reservations to CEDAW by Egypt, Bangladesh and Tunisia, 12 J. L. & Religion 105, 109–10 (1995).

40 See Euis Nurlaelawati, Modernization, Tradition and Identity: The Kompilasi Hukum Islam and Legal Practice in the Indonesian Religious Courts 75–84 (2010). On developments posed by the Counter Legal Draft, see Marzuki Wahid, Pembaharuan Hukum Keluarga Islam Pasca Ode baru dalam Pendekatan Politik; Studi Kasus CLD-KHI, in Generasi Baru Peniliti Muslim. Indonesia. Kajian Islam dalam Ragam Pendekatan (Wahid & Mukhtar eds., 2010).

41 For a good account of the reforms implemented in the FJC, see Kevin Ng et al., Family Justice Courts-Innovations, Initiatives and Programmes: An Evolution over Time, 30 Sing. Acad. L. J. 617–46 (2018).

42 Lee Li Ying, Family Justice Committee Aim to Provide More Upstream Support Services, Channel News Asia (Feb. 28, 2018), https://www.channelnewsasia.com/news/singapore/family-justice-committee-aim-to-provide-more-upstream-support-9999144.

43 See the letter to the Straits Times by the President of the Singapore Islamic Scholars and Religious Teachers Association (PERGAS) against the Institute of Southeast Asian Studies (ISEAS) for inviting Zainah Anwar, then leader of Sisters in Islam, a Malaysian NGO, and Ulil Abshah, Head of Research and Human Resource of Nahdatul Ulama and founder of Jaringan Islam Liberal, to speak at its Regional Outlook Forum. Mohamed Hasbi Hassan, Iseas Speakers were Controversial Figures, Straits Times, Jan. 25, 2003, at 30. See also the recourse to MUI and state fatwa committees in Malaysia on the issue of greeting non-Muslims in Muhammad Haniff Hassan & Mustazah Bahari, A Balance Approach to the Issue of “Merry Christmas” Greeting by Muslims, Pergas: WASAT (Feb. 1, 2019, 2:45 AM), https://blog.pergas.org.sg/cpt_wasat/a-balance-approach-to-the-issue-of-merry-christmas-greeting-by-muslims/.

44 At the tabling of the Select Committee report on the amendment bill, the Minister in charge of Muslim Affairs, Abdullah Tarmugi, acknowledged that the proposed amendments allowing civil courts to hear ancillary matters of Muslim divorces have led to strong opinions from the Muslim community. Of the thirty-one representations received, eighteen had reservations about or were against the amendment providing explicitly for the civil courts to hear matters ancillary to Muslim divorces. Singapore Parliamentary Debates, 70 Official Reporter at cols. 1249–50 (Apr. 15, 1999).

45 Report of the Select Committee on the Administration of Muslim Law (Amendment) Bill, Bill No. 18/98, 181 (1999).

46 See, for instance, the case of Heng Hock Kim, Lena (alias Lena bte Abdullah) v. Mohd Zaini bin Salleh, SGAB (Appeal No. 21 of 1998) in which the BOA submitted:

[W]e appreciate the concern of the husband, it is in the interest of the children and in the interest of the ummah that they should be brought up as Muslims. However, we do not think that evidence points towards the children being brought up as non-Muslims … by the wife. We note the affidavit of the wife … which should dispel the husband’s fear that the wife would turn the children away from Islam ….

The Board also highlighted that: “It is apparent, however that all rules of Muslim law relating to guardianship and custody of the minor children are merely the application of the principle of benefit of the minor to diverse circumstances. The welfare of the minor children remains the dominant consideration ….” See also the case of Zakaria bin Abu Kassim v. Natasha Chooi Abdullah and Chooi Lye Chan, SGAB (Appeal No. 6 of1993).

47 Report of the Select Committee on the Administration of Muslim Law (Amendment) Bill, Bill No. 18/98, 153–65 (1999).

48 Mohamed Nawab Mohamed Osman, The Religio-Political Activism of Ulama in Singapore, 40 Indonesia and the Malay World 1 (2012).

49 Tim Lindsey & Kerstin Steiner, Islam, Law and State in Southeast Asia 52 (2012).

50 Kamaludeen Mohamed Nasir & Khairuin Aljunied, Muslims as Minorities: Histories and Social Realities of Muslims in Singapore (2009).

51 Refer to Norshahril Saat, Faith, Authority and the Malays: The Ulama in Contemporary Singapore 42 (2015). See also Hussin Mutalib, Singapore Malays: Being Ethnic Minority and Muslim in a Global City State 89 (2012).

52 Noor Aisha Abdul Rahman, Muslim Personal Law and Citizens’ Rights: The Case of Singapore, 7 Asian J. Comp. L. 129 (2012).

53 Helena Smith, Greece’s Muslim Minority Hails Change to Limit Power of Sharia Law, Guardian (Jan. 11, 2018, 6:56 AM), https://www.theguardian.com/world/2018/jan/10/historic-step-greek-pm-hails-change-to-limit-power-of-sharia-law.

54 For some insights into this discourse, read Tahir Mahmood, An Indian Civil Code and Islamic Law (1976).

55 Ahmad Ibrahim, Special Rights for Muslims, in The Legal Status of Muslims in Singapore (1965).

56 12 Singapore Legislative Debates (SLAD), at col. 463 (1960).

57 See, for instance, the assimilation of guiding factors in determining division of matrimonial property from Section 106 of the Women’s Charter into Section 52(14) of the AMLA in 1999.

58 Emon, supra note 12, at 253–54 (suggesting the possibility of a government-regulated civil society sector that can address the social and religious needs of the Muslims and support greater accommodation of Muslim minorities within multicultural societies, unlike the case of MUIS which has a monopoly over the religious affairs and law for Muslims in the country).

* Noor Aisha Abdul Rahman is the Head of the Department of Malay Studies at the National University of Singapore.

Keywords

Muslim Personal Laws and the Accommodation of Minorities: The Need to Better Balance Individual Rights and Group Autonomy in Singapore

  • Noor Aisha Abdul Rahman

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