Monday, 14 December 2009

Whither Singapore’s Secularism? Note to the Ministry of Law

Singaporeans often speak dismissively about the legal privileges bestowed upon the Bumiputra population in Malaysia. Less is said about the denial of certain legal rights to Singapore's Muslim population by Singapore's own legal framework.
The Administration of Muslim Law Act (AMLA) empowers the Islamic Religious Council of Singapore (MUIS) to interpret Islamic law or Sharia on behalf of all Singaporean Muslims.
Subsequently, all Muslims are compelled to adhere to the provisions of Sharia via AMLA. While there may be a (complicated) legal process for exempting Muslims who do not adhere to the Islamic school of law professed by MUIS, it is discouraged by MUIS. (Yes, I have been in contact with MUIS.)
It should be noted that there are several main schools of law within the Sharia. In Pakistan, the orthodox school of law is different from the school to which Malays generally subscribe. Additionally, AMLA is geared towards Sunni Muslims. Shia Muslims may have their own grievances with AMLA.
AMLA deals primarily with family law, including inheritance, marriage and divorce. Several provisions of AMLA contradict sections of Singapore civil law.
Muslims are not permitted to leave a Will. Upon a Muslim's death, his assets are distributed in accordance with AMLA's interpretation of the Sharia. Writing a Will is a simple right available to all non-Muslim Singaporeans.
AMLA permits polygamy and specifies guidelines for divorce. Polygamy blatantly contradicts the Singapore Women's Charter while the divorce guidelines are controversial. Feminists have issues reconciling AMLA with the Women's Charter.
Recently, the Straits Times had an opinion piece on the controversial Malaysian cleric Dr. Mohd Asri Zainul Abidin. The article provided a window for me to publicize my views on inheritance within AMLA to a broader audience.
After some deliberation, the Straits Times chose not to publish the letter. It was determined that a Muslim has several 'legally creative' ways, including establishing a trust, to manage the inheritance process to his liking.
Perhaps the decision has more to do with maintaining the status quo than with other considerations.
I respect the decision by the Straits Times but do not agree with their logic.
My logic is simple. Under civil law I should have the right to leave a Will. I should not be subject to religious law in a secular state governed by civil law.
Under civil law, I can follow a 'religiously guided' lifestyle if I so desire. Due to the provisions of AMLA, I am unable to excuse myself from their interpretations of Sharia unless I renounce my religion or go against the spirit of the law. Conversely, under religious law I am unable to follow my personal conscience.

The implementation of Sharia or Islamic law is controversial, especially in a religion which does not have a formal, institutionalized clergy structure

My original letter to the Straits Times and a discussion of possible alternatives is reproduced below.
To the Editor:
Mr. Farish Noor's article [November 20, 2009], "Cleric's case a test for moderate Malaysia" is a timely reminder of the benefits of Singapore's secular state structure.
The author writes, "... The heart of the matter is the question of who has the right to speak on Islam and Islamic matters ... Islam does not have a clergy or priestly class."
The same question is valid in the Singapore context.
The Islamic Religious Council of Singapore (MUIS) has ably guided Singapore's Muslims to integrate within a modern multi-religious society. However, in essence, MUIS is a religious clergy which claims to speak for all Singapore's Muslims. (MUIS adheres to a specific school of thought within Islamic law.)
Singaporean Muslims are bound to a parallel legal system created by the Administration of Muslim Law Act (AMLA). AMLA obliges Singaporean Muslims to order parts of their lives in line with the guidelines laid down by MUIS.
In effect, MUIS is empowered to compel Singaporean Muslims to adhere to its interpretations of Islamic law.
Take the matter of the distribution of a Muslim's estate following his death.
Singaporean Muslims are denied the freedom to write a Will for more than one third of their assets. Under AMLA, the remaining two thirds of a Muslim's assets are forcibly divided among inheritors based on MUIS' interpretation of Islamic law.
Practically speaking, this means that if a Muslim wishes to leave his entire wealth to a spouse, mother or charity that is not legally permissible.
Singaporean Muslims, as citizens of secular republic, should have the same rights and privileges as all Singaporeans. Singapore's legal framework should provide Muslims the freedoms to order personal affairs in accordance with their own conscience.
These entitlements include choosing heirs to bequeath one's wealth and life savings. Islamic religious traditions may provide recommended guidelines but should not be legally binding.
Singapore's Muslims deserve all rights due to them under the civil laws of the republic, without any exceptions.
Sincerely,
Imran Ahmed
A discussion on the use of alternative legal routes to achieve the objective which a Will attains:
1. A trust structure is the cleanest and most reliable solution but creating a (reliable) Trust can be quite costly. A trust also required an annually recurring cost which can be in the SGD thousands each year. Costs and complications which non-Muslims do not have to bear;
2. Technically, one can avoid Singapore laws claim to assets by placing them in an offshore domicile, e.g. Jersey, Luxembourg, etc. Again a solution which is operationally intensive and with its own costs, especially for a normal middle class individual, who does not have assets numbering in the millions;
3. The 'either/or' or 'survivor' route for bank accounts and other assets has complications which a Will avoids. If I maintain a bank account jointly with proposed heirs there is no way I can decree what percentage of account's assets go to which survivor. The complexities increase when we refer to fixed assets which may be problematic in valuing. A Will allows specific allocations without any questions;
4. Operationally, establishing a bank account with joint owners in several domiciles (as in my case) poses other problems. It requires each party to undertake a painful process of account opening through notarization and attestations. Especially for a senior parent in her late 70s this is an unnecessary pain - a Will avoids the pain. Further, maintaining joint accounts with an individual subject to taxes in another jurisdiction (e.g. the United Kingdom) has serious tax implications for that individual which are best avoided. A Will avoids a possible increase in annual tax liability for a UK taxpayer;
5. Finally, one must always consider the possibility that an AMLA decreed heirs (e.g. a male first cousin) may dispute the ownership of assets that take place outside of Islamic law. While I am confident that Singapore civil law will ultimately prevail and the ownership may not be overturned, it may prove to be a costly, painful and lengthy legal process (especially for individuals / owners who do not normally reside in Singapore).
Legal creativity is an option, especially for the ultra-wealthy. For normal middle class individuals like me it may not be as easy. Contrived legal solutions have their own potential landmines.
Most importantly, to view the issue of AMLA and Wills in the above perspective misses the forest for the trees. The fact remains that Muslims are compelled to adhere to religious law in Singapore (of a specific school of thought); a fact which denies Muslims the right to bequeath assets through a simple, cheap and clean solution - a solution available to all non-Muslim Singaporeans.

12 comments:

  1. I think 2 relevant issues here are (1) what 'default' option would the majority of Muslim Singaporeans prefer; and (2) how easy/difficult is it to 'opt-out' of the 'default' prescribed by the AMLA.

    As to Issue (1), it may be safe to assume that most Muslims in Singapore would desire to follow MUIS's rulings and the tenets of the Shafi'i school. Perhaps only a more 'cosmopolitan' minority of Muslims here would disagree with MUIS, or even be aware that disagreement is possible.

    Then the crux of the matter becomes whether MUIS is making the 'opt-out' process unduly burdensome. I understand that Singapore is more liberal towards the application of syariah law as compared to, say, Malaysia -- for example, as regards the right of apostasy. But perhaps we can do better.

    The difficulty with the AMLA, and MUIS' ipse dixit over Muslim affairs, is that this is entrenched in our Constitution (Art. 153). So there's an innate tension between, on the one hand, the right of 'conscience' / religious freedom and the principle of secularism (which are all implied by Art. 15 of the Constitution) and, on the other hand, Art. 153 making special provision for Muslims. Our brand of secularism is thus of a hybridized variety; the State tries to accommodate both civil law and syariah law.

    Should we keep this Singapore-style secularism? Ultimately, there's a 'slippery slope' argument against allowing secular/civil law to slowly eat into the domain of syariah law: the recent controversy over minarets in Switzerland offers what some might call a nightmare scenario. Of course, maybe that's too alarmist; maybe we can find a more acceptable middle-ground.

    Btw, after scanning through a few of your blog posts, I find your writing very lucid and insightful (will read the other posts when I have more time). And I think it's remarkable and inspiring that you're a banker by profession and yet blog so regularly!

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  2. "Under civil law, I can follow a 'religiously guided' lifestyle if I so desire. Due to the provisions of AMLA, I am unable to excuse myself from their interpretations of Sharia unless I renounce my religion or go against the spirit of the law. Conversely, under religious law I am unable to follow my personal conscience."

    Great point!

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  3. Hello Singazine.

    Thank you for dropping by and taking the time to write a comment.

    The beauty of a pure secular structure is that it will allow Muslims to practice their personal beliefs unencumbered, whether that pertains to fasting, Wills, prayer or any other aspect of the religion.

    On the contrary, mandating religious law or Sharia is an encroachment on personal freedoms and proves controversial in almost every nation where it has been implemented. Essentially, this is due to the lack of a clergy class within Islam.

    I hope you will continue to visit my blog and I look forward to more comments from you in the future.

    Kind regards,

    Imran

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  4. Dear Etrepoursoi,

    Thank you very much for visiting and taking the time to post a comment.

    I have a couple of points which I would like to share:

    (1) Surely, the default option will be based upon the majority Muslim population. However, the question is whether there needs to be a 'default' option at all. Under civil law, a Malay-Muslim is able to follow his/ her religious customs and practices unhindered, as will non-Malay Muslims or Shias. Under AMLA this is not the case;

    (2) Opting out does not seem to be a realistic option. MUIS has not responded to any of my emails, despite several follow ups, on how to deal with different interpretations of Islamic law. In fact, they suddenly made the content of their final email confidential and privilieged (legally enforceable!). I mentioned the 'opt-out' in my blog article because the formal wording of the law seems to have the flexibility to do so - but without MUIS endorsement an opt-out will be impossible;

    (3)There are other areas where MUIS interpretations of Islamic law (endorsing female cirumcision, legally banning marriage to 'ahl-e-kitab' females by Muslim men and not educating the community that the burial of the placenta is not an Islamic practice) clash with the beliefs of all major schools of Islamic law. They are based purely on Malay practice and custom. (It should be noted that AMLA specifically allows Islamic law to be modified in accordance with Malay custom.);

    (4) The slippery slope you refer to has many dangers. To me, the danger is that as Islam starts to play a greater role in regional politics the pressure on the Singapore government to permit MUIS greater influence in ordering the affairs of Muslims is very real. (I have written about this danger in an earlier post.) In other words, the parallel legal framework starts to have provisions mandating fasting, drinking, etc. Singapore's 'common space' will be further reduced. Most people would have scoffed a decade ago if they were told that a Muslim women will be caned for drinking beer in Malaysia!

    (5) In my view, MUIS role should be to recommend guidelines on religious practices, with all its other activities unaffected. Under any circumstances, Singapore civil law is sufficient for Muslims to pursue their religious beliefs in all respects. Compellence is not necessary - and makes Singapore no different from a religious state in certain respects. Muslims are not forced to drink alcoholic beverages or eat during a fast in Ramadan just because they currently have the freedom to do so. They follow their personal conscience;

    (6) Your reference to the clause in the Constitution is apt. However, my understanding is that the privileged position pertains to Malays (and not Muslims). No privileges are taken away if I am allowed to write a Will under civil law - a Malay-Muslim who wishes to bequeath his assets as per Islamic law is free to do so. On the contrary, AMLA takes away several privileges from Singaporean Muslims.

    I greatly appreciate your insights on the matter and hope that you will continue to leave your comments.

    Thank you for your kind words about my articles. I am currently on a sabbatical so have the time (and inclination) to write regularly. In fact, if there were a way to earn a decent living writing full time I would certainly consider it!!

    Kind regards,

    Imran

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  5. Thank you for the insightful blogpost. The Singapore Democrats have featured your post in our blogs of the week section – http://yoursdp.org/index.php/news/blogs-of-the-week

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  6. Hello.

    Thank you for your visit and for featuring my post in your blogs of the week section. I hope you will continue to visit my blog in the future.

    Kind regards,

    Imran

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  7. What about a simple, cheap and clean solution - life insurance?

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  8. Hi Contrarian,

    Thank you for visiting and taking the time to post a comment.

    Unfortunately, I don't understand how life insurance is a solution to a Singaporean Muslim's dilemma, posed by the inability to write a will.

    Life insurance may certainly be part of an individual's long term financial planning but it is no substitute for a will. In fact, life insurance is an an additional cash outlay and does nothing to neutralize the distribution mechanism enforced by AMLA. In other words, all other movable and immovable property of the deceased individual will be distributed on the basis of MUIS' existing formula, irrespective of whether a life insurance policy has been purchased.

    If I misunderstand your proposal, please do clarify your original comment.

    I hope you will continue to visit my blog and I look forward to more comments in the future.

    Kind regards,

    Imran

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  9. Hi Imran

    For life insurance make an irrevocable trust nomination.

    For HDB/Condos/Houses - hold it as joint tenants with the person you want it to go to.

    For cpf assets - make a cpf nomination.

    For bank accounts - hold it as a joint tenant

    These will take most of the assets out of the estate without the need of setting up a trust.

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  10. Hello,

    Thank you for the practical suggestions. In my case, most ideas are already in place.

    However, these things are easier said than done:

    1. One has to establish an irrevocable trust - this is a superfluous additional cost for Muslims;

    2. Anyone who has established an ordinary bank account with a non-resident, foreign citizen realizes that most banks are unwilling to establish such accounts (except for Private Banking purposes). My family does not reside in Singapore;
    3. Joint bank accounts have immediate taxation consequences for the joint account holder in their domestic tax jurisdiction.

    My objections to AMLA are based on more than simply practical considerations - they are based on the principle of universal laws and rights for all Singaporeans irrespective of race and religion.

    Nevertheless, I am sure readers will find your suggestions useful.

    Best regards,

    Imran

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  11. 1. irrevocable trust nomination for an insurance policy is just filling out a form. there is no cost involved.

    2. actually dbs allows joint bank accounts with non-residents.

    3. not sure about the taxation bit.

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  12. Hi,

    Thank you for the clarifications and recommendations. I am sure the comments will prove useful to readers.

    I hope you will continue to contribute to the Grand Moofti Speaks blog.

    Best regards,

    Imran

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