ADR, ISLAM AND SINGAPORE

Singapore’s system of dealing with Islamic law is fundamentally different from that of the UK, and this has an impact on ADR practice amongst Muslims in Singapore. At one level, Islamic law is a formal part of the legal system of Singapore, referenced in the Constitution, implemented in legislation and adjudicated via the existence of a formal Shari’ah (local rendition ‘Syariah’) Court and Board of Appeal.

In terms of the formal, posited system, Article 152 of the Constitution of Singapore addresses the Malay community, which is overwhelmingly Muslim, stating that:

Minorities and special position of Malays

152. (1) It shall be the responsibility of the Government constantly to care for the interests of the racial and religious minorities in Singapore.

(2) The Government shall exercise its functions in such manner as to recognise the special position of the Malays, who are the indigenous people of Singapore, and accordingly it shall be the responsibility of the Government to protect, safeguard, support, foster and promote their political, educational, religious, economic, social and cultural interests and the Malay language. (emphasis added)

To this, Article 153 adds that:

153. The Legislature shall by law make provision for regulating Muslim religious affairs and for constituting a Council to advise the President in matters relating to the Muslim religion.

It is on this basis that the Islamic Religious Council of Singapore (generally known by its Malay-language name Majlis Ugama Islam Singapura and usually referred to locally by its acronym, MUIS), has been established by the government. MUIS oversees religious affairs such as the maintenance of mosques, halal certification and the provision of religious education and guidance to the Malay, and other, Muslim communities. Furthermore, MUIS is empowered to issue legal opinions (fatwa, pl. fatawa) through its Legal (Fatwa) Committee.^[397] Fatawa opinions need not be linked to any legal action in process and it should be noted that these legal opinions are not binding - though they may be persuasive - on the civil courts in Singapore.^[398]

The role and impact of MUIS has been characterised by Tim Lindsey and Kerstin Steiner as follows:

MUIS is involved in a vast array of areas... This deep reach in to the life of Muslims has meant that the inward-looking, traditionalist and state-compliant norms discernible in MUIS’ fatawa (and so many of its other public statements and programmes) have saturated the official religious culture of Singapore’s Muslim community and will probably do so for the foreseeable future.^[399]

In addition to the Constitution, Islamic law is also substantially dealt with in Singapore through the Administration of Muslim Law Act (AMLA),^[400] which, as its name suggests, provides a structure for the administration of Muslim law - including the establishment of MUIS. This Act primarily addresses personal law matters such as marriage, divorce and inheritance, which are the main areas where Muslim legal traditions are expressed in Singapore law. In the main, AMLA leaves the substantive law in these areas to be decided within the context of the Muslim community itself and the Act is concerned principally with administrative procedures. That said, AMLA does provide the broad boundaries, if not the detailed specifics, within which Islamic law operates in Singapore.

Muslim law is also articulated by the operation of a special Shari’ah Court, and a Board of Appeal to hear appeals from the Shari’ah Court. On some matters such as child custody, divorce, and maintenance of a wife and child, the Shari’ah Court has concurrent jurisdiction with the High Court. In addition, AMLA stipulates that in some matters the jurisdiction and authority of the Shari’ah Court and Appeal Board is final and conclusive. Section 35 of AMLA, which discusses the jurisdiction of the Shari’ah Court, thus says:

35. (1) The [Shari’ah] Court shall have jurisdiction throughout Singapore.

(2) The 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 and which involve disputes relating to -

(a) marriage;

(b) divorces known in the Muslim law as fasakh, cerai taklik, khuluk and talak;

(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 emas kahwin, marriage expenses (hantaran belanja), maintenance and consolatory gifts or mutaah.

(3) In all questions regarding betrothal, marriage, dissolution of marriage, including talak, cerai taklik, khuluk and fasakh, nullity of marriage or judicial separation, the appointment of hakam, the disposition or division of property on divorce or nullification of marriage, the payment of emas kahwin, marriage expenses (hantaran belanja) and consolatory gifts or mutaah and the payment of maintenance on divorce, the rule of decision where the parties are Muslims or were married under the provisions of the Muslim law shall, subject to the provisions of this Act, be the Muslim law, as varied where applicable by Malay custom.

In Mohamed Yusoff bin Mohd Haniff v Umi Kalsom bte Abas (Attorney­General, non-party)^[401] in discussing the scope of the Shari’ah Court’s work, the High Court of Singapore cited section 56A of AMLA and stated (at paragraph 25):

[a] s s 56A of AMLA provides that subject to the Act, a decision of the Syariah Court or the Appeal Board is final and conclusive and ‘no decision or order of the Court or the Appeal Board shall be challenged, appealed against, reviewed, quashed or called into question in any court and shall not be subject to any Quashing Order, Prohibiting Order, Mandatory Order or injunction in any court on any account’.

In addition, under section 35A of AMLA, parties who have commenced proceedings involving disposition or division of property on divorce or custody of children may apply to the Shari’ah Court for leave to commence or to continue proceedings in the civil courts. Thus, while the Shari’ah Court has its own jurisdiction, this is within a limited range created by AMLA versus a general jurisdiction and the Shari’ah Court operates under the general supervision and oversight of the High Court of Singapore.

These jurisdictional matters were recently addressed in the case of TMO v TMP ^[402] There the Court of Appeal said (at paragraphs 22-25 and 30):

22 Whether the Syariah Court has jurisdiction is thus dependent on two conditions. The first is that the parties to the dispute must either be Muslim or have been married under the provisions of Muslim law. The second is that the dispute must relate to the matters identified in ss 35(2)(a) to (e) of the AMLA. Where the Syariah Court has jurisdiction over a matter that falls within ss 35(2)(a), (b) or (c) of the AMLA, such jurisdiction is exclusive and the High Court shall have no jurisdiction over those matters. This is provided for by s 17A(1) of the SCJA [Supreme Court of Judicature Act, Cap. 332, Rev Ed 2007], the effect of which is to exclude the jurisdiction vested in the High Court by ss 16 and 17 of the SCJA in cases where the Syariah Court is in a position to exercise jurisdiction under ss 35(2)(a), (b) or (c) of the AMLA [...].

23 Where the Syariah Court has jurisdiction over a matter that falls within ss 35(2)(d) or (e) (and incidentally also ss51 or 52(3)(c) or (d)) of the AMLA, it shares that jurisdiction concurrently with the High Court. This is provided for by s 17A(2) of the SCJA which has been reproduced above.

24Hence, parties who were married under Muslim law and who are then divorced may, during or after the divorce proceedings in the Syariah Court, apply to either the Syariah Court or the High Court for ancillary relief.

25 Where a matter does not fall within the jurisdiction of the Syariah Court, the High Court retains residual jurisdiction over the matter. This is provided for by ss 16 and 17 of the SCJA, which confer upon the High Court ‘jurisdiction under any written law relating to divorce and matrimonial causes’ where this has not been excluded by any other provision vesting jurisdiction in the Syariah Court [...].

30 If the dispute is one in respect of which the High Court shares jurisdiction concurrently with the Syariah Court and if the High Court takes jurisdiction over the matter under s 17A(2) of the SCJA (see above at [23]), s 17A(7) of the SCJA expressly provides that it shall apply the civil law [emphasis in the original].

With respect to procedure, AMLA provides that the Shari’ah Court can at its discretion appoint a hakam (arbitrator) in a family dispute, and that, in this role, it may appoint ‘close relatives of the parties having knowledge of the circumstances of the case’.^[403] This is consistent with the Quranic verse cited above^[404] that embodies a preference for relatives to be appointed as arbitrators in family disputes.^[405] Further, consistent with the traditional notion that arbitrators’ decisions should be binding, the same legislation ‘confers... arbitrators with the authority to order for divorce or khulu’.^[406] Essentially, the arbitrators’ ability to pronounce a divorce is dependent on the giving of authority from the parties, but if the arbitrators are of the opinion that the parties should be divorced but he lacks the authority formally to do so, the Court will simply appoint other hakam with the requisite authority to effect a divorce.^[407] Also, in line with the Islamic ethic, AMLA also provides for sulh in requiring the hakam to ‘effect...

Indeed, more generally, the procedure in the Shari’ah Court is like the type discussed in the UK context above in being a blended process involving mediation and arbitration. Thus, in part, the Shari’ah Court is a formal institution whose decisions are reported, but it is also quite normal in the Shari’ah Court, which, recall, is essentially a forum to address family law matters to attempt to reconcile the parties or to find a negotiated settlement be undertaken that the Court may then endorse. In fact, Court officials will often act as informal mediators to attempt to bring about resolution where possible. In so doing, Shari’ah Court operates in a manner consistent with the concept of sulh in the Islamic tradition. This flexibility to blend formal processes attempts at sulh is facilitated by section 42 of AMLA, which states that ‘The Court shall have regard to the law of evidence for the time being in force in Singapore, and shall be guided by the principles thereof, but shall not be obliged to apply the same strictly’ (emphasis added).

In terms of substantive law, while this is left to the community (via MUIS and the Shari’ah Court) to determine, section 33 of AMLA does direct MUIS ordinarily to follow the tenets of the Shafi’i school of law (madhhab), which has historically been the school which predominates in Southeast Asia. Other of the major schools can also be relied upon, however, and provisions relating to these possibilities are also found in the subsections of section 33.^[409] Muslim law in Singapore is also variable by ‘Malay custom’, an acknowledgment of the historical, and still major, role of Malay Muslims in Singapore. Of particular interest is that section 114 of AMLA stipulates that the Court may accept ‘as proof of the Muslim law any definite statement on the Muslim law’ in a list of seven texts.^[410] This is not exactly to preclude reference to other materials, but it provides a set of materials which are, one might say, ‘canonised by legislation’ as sources of Muslim law for Singapore.

With respect to private arbitration under the Arbitration Act, the use of Islamic law becomes an option according to section 32(1) of the Act, which says: ‘The arbitral tribunal shall decide the dispute in accordance with the law chosen by the parties as applicable to the substance of the dispute.’ Thus, Muslims (and of course others) may choose to use Islamic law to govern arbitration proceedings involving commercial or other issues within the scope of the Act.

What is the impact of AMLA, the Shari’ah Court and the Arbitration Act on ADR practices amongst Muslims in Singapore? With respect to arbitration, while in general Singapore does not allow arbitration of family law matters, the institution of the hakam that is made available under AMLA means that arbitration in this form and in the context of some family law matters may occur. Outside of AMLA and family law matters, Islamic law norms via choice of law clauses may also be the basis for arbitration, if this is the desire of the affected parties. Indeed, with the growth of Islamic banking and finance and Singapore’s efforts have more of this type of work done in the country, Islamic law norms may feature more prominently in financial or commercial arbitration contexts in the future.

When one does turn to family law matters, however, which today represent the majority of issues where Islamic law gets involved in Singapore, the structure of the Shari’ah Court provides a conducive venue for sulh-based practice, which is akin to the ADR process of negotiation and mediation. Indeed, particularly in the context of issues like division of property in cases of divorce or in disputes on inheritance, mediation, at and with the support of the Shari’ah Court, is regularly attempted. There are two ways this is practised. Outside of the court structure, mediation may be attempted by family representatives, by counsellors or indeed by lawyers acting for the different parties. At the court, a familiar pattern is for an officer of the Shari’ah Court to attempt informal mediation between the parties, which is actually a mandatory part of divorce proceedings in Singapore. If the mediation takes place under the auspices of the Court, the ultimate agreement can then be verified (as to its conformity with the law) and endorsed (to give it greater legal weight and standing) by the Court. In a divorce case, the mediation agreement would be converted into a court order and then result in the issuance after some time of a divorce certificate. Unlike in the UK, however, one can note that neither MUIS nor any other agency provides an alternative institutional mechanism for family law-based ADR within the general Muslim community in Singapore. Thus, the Sharia Court represents the only ‘structured’ venue for ‘sulh practice’ for the general Muslim community in Singapore. One important matter to note, and a significant difference between Singapore and the UK, is that, in Singapore, the jurisdiction of the Shari’ah Court is not optional: the Shari’ah Court is the venue and has compulsory jurisdiction over the range of matters stipulated in section 35(2) of AMLA involving Muslim parties and (a limited range of) matters may only be transferred to the civil courts by leave of the Shari’ah Court under section 35A.

One may say, therefore, that the overall context for Islamic law in Singapore is for its norms and its adjudication to be governed much more heavily by state-influenced or state-defined processes than is the case in the UK. This is done by legislation in which the state defines the scope of Islamic law, the forum for hearing cases involving Islamic law (Shari’ah Court) and the institution of MUIS and especially MUIS’ fatawa- providing function. This larger role and involvement of the state is a major distinguishing feature of Singapore model vis-à-vis the operation of Islamic legal norms in the UK. And it has implications.

As has already been commented, the Shari’ah Court provides a convenient venue and a conducive institutional structure with physical space and court officers, in which to pursue negotiation-cum-mediation to seek out amicable settlement (sulh). Where this fails, the Shari’ah Court can then use arbitrators (hakam) in and effect arbitration (takhim). But be that as it may, the institutional structure, and its link to MUIS and the stipulations of AMLA, also means that there is a normative, Islamic law overhang in Singapore. Put differently, this is an example of a well-known and easily understood phenomenon of concretisation and some attendant rigidity that comes from taking the highly plural tradi­tions of Islamic law, that emerged classically without the context of the modern state and expressed much interpretational diversity, and fitting them into a contemporary state environment. One might say, of course, that nowadays that context is all but impossible to avoid and that there is as much of a state context in the UK as there is in Singapore because the British state will have its own normative overhangs - based on adminis­trative law, human rights law or other normative bases. That cannot be denied. The salient point for the context of this discussion, however, is that Singapore is palpably more directive about the normative content of Muslim legal traditions because bodies of the Singapore state are more involved in defining, shaping and implementing these norms than is the case in the UK.

V.