REFLECTIONS ON MULTICULTURALISM: CONVERGENCE AND DIVERGENCE IN AUSTRALIA AND SINGAPORE

As outlined above, a colonial legacy has meant different practical consequences for Singapore’s half a million Muslims than for Australia’s Muslims. Both legal systems seek to provide just and fair family and personal law outcomes for all their citizens, but have taken different paths for achieving this goal.

These divergent views on multiculturalism have meant that the role of Shari’ah law plays out in distinctive ways in each nation. These will now be considered from a comparative perspective, highlighting points of divergence.

A. Indigenous Peoples versus Immigrants

In recognising Malays as the first people of Singapore, the Constitution provides a justification for Islam and Islamic law, to be differentiated and applied separately from the Women’s Charter which governs most Singaporeans.

B. Community Acceptance versus Community Concerns

The longevity of legal pluralism and Constitutional protections afforded to persons of the Islamic faith in Singapore, have meant that having a religious court and different set of family laws for Muslims is accepted and rarely criticised, although though there is acknowledgement by many Singaporeans that this dichotomy remains ‘very sensitive’.

In Australia, there is general acceptance of the ‘one law for all’ approach. There is a level of consensus that social cohesion and unity is best achieved through a single legal order, not multiple ones, to protect ‘the principles of equality, legal security, legality, and political unity’.^[85] In March 2013, the Australian government re-committed the nation to this approach by endorsing the recommendation of its Parliamentary Inquiry into Migration and Multiculturalism in Australia ‘not [to] support legal pluralism’.^[86] Instead, the government promotes the ‘message that multiculturalism entails both respect for cultural diversity and a commit­ment to the framework of Australian laws and values which underpin social cohesion’^[87] (italics added).

Singapore values its dual system just as Australia values its one law for all.

C. Homogeneity versus Heterogeneity

One factor contributing to the lack of Muslim consensus on the role for Shari’ah in Australia is that the Muslim population is Australia is not homogeneous, unlike Singapore, where Malay ethnicity, language and culture and Shafi’i school dominate. Australia has Shia Muslims, Ibadis, Sufis, as well as adherents from each of the four Sunni madhabs (schools of law). Australian Muslims comprise 56 different ethnicities and have migrated since the days of first settlement from more than 70 nations. This internal plurality gives a complexity to the Australian situation not replicated in Singapore. This leads to a range of views on the role for Islam in a secular Australia and different ideological commitments to Islam and Shari’ah law. Some Muslims in Australia describe themselves as secular or nominal Muslims. They have an Islamic heritage but have embraced the secular Australian lifestyle - they rarely attend the mosque or observe the five pillars of Islam, they drink alcohol and many have married or are in relationships with non-Muslims.

Consensus is also more difficult in a setting where Muslims in Australia are geographically dispersed across a large continent. Singapore has the one Shari’ah Court based at Lengkok Bahru, and kadis in districts easily accessible to all Singaporeans. Australia is vast. Although both countries have roughly the same number of adherents, Muslims in Australia are found in every city from Darwin to Hobart and also in many rural areas. Cairns is almost 3000 km from Melbourne, and Perth to Sydney is 4000 km, which is essentially the same distance from Perth to Singapore. Establishing a Shari’ah Court or tribunal system would have logistical consequences, thereby raising equity and access issues given the geographic spread of Muslims across Australia.

D. Mandatory versus Voluntary Jurisdiction

The success of the Singaporean approach rests heavily not only on the homogeneity of its Malay Muslim community, who by and large accept the jurisdiction of the Shari’ah Court, the rulings of MUIS and the application of AMLA, but also on the Shari’ah Court’s mandatory jurisdiction. Singapore’s Muslims have no choice but to submit to the Shari’ah system (unless they leave Islam). It does necessitate the keeping of a reliable record of who is Muslim. In Singapore this can be through self-identification as section 2 of AMLA defines a Muslim as ‘a person professing the religion of Islam’, but the more important mechanism is through the separate registration system (ROMM) for Muslim births, conversions and marriage. In Australia, because no legal consequences flow from one’s religious affiliation, neither religion nor race is put on official marriage, death or birth registers. In Australia, just as religious marriage ceremonies are optional, so too are other personal milestones. Parents can voluntarily choose to have their child undergo a religious ceremony such as a baptism, bar mitzvah, aqiqah (welcoming ceremony for a Muslim baby), christening or other naming service, and similarly choose funeral and burial arrangements in accordance with faith require­ments. One’s religion is not officially recorded with any government body, which means changing one’s religion or becoming atheist remains in the private realm or with the religious bodies’ own record-keeping systems.

A Singapore-style system of mandatory jurisdiction for Shari’ah Courts would deny Australian Muslims the same right as other citizens to have cases heard in the common law courts. This would be unlawful discrimination in secular Australia. To deny access to the Federal Circuit Court or the Family Court in Australia based on religious grounds would not be acceptable. Any dual system introduced in Australia would have to be on a voluntary opt-in basis, rather than the mandatory lines of Singapore. Even with an opt-in system, several legal issues would still arise in Australia. The first is that for any government to recognise and cede jurisdiction to a religious court, even on a voluntary basis, constitu­tional amendments would be needed. Section 116 of the Australian Constitution makes it unconstitutional for any religious test to be required as a qualification for any office or public trust under the Commonwealth. Where a qualification for judicial or arbitral appoint­ment was based on religion, namely Islam, it would be unconstitutional. As already noted, these issues do not arise in Singapore, where Consti­tution was drafted to entrench legal pluralism not only by creating a special legal status for Muslims^[96] but also by specifying that guarantees of ‘equality before the law’ and ‘equal protection’ in section 12(3) do not extend to the regulation of personal law. This allows AMLA and the Shari’ah Court to operate in this realm of personal law using personnel appointed and funded by the government. Unlike section 153 of the Singapore Constitution, which provides that the legislature can make laws for ‘regulating Muslim religious affairs and for constituting a Council to advise the President in matters relating to the Muslim religion’, the Australian government has been given no similar authority. The Australian federal and state governments can (and do) have advisory bodies, such as the Muslim Community Reference Group (MCRG)^[97] and the government-funded National Centre of Excellence in Islamic Stud­ies,^[98] but these are not offices of the government or under a public trust.

Regardless of the constitutional obstacles, there are other concerns with an opt-in system. One is that such a system could intensify Muslim community pressure, even family or spousal coercion, to follow the ‘official’ Islamic dispute resolution option. In effect, this could under­mine their free choice. The second arises from the internal plurality that exists in Australia’s Muslim population. This has already been discussed, but were there a government-run Shari’ah Court option, it could in fact impact adversely on plurality of interpretations of Islam that currently flourish. The third is one of public policy. Where there is divergence between religious law and state law, any adverse outcomes for faith adherents become a matter for the religion, in this case Islam, or one for the Australian government or its courts to address. Earlier the issue of limping marriages was mentioned and the predicament for Muslim women that can ensue is frequently cited as a reason for endorsing some form of formal or official Shari’ah Court or Muslim divorce tribunal.^[99] Yet a similar predicament arises in other faith traditions in Australia. Islam is not alone in requiring a religious divorce for its adherents. There are other religions that also do not accept a divorce granted under Australian law dissolves a marriage which took place under their own religious law. Roman Catholics and Jews in Australia^[100] have an ecclesi­astical or rabbinical court to make such determinations. These matters remain internal to the religion and do not involve government funding or endorsing of religious courts, nor oversight or the creation of exceptional rules. To do so for one, or for all religions, would seem an unwarranted intrusion into religious freedom generally. Essof, for example, writes that this is needed for limping marriages because Muslim husbands can distort and abuse the Islamic system, and there may be bias and lack of sensitivity from the imams when making decisions that ‘could be long, demeaning and emotionally traumatic’^[101] for women. Whilst not refuting the legitimate concerns raised, Islamic jurisprudence does favour inter­pretations that do not create hardship for Muslims through principles of maslaha (public interest). If ‘limping marriages’ result in hardship for Muslim women because Imams will not grant them an Islamic divorce after they have received a civil one, then ijtihad (independent reasoning) with its many juristic techniques should be utilised to ensure fairer interpretations. Otherwise the problem will remain. As we see from the traditionalist interpretations in divorce cases from Singapore’s Shari’ah court (section 47 AMLA) which uphold the classic juristic view that the husband must consent to a khuluk/khula divorce, the outcome for divorcing wives would remain and the problem not rectified.^[102] The presence of a religious court, council or tribunal does not guarantee modernist interpretations, and in practice it could restrict options cur­rently available to Muslim women in Australia’s informal system. Cur­rently, if refused a khuluk/khula divorce, the wife is now at least able to seek out another scholar who may apply a different interpretation and grant the divorce. And a wife always has the right to obtain a secular divorce which will provide her with a financial and property settlement and a determination on parenting arrangements irrespective of the reli­gious process. These are legally enforceable. Arguments put forward that the Family Court should not grant divorces until a Muslim wife can prove she already has a religious divorce^[103] from an Islamic Council would again be discriminatory and would deny her legitimate legal entitlements.

E. Consistency versus Diversity

In the Australian context, the lack of an official Shari’ah Court or a Majlis Ugama Islam Singapura (MUIS) equivalent has meant there is less certainty and predictability in the application of Islamic law. This arises from the informal unofficial status of Shari’ah law and the heterogeneity of Islam in Australia. In Singapore, there is jurisprudential consistency which gives more certainty and predictability in the law. This comes not only from adhering to predominately to Shafi’i tenets,^[104] as section 33 AMLA requires both the Majlis and the Legal Committee to ‘ordinarily follow the tenets of the Shafi’i school of law, unless it is not in the public interest to do so,^[105] but also from the supervisory role of MUIS on the application of Shari’ah law through its Appeal Board and also the MUIS Legal Committee. Section 31 of AMLA sets out the composition of the legal committee, namely ‘(a) the Mufti; (b) two other fit and proper members of the Majlis; and (c) not more than two other fit and proper Muslims who are not members of the Majlis’. The Mufti of Singapore is the Chairman of the Committee and the Mufti and Commit­tee members are appointed by the President of Singapore, with the advice of the Majlis for the other members.^[106]

MUIS also issues fatwas (legal opinions on matters of Islamic law). In keeping with the tradition of ifta (the issuing of fatwas) in Islamic law, a question requiring a fatwa on any point of Islamic law can be asked by ‘any person’,^[107] by a court of law, including the Shari’ah Court,^[108] and the Committee can ‘of its own motion’ make and publish any ruling or determination.^[109] The process involves making a draft ruling which if it is unanimously approved by the Legal Committee^[110] will be issued by the Majlis; if it is not unanimously approved, it will be referred to the Majlis who will issue the fatwa in ‘accordance with the opinion of the majority of its members’.^[111] This consensual process furthers consistency in the interpretation of Shari’ah law within Singapore. The role given to the Legal Committee provides not only the Shari’ah Court with an authori­tative source for interpretations of Sharia law but fulfils that role also for the civil courts. Although the civil courts are not bound by the ruling of the Legal Committee (unlike the Shari’ah Court), the cases show consideration and respect for the Committee’s rulings.^[112] That the civil courts have one entity to which they can turn for an Islamic law opinion is a valuable attribute of the Singaporean model. In Australia, who qualifies as an expert in matters of Islamic law can be problematic and has to be established each time to the satisfaction of the court. As with the presentation of other forms of expert evidence, parties can provide their own Shari’ah law expert so the court has to decide between two versions. In the case of Mohammed Salah & Gastana [2011] FamCA 440, the parties had contrary expert opinions given by two Muslim scholars. One of the issues in dispute was whether their child’s name, given by the mother, was ‘blasphemous in the Islamic religion’ or not.

The component of consistency in the interpretations provided by MUIS can act as a unifying force for Singapore’s Muslim community. On the MUIS website some of the more important fatwas are published in Malay or English, or both languages. They include: legal rulings on finance and estate matters; zakat (tithe or charity tax); family matters including family planning; the permissibility of certain medical advances including the stem cell research, organ donation and transplantation, bone marrow transplantation, abortion and advanced medical directives; the permissi­bility of using ethanol as a food additive; and whether a particular group engaged in deviant teachings (on Islam). These questions would also resonate with many Muslim Australians. The role that fatwas fulfil in the Islamic system is not limited to Muslim countries or to ones like Singapore. Fatwas are equally if not more important in countries like Australia with a preponderance of immigrants rather than a long settled cohesive population. In order to accommodate Islamic religious require­ments within a secular framework, it can be argued that fatwas are of even greater significance for Australian Muslims,^[113] as they can ease transition into a secular society and facilitate compliance with Islam in a new social and regulatory context. Research in Australia and also Europe has found the demand for fatwas in the West appears greater than in Islamic countries.^[114]

Without an equivalent of Singapore’s MUIS Legal Committee or a government-appointed Mufti, there can be confusion and inconsistency in the legal opinions provided, or alternatively, a plethora of views which reflects the voluntary nature of ifta as a tradition and also gives voice to the diversity within the Australian Islamic community. Just as Australian Muslims can select the imam or informal Islamic body of their choice for divorce and other proceedings, Muslims in Australia can turn to a range of sources for fatwas: national organizations such as Australian Federa­tion of Islamic Council (AFIC), the Darulfatwa Islamic High Council, or the National Council of Imams (ANIC); state organizations including state Islamic Councils and local majlis ulama; local sheikhs or imams at their mosque; or a scholar or organization in an overseas country; and last, but importantly, the Internet’s many online fatwa sites.^[115] The process of searching Islamic websites for a religious ruling has been called ‘fatwa shopping’ or surfing the ‘inter-madhab net’.^[116] All sorts of new, alternative and diverse interpretations of Islam can be found online, but traditional or conservative versions appear dominant of some of the most used sites. Some of these overseas Islamic websites^[117] have Muslim scholars who may answer the question without necessarily understanding life in Australia. If the question closely relates to life and social interaction in an Australian context, the answer might not be contextually suitable.^[118] Of course, Singapore’s Muslims can also go online to surf the ‘inter-madhab’ net, but the presence of a national ifta body is a stabilising and unifying force, and fatwas issued by MUIS are cognizant of local conditions.

F. Courts Working Together versus Separately

The longevity of legal pluralism in Singapore has meant that the Shari’ah and civil courts have had to establish a working relationship. The jurisdiction of each is delineated and there is recurring interaction between the two. For example, the Shari’ah Court lacks powers of enforcement, so its orders for maintenance, mutaah (compensation) marriage expenses, custody and property division are enforceable (sec­tion 53 AMLA) but not reviewable, by the civil court: the District Court. These orders are enforced as if they were orders of the District Court. There are also cases in which each court will play a distinct role, for example, in distributing a Muslim’s estate, the Islamic laws of inheritance are applied by the Shari’ah Court in order to issue an inheritance certificate,^[119] but all grants for probate and letters of adminis­tration come from the civil courts.^[120] As noted earlier, the Shari’ah Court has exclusive jurisdiction to make a divorce order but does not have the power to determine matters of spousal maintenance or when a protection order should be issued. These must be remitted to the civil court. In some matters the courts have concurrent jurisdiction. Whilst a Muslim couple must have their divorce heard in the Shari’ah Court, applications for child custody, access and distribution of matrimonial property can be made to ‘any court’. This enables a Muslim party during or after divorce proceedings in the Shari’ah Court to make an ancillary application to the civil Family Court where the civil law will be applied.^[121] AMLA requires this to be with the consent of the parties and with the leave of the Shari’ah Court.^[122] Similarly, adoptions fall under the jurisdiction of the civil Family Court,^[123] but the Court takes into account Islamic principles on adoption, to allow the child to keep the name of his or her birth parents, and not that of the adoptive family.^[124] Similarly, the Shari’ah Court can apply legal principles from the civil law system when the issue is one not covered by Islamic law.^[125] Lastly, the criminal offences contained in AMLA Part IX, which include religious offences such as failure to pay zakat, cohabitation outside of marriage, enticing an unmarried woman away from her wali (male guardian, usually her father) and teaching false doctrines about Islam^[126] are heard, determined and sentenced in the civil courts.

In Australia, the Family Courts will apply Australian family law to disputes that come before it, regardless of the religion of the parties. When mahr provisions are raised in the context of a post-divorce property settlement, the Family Court will treat mahr either paid or deferred as part of the combined asset pool to be distributed in line with spousal and child maintenance needs and property distribution. Parties will usually try to work out these matters without recourse to litigation, but some do come to the Family Court for resolution. An interesting development in the intersection of Shari’ah law and common law arose recently when the courts in New South Wales had to determine whether a mahr provision should be enforced as a contractual term. The case of Mohamed v Mohamed [2012] NSWSC 852 gives insight into how the ‘one law for all’ approach plays out in Australian judicial thinking. Faced with paying his wife mahr, the appellant husband argued from an Australian law perspective that the marriage contract was contrary to Australian law on public policy grounds, or alternatively, that the issues involved the applicability of Islamic law which could only be determined by an Islamic law. The court held that mahr agreements could be enforced as long as they complied with the applicable Australian law of contract. The religious component in the contract did not make a case ‘non-justiciable’,^[127] and the $50,000 mahr clause was an enforceable term of a contract in circumstances where the husband had initiated the separation and/or the divorce. If the wife initiated the separation or there was mutual agreement to do so, mahr was not payable. The court found that on the facts, the husband initiated the separation and he was ordered to make the payment. The case is significant because it shows that Australian courts will apply Australian law of contract, not Shari’ah family law, to decide such issues, even where the marital relationship was ‘blessed by Islamic Sharia’ - the phrase used in the Mohamed’s marriage contract. Whether the outcome would be different if determined by a Shari’ah Court applying relevant Islamic principles was irrelevant. It should be noted, however, that the marriage contract in this case had expressly referred to Australian legislation regarding the couple’s assets should their marriage end. If the contract had instead specified Islamic law rather than Australian property law, the outcome might have been different. The husband’s submission that the Australian court lacked jurisdiction for matters involving Shari’ah law failed, thereby signalling that Australian courts will not cede jurisdiction because a religious dimension is involved. Harrison AsJ cited Black and Sadiq’s view that Shari’ah ‘family law cannot be relegated exclusively to a religious tribunal, court or other body to apply and enforce as it is the right of all citizens to bring family matters to the courts of law for determination and have the general law of the land apply’.^[128] That Australia does not deny a Muslim spouse the right to have a case heard in the civil court is an important feature of the Australian ‘one law for all’ system. When interviewed after the judgment, the wife said it was ‘important for Muslim women to fight for their rights’.^[129] Where a party believes a secular court may provide a better (depending on one’s perspective) outcome, then he or she has a right to take that case to the courts for adjudication.

G. Unofficial versus Professional

In contrast to Australia’s ad-hoc system, Singapore’s model with a government-funded and government-regulated Shari’ah Court creates a professional and transparent body. Trials and hearings are open,^[130] with the power given in section 46(2) for the court, if it thinks fit, to hold part or all of the proceeding in camera. This power is frequently exercised. Unlike in the common law courts, Shari’ah Court decisions are not formally reported and published, but there is an internal system of records which can be accessed by the legal representatives of the parties. This has allowed a kind of informal system of precedence to develop which facilitates consistency and predictability. Appeals are also possible. Decisions of both the Shari’ah Court and registrars can be taken on appeal to the Shari’ah Appeal Board.^[131] This degree of transparency and appellate review are two important safeguards lacking in Australia’s informal system.^[132] In an unofficial system, if an individual or a group of Islamic scholars asserts that they have knowledge and authority to make determination on marriage, inheritance, divorce and financial matters, there are no reliable means to verify this. As hearings take place in private, without lawyers, and without recordings or transcripts, and as there is no formal appeal structure, it is not impossible to know if the reasoning and application of Shari’ah law is fair and accurate. Different outcomes on similar issues can occur. The Singapore model provides a superior system as there is oversight of legal decision making, consist­ency in application of law, with the added safeguard of an appeal process. Parties are entitled to legal representation ‘by advocate or solicitor or by an agent, generally or specially authorized to do so by the Court’.^[133] This does not exclude non-Muslim lawyers.^[134] The Legal Aid Bureau can grant legal aid to litigants in the Shari’ah Court, when the means and merits requirements are met.

V. CONCLUSION

The legacies of colonial times still direct the nature and form of the legal systems in Singapore and Australia. The template laid down by the British colonial government has proven resilient for two centuries and seemingly retains the support of each government and its citizens. For Muslims in both countries, it has meant quite different things. Muslims in Australia have choices. Muslims in Singapore have certainty. Choice can be empowering but it can lead to uncertainty, vulnerability and discon­nection from mainstream Australia. Certainty on the other hand can mean conformity with singular interpretation of Islam which can enhance a shared religious and ethnic identity. Australian Muslims are afforded the same relationship choices as other Australians: the decisions are theirs to make. Whether they marry or divorce according to Shari’ah law or Australian law, or both; whether they marry a non-Muslim, or marry without a wall’s consent; whether they simply live together and raise a family outside of marriage, or enter a same-sex union; it is their choice. Singapore’s Muslims do not have the same choices, but they have the certainty of knowing that the Shari’ah Court and registry are there to guide and sanction the relationships they enter and exit, in the assurance that as Muslims they are following the path laid down by their faith.

Whereas ‘traditionalism’ has been the hallmark of Singapore’s juris­prudence,^[135] Australia’s eclectic Muslim population holds diverse juris­prudential and doctrinal allegiances ranging from ‘liberal, progressive, modernist, reformist, secular at one end through to moderate, traditional, orthodox in the mid-range and to conservative, extremist, radical, literal- ist, neo-revivalist or fundamentalist at the other end’.^[136] Given this pluralistic context, a formalised and officially recognised Shari'ah Court or Council in Australian would face practical obstacles in terms of the jurisprudence to be applied, the interpretative approach adopted, the persons entrusted with the role of adjudication, and how appointment, oversight and enforcement would occur. In Singapore these obstacles do not arise as it is a streamlined, professional, government-endorsed and legislatively sanctioned system.

The Singapore Constitution facilities the application of Shari’ah law whilst the Australian Constitution creates a significant obstacle to imple­menting a dual or plural regime based on religious affiliation. Govern­ments in Australia continue to endorse the ‘one law for all’ approach, rejecting notions of legal pluralism or any formal mechanism to apply Shari'ah law, whilst the government in Singapore is committed to its dual system. Each of these multicultural and multi-religious nations is un­wavering in support for the route being taken as the best way to bring about social cohesion and fairness for all.

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