CUSTODY ISSUES – DIFFERENCES AND SIMILARITIES BETWEEN CIVIL AND SYARIAH COURTS IN SINGAPORE
| Citation | (2018) 30 SAcLJ 695 |
| Date | 01 December 2018 |
| Published date | 01 December 2018 |
| Author | Ahmad Nizam ABBAS LLB (Hons) (Keele University), LLM (Singapore Management University); Advocate and Solicitor (Lincoln's Inn); Advocate and Solicitor (Singapore); Director, Straits Law Practice LLC. |
Muslims in Singapore are bound by their personal law in marriage, divorce and inheritance. However, during the course of the marriage and even after divorce, the parents of Muslim children in Singapore may find themselves in the civil courts instead of the Syariah Court. This article reflects upon the historical cases which exposed the conundrum in the area of jurisdiction over Muslim children in custody cases and the manner in which the courts and the legislation handled such problems. This article also analyses the approach adopted by the Syariah Court and MUIS Appeal Board on children issues and the surrounding sensitivities.
1 2018 marks the 50th year since the Administration of Muslim Law Act1 (“AMLA”) took effect. The AMLA is the primary statute which sets out the provisions for regulating Muslim religious affairs and the framework on how Islamic law is applied in Singapore. It is from the AMLA that the three key Islamic institutions – the Islamic Religious Council (“MUIS”),2 the Registry of Muslim Marriages (“ROMM”) and the Syariah Court of Singapore derive their authority and powers from. The Syariah Court is empowered to deal with Muslim divorces and the issuance of inheritance certificates for estates of deceased Muslims.3 Appeals from the Syariah Court are heard at the MUIS Appeal B oard (“Appeal B oard”).4 In 1977, the post of “Minister-in-Charge of Muslim Affairs” was created, formalising the de facto position since self-government in 1959 whereby a Muslim minister in Cabinet
was entrusted with the additional responsibility of overseeing Muslim affairs in Singapore.52 In terms of personal law, Muslims in Singapore find themselves in a unique position of being subject to parts of the Women's Charter6 and to the AMLA. Over the last 50 years, the issue of conflict of jurisdiction has arisen in matters ranging from custody of children to the division of matrimonial assets to custody. Some of the cases have resulted in legislative amendments to the AMLA and Supreme Court of Judicature Act7 (“SCJA”).
3 As summed up by a member of the Appeal Board:8
[The] melange of both civil and religious laws in Singapore, and the interplay between the two conceptually-distinct but inextricably interlinked regimes is one that is ‘not always well understood’. The blended approach has … resulted in the civil courts expounding periodically on significant and weighty issues of the day that bear considerable implications for one's understanding of the practice and contours of Muslim law in the domestic context …
A study of the historical development of this relationship will assist greatly in better understanding the rationales and policies that underpin the unique dual legal system practised in Singapore.
4 From time to time, the civil courts have had to face issues that encroach into specific elements of Muslim law. In Chaytor Alan James v Zaleha bte A Rahman9 (“Chaytor v Zaleha”), an ostensible maintenance issue ended with the High Court making an important decision on the status of a Muslim wife whose husband had pronounced talak on her but which had yet to be confirmed by the Syariah Court. In Re Will of Shaik Ahmad Bin Abdullah Wahdain Basharahil,10 the High Court had to rule on the validity of the marriages under Muslim law of the deceased with four other women, apart from the wife named in the Inheritance Certificate issued by the Syariah Court.
5 In February 2017, a full bench of the Court of Appeal in TMO v TMP11 deliberated on a situation where a Singaporean couple had first divorced in the Johor Syariah Court, Malaysia but were left in limbo as to their matrimonial property (a Housing and Development Board flat) as the Syariah Court of Singapore held that it had no power to make a ruling on the grounds that there was no divorce application before it. The wife's application to the Family Justice Courts (“FJC”) and her appeal to the High Court were turned down for want of jurisdiction.
6 In holding that the High Court has a residual jurisdiction when the Syariah Court has no jurisdiction, the Court of Appeal clarified that whether the Syariah Court has jurisdiction in the first place depends on two conditions. The first is that the parties must either be Muslim or have been married under the provisions of Muslim law. The second is that the dispute must relate to matters identified in ss 35(2)(a)–35(2)(e) of the AMLA. Where the Syariah Court has jurisdiction over a matter that falls within s 35(2)(a), 35(2)(b) or 35(2)(c) of the AMLA, such jurisdiction is exclusive and the High Court shall have no jurisdiction over those matters.12 The Court of Appeal stressed that this residual jurisdiction is not to be confused with the situations where the High Court jurisdiction is invoked under s 17A(2) of the SCJA.13
7 As the scope of this article is confined mainly to the issue of custody and access, a fuller commentary on the wider impact of TMO v TMP is more aptly reserved for another day. In the context of this article, TMO v TMP is relevant as it manifests the evolution and development of the conflict of laws issues and also provides us with the
practical realities Muslim litigants face in navigating the dual legal system, which is complicated by a more globalised world.8 As it is relatively easier for the practitioners of Singapore family law to find case law emanating from the civil courts, more space has been allocated to the case law from the Syariah Court and Appeal Board. Other valuable sources are the parliamentary reports on the AMLA.
9 The amendments to the AMLA over the last 50 years have consistently attracted deep and wide interest not only from Muslim law practitioners but also the Muslim community. A common concern has been the applicability or standing of Muslim law in our secular state. The proposed amendments to the AMLA in 1998 on the “concurrent jurisdiction” of the civil courts and Syariah Courts on ancillary matters were met with such uneasiness within the Singapore Muslim community that the amendments were put to a parliamentary Select Committee hearing.
10 In his speech on the 1998 Select Committee Report on the Administration of Muslim Law (Amendment) Bill14 (“1988 Amendment Bill”), the then Minister-in-charge of Muslim Affairs, Abdullah Tarmugi, stated:15
The [Select] Committee finds little cause for concern over possible conflict between Civil and Syariah laws if ancillary matters were heard in the Civil Courts. Some representors, for example, were particularly concerned over how Civil law would apply to disputes on the custody of Muslim children. The Committee consulted the Attorney-General's Chambers, Muslim lawyers who practise in both civil courts and Syariah Court and MUIS and found that there are no differences in basic principles between Syariah law and the Guardianship of Infants Act, as both consider the welfare of the child to be of paramount importance. The AMLA additionally also specifically provides for the Civil Courts, in cases where religious issues could be a consideration, to seek advice from the Legal (or Fatwa) Committee[16] of MUIS. [emphasis added]
11 In order to appreciate the sensitivities, it is necessary to look back at historical cases and none was more controversial than Adrianus Petrua Hertogh v Amina Binte Mohamed17 (“the Maria Hertogh case”) in 1950.
12 During World War II, while her father served in the Dutch army, Maria (who was then five) had been entrusted by her mother to a local Muslim lady, Amina binte Mohamed, who raised Maria as a Muslim. After the war, Maria's parents searched for her and in 1950, filed for her custody under the Guardianship of Infants Ordinance.18 Prior to the conclusion of the court proceedings, Maria (who was by then 13 years old) went through marriage with a local Muslim schoolteacher, Mansoor bin Adabi.
13 In order to make a determination as to whether the marriage was valid, Brown J faced conflicting evidence on one of the essential prerequisites of a Muslim marriage, the issue of “wali” (guardian of the bride). On this, there was a divergence of opinion between the Kathi who performed the said Muslim marriage ceremony, and Tungku Mahmood Suhdi, the Shaikh ul-Islam of Selangor in Malaya.19
14 Brown J acknowledged the complexities in jurisdictional and substantive law issues when his Honour commented:20
I am conscious of treading on unfamiliar ground, and I am mindful of the dangers, which Mr. [Ahmad] Ibrahim on behalf of the 2nd defendant has pointed out, of relying upon such authorities as Ameer Ali which deal with Mohammedan law as it applies in India, where the ordinary courts had jurisdiction to deal with matrimonial matters under Mohammedan Law,[21] which the Courts in this country have not …
15 Upon ruling that the marriage between Mansoor Adabi and Maria Hertogh was not valid under Muslim law, Brown J moved on to the question of who had custodial rights over Maria. Upon interviewing her in chambers, Brown J recorded that he was satisfied that it was her desire to remain in Singapore and to continue in the Muslim faith.
Notwithstanding her stance, Brown J held that in applying the principle of the welfare of the infant, he had to consider her welfare not only in the terms of her present wishes, but for the future.
16 On 2 December 1950, Brown J ordered that Maria be returned to her Dutch parents and Maria was taken away from court by her natural mother who then placed her temporarily in the Roman Catholic Convent of the Good Shepherd to await her return to Holland. In response, Amina appealed for a stay of execution of Brown J's order. The dismissal of the stay application on 11 December 1950 triggered the Maria Hertogh riots. A Commission of Inquiry report on 7 August 1951 concluded that the riots were largely due to the anger of the Muslim community over the verdict and the inciting element of sensational press coverage, in particular a...
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