Proposed Changes to AMLA: A Step in the Right Direction

Some of the key amendments to the Bill focus on changes to insurance practice, ROMM and Syariah Court powers and jurisdiction, such as:

• allowing Muslim policyholders to make revocable insurance nominations;
• introducing domicile requirements for parties applying for divorce whereby the Syariah Court will not hear cases involving foreign parties with no connection to Singapore;
• inserting a specific provision for men to apply for divorce as plaintiffs in the Syariah Court without pronouncing the talak so as to discourage pronouncements of talak outside of court; and
• clarifying that couples must first seek ROMM’s in-principle approval for their marriage to be registered if they wish for a wali to solemnise the marriage.

In a small city-state like Singapore, there can be serious implications on the social fabric of the community if frivolous talak pronouncements are rampant. There is a strong argument, as found by the RIMA FGD, that it should be made mandatory for men to pronounce the talak in Court so as to tackle a number of problems: the delay in initiating Court proceedings, easing the burden on women to be the ones to initiate action and enabling Syariah Court to take the pre-emptive step of encouraging the couple to go for counselling.

To clarify, the AMLA amendments do not take away the right to pronounce the talak, which remains as a matter of Syariah law. What the amendments seek to do is to encourage Muslim husbands to file divorce proceedings instead of making frivolous pronouncements of talak. This seeks to remedy a situation which we often see in the cases we handle: where the husband pronounces the talak but does not take any action thereafter and parties do not proceed to the Syariah Court to file or register the divorce. In the meantime, the status of the wife remains in limbo and parties continue to cohabit with each other and this perpetuates other issues like family violence, issues of maintenance and in extreme cases, illegitimate children conceived after talak had been pronounced.

In terms of stricter wali requirements for solemnisation, the Bill does not allow a marriage to be solemnised by the wali of the woman unless there is in-principle approval by the Kadi or Naib Kadi in writing to register the marriage. A more stringent verification process of the wali is warranted especially for cases where the bride is brought up by her stepfather or is a child born out of wedlock. In the RIMA FGD, there were also suggestions, for instance, to have all solemnisations by a wali to be conducted in the presence of the Kadi or Naib Kadi.

Enhance Management of Muslim Assets

With regard to enhancing the management of Muslim assets, the Bill seeks to:

• introduce various requirements in relation to trustee-related appointments which include:ol>li>prior approval by MUIS for any new trustee appointments and before any court proceedings related to trustee appointment/removal;
• expanding the grounds by which a trustee or MUIS-appointed mutawalli can be removed;
• establishing a separate sinking fund for sustainability of wakafs;
• expand the use of the Mosque Building and MENDAKI Fund (MBMF):ol>li>for purchase of new or additional land, as well as lease of land or property, for existing and future mosques; and
• to clarify that the religious education component within the MBMF can be tapped for related premises and facilities.

The amendments are consistent with recent caselaw in the Singapore High Court on management of wakaf which brings the purview of such management strictly within MUIS and under AMLA. It is generally accepted that in terms of good corporate governance and wakaf management, sound and clear guidelines are to be set for the management of wakafs and trustees in Singapore. Further, broader powers given to MUIS to administer and manage such wakafs would allow parties to avoid the unpleasant public litigation of any disputes. The criteria for removal and appointment of mutawallis should be made as explicit as possible so as to forestall any disputes arising thereof in the longer term. Given the legislative changes and developments in the caselaw in Singapore, it may also be an opportune time for MUIS to embark on a public education discourse amongst present mutawallis and those contemplating making a wakaf on the roles and responsibilities of wakaf management.

In the long run, I hope that a legislative framework based on Islamic dispute resolution mechanism to adjudicate disputes on wakaf management and trustee/mutawalli replacement and/or removal can be developed within the AMLA framework itself under MUIS. Such a framework can incorporate concepts of mediation, arbitration and the Islamic concept of sulh (amicable settlement) and lead to much costs and resource savings for parties, away from the public glare of litigations in Court. This will not only empower the robust management of our wakaf in Singapore but also enrich and develop the body of law and jurisprudence on wakaf management in Singapore.

Strengthen Muslim Families

The third scope of change sought by the Bill is to further strengthen Muslim families by way of the following:

• prior to marriage:ol>li>making it mandatory for minor couples (where either one party is below 21 years old) to attend a marriage preparation programme before an application to ROMM for their marriage can be made;
• an application cannot be made to ROMM for the solemnisation of a minor marriage without parental consent. This amendment seeks to reinforce the importance of parents’/guardians’ support in a minor marriage.
• in divorce situations:ol>li>enshrine a more “child-centric” approach during proceedings and allow parties to be referred for counselling or a family support programme;
• divorcing parties are required to attend counselling or any other specified activity before commencement of divorce proceedings;
• in matters related to ownership of household property and inheritances:ol>li>In the ownership of household property, where there is a removal of presumption of ownership by a husband of a matrimonial property
• In the granting of letters of administration to the estate of a Muslim dying intestate (i.e. without leaving a will).

Mandatory counselling and parental consent for minor marriages are crucial because statistics show that these are the marriages that are at the highest risk of divorce.

We have to balance the expedient administration of justice with that of saving the institution of marriage. Once divorce proceedings are commenced, parties’ claims on custody and division of matrimonial assets would further complicate the process of reconciliation. Hence, as shared by the participants in the RIMA FGD, the “moratorium” on commencement of divorce proceedings prior to counselling is useful to attempt reconciliation.

In terms of the ownership of household property, presently AMLA states that when a Muslim husband and wife live together in the same house, all the household assets and property are presumed to belong to the husband and that means that the husband’s creditor can execute against those assets. In our present modern Singapore society, the wives often either work or have their own spending power, independent of the husband’s. They may own such assets in their own name. As such, it would not be fair if the husband’s creditors are allowed to execute against the wife’s own assets. Hence, by removing such presumption, the Bill would do justice to such wives.

On the amendments to letters of administration, presently, if a female Muslim dies intestate, there is an order of preference for the male inheritors to be entitled to apply for the grant of letter of administration in order to administer the estate of the deceased. No such preference applies in the case of a male Muslim. This amendment removes such preference based on gender by giving the court the discretion to grant letters of administration to any entitled next-of-kin, regardless of gender.

Conclusion

Whilst not all proposals would be adopted in the end, I am heartened to note that some of the proposed amendments by the Law Society of Singapore’s Muslim Law Practice Committee found their way into the present Bill, and that MCCY is considering feedback from RIMA FGD and other stakeholders. We should welcome this consultative approach in seeking feedback from the ground, namely legal practitioners and various Malay/Muslim organisations, on matters that would have a direct impact on the Muslim community in Singapore.

The changes, whilst not radically ground breaking, are much needed in our Singaporean Muslim context and are just but a step towards the right direction.