HISTORICAL CONTEXT AND ITS CONSEQUENCES

In the late nineteenth century, when the British arrived in Singapore and Australia, they found inhabitants whose prior settlement and control over the land was identified through terms such as ‘native’, ‘indigenous’ or ‘Aboriginal’ peoples.

In Singapore, these were the Malays with a handful of Chinese ‘living along the banks engaged in pepper and gambier planting’.^[13] The religion of the Malays since the fourteenth and fifteenth centuries had been Islam. The British had earlier encountered Islamic law in India when Warren Hastings, as Governor-General (1773-84), recognised its importance to Muslim Indians. He created a hybrid known as ‘Anglo-Mohammadan Law’ which was a compilation and later a codification of Islamic texts and practices which incorporated some aspects of English law, including concepts of case law and precedent. In this way, Islamic personal status law could be administered by British judges in India’s common law courts or in separate Shari’ah Courts. Based on the experiences from India, it was not surprising that a similar pluralistic model was adopted by the British in the 1820s in colonial Singapore^[14] in which, depending on one’s ethnicity or religion, separate legal orders for personal law^[15] operated. This was not just for the Malays. In addition to ‘Mohammadan’ law for Malays, Chinese customary law of marriage and family coexisted with the religious laws of the Hindus, Sikhs and Jews. English Christian-derived marriage and family law was of course applied to its own expatriate community. However it was of significance that in Sir Stanford Raffles’ negotiations with Sultan Hussein Muhammad Shah^[16] for the island of Singapore, a condition was that a special legal status for Muslim Malays must be maintained. It was agreed that in all cases involving Malays in ceremonies of religion, marriages and inheritance, ‘the law and custom of the Malays will be respected’ unless ‘contrary to reason, justice or humanity’.^[17] From the outset, Islamic law was separately recognised and the Singaporean legal system evolved pluralistically.

In contrast, there was no Muslim presence in Australia when colonisation took place. The British could find neither a recognisable religion nor a legal system. The colonial categorisation of Australia as ‘terra nullius’ (land belonging to no one)^[18] stands in contrast to the process in Singapore and other parts of South East Asia where the British found a religion, laws and a form of governance they recognised. These discoveries enabled negotiations and treaties to be signed with the various South East Asian Sultans. There was no treaty negotiated in Australia nor was there any formal recognition of the indigenous beliefs, customary laws and dispute resolution process of the Australian Aborigines. When Captain Arthur Phillip hoisted the Union Jack at Sydney Cove in 1788 and proclaimed the continent for King George III, the Aboriginal people became subject to the laws of England and its courts. Legal monism had its genesis in this time. Although in recent decades there has been legal recognition of native title^[19] and special sentencing courts, known as Murri or Koori Courts, set up in some states for indigenous Australians who plead guilty to minor offences, separate legal recognition of Aboriginal laws and customs pertaining to family, inheritance and other personal status issues has never been accorded. These different historical foundations have led to a distinctive legal trajectory for both nations.

At the time when the six British colonies^[20] federated in 1901, the Australian Constitution omitted any recognition or acknowledgement of the first peoples of Australia.^[21] Although in 1901 Christians made up over 98 per cent of the population, the Constitution did not establish Christianity or one of its denominations (for example, Church of England, Roman Catholicism or Presbyterianism) as the state religion, opting instead for a de-establishment provision. Section 116 makes it unconstitutional for any religious test to be required as a qualification for any office or public trust under the Commonwealth.

The Constitution guaranteed freedom to practise one’s religion. Muslims living in Australia in those early days of settlement were able to practise Islam and to establish mosques, Islamic schools and community centres. Whilst antisectarianism informed Australia’s secularism^[22] the Australian secular system did allow each and every religion and spiritual tradition to have its own place of worship and for followers to apply voluntarily any religious law with the proviso that it did not transgress any national or state law. As a consequence, many of Australia’s religions have kept alive their own religious laws especially dealing with matters of marriage, including the validity or invalidity of inter-faith marriage, and matters of divorce and the care of children. These remain internal to the religion and are quite separate from government or judicial control. Each religion, sect or faith tradition is able to establish processes to address compliance with its religious and legal requirements and to set up informal courts, boards or tribunals to deal with issues that arise.^[23] As adherence to Shari’ah is voluntary, Australian Muslims are able to accept or reject any decrees or rulings pertaining to Shari’ah law given by sheiks, imams or boards. Decisions are unofficial and are not legally enforceable, nor are they reviewable by Australian courts.

By contrast, Muslims in Singapore are legally required to have personal status matters resolved by the Shari’ah Court and in accordance with the Administration of Muslim Law Act 1966 (Cap 3)^[24] (hereinafter AMLA). This separate avenue was entrenched and well accepted at the time of Singapore’s independence in 1965. AMLA replaced the Muslims’ Ordinance (1957) which was a revision of the earlier Mohammadan Marriage Ordinance (1880), which was the first legislative enactment of the laws and regulations to be exclusively applied to Muslims in Singapore. From 1961, all non-Muslims in Singapore - whether Hindu, Buddhist, Christian or Sikh - were governed by the Women’s Charter.

It was called a Charter not an Act because it was to be the Charter for women’s rights and has been credited with changing the family law landscape for non-Muslims through its commitment to monogamy and by working towards the legal and economic equality of married women.^[25] It ended Singapore’s era of legal pluralism in favour of dualism, as the only exception to this law was for persons of the Islamic faith. Prior to independence, Singapore also had established courts with exclusive jurisdiction over Muslims which from 1955 onwards were designated as Shari’ah Courts. These continued post-independence. In addition, Singapore had had many decades of separate administrative bodies for Muslims. The Muslim Advisory Board was established in 1946 to advise the government on Muslim issues and matters pertaining to Islam. Under AMLA these functions were subsumed and strengthened by the Majlis Ugama Islam Singapura (hereinafter MUIS). To legitimise a separate legal regime for its Muslim citizens, the Constitution of Singapore was drafted to recognise Malays as ‘the indigenous people of Singapore’,^[26] thus justifying the grant of special legal status to Muslims. In so doing, it also honoured the original agreement between Raffles and Sultan Hussein Muhammad Shah. Section 153 of the Constitution provides that the legislature can make laws ‘regulating Muslim religious affairs’ and can constitute a Council to ‘advise the President in matters relating to the Muslim religion’. Section 12 of the Constitution excludes the regulation of Muslim personal law from the constitutional guarantees to its citizens of ‘equality before the law’ and ‘equal protection’.

Due to the accumulation of these precursors, Ahmad Nizam believes that at the time of independence in 1965, the right for Muslims in Singapore to adhere to Islamic law was so entrenched that AMLA merely facilitated rather than created ‘a new jurisprudence of law’.^[27] As AMLA was applied by the Shari’ah Court, the family law system of Singapore became a dual, not plural system. It was based on religious identification only in so far as Muslim or non-Muslim identity.

III.

<< | >>

↑

Source: Hosen Nadirsyah (ed.). Research Handbook on Islamic Law and Society. Edward Elgar Publishing,2018. — 474 p.. 2018

More legal literature on Laws.Studio

HISTORICAL CONTEXT AND ITS CONSEQUENCES

More on the topic HISTORICAL CONTEXT AND ITS CONSEQUENCES: