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Legal Pluralism in Centralist Singapore

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Debating Legal Pluralism and Constitutionalism

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 41))

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Abstract

As a former British colony, Singapore has a legal system that is very much influenced by British common law and constitutional ideas, while operating within a social-political context that is shaped by Islam, which was the majority religion in the region, and a nascent constitutional-legal culture that sits apart from more liberal legal traditions. Within this context, Singapore’s legal system is distinctly and self-avowedly pluralistic, as it seeks to accommodate traditional legal systems in the form of Muslim personal laws, while resisting developments in the common law that are viewed as ‘foreign’.

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Notes

  1. 1.

    See generally Phang (1990).

  2. 2.

    Phang (1986).

  3. 3.

    Harding (2002).

  4. 4.

    Goh and Tan (2011), p. 177.

  5. 5.

    Act 27 of 1966.

  6. 6.

    For a full list of laws incorporating various other religions, see Bell (2012), pp. 17–18 and footnote 41. As Bell notes, most of these other laws were originally adopted by the British and continued after independence.

  7. 7.

    See section 5 and 6 of the Hindu Endowments Board Act (Cap 364, 1994 Rev Ed Sing).

  8. 8.

    Twining (2000), p. 232.

  9. 9.

    Griffiths (1986), p. 3.

  10. 10.

    Ibid.

  11. 11.

    Ibid.

  12. 12.

    Denza (2014), p. 421.

  13. 13.

    Ibid.

  14. 14.

    Ibid.

  15. 15.

    Ibid.

  16. 16.

    Waters (2007).

  17. 17.

    Neo (2013).

  18. 18.

    Neo (2012).

  19. 19.

    Ibid.

  20. 20.

    Ibid.

  21. 21.

    Ibid.

  22. 22.

    [2015] 2 SLR 420.

  23. 23.

    ABU v Comptroller of Income Tax [2015] 2 SLR 420, paras 47–48.

  24. 24.

    Ibid., para 47.

  25. 25.

    [2013] 1 SLR 1095.

  26. 26.

    Public Prosecutor v Tan Cheng Yew [2013] 1 SLR 1095, para 56.

  27. 27.

    Ibid.

  28. 28.

    Ibid., para 45.

  29. 29.

    Ibid., para 69.

  30. 30.

    [2010] 3 SLR 489.

  31. 31.

    Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129.

  32. 32.

    The argument presented in the case was not as clear as it could be on this point but this is the best interpretation to counsel’s arguments with respect to international law.

  33. 33.

    Yong Vui Kong v Public Prosecutor [2015] 2 SLR 1129, para 38.

  34. 34.

    See Neuman (2004) and Waters (2004).

  35. 35.

    Waters (2007).

  36. 36.

    Neo (2013).

  37. 37.

    Article 153 of the Constitution of the Republic of Singapore states: “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.”

  38. 38.

    Cap 3, 2009 Rev Ed Sing.

  39. 39.

    See generally Abbas (2012).

  40. 40.

    These are fasakh, cerai taklik, khuluk and talak.

  41. 41.

    Betrothal, nullity of marriage or judicial separation, payment of emas kahwin, marriage expenses (hantaran belanja), maintenance and consolatory gifts or mutaah relating to marriage and divorce.

  42. 42.

    Act 24 of 1969 (emphasis added).

  43. 43.

    Muhd Munir v Noor Hidah & Other Applications [1990] SLR 999.

  44. 44.

    The High Court made a distinction between jurisdiction and power. It held that the Syariah Court has no jurisdiction to hear and determine issues with respect to custody of children but that it is vested with the power to make orders concerning the custody, maintenance and education of children where there is an application for divorce before it. The vesting provision, section 35 of AMLA, confers the Syariah Court jurisdiction over marriages, divorces, and disposition or division of property on divorce, but no mention was made of jurisdiction over the guardianship and custody of children. Section 52 which sets out the powers of the Syariah Court empowers to court to make such orders as it thinks fit with respect to, inter alia, “the custody, maintenance and education of the minor children of the parties” at any stage of the proceedings or after a decree or order has been made, “[i]n any application for divorce.” Ibid., pp. 1006–1009.

  45. 45.

    Lathibaby Bevi v Abdul Mustapha [1997] 3 SLR 1038.

  46. 46.

    Ibid., p. 1041.

  47. 47.

    See section 17A of the SJCA, read with section 35 of AMLA.

  48. 48.

    Under this new section, parties can agree to commence or transfer proceedings concerning disposition or division of property as well as custody of children to the civil courts. Where there is mutual agreement, the Syariah Court is required to counsel parties on their options, and if after such counseling, parties remain in mutual agreement, the Syariah Court would be required to issue a certificate of attendance for the proceedings to be heard in the civil courts. See section 35A of AMLA.

  49. 49.

    Singapore Parliament, Report of the Select Committee on the Administration of Muslim Law (Amendment) Bill (Bill No 18/98), para 9; Singapore Parliamentary Reports (April 15, 1999), Administration of Muslim Law (Amendment) Bill (As Reported from Select Committee), col 1249–1250.

  50. 50.

    Ismail bin Ibrahim v Mohd Taha bin Ibrahim [2004] 4 SLR 756.

  51. 51.

    The transfer is deemed to have taken effect 3 days before his death if he dies of sickness, or 1 h before his death in the case of accidents or sudden death.

  52. 52.

    All Muslims are subject to these rules. This is established under section 112 of AMLA: “(1) In the case of any Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as modified, where applicable, by Malay custom. (2) This section shall apply in cases where a person dies partly intestate as well as in cases where he dies wholly intestate. (3) In the case of a Malay dying intestate, the court may make an order for the division of the harta sepencarian or jointly acquired property in such proportions as to the court seems fit.”

  53. 53.

    See, e.g., section 60(1) of AMLA which restricts the ability of Muslims to will or gift away more than one third of his property to charitable trusts. See also Ismail bin Ibrahim v Mohd Taha bin Ibrahim [2004] 4 SLR 756, paras 49, 51.

  54. 54.

    The High Court referred to Shaik Abdul Latif v Shaik Elias Buz (1915) 1 FMSLR 204, Siti binti Yatim v Mohamed Nor bin Bujai (1928) 6 FMSLR 135, Re Fatimah Binte Mohamed Bin Ali Al Tway, Deceased [1933] 1 MLR 211, Abdul Jabbar v M Mohamed Abubacker [1940] 1 MLJ 286, and Re Estate of Siti bte Naydeen [1983-1984] SLR(R) 682.

  55. 55.

    Majlis Ugama Islam Singapura, Office of Mufti (2019).

  56. 56.

    Sections 31 and 32 of AMLA.

  57. 57.

    The will containing the nuzriah was certified and validated by the Mufti of Singapore. After a dispute arose among the heirs concerning the division of property, the Fatwa Committee was asked to and issued a fatwa declaring that the nuzriah made in the will was valid, and determined how the estate should be divided. MUIS also ratified the nuzriah segment of the will. See Ismail bin Ibrahim v Mohd Taha bin Ibrahim [2004] 4 SLR 756, para 17.

  58. 58.

    For a further discussion on the hierarchy of norms in Singapore, see Neo (2016).

  59. 59.

    [2010] 2 SLR 1123.

  60. 60.

    On 12 May 2005, pursuant to an application of the administrators of the estate, the Syariah Court issued an inheritance certificate (“the Inheritance Certificate”) under s 112 of AMLA identifying 12 beneficiaries of the estate. The deceased’s wife was declared as having 10/40 shares in the estate. The deceased’s children were held to be not entitled to any share as they were not Muslims at the date of death of the deceased. Despite that, the wife filed a Notice of Death at the Singapore Land Registry and became registered as the sole owner of the property. She subsequently transferred the property to herself and their two children. The children had been denied from inheriting the deceased’s estate under Syariah law because they had converted out of Islam.

  61. 61.

    The fatwa reads: “The Fatwa Committee is of the opinion that the estate is considered as a matrimonial property (harta sepencarian) as the deceased and his wife had jointly own [sic] it. Therefore half of the estate is considered as inheritance and should be distributed in accordance to Islamic Inheritance Law (faraidh).”

  62. 62.

    Shafeeg v Fatimah [2010] 2 SLR 1123, paras 28, 69.

  63. 63.

    Ibid., para 69.

  64. 64.

    [2017] 1 SLR 585.

  65. 65.

    Section 121G of the Women’s Charter (Cap 353, 2009 Rev Ed Sing).

  66. 66.

    See Woon (1999).

  67. 67.

    Adelaide Co of Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 16.

  68. 68.

    Government of the State of Kelantan v Government of the Federation of Malaya [1963] MLJ 355. See further Tan (2017a).

  69. 69.

    Review Publishing Co Ltd v Lee Hsien Loong [2010] 1 SLR 52, discussing Reynolds v Times Newspapers Ltd [2001] 2 AC 127.

  70. 70.

    See Thio and Chong (2012), pp. 87, 97.

  71. 71.

    Thurvengadam (2017). See also Jackson (2005).

  72. 72.

    Moller (2012), p. 709.

  73. 73.

    Huscroft et al. (2014).

  74. 74.

    [2005] SGHC 216.

  75. 75.

    Ibid., para 87 (emphasis added).

  76. 76.

    Lee (2014).

  77. 77.

    Stone-Sweet and Mathews (2017).

  78. 78.

    Vijaya Kumar s/o Rajendran and others v Attorney-General [2015] SGHC 244.

  79. 79.

    Ibid.

  80. 80.

    AIR 1973 SC 1461.

  81. 81.

    Per Sikri CJ in Kesavananda Bharati v State of Kerala AIR 1973 SC 1461. Other judges identified slightly different features in their concurring judgment, such as the dignity of the individual, and the unity and integrity of the nation (per Shelat and Gover JJ).

  82. 82.

    [1989] 2 MLJ 449.

  83. 83.

    [2012] 4 SLR 947.

  84. 84.

    Ibid., pp. 956–957 (emphasis added).

  85. 85.

    Tan (2017b).

  86. 86.

    [2015] 2 SLR 1129.

  87. 87.

    Ibid., pp. 1158–1159 (emphasis added).

  88. 88.

    Ibid., p. 1160.

  89. 89.

    [2017] SGHC 163.

  90. 90.

    Ibid., para 65.

  91. 91.

    Ibid., para 66.

  92. 92.

    Ibid., para 66.

  93. 93.

    Griffiths (1986).

  94. 94.

    Ginsburg (2003), p. 19.

  95. 95.

    Tan Seet Eng v AG [2016] 1 SLR 779, para 90.

  96. 96.

    Ibid., paras 1, 106.

  97. 97.

    Yap (2015). See critique in Jhaveri and Neo (2017).

  98. 98.

    See, e.g., Neo (2017).

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Acknowledgement

I would like to thank Philip Teh Ahn Ren for his editorial assistance.

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  1. National University of Singapore, Faculty of Law, Singapore, Singapore

    Jaclyn L. Neo

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  1. Sciences Po Law School, Paris, France

    Guillaume Tusseau

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Neo, J.L. (2020). Legal Pluralism in Centralist Singapore. In: Tusseau, G. (eds) Debating Legal Pluralism and Constitutionalism. Ius Comparatum - Global Studies in Comparative Law, vol 41. Springer, Cham. https://doi.org/10.1007/978-3-030-34432-0_8

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