S YMPOSI UM ON
MUSLIM FAMILY LAW Navi g at ing Musl i m F a m i l y La w Amid st C hang in g S o ci a l Rea l i ti es
7 - 8 Oct 2019
Organized by:
Supported by:
CONTENTS
03 04 09 13 18
Introduction B a c kg r o u n d Symp osi u m P a n e l s Wo r ksh o p P a n e l s Sp e a ker s
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INTRODUCTION
The Symposium on Muslim Family Law 2019
is organized by the Islamic Religious Council of Singapore (MUIS) to bring together local and international experts and practitioners in the field to discuss the state of Muslim family law amidst changing social realities today. One of its aims is to allow participants to study best practices and models in Muslim family law implementation and reforms from around the world. The Symposium’s speakers will present on a range of issues including classical Muslim thought on different aspects of family law, modern and contemporary interpretations and reforms, as well as issues around the legislation and enforcement of Muslim family law in contemporary societies. The Symposium will pay special attention to emerging social trends that will continue to impact on the interpretation of Muslim family law. The Symposium will also offer several workshop sessions that will discuss specific topics which relate to the Singapore context. These include studying Islamic legal traditions in modern contexts, understanding legal frameworks in applying family law, examining social work perspectives on the issues and challenges faced by Muslim families, as well as initiatives by legal institutions to keep Muslim family law current amidst changing social realities.
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BACKGROUND Modern Muslim family law, as interpreted and implemented over the last century, has undergone a significant shift in comparison with classical Muslim jurisprudence. In general, Muslim law has developed over more than ten centuries of legal activity and scholarship. The main source of substantive law today (from which family law derives most of its rulings), apart from independent interpretive exercise (ijtihād) by contemporary scholars, is the corpus of classical legal manuals written by Muslim jurists. In Singapore, the conception of Muslim law is also reliant on two important features; the flexibility of the law through ijtihād (independent reasoning) and its adaptability to the contemporary context of Muslim communities through the consideration of ‘urf (customs), and the objectives and spirit of the law (maqāṣid). In general, Muslim law seeks to secure public interest (maṣlaḥah), as well as protect several key fundamentals, such as religion, life, property, progeny and intellect. Inherent within Islamic law is also the important role of morality and noble
character. Islam is not only a religion of rights, because rights can only be exercised with a sense of duty and responsibility. Inheritance laws (farāʾiḍ) is a good example of this. Although a male member of the family is given two shares, he is duty-bound to ensure the wellbeing of female members of his family. Within a system of according rights and distributing responsibilities, Islam places importance on equity and fairness. In light of the changes that societies go through, Muslim law too has responded, but not without controversy. While reform and change are part of the Islamic tradition and history, reactions to reforms vary significantly between those who resist any form of change because tradition is deemed sacred and God’s laws are beyond the remit and authority of humans to change, and others who believe that Muslim law must respond to changing social realities so that it continues to fulfil God’s will. In the modern period, these tensions often play out between various state actors, religious scholars and jurists, NGOs and the wider society. In some Muslim countries, certain aspects of
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Muslim family law have been reviewed and some practices such as polygamy abolished altogether. In many cases, these reforms are justified on the basis of textual evidence and reinterpretation, supported by social contexts as reasons for review. The interpretation and practice of Muslim family law in Singapore are also part of this wider international debate. While there has been progress locally in terms of the inclusion of safeguards to protect women, children and the family institution, current and emerging social trends and realities point to a more complex future which calls for a continuous review of family law. By and large, Muslim family law adopts the template of classical Muslim jurisprudence underpinned by a set worldview of gender roles and relations which formed in early Islam. In the various aspects of the law, different rights and obligations are ascribed to the different sexes, in line with this worldview and philosophical underpinnings of its legal system. In modern post-industrial societies, much of these roles and relations have evolved, with important implications on the interpretations of Muslim family law. Yet, the tension between preserving tradition and reviewing it with the aim of preserving the objectives and spirit of the law remains.
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ADMINISTRATION OF MUSLIM FAMILY LAW IN SINGAPORE The administration of Muslim family law in Singapore is regulated by the Administration of Muslim Law Act (“AMLA�). AMLA is the primary statute that sets out the provisions for regulating Muslim religious affairs and the framework of how Islamic law in Singapore is applied. It also defines the role and power of key institutions. Under the AMLA, there are three key institutions that ensure a proper implementation of Muslim family law. They are the Syariah Court, the Registry of Muslim Marriages, and the Islamic Religious Council of Singapore (MUIS). Syariah Court The jurisdiction of the Syariah Court is set out in Section 35 of the AMLA. It provides that the Syariah Court shall have jurisdiction to hear and determine all actions and proceedings in which all the parties are Muslims, or where the parties were married under the provisions of the Muslim law. This involves disputes relating to (a) marriage; (b) divorces; (c) betrothal, nullity of marriage or judicial separation; (d) the disposition or division of property on divorce or nullification of marriage; or (e) the payment of dower, marriage expenses, maintenance and consolatory
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gifts or mutaah. Appeals from decisions Islamic Religious Council of of the Syariah Court are made to an Singapore (MUIS) Appeal Board which is constituted by the President of MUIS. MUIS is a statutory board that administers the religious affairs of the AMLA was amended in 1999 Muslim community, and advises the through the Administration of Muslim President of Singapore on all matters Law (Amendment) Bill. The Bill relating to Islam. It provides services introduced Section 35A of the AMLA, such as ḥājj management, ḥalāl which provided for the ordinary civil certification, waqaf management and courts to hear matters ancillary to zakāh collection. Muslim divorces: namely, custody and division or disposition of matrimonial MUIS also administers the property on divorce. In matters relating Fatwa Committee comprising senior to the disposition of property and custody religious scholars and is chaired by in divorce cases, Muslim women can the Mufti of Singapore. The Mufti now apply to the Syariah Court for leave is appointed by the President of to commence the civil proceedings in Singapore, and is supported by the Family Court according to Women’s officers in the Office of the Mufti, a Charter (Section 69). Muslim women division within MUIS. also have recourse to obtain Personal Protection Orders, Domestic Exclusion DEVELOPMENT OF MUSLIM FAMILY Orders and Expedited Orders against LAW IN SINGAPORE violent husbands under sections 65 and 66 of the Women’s Charter from the The vision for the socioFamily Court. religious life of the Singapore Muslim community is articulated through The Registry of Muslim Marriages the Singapore Muslim Identity (SMI), which puts forth a progressive and The Registry of Muslim Marriages contextual understanding and practice (ROMM) was set up in 1968 to administer of Islam in Singapore. In the context Muslim marriages conducted in of Muslim family law, new realities Singapore. ROMM puts in place and social circumstances are part of regulations to ensure that the marriage considerations for further review and laws in Islam are observed fairly. reforms.
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Since the early 2000s, Singapore has made several important changes in the area of Muslim family law. The main instruments in which the Muslim family law practice is reviewed is through the issuance of fatwa and AMLA amendments. For example, although a walī (guardian) is required to solemnize a marriage according to the Shafiʿī school of law, Singapore allows for the qāḍī (solemnizer) to take over his role if the walī unreasonably refuses to do so and has no cogent reasons to object to the marriage. Similar efforts to prevent the abuse of religious rights and provisions can also be seen in the restriction of polygamous marriage applications. In the Qurʾan, polygamy is conditioned upon a just and equitable treatment of wives. In order to achieve this, several provisions have been put in place in Singapore. The solemnisation of a polygamous marriage can only proceed with the approval of the qāḍī, and only when he is satisfied that there are good and cogent reasons for the marriage. The first wife may also appeal against the decision of the qāḍī to the Appeal Board. Recent AMLA amendments also include raising the minimum age of marriage from 16 to 18 although special exceptions may be granted by the qāḍī
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for girls who have attained puberty. All Muslim minor couples below the age of 21 are required to get the consent of both parents before they can marry and must complete a mandatory marriage preparation programme.
THE WAY FORWARD MUIS monitors developments and discourses on reforms closely as part of its ongoing study and review of the practice of Muslim law in Singapore. However, changes should always be motivated by a careful and thorough reflection of our own experiences and specific needs. A critical study on existing interpretations and implementation of Muslim family law is necessary in order to ensure that they continue to serve the objectives and the intent of the law. In the context of Muslim family law, one of the main objectives is to protect the institution of the family as a whole, and very importantly, the welfare of each family member. Changes are required when existing laws no longer serve such objectives. Accordingly, change is only effective if it is cultivated organically and implemented gradually. There ought to be a broad consensus in religious opinion on the necessity for change and reform.
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Some of the most common areas of reform in Muslim family law that have taken place in Muslim countries include the following: (a) increasing the restrictions for polygamous marriage applications; (b) looking at alternative instruments to farāʾiḍ; (c) limiting a husband’s right to unilateral divorce; (d) raising the minimum age of marriage; (e) expanding a wife’s access to divorce; and (f) reviewing the need for male guardianship in marriage. In most cases, reforms are proposed due to the changing contexts and family dynamics. It is therefore necessary to assess if such reviews are applicable for Singapore’s context, and how strategies of reforms in other countries could be adapted to suit its needs. It is therefore timely for an indepth interdisciplinary discussion on the interpretation and implementation of Muslim family law for the Singapore context. The Symposium on Muslim Family Law 2019 will bring together key local stakeholders to provide the appropriate platform for such deliberations to take place. MUIS has invited local, regional and international experts who will share their perspectives and experiences so that we can collectively reflect on the way forward.
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SYM POSI UM PROGRAMME D a y On e Sy m p osi u m : Mo nday, 7 Oc to be r 201 9 8 .45a m 9.30 a m 9.45a m 10. 1 5a m
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Panel 1 Re ading t he Cl a ssi ca l Tra d i ti o n in Musli m F a m i l y La w By SS Mufti Dr. Mohamed Fatris Bakaram and Dr Azizah al-Hibri
This segment will discuss the wisdom and context behind the formulation of classical Muslim family law, and the extent to which some of these remain or are no longer relevant in contemporary contexts. It will also discuss historical instances where Muslim law was reviewed when the need arose, and how contemporary Muslim societies can learn from these examples. • Should traditional interpretations remain as a source of reference in informing today’s application of Muslim family law? • What is the role of customs, norms and societal expectations in shaping our practice of Muslim family law? • Male guardianship over women forms the premise of many classical rulings in Muslim family law, and several Qurʾanic injunctions have been used to support this arrangement. Is this a prescriptive arrangement that is divinely-inspired, or was this a normative model of marriage and familial life that can change with context?
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Panel 2 Public Go o d a n d Rea so n i n Muslim F a m i l y La w By Professor Dato’ Sri Dr. Zaleha Binti Kamarudin and Professor Mohammed H. Fadel
This segment will discuss examples where public good and reason have been effectively used as a strategy for reform in Muslim societies, particularly from the lens of maqāṣid al-sharīʿah, and the Qurʾanic emphasis on human welfare, justice, and equity. It will also discuss the role of social changes, needs, and public interest in effecting reviews on the Muslim family law. • Critics of the maqāṣid and maṣlaḥah approaches have always claimed that such approaches compromise the authenticity of the Islamic tradition in favour of logical reasoning. What would be a balanced approach as we progress forward? What are some of the tools available to help us in deciding? • Why should public good and reason be an important source of consideration in interpreting and implementing Muslim family law, and what could be the implications of not doing so? • What were some examples in the Islamic scholarly tradition that prioritized public good and reason?
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Panel 3 Mu slim F am il y La w i n Ch a n g i n g S o c ia l Co n tex ts By Professor Kristen Stilt and Dr Nazirudin Nasir
This segment will discuss the interaction and relationship between the practice of Muslim family law and other factors in society, including advocacy by local and international human rights groups and actors. It will explore the implications of a more egalitarian and highly-educated workforce on the practice of Muslim law, coupled with higher expectations from segments within the Muslim community. • Certain provisions in the Qurʾan are expounded by classical scholarship in a way that is reflective of its norms and sociopolitical environment of their eras. In a different time and reality, could this same legal framework which is premised on certain assumptions on how the family functions and society operates, be implemented without problems? • Various Muslim communities have reformed their Muslim family laws extensively, and the practices differ from one country to another. What were some of reform strategies adopted by the different Muslim communities in their implementation of Muslim family law? What were the factors influencing these chosen strategies? How effective these strategies have been in addressing some of the issues that have driven the reform efforts in the first place?
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W O R KS H O P PROGRAMME
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SESSION 1 I n te r p ret in g M uslim Family Law in the Co ntext of Conte mporar y S ocieties by Dr Azizah al-Hibri
This workshop proposes for a critical study on the classical framework of marriage in Islam in fiqh as it is mainly positioned as a transactional contract. It will study the implications of taking such a position on the rulings pertaining to marriage and divorce in fiqh, and make assessment if such a position continues to be relevant for the context and reality lived by the men and women today. Key objectives:
• Evaluate and interpret classical texts on Muslim family law based on the appropriate context • Demonstrate an appreciation for the values underpinning gender relationship including marriage, and how this can contradict how Muslim family law is currently implemented internationally • Recognise how cultural norms and milieu have influenced the traditional scholarly body on Muslim Family Law
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SESSION 2
I m p l emen ta t ion of Muslim Family Law: Syaria h Cour t Pe rspe c tive by Ustaz Alfian Yasrif Kuchit
This session will offer an insight into the decision-making process and the considerations that a judge has to factor in using real case studies as examples. It will also share some of the challenges faced when administering Muslim family law in real life cases, and how the Syariah Court has adopted some creative jurisprudence strategies in managing these challenges. Key objectives:
• Appreciate the challenges in implementing Muslim family law in court, given the current realities • Identify some of the tools used in jurisprudential considerations • Understand the interaction of law with societal norms, structures and demographic
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SESSION 3 Ch a ngin g Family Re alities and E x p e ctat ion s: S ocial Wor k Pe rspe c tive by Ms Zaharah Ariff
This session offers a practitioner’s insights into the emerging trends in familial dynamics and structures, and how narratives of a traditional family model can pose pragmatic challenges to the reality of today’s marriage. The workshop will also highlight how cultural and religious narratives have been used to justify abusive acts in a marriage that have lasting damaging impact on the victim. Key objectives:
• Recognise the problematic narratives of marriage and familial life that have utilised religious texts and arguments • Appreciate the challenges and lived realities of today’s marriage and family • Muslim Family Law in Singapore
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SESSION 4 Issues A r isi n g f ro m Cu rren t Im ple me n ta ti o n of A M L A By Mr Ahmad Nizam Abbas and Ms Halijah Mohamad
In this session, legal practitioners will share with the participants some of the AMLA amendments which have led to considerable and much welcomed improvements in the adjudication process in Syariah Court and Appeal Board, and some of the factors that drove these changes. However, while the changes have been positive, more can still be done in order to deal with some of the pressing concerns and to address the developing trends. The legal practitioners will also be sharing some case studies to highlight some of these issues, and propose their proposed recommendations for AMLA review. Key objectives:
• Appreciate how law is experienced on the ground • Understand how law has evolved, and should continue to evolve in order to meet the societal needs
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SPEAKERS’ PROFILES
Dr Mohamed Fatris Bakaram Mufti of Singapore
Dr. Mohamed Fatris Bakaram is the Mufti of Singapore. He is a trained Islamic scholar who has studied the Arabic language and various other Islamic sciences. He received his early education at Madrasah Aljunied Al-Islamiah, Singapore before continuing his tertiary education at the Al-Azhar University, Egypt, majoring in theology. He holds a Master’s degree in Education from the International Islamic University Malaysia (IIUM) and a Doctoral degree in Islamic Studies from Birmingham University, UK. Prior to his appointment as Mufti of Singapore, he was the Principal of Madrasah al Irsyad al-Islamiah in Singapore, and Director of the Office of the Mufti at the Islamic Council of Singapore (MUIS). His other involvement included serving as Deputy President of the Association of Islamic Scholars and Religious Teachers of Singapore (PERGAS), and member of the Appeal Board for the Syariah Court of Singapore.
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SPEAKERS’ PROFILES
Dr Azizah al-Hibri Professor of Law, Emerita T.C. Williams School of Law, University of Richmond
Dr Azizah al-Hibri is a Professor Emeritus at the T.C. Williams School of Law at the University of Richmond. She is also the founder of KARAMAH: Muslim Women Lawyers for Human Rights. Dr. al-Hibri was a presidential appointee to the United States Commission on International Religious Freedom (201113) and is also a signatory to the Marrakesh Declaration (2016) and the Washington Declaration (2017) asserting freedom of conscience for religious minorities in Muslim countries. For the last three decades, Dr. al-Hibri has written and lectured extensively on issues of Muslim women’s rights, the Islamic marriage contract, Islam and democracy, human rights in Islam, Islamic interfaith values, and Muslim civil rights in the U.S. Her recent book, The Islamic Worldview (vol. 1, 2014), focuses on jurisprudentially basic issues. It corrects basic misconceptions about Islam in general, and Islam and gender more specifically. Dr. al-Hibri publishes mostly in law journals and other legal publications. Her work has appeared in the highly respected Journal of Law and Religion, Harvard International Review, and University of Pennsylvania Journal of Constitutional Law, among other venues.
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SPEAKERS’ PROFILES
Professor Dato’ Sri Dr. Zaleha Kamarudin Professor International Islamic Univeristy Malaysia
Prof. Dato’ Sri Dr. Zaleha Kamarudin was a Professor at the Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia specializing in Comparative Family Laws. She was the first female rector of the International Islamic University Malaysia, making her the first woman to head an Islamic university in the Muslim world and also first woman to be appointed in 2017 as a Shariah Appellate Court Judge in Malaysia. She sat on several Technical Committees drafting on model laws relating to the harmonization of Sharia and Civil Laws. She was the chairperson for PISWI, a panel sanctioned by the Council of Rulers with specific mandate to advise on issues involving Islam, women and children’s rights. She was also appointed as the Head, Law Cluster for the Islamic Consultative Council. Currently, she is a professor at the International Institute of Islamic Thought and Civilisation (ISTAC-IIUM) and DeputyChair (Asia), OIC Women Advisory Council.
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SPEAKERS’ PROFILES
Professor Mohammad H. Fadel Professor Faculty of Law University of Toronto
Professor Mohammad H. Fadel is a Professor at the Faculty of Law at the University of Toronto. Professor Fadel wrote his Ph.D. dissertation on legal process in medieval Islamic law while at the University of Chicago and received his JD from the University of Virginia School of Law. Professor Fadel has published numerous articles in Islamic legal history and Islam. He was named the 2018 Distinguished Scholar-inResidence for the Wendy & Emery Reves Centre for International Studies, and the Program in Comparative Legal Studies and Post-Conflict Peacebuilding, for his contributions in the scholarship of Islamic law and governance.
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SPEAKERS’ PROFILES
Professor Kristen Stilt Professor of Law Harvard Law School
Kristen Stilt is a Professor of Law at Harvard Law School. She also serves as Faculty Director of the Animal Law & Policy Program, Director of the Program on Law and Society in the Muslim World, and is a Deputy Dean. Stilt was named a Carnegie Scholar for her work on Constitutional Islam, and in 2013 she was awarded a John Simon Guggenheim Memorial Foundation Fellowship. She has also received awards from Fulbright and Fulbright-Hays. She received a JD from The University of Texas School of Law, where she was an associate editor of the Texas Law Review and co-editor-in-chief of the Texas Journal of Women in the Law. She also has a PhD in History and Middle Eastern Studies from Harvard University. Her research focuses on animal law, and in particular the intersection of animal law and religious law; Islamic law and society; and comparative constitutional law. Publications include Islamic Law in Action (Oxford University Press, 2011); “Contextualizing Constitutional Islam: The Malaysian Experience,” International Journal of Constitutional Law (2015); “Constitutional Innovation and Animal Protection in Egypt,” Law & Social Inquiry (2017); “Law,” in Critical Terms for Animal Studies, ed. Lori Gruen (University of Chicago Press, 2018); “The Ambitions of Muslim Family Law Reform,” Harvard Journal of Law & Gender (2018), with Salma Waheedi and Swathi Ghandhavadi Griffin.
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SPEAKERS’ PROFILES
Dr Nazirudin Mohd Nasir Deputy Mufti of Singapore
Dr Nazirudin Mohd Nasir is the Deputy Mufti at the Islamic Religious Council of Singapore (MUIS), a statutory board overseeing the administration of religious affairs of the Singapore Muslim community. He sits in the Fatwa Committee and is also a member of the Singapore Bioethics Advisory Committee. Dr Nazirudin is trained in Islamic and comparative law and the study of religion. He completed his Doctor of Philosophy at St Cross College, University of Oxford, in the comparative study of the Abrahamic religions. Dr Nazirudin has presented numerous papers and participated in several conferences in Singapore and abroad. He was also a member of the 2017 interministerial committee on CEDAW, and was part of the Singapore’s delegation to Geneva for the oral presentation at the 68th session of the UN CEDAW Committee.
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Ustaz Alfian Yasrif Kuchit Senior President of Syariah Court
Ustaz Alfian Yasrif Kuchit is the Senior President of the Syariah Court; a post which he held since July 2017. He was formerly President of the Syariah Court from 20102014 and Deputy Director, Ministry of Culture, Community and Youth from 20152017. Alfian obtained his Bachelor of Laws from the International Islamic University, Malaysia and his Master of Laws from Columbia University, New York.
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Ms Zaharah is the Manager of Casa Raudha Women Home. She has MSocSC (Professional Counselling) and BA in Counselling Psychology and also WSQ AdvCert in Training & Assessment.
Ms Zaharah Ariff Manager of Casa Raudha Women Home
Prior to running the Shelter, Ms Zaharah worked as a School Counsellors helping youths at risk finding purpose in their lives before she became a Marriage Counsellor handling cases referred by Syariah Court. She also conducts talks to schools, families and communities in promoting family values and creating awareness on domestic violence.
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Mr Ahmad Nizam Abbas Chairman, Muslim Law Practice Committee
Mr. Nizam is an Of Counsel at K&L Gates Straits Law LLC, which is the Singapore office of K&L Gates LLP, a fully integrated global law firm. He has a keen interest in complex jurisdictional issues , especially on the interplay between civil and Muslim law in family law and inheritance cases. He has acted for clients from many different countries in cross-border matters involving divorce, children and matrimonial assets. He also has extensive experience in handling inheritance disputes spanning various international jurisdictions. He is the current chairman of the Muslim Law Practice Committee of the Law Society and deals with family law, trusts and inheritance work in both the civil law and Syariah law systems. He was a member of the Law Society’s team which participated in the Parliamentary Select Committee Hearing on the landmark amendments to the Administration of Muslim Law Act back in 1997. He has written various articles on jurisdictional issues, including ‘The Islamic Legal System in Singapore’ published in the University of Washington Pacific Rim Law Journal (2011) and ‘Custody Issues- Differences and Similarities between Civil and Syariah Courts in Singapore’ in the Singapore Academy of Law Journal (2018).He loves teaching and is a fellow at the Singapore Institute of Legal Education where he teaches 3 subjects - Family Law, Wills, Probate & Administration and Mediation.
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Ms Halijah Mohamad Vice President Singapore Association of Women Lawyers
Halijah Mohamad graduated from National University of Singapore and was called to the bar in 1984. The focus of her practice is family law (in both civil and syariah courts). She is involved with various NGOs (including AWARE & Muslim Financial Planning Association). She is now Vice President of S’pore Association of Women’s Lawyers. She is a member of the Family Law Practise and Muslim Law Practise Committees in the Law Society. She is also part of Musawah (a global movement for equality in Muslim family). She had been involved in representations to Select Committee on several bills including Administration of Muslim Law Act, Women’s Charter, Penal Code, and Maintenance of Parents Act. She contributed the chapter on Overview of Syariah law in family matters in the book Law & Practice Of Family Law In Singapore published by Sweet & Maxwell (2016).
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