Thursday, August 30, 2012

On Muslim law modified by Malay customs.

I found a neat document summarising a meeting between some NGOs, women's organisations, Malay Muslim organisations and Muslim organisations, as part of Musawah, a 3 year-old international movement working towards equality and justice in the Muslim family.

There were two points in the report that were particularly interesting to me (and to people who search this blog too, judging by the search terms I've been getting!):

According to AMLA, no Muslim domiciled in Singapore shall (after 1 July 1968) dispose of his property by will, except in accordance with the provisions of and subject to restrictions imposed by the school of Muslim law professed by him AND in the case of Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as modified, where applicable, by Malay customs.

Some Muslims in Singapore think they don't have to write a will, because they expect that their estate will be divided Islamically according to fara'id, or inheritance law, Singapore-style. Writing a will is really important for Muslims who live in countries that do not have dual systems to accommodate shari'a, like the US, Canada, UK, and (insert every European country here). That means, Muslims in Singapore registered with ROMM don't have to worry, and Muslims everywhere else can write a will.

But here we run into a problem. Is fara'id as fixed as we make it out to be? Actually, there's a lot of room for manoeuvre and there have been several instances where good, believing Muslims choose to bend a few of the fara'id rules here and here. I wasn't trained as a lawyer, but these links might be useful for you. (Hmm, why does this all this manoeuvring remind me of 'Islamic banking'?)

But you can't always depend on the Syariah Court or MUIS to sort everything out for you, because sometimes a will is still important in Singapore! Here are some circumstances that a will could prevent:

  • Adopted child who had looked after and taken care of adopted parents received nothing (Totally saw this happening!);
  • Widow with young children being forced to sell the matrimonial home as deceased’s brother or father insisted on claiming his or their share; (Not all men are maintainers, clearly.)
  • A son who is a prison inmate or drug addict receiving more share than the daughter although daughter had looked after their parents; (Did I mention that  not all men are maintainers?)
  • Widow with young female children receiving less share of the deceased’s husband’s estate because Baitulmal granted some shares; (I thought Islam meant we loved girls :(  )
  • Non-Muslim wife (or spouse) and children receiving nothing of deceased Muslim husband’s estate; (Nothing for the heathens.)
  • Muslims wanting to renounce Islam so that they are not governed by Muslim inheritance laws, which they perceive to be unjust and unfair (Whoa drama lah! There's a difference between not being Muslim and not being governed by a context-specific law. How about just find a way to NOT be governed by them? Hint: I did it).

Religion does not occur in a vacuum, so it's unrealistic to expect shari'a laws that are 100% Pure Islam (because such a system would be too vague and those among us who are too afraid to use our minds and conscience will flip out). A large part of any country's shari'a law will necessarily contain elements of the country's (dominant) culture. So people who insist that we must follow 'shari'a law' without questions, at least have the self-reflexivity to realise that you are partly following Malay customary law. And Islamic law is Sunni and Shafi'i. Nothing wrong with that, I'm just saying you should at least be aware of it. Especially if you're not Malay.

One of the ways that the laws pertaining to marriage and divorce are Malay-ised are the use of the terms. Here's a sample from Part VI: Marriage and Divorce from the Administration of the Muslim Law Act (AMLA):
Marriage of janda
97. —(1) Where the woman to be wedded is a janda —
(a) she shall not be married to any person other than the husband from whom she was last divorced, at any time prior to the expiration of the period of iddah, which shall be calculated in accordance with the Muslim law;
Janda! That is totally a Malay word, right, right? (Yes -- it collapses both divorc√©e and widow to refer to a woman who is no longer married). But 'iddah (waiting period) is from Arabic and it's mentioned four times in the Qur'an. When a man wants to divorce his wife, he should not chase her out of the house during the 'iddah (65:1), but this is only if the marriage is consummated (33:49). If pregnant, until the child is born, but if she doesn't or no longer menstruates, wait three months (65:4). The abovementioned 'iddah refers to a widowed woman having to wait  four months and ten days before marrying again (2:234), although the word is not mentioned in this verse.

The Malay custom of tunangan (engagement) is mentioned as Section 94, where if an oral or written promise of marriage is broken, each party must pay the other 'damages' for any amounts spent preparing for the marriage, and the woman must return her gifts too! Engagement would fall under 'honorable and recognised words' to announce marriage (2:235) or keeping promises/covenants and honouring contracts (4:33, 5:1, 5:89, 17:34, 70:32, and many more).

On this subject, it's interesting that the Qur'an mentions that guys, it's fine to either state your intention to marry or to keep it to yourself. Just don't promise your girl in secret! (2:235)

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