Muslim Law

• Citation: (2016) 17 SAL Ann Rev 604
• Date: 01 December 2016
• Published date: 01 December 2016
• Author: MOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-law (New York); Director & Deputy Senior State Counsel/Deputy Public Prosecutor, Criminal Justice Division, Attorney-General's Chambers; Member of the MUIS Appeal Board.
• Publication year: 2016

22.1 As was explicated in the inaugural chapter on this topic in this annual review,1 the melange of both civil and religious laws that regulate Muslims 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 that has taken root in Singapore – one which vests jurisdiction for certain personal law matters in the Islamic realm in the civil courts or the Syariah Court to the exclusion of the other, while vesting jurisdiction in both fora for others – has perhaps unsurprisingly 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. The continuous quest to ensure coherent symbiosis in such a melded framework can predictably on occasion bring to fore challenging issues of jurisdiction, issues that do not often lend themselves to easy or intuitive outcomes.

22.2 That, in a nutshell, would broadly characterise the body of Muslim law that emerged from the courts in 2016. This year's chapter would, accordingly, focus on three cases decided by the High Court that have served to illuminate certain aspects of the debate of where those lines ought to lie and hopefully, in the process, provided guidance on various discrete areas of trust and matrimonial laws, as applied to Muslims in Singapore.

Wakaf properties

22.3 The year 2016 saw a rash of litigation surrounding the administration of wakaf (orthographically sometimes referred to as “wakf” or “waqf”) properties in Singapore. By way of background, wakaf properties are voluntary charitable endowments from a Muslim's personal belongings or wealth in the form of movable or immovable property (including cash) that are directed towards pious, religious,

and/or charitable causes. It would appear from the public records that, as of 2015, there were over 100 such wakafs in Singapore, and the earnings from these wakafs facilitate the distribution of more than S$3m to a myriad of charitable causes on an annual basis. By virtue of s 58 of the Administration of Muslim Law Act2 (“AMLA”), the administration of all such wakafs are under the province of the Majlis Ugama Islam Singapura (“MUIS”). In two cases in the High Court in 2016, the courts had to grapple with the question of the extent to which the civil courts and civil statutory instruments such as the Trustees' Act3 and the Land Titles Act4 should inform MUIS's jurisdiction, and the administration process, over such wakafs.

22.4 The first decision is that of Mohamed Shariff Valibhoy v Arif Valibhoy5 (“Mohamed Shariff Valibhoy”). The facts of Mohamed Shariff Valibhoy can be briefly stated. In that case, the plaintiffs had applied, by way of originating summons, to the High Court for the defendant to be replaced by a third party as a trustee of a wakaf by virtue of the courts' powers under ss 37 and 42 of the Trustees' Act. For ease of reference, s 42 of the Trustees' Act reposes in the court a power to appoint new trustees to a trust. The defendant applied to strike out the application on the premise of a jurisdictional objection, that is, that the court had no jurisdiction as the AMLA granted MUIS exclusive jurisdiction and/or power to manage wakafs, including the power to remove or appoint trustees.

22.5 In allowing the application by the defendant to strike out the originating summons, Kannan Ramesh JC noted that the powers conferred upon MUIS to serve as a trustee of all Muslim religious trusts including wakafs had to be interpreted in a manner consonant with the broader parliamentary intent underlying the AMLA, that is, in a way that recognised MUIS' responsibility for the administration of Muslim law and the regulation of Muslim religious affairs.6 With that in mind, Ramesh JC opined that the Parliament could not have intended for the trustees to the wakaf to have recourse to the court when a dispute arose vis-à-vis an aspect of the administration of the wakaf since this could potentially lead to inconsistent decisions issued by the court and by MUIS, a real risk in view of the reality that different standards and different laws might have to be applied by the court (applying the Trustees' Act) and by MUIS (applying the AMLA).7 Ramesh JC further

noted that in view of the fact that the Parliament has already delineated the scope of the court's jurisdiction under the relevant provisions of the AMLA to that of the construction of an instrument or declaration creating or affecting a wakaf when the matter is referred to MUIS, it follows that the court does not have jurisdiction on matters outside the situations in which it is granted jurisdiction as explicitly set out in the AMLA.8

22.6 Turning then to the arguments by the plaintiffs that the Trustees' Act gives the court subject matter jurisdiction over wakafs, Ramesh JC opined that the Trustees' Act possesses no scope for operation in view of the fact that it deals with English law trusts as received in Singapore, while a wakaf is in fact a Muslim law juridical creature.9 In any event, even if the Trustees' Act applied to a wakaf, the true “trustee” (who would consequently have the requisite locus standi to bring an application) would be MUIS in view of the fact that MUIS would hold legal title to the wakaf property pursuant to s 59 of the AMLA and had sole administrative charge of the wakaf pursuant to s 58(2) of the AMLA.10 It was further observed that the use of the term “trustees” in s 58(4) of the AMLA to those who have been appointed pursuant to a trust instrument or declaration does not detract from this conclusion (and, consequently, does not mandate the operation of the Trustees' Act) as this term has to be viewed and interpreted contextually, that is intended to do no more than to distinguish mutawallis (that is, persons appointed to manage a wakaf) appointed by MUIS from such individuals whose appointment emanates from the trust instrument itself.11

22.7 Finally, the court gave short shrift to the plaintiffs' residual argument that the court should exercise inherent jurisdiction over the dispute. Ramesh JC opined that invoking the court's inherent jurisdiction (if any exists in the first place) will only be possible when the statutory avenues have been observed and exhausted. In this case, as the plaintiffs had not put the issue before MUIS for its determination, such inherent jurisdiction of the court could not and should not be invoked.12

22.8 It would be difficult to take issue with the reasoning and conclusions in Mohamed Shariff Valibhoy. The entire raison d'être of the conferment of jurisdiction of the administration of wakafs upon MUIS

must have been to confer upon MUIS exclusive jurisdiction in an area which is quintessentially part of its broader mandate of responsibility for the regulation of Muslim affairs. The High Court's clarification of the non-applicability of the Trustees' Act to wakafs generally is to be welcomed – as Ramesh JC quite astutely observed, given that some of the provisions in the two statutory devices being discussed will have mandated diametrically-opposed conclusions, a purposive interpretation necessitates the non-operation of the Trustees' Act in favour...