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.
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.