FIFTY YEARS SINCE ENACTING THE ADMINISTRATION OF MUSLIM LAW ACT

• Citation: (2019) 31 SAcLJ 1096
• Published date: 01 December 2019
• Date: 01 December 2019

I. Introduction

1 Singapore is amongst the few countries1 that statutorily allow Muslims to engage in polygamy.2 This is provided for under ss 96(2) and 96(3) of the Administration of Muslim Law Act3 (“AMLA”). The exercise of Singapore's Muslim law is constitutionally provided under Art 153 of the Constitution, which states that the “Legislature shall by law make provision for regulating Muslim religious affairs”.4 The enactment of the AMLA in 1968 “does not seek to deal with the Muslim law itself but only with its administration [and no] attempt has been made to alter the fundamental concepts or rules of Muslim law”.5 Therefore, understanding Singapore's Muslim legal jurisprudence involves

understanding the AMLA and various important sources of substantive and procedural Muslim law, such as the Quran6 (the Holy Book), that are relied on by the Singapore Syariah Appeal Board (“the Appeal Board”).

2 In Singapore, only Muslims are permitted to practise polygamy. Non-Muslims are prohibited from practising polygamy due to the Women's Charter7 enacted in 1961,8 which was the intention of the People's Action Party if they became the Government.9 Prior to enactment of the Women's Charter, Chinese customary law permitted polygamy and was given effect to by the Singapore courts and Legislature of that time. For example, the court in In The Goods Of Lao Leong An10 highlighted the differences in women's status in polygamy under Muslim law and Chinese customary law, such as the wives having equal status under the former, whilst the first wife holds a higher rank than the others in the household under the latter.

3 This article focuses on examining Singapore's contemporary Muslim legal position under the AMLA as articulated by the Appeal Board. Notably, only one local contemporary legal textbook11 has touched on the Muslim laws of polygamy. Although other jurisdictions, in particular common law jurisdictions such as Malaysia, also allow the practice of Muslim polygamy, the Appeal Board observed that the administration of Muslim law (that is, the legal requirements that the applicant has to satisfy before being permitted to practise polygamy) varies amongst countries, and decisions from foreign jurisdictions that administer Muslim law will “be treated with caution”.12

4 Given the foregoing, this article will refer to principles found in Muslim sources, especially the Quran, as articulated by the Appeal Board and relevant authorities under s 114 of the AMLA. A brief summary of the sources of Muslim law for Sunni Muslims was articulated by the Singapore High Court in

Mohamed Ismail bin Ibrahim v Mohammad Taha bin Ibrahim13 as follows: (a) the Quran; (b) Hadith (the traditions of the Prophet Muhammad (“the Prophet”), viz the oral precepts delivered from time to time by the Prophet and references to the daily mode of his life as handed down to posterity by his immediate followers); (c) Ijmaa (consensus amongst highly qualified legal jurists); and (d) Qiyas (reasoning by analogy or analogical deduction).14 For a more detailed explanation of each component, guidance is provided in the written works15 of the late Professor Ahmad Ibrahim, Singapore's first Advocate-General (more commonly known today as the Attorney-General).16 Besides the decisions of the Appeal Board, this article places great reliance on the legal commentaries of the learned common law legal practitioner, the late Abdullah Yusuf Ali (“the Learned Commenter”), whose translations of the Quran17 and accompanying commentaries were constantly relied upon by the Appeal Board in making their determination on matters of Muslim polygamy.18

5 Part II19 examines the Muslim legal jurisprudence, especially the principles permitting polygamous marriages and applications for polygamous marriages under the AMLA. Part III20 examines various evidentiary factors taken into account by the Kadi and the Appeal Board. Part IV21 examines situations where a polygamous marriage was obtained outside of Singapore and the applicant wishes to register the marriage in Singapore. Part V22 examines the differences between Malaysia and Singapore in their approach towards regulating polygamy for Muslims and their interpretation of Muslim jurisprudence. Part VI23

highlights this author's humble observations of possible advancements in the AMLA.

II. Muslim law on polygamous marriages

A. Historical origins

6 The Learned Commenter explains that in the period prior to Islam's arrival, termed in Islamic history as Iyam-i-Jahilyat24 or “Time of Ignorance”, a man engaging in polygamy could have more than four wives without restrictions.25 However, Islam regulated polygamy by restricting a Muslim man to a maximum of four wives and imposing conditions that he must be able to fulfil, such as treating the wives equitably, before contracting into polygamy.26 A learned Muslim scholar mentions that married men who accepted Islam during the time of the Prophet, such as those with eight27 or ten28 wives, were instructed to retain only four wives.29

7 Furthermore, reference can be made to the Learned Commenter's commentaries on the Prophet's polygamous marriages

pursuant to Quran 33:50 to 33:52.30 Notably, the learned Muslim scholar mentions that the Prophet had nine wives because he was exempted from the restriction of the maximum of four wives.31 The Learned Commenter explains that Quran 33:50 to 33:52 declare that the Prophet's marriages are due to his special circumstances.32 These special circumstances cover compassion, which includes providing for suffering widows, and assisting the Prophet's duties of leadership.33 More importantly, the Learned Commenter states that Quran 33:50 does not introduce new exemptions or privileges for other Muslim men.34

8 Given the above, reference can be made to the observations of a learned author on Singapore's circumstances prior to the enactment of the AMLA:35

The permission to enter into polygamous marriages has been abused by certain Muslim groups and it is sad to hear those who abuse this privilege justifying their action by quoting what they interpret to have been the example given by the Holy Prophet. Yet for more than twenty-five years of his life the Holy Prophet had only one wife. It was only after his wife, Khadijah, died that he married a number of women. Of these only Ayesha was a virgin. All the others were widows or had been divorced from their husbands. If one examines these marriages it will be seen that they were partly designed to assist the women who would otherwise have been destitute or to cement bonds of personal or tribal friendship.

B. Legal principles

9 The Appeal Board has held that the basis for a Muslim man to marry up to four wives is God's command in Quran 4:3.36 The Appeal

Board rationalised Quran 4:3 as a “general rule that a man has only one wife and a man is allowed to marry more than one wife only in exceptional cases and where he can show that he can treat all his wives equitably, that is so far as possible, equally”.37 The Learned Commenter explained that the Muslim man must have the ability to treat the wives with “perfect equality in material things as well as in affection and immaterial things”.38 He also opined that this is difficult to satisfy and understands the recommendation for monogamy.39 Moreover, the Appeal Board observed that polygamy is only permissible under certain conditions.40 Thus, the applicant “must be prepared to shoulder further responsibility”.41

10 The Appeal Board cited the Learned Commenter's translation of Quran 4:12942 for their observation that Islam recognises the difficulty for a Muslim husband “to love each of his wives to the same degree”.43 The Learned Commenter opined that Quran 4:129 addresses the issues of marital division when the Muslim man deals with the “other woman” in his marriage.44 He states that the man would have placed himself in

an impossible position to be “perfectly fair and just to” his wives and “it is only right to insist that he should not discard one but at least fulfil all the outward duties that are incumbent on him in respect of her”.45

11 For completeness, the learned Muslim scholar cites a Hadith for the position that a Muslim man in a polygamous marriage must be aware that divine punishment befalls those who fail to treat their wives equitably: “Anyone who has two wives and does not treat them equally will come on the Day of Resurrection dragging one part of his body which will be hanging down.”46 The learned Muslim scholar also cites how the Prophet strove to treat his wives equitably, such as casting lots among his wives whenever he planned to go on a journey. The wife chosen by lot would accompany him.47

12 Given the above, reference can be made to the findings of a Malaysian judge who cited Quran 15:8548 to highlight that the central concept to Islam is justice and all types of transactions, such as judicial, commercial or private transactions, are subject to it.49 Reference can be made to the Learned Commenter's observation on Quran 15:85 that “God's Creation is all for a true, just, and righteous purpose”.50 The Malaysian judge went on to cite a learned author who wrote that Islam's concept of justice is much higher than any manmade law because it examines the person's innermost motives as he acts in the presence of “God, to Whom all things, acts, and motives are known”, and Islam is against all injustices and is a warning to transgressors.51 Therefore, it

appears that Islam's concept of polygamy is intended to achieve equity in this world and the hereafter.

C. Administration of Muslim Law Act

13 Sections 96(2) and 96(3) of the AMLA regulate the application to contract into polygamy. Section 96(2) stipulates that the marriage can only be solemnised by the Kadi,52 or by the wali,53 who has the Kadi's consent, of the woman to be married and aims to “control unauthorised polygamous marriages”.54 A consequence of an unauthorised...