The Evolution of Singapore's Common Law Fiqh, 1957-2013

Abstract

It is now a commonplace that the law for Muslims in Singapore is ‘common law fiqh’. The purpose of this essay is to offer an explanation of how that came about over the past fifty years or so. The materials include statute and precedent – the usual sources – but, in addition, a hitherto ignored source. This is the published set of the Proceedings of Parliamentary Select Committees (1957, 1960/61, 1966 and 1999). These Committees were set up by government to provide a forum in which anyone could present a submission and then be cross-examined on draft legislation. The purpose was to give a voice to those with an interest in the matter, especially where controversy was present or to be expected.For Singapore the Proceedings are a crucial source for a wide range of issues affecting the Muslim community. The debates show us just how wide ranging and complex these were. They include: the extent and depth of knowledge about syariah, various definitions or understandings of syariah and fiqh; the proper relationship of revealed law to the laws of the secular nation state; the question of who has authority to state the law; reforms to family law; and the use of law to bring about social change, that is, implement government policy.For the common law fiqh, the Proceedings show us a four stage evolution commencing with the establishment of a ‘domesticated fiqh’ via the 1957 Muslims Ordinance. The Ordinance is important because it puts in place the first Syariah Court but it is equally important for rejecting the pure classical (Arabic) fiqh in favour of the British Indian Anglo-Muslim law texts as the foundation for Singapore’s Muslim law – hence ‘domesticated’Second, in the move from a ‘domesticated’ to a ‘created’ fiqh, there is a new originality. This became possible through the 1966 Administration of Muslim Law Act (AMLA), which established the Majelis Ugama Islam Singapore, which had a judicial function. This was exercised by an Appeal Board taking appeals from the first instance Syariah Court. From the 1970s, and especially through the 1980s-1990s, the Board did create a new fiqh known by its precedent interpreting the AMLA – clearly an extension of domestication. The debates in the 1966 Proceedings show us how the MUIS facilitated government policy in this regard.‘Accommodation’ (of the new fiqh into the general law of Singapore) is the third stage and was actually achieved by the High Court, but with difficulty and inconsistencies. This was the subject of the 1999 Proceedings; or rather they had two purposes. First, to repair drafting deficiencies in the original 1966 AMLA and thus to achieve a full accommodation. This seems to have been successful.‘Assimilation’, the second and major part of the 1999 Proceedings focussed on policy as to whether a separate religious court jurisdiction should remain at all. This was debated in terms of ‘concurrency’, which meant dual or parallel jurisdictions in family law. Concurrency was introduced in 1999 but the debates in the 1999 Proceedings show us that a formal assimilation, as such, was still a step too far from the previous processes of domestication, creation and accommodation.The Singapore state ideology for Islam requires separate jurisdictions as proof of its commitment to supporting a minority religious law, which is also crucial to the self-identity of a minority ethnic group. A formal assimilation of judicial process is thus not an option at the moment. Show more