Islamic Inheritance Law among Muslim Minority Countries in Southeast Asia

Transcription

1 Middle-East Journal of Scientific Research 12 (1): , 2012 ISSN IDOSI Publications, 2012 DOI: /idosi.mejsr Islamic Inheritance Law among Muslim Minority Countries in Soueast Asia Feirul Maliq Intajalle, Luqman Haji Abdullah, Abdul Karim Ali and Mohd Roslan Mohd Nor 1 Department of Fiqh and Usul, Academy of Islamic Studies, University of Malaya, 50603, Kuala Lumpur, Malaysia 2 Department of Islamic History and Civilization, Academy of Islamic Studies, University of Malaya, Kuala Lumpur, Malaysia Abstract: Solution for e disbursement of estate among Muslim minorities countries in Soueast Asia region is based on e systems and laws at being practiced by family, religion and custom in eir countries in which any disputed estate will be referred to civil law. This article examines e similarities and differences between civil law and Islamic law in inheritance issues between Singapore and Thailand. The results show at in certain cases, custom and religion considerations are taken into account in e countries at provide alternative law instead of civil law. This law has be preserved and revised for e betterment and benefits of Muslim citizens especially in e condition of civil law being a mainstream law. It is important for Muslim communities to learn and understand e wisdom behind is law at aims to protect e interest of beneficiaries raer an leaving e families unsecured or misusing e rights for personal interest and cause harm to oer family members. Inheritance law is certainly an essential mechanism in maintaining an individual s rights and protecting e needy family members under eir care. Key words: Inheritance % Soueast Asia % Comparative law % fiqh al- faraidh % Faraidh INTRODUCTION In Brunei, e implementation of Islamic law can be divided into ree stages: pre-colonial, during colonial Inheritance law namely faraidh is one of e and post-colonial [6]. Before colonial period, Islamic important branch in Shariah law. Some countries in law was fully implemented as well as e Brunei Soueast Asia have classified e inheritance law as customs which still consistent wi Shariah principles individual law. This article will try to brief historical [7]. outlook of e inheritance law in line wi e emergence During e British presence in Brunei in 1847, e of Islam in Soueast Asia. Then, it view e distribution Islamic law was limited to e marriage and divorce matters mechanism of Muslim estates in Islamic law as a part of and being known as Islamic Law Enactment (Muhammad e countries legislation. Laws, No. 1 of 1912), Chapter 31 of Revised Laws 1951 which has been enforced on 1 July 1912 during e ruling Historical Overview: Islam was officially established of Sultan Muhammad Jamalul Alam II, 26 Sultan of in Malay archipelago namely Soueast Asia in Brunei [8]. After e independence in 1984, e Islamic present days in 14 centuries as stated in e history law has been improved by Sultan Hassanal Bolkiah in of e related countries such as Brunei, Indonesia, The Sultan has passed orders such as Emergency Malaysia, Singapore and Thailand [1-5]. Islamic law has (Shariah Courts) Order, Emergency Order, Islamic Family been developed in line wi e Islamisation process Law 1999 and Chapter 206, Islamic Adoption of Children in e region. In certain area, it had been implemented in which provide clearer position of Muslims rights an e e legislation. previous Chapter 77. Corresponding Auor: Luqman Haji Abdullah, Department of Fiqh and Usul, Academy of Islamic Studies, University of Malaya, 50603, Kuala Lumpur, Malaysia. Tel: , Fax:

2 In Indonesian, e development of Islamic law was However, Malay communities were recognized as quite impressive. As noted by Ibn Batutah when he indigenous people of Singapore and e government are arrived at Samudera Pasai in 1345 at he was impressed highly encourage to promote any matters related to Malay by e development of Islam in at state and amazed at communities as stated in Article 152 of e constitution. e ability of Sultan al-malik al-zahir. During on at time, Moreover, in Article 153 of e constitution stated at various Islamic issues and problems were discussed. e government under e law are requested to make When Dutch came to Indonesia in 19 century, provision for regulation Muslim religious affairs and Commission Head of Dutch Government Van Oud Haarlem constituting a council to advise e President in matters instructed e courts to use religious laws and customs in relating to Muslim affairs [13]. e cases at involving indigenous people and local The Malay Muslim community en requested to religion as long as it is recognized by e public. form a new body which could administer Muslim issues Haarlem s view may also have later influenced e wi e establishment of specific legal to replace e establishment of a Court of Religion in Java and Madura previous one [14]. On 13 December 1965, Minister of in The setting up of courts of Religion was merely Culture and Social Affairs Mr Oman Wok had an official recognition and consolidation of someing introduced a draft Bill of Administration of Muslim Law in which had already existed wiin e community [9]. his first Reading n Singapore Parliment. On 30 December In Malaysia, Islam has been accepted by e locals 1965, e Bill was read for e second time in e since 14 century and became e religion of e Parliament and on e same day, a parliamentary selection Malaccan Sultanate in e 15 century. Islamic law was committee was formed to review e Bill and taking into implemented in some states which covered Islamic Family consideration in every aspect by getting opinions, law, Islamic Criminal law and Islamic Law of Transaction. feedbacks and views from Singapore Muslim Leaders, After e fall of Malacca to e Portuguese in 1511, new representative from Muslim organisations and selected Malay States emerged wi Islam being e religion of e personnel. In is second reading, Minister explained to States and Islamic law being e law of e land [10]. e parliament at e Bill consist of some example taken During British colonization in Malay states, e British from Administration of Muslim Law Selangor 1952 which imposed English law rough civil court system and effect in few states in Malaysia such as Selangor, Negeri legislation. The Rulers were required to follow e advice Sembilan, Pahang and Perlis [14-15]. of e British Residents and Advisers respectively, except Each of every views and suggestion from e public in matters relating to Islam and Malay custom. When e were reviewed, discussed and e report was summarised country moving towards independence, e constitutional by e committee and presented in e Parliament on 31 commission suggested at e power to enact on Islamic May The ird reading of e bill was read on 17 law and establish e Shariah Court should be given to August Minister explained to e Parliament at e States. After e independence, sources of Malaysian is bill are not substantively Islamic but it is more to law includes e Federal Constitution, State Constitutions, Administration of Muslim law as to establish an Islamic Legislation, Islamic law, Customary law and English Religious Council, to consider for executive power to be Common Law. The Malaysia legal system at present day given to e council, strengen Shariah Court power, is a mixture of Islamic Law, Customary law and English setting up e age limit for Muslim marriage and defence Common Law [10]. for Singapore Muslim women rights. The bill was passed In Singapore, e drafting of Administration of in Parliament and known as Administration Muslim Law Muslim Law Act (AMLA) was e result from e Act or AMLA. This bill came into effect and became an implementation of Muslims Ordinance which known as act on 25 August 1966 and two years later Islamic Mahomedan Marriage Ordinance of 1880 until it being Religious Council of Singapore was established and replaced wi Muslim Ordinance 1957 [11]. When started to operate [15]. Singapore widrew from e Federation in Ogos 1965, In Thailand, Islamic law was formed in matters Singapore became one of e secular countries which relating to family and inheritance. The Thai government strongly emphasises at any national policies could not has issued a law by including e Islamic law on e be mixed up wi e religion and it has turned into legal matter stated above in e Royal Decree R.S. 120/1901 to and policies practice in Singapore [12]. provide smoo administration and governance in e 115

3 states where e population are majority Malay-Muslims Constitution of Brunei Darussalam I), Indonesia (Sect. [16]. Unfortunately, in 1943, e government of Phibul has 29(1), The Constitution of Indonesia) and Malaysia (Sect. removed Islamic family and Inheritance law and e 3(1), The Constitution of Malaysia). In e countries Highest Islamic position from e law and forced e where Muslims are e minority like Singapore and Muslims community to accept local civil law. This has Thailand, Inheritance Islamic law has been recognised and created an instability in souern Thailand and gives an applied under e personal law. However, ere still some emergency called to e government. In 8 May 1945, e problems in implementing e law because e mainstream government of Khuang Apaiwong wi advice from Chem law is still e civil law [15-18]. Promyong reformed e Islamic law and known as In e Administration of Muslim Law or better known Praracha Banyat Sasanupaam Fai Islam [16]. In as AMLA in Singapore states at e jurisdiction of 1946, e government of Thamrong Nawasawad has re- Shariah Court in terms of inheritance is only limited to enacted e Islamic Law in Souern Thailand known as issuing e Inheritance Certificate for e beneficiaries Application of Islamic Law in Pattani, Naraiwat, Yala who apply for it (Sect. 115, Administration of Muslim Law and Satun Act B.E (1946). All hearings on Islamic Act in Caption 3) and for any claims to e estate will only family Law will be heard in District Court in front of e be heard in e High Court or Subordinate Court (O. 80, r. Higher Officer Dato Yuiam [16]. 3, Rules of Court). Alough e Sharia Court has e In 1997, e religious leaders togeer wi e jurisdiction to issue e Inheritance Certificate, it might politicians found out ere was a need to modify e not come into effect in certain cases. This can be learnt Islamic law to fit in wi e current context, e Thai from e case between siblings of Saleh Ali (e Parliament has passed e Bill which known as The Royal deceased); Saniah Ali v. Abdullah Ali (3MLJ 135), Act Concerning e Administration of Islamic whereby The issue for determination wheer upon e Organization 1997 [16]. true construction of sections 23 and 24 of e Central Provident Fund Act (Cap 36) (CPF Act) and sections Islamic Inheritance Law as Practised in Singapore and 112 and 115 of e Administration of Muslim Law Act Thailand: Generally, Islamic as well as civil law share e (Cap 3) (AML Act), e plaintiff or e defendant is same goals in distributing e estates to e heirs as to entitled to e amount of $60,607.71, being e amount protect eir interest and welfare in continuing eir life. paid out of e Fund on e dea of e deceased. In is In Islamic law, general guidelines in identifying ose case, e deceased had, during his lifetime, pursuant to who entitle as beneficiaries and e portions at ey will sect. 24(1) of e CPF Act nominated only e plaintiff to receive are stated in two major sources which is e Quran receive in her own right e entire amount payable on and Sunnah whereby e main beneficiaries who will his dea out of e Fund. The question at arises now automatically receive eir shares are e spouse, is wheer her right to e amount under e provisions descendants and parents, while oers will be considered of e CPF Act is subject to e law governing succession as substitute to e main beneficiaries if ey died before to a deceased s estate and in is particular case, e e deceased. In terms of portion at e beneficiaries get law governing intestate succession of a member who at will be based on e share stated in e two sources and e time of his dea was a Muslim domiciled in if ere is a mix of gender in same level such as Sons and Singapore. As conclusion to e case, in judge opinion Daughters; Grandson and Granddaughter and Broers on e true construction of sections 23 and 24 of e CPF and Sisters, e male will get a portion equivalent to two Act, e amount of $60, is not part of e estate of portions of e ladies share [17]. e deceased and erefore does not fall wiin section This law is believed to be grounded on e wisdom 112(1) of e AML Act. The plaintiff, in my judgment, is behind e law and not in harming oers as it is a entitled in her own right to e full amount of $60, guideline to assist e beneficiaries in solving e which has been paid to her by e CPF Board. As of e distribution of e estate. Generally, e enacting of result, I make e declaration at e plaintiff is entitled Islamic law in Soueast Asia and its acceptance does not to retain e said sum in terms as applied for by her. fully implemented even ough Muslims form majority in From e statement of e case, it demonstrates at not certain countries such as Brunei, Indonesia and Malaysia. all estate will be distributed according to e law stated in The Islamic law in Soueast Asia countries focuses only AMLA as it is not part of e estate of e deceased on certain laws in Islam, enacted in Brunei (Sect. 3(1), The [15-16]. 116

4 In Thailand, ere are some process of applicable to all Muslim in e matters relating to marriage, implementation and cancelation to it by e local divorce and inheritance of e Muslim community (Sect. government whereby e first Islamic law was being 35(1), (2) and Sect. 112, AMLA) [19-20]. enacted in year 1901 and removed from e legislation in Besides, e divergence lies in e role of Shariah year Therefore, e application of Islamic Law in Court. In Singapore, it is responsible in hearing divorce Pattani, Naraiwat, Yala and Satun Act B.E (1946) cases involving Muslim couple and issuing Inheritance to was reenacted and Islamic inheritance law was included in e beneficiaries who apply for it in distributing e estate e act and it is applicable until today [16, 18]. (Sect. 112 and Sect. 115, AMLA). In Thailand, ere is no Islamic law in e matters related to family and specific Shariah Court being established to hear cases inheritance contains 230 articles which were divided into related to Muslim in marital and inheritance matters but two sections. First section is about family and oer e cases are referred to District Court and will be heard section from article 188 to article 230 is for e inheritance. by Dato Yuiam in giving his views based on Islamic However, in Thailand legal system, ere is no any law (Article 4 Clause 3 of e Act Application of Islamic Shariah Court in hearing e case and it can only be done Law in Pattani, Naraiwat, Yala and Satun Act of 2489 in District Court where e court process will be hearing B.E.) [21, 22]. by Dato Yuitam status for a Judge at working in e district court [16, 18]. CONCLUSION In oer words, like oer countries in e region, traditional laws exist vis-a-vis to e western systems at The Islamic inheritance law must be preserved and were imported rough colonialism in Souern Thailand. revised for e betterment and benefits of Muslim citizens. Muslim law is clearly applied in marriage and inheritance It is important for Muslim communities to learn and cases involving Muslims as stipulated in statues of understand e wisdom behind is law at aims to At e same time, ere is no appeal from e decision can protect e interest of beneficiaries raer an leaving e be rendered [18]. families unsecured or misusing e rights for personal The historical accounts have given an impact in interest and cause harm to oer family members. formulating e Islamic law and it facilitates e Muslim Inheritance law is certainly an essential mechanism in community in Soueast Asia in applying it wiin e maintaining an individual s rights and protecting e official channel provided. The differences between Islamic needy family members under eir care. inheritance law in Singapore and Thailand is at e Shariah Courts were given jurisdiction in issuing REFERENCES Inheritance Certificate for e beneficiaries who apply for is as stated in section 115(1) AMLA in Caption and any 1. Al-Sufri, M.J., Latar Belakang Sejarah Brunei. claim on e estate can only be heard in Subordinate Brunei: Pusat Sejarah Brunei Kementerian Court. All hearing process including Islamic law matters Kebudayaan, Belia dan Sukan, 9: 20. will be processed in e District Court, Dato Yuiam 2. Milner, A., The Invention of Politics in Colonial are given e auority to give religious guidance on e Malaya. Cambridge: Cambridge University Press, matters wiin e four souern Thailand district and pp: oer district area will be based on e civil law [19]. 3. Azra, A., The Origins of Islamic Reformism in Bo Islamic law in Singapore and Thailand have e Soueast Asia: Networks of Malay-Indonesia and similarities and differences in implementing e Islamic Middle Eastern Ulama in Seventeen and inheritance law in bo countries. Besides, advantages Eighteen Centuries. Honolulu: University of Hawaii and disadvantages can also be seen from e comparison. Press, pp: 147. Similarities exist in e governments approval of some 4. Hooker, M.B., Introduction The Translation of parts of Islamic law to be applied in bo countries. Islam in Soueast Asia. In Islam in Sou-east Asia, Whereas e differences occur where e Islamic law in Eds., M.B. Hooker and E.J. Leiden: Brill, pp: Thailand is only applicable in e four souern districts 5. Liow, J.C., Islam, Education and Reform in where majority of e population are Malay-Muslim Souern Thailand: Tradition and Transformation. community compared to Islamic law in Singapore is Singapore: Institute of Soueast Asia, pp:

5 6. Tamit, S., Wanita, Keluarga, Dan Undang- 15. Ibrahim, A., Development in e Marriage undang di Negara Brunei Darussalam. Brunei: Laws in Singapore Since In The Malayan Dewan Bahasa Dan Pustaka Brunei, pp: 2. Law Journal, Eds., Mallal, B.A. Singapore: 7. Serudin, M.Z., Melayu Islam Beraja: Malaya Publication House Ltd., pp: 47. Suatu Pendekatan. Brunei: Dewan Bahasa Dan 16. Chapakia, A.O., Undang-undang Pentadbiran Pustaka, pp: 3. Islam dan Mahkamah Syariah di Thailand. 8. Besar, S., Undang-undang Pentadbiran Islam In Pembangunan Undang-undang di Rantau Asean, dan Mahkamah Syariah di Brunei. In Pembangunan Eds., A.M. Yaacob and S. Mohamad, Kuala Lumpur: Undang-Undang di Rantau Asean, Eds., IKIM, pp: A.M. Yaacob and S. Mohamad. Kuala Lumpur: 17. Al-Sabuni, M.A., al-mawari fi al-syari ah IKIM, pp: al-islamiyyah. Beirut: Dar al-kutub al- Ilmiyyah, 9. Ali, M.D., Islamic Law in The Indonesian Legal pp: 49, 65 and 68. System. In Islam and Society in Soueast Asia, Eds., 18. Muntarbhorn, V., The Challenge of Law: T. Abdullah and S. Siddique. Singapore: Institute of Legal Cooperation Among ASEAN Countries. Soueast Asian Studies, pp: Bangkok: Institute of Security and International 10. Suhaib, F.S., Administration of Islamic Law in Studies Chulalongkorn, pp: 76. Malaysia: Text and Material. Petaling Jaya: 19. Yusuf, I., Many Faces of Islam. Bangkok: Lexis Nexis, pp: 7-8, Bangkok Post, pp: 5. Retrieved September 25, Ibrahim, A., The Legal Status of e Muslims in from Singapore. Singapore: Malayan Law Journal Ltd., Article/ManyFacesOfIslam.pdf pp: Muhammad, R.W., The Dato Yuiam and 12. Kong, L. and B.S.A. Yeoh, The Politics of e Administration of Islamic Law in Souern Landscape in Singapore: Construction of Nation. Thailand. International Colloquium of Islamic Law in New York: Syracuse University Press, pp: 77. Soueast Asia: Between Radicalism and Liberalism, 13. Bouma, G.D., Religious Diversity in 12 November University of Melbourne, Soueast Asia and e Pacific. New York: Springer, Australia. pp: Coulson, N.J., Succession in The Muslim 14. Barolomew, G.K., The Singapore Legal Family. Cambridge: Cambridge University Press, System. In Management of Success: The Moulding pp: 3. of Modern Singapore, Eds., K.S. Singh and W. Paul, 22. Hanafi, H., Gender Perspective of e Faraid Singapore: Institute of Soueast Asian Studies, System: Is it Bias Against Women?. Journal of pp: 639. Shariah, 15(2):