Amla2

RESPONSE BY PERGAS (S’PORE RELIGIOUS TEACHERS ASSOCIATION)
Introduction

We are pleased with efforts of the Minister concerned to amend the AMLA (Administration of Muslim Law Act), with the stated
objective of improving the effectiveness of the various institutions under the Act, as well as remove whatever constrains which have
appeared due to unavoidable circumstances as Singapore progresses, thereby ensuring that the Act remain relevant.

General comment :

As Muslims, the imperative to observe the Syariah laws must be well understood by every Muslim. We should be grateful that
although Singapore may not be an Islamic state, the AMLA was enacted to preserve the Muslims’ right to practice our religion.
Whatever powers already stipulated within it should be preserved as much as possible and any efforts to improve its clauses should
not diminish nor weaken the overall position of the various institutions. As the amendment would become law when passed by the
Parliament of Singapore, the implications of each amendment must be critically evaluated. Our comments should not be
miscontrued as being adversarial to the Law of Singapore but rather as upholding the democratic right to religious freedom,
cherished under our state Constitution. PERGAS’ role to define Islamic teachings would be to remind all Muslims as to their
duties as Muslims and to assist the Parliament to understand the aspirations of every Muslim so that they can make an informed
decision on the Bill in question.

Our main concern :

PART 1

[a] “conferring the civil court concurrent jurisdiction with the Syariah court in civil proceedings involving matters relating to
maintenance, custody of children and disposition or division of property on divorce.”

Pergas response to AMLA 1 EO. Ustaz ZhulkefleeHjIsmail(R&D-22/5/98)

Original Section Amendment Our Proposal Justification

section 34
To repealed section 34 with : (a) The prerogative of the
34 - The President of Singapore may “34. The President of Singapore President of Singapore, under this
by notification in the Gazette
Nil may by notification in the Gazette section, to set up only one
constitute a Syariah Court for constitute as many Syariah Courts as Syariah Court should be extended
Singapore (referred to in this Part as he thinks fit for Singapore (referred to several Syariah Courts. Each
the Court). to in this Part as the Court). Courts can then handle specific
issues e.g. maintenance, custody
of children or division of property
upon divorce and offences under
Amla etc. To have many
presidents to only one Syariah
Court, as the amendment intends,
would be inadequate. “To have
more than one captain to only one
ship is not effiicient as compared
section 35 (Clause 8 of the Bill) to several captains, each with
section 35 their own ship.”
We can accept the clause with the
35 - (1) The Court shall have (additional insertions)
following additions.
jurisdiction throughout Singapore and
shall be presided over by a president (a) by inserting, immediately after
By inserting after the word “ ..of
to be appointed by the President of subsection (1), the following
the Court.” The following “ Such (b) Our concern is that, to be
Singapore. subsections :
person or persons appointed should appointed presidents of the
“(1A) The President of
be a qualified Muslim scholar, well- Syariah court, the candidates’s
(2) The court shall hear and determine Singapore may appoint
versed in Islamic jurisprudence and qualification and competency in
all actions and proceedings in which one or more presidents
able to read from the primary Syariah law should be an
of the Court.
all the parrties are Muslims or where sources (in Arabic).” indispensable consideration.
the parties were married under the Even though some may feel that
provisions of the Muslim law and “(1B) All presidents of the any competent magistrate from
which involve disputes relating to - Court shall have in all the district court could possibly
respects equal power, qualify, we beg to differ. The fact
(a) marriage; authority and that AMLA exist is because we in
(b) divorces known in the jurisdiction.” and Singapore, recognize the special


Muslim law as fasakh, cerai and distinct position of the Syariah
taklik, khuluk and talak; (b) by inserting, immediately after the vis-a-vis the civil legal system. And
(c) betrothal, nullity of word “shall” in the first line of to have a president without
marriage or judicial subsection (2), the words “have Syariah qualification is, we feel,
separation; jurisdiction to”. grossly disrespectful to the
(d) the disposition or division intention of the AMLA itself.
of property on divorce; or
(e) the payment of emas
kahwin, maintenance and
consolatory gifts or mutaah.
(3) In all questions regarding
betrothal, marriage, dissolution of
marriage, including talak, khuluk and
fasakh, nullity of marriage or judicial
seperation, the appointment of hakam,
the disposition or division of property
on divorce, the payment of emas
kahwin and consolatory gifts or
mutaah and the payment of
maintenance on divorce the rule of
decision where the parties are
Muslims or were married under the
provisions of the Muslim law shall,
subject to the provisions of this Act,
be the Muslim law, as varied where
applicable by Malay custom.


Original Amendment Our Proposal Justification

section 35A Our main worry is that this
Nil (additional subsection) amendment will affect the
jurisdiction of the Syariah Court in
“Leave to commence or to We are strongly opposed to this relation to matters relating to :
continue civil proceedings clause section 35A and also the
involving disposition or subsequent 35 B.. (i) the custody of the child, and
division of property on (ii) the disposition or division of
divorce or custody of property on divorce.
children.
To have this amendment would be
35A. -(1) Any person who, on or after
surrendering the jurisdiction of the
the commencement of
Syariah Court. If the reasons for
proceedings for divorce in the
the Muslims making the
Court or after the making of a application to be heard as a civil
decree or order for divorce proceedings is to seek legal
under section 102, intends to rulings other than, or even contrary
commence civil proceedings in to, the Syariah - then this
any court involving any matter amendment would seem to
relating to the disposition or undermine the applicability of the
division of property on divorce Syariah law for Muslims.
or custody of any child where
the parties are Muslims or were And if the reason for the
married under the provisions of amendment is because of the
the Muslim law shall apply to backlog which presently the
the Court for leave to Syariah Court is unable to clear,
commence the civil whereas the civil courts have
proceedings. sufficient machinery to take on,


then the problem is purely
administrative which can be solved
without the need for opening the
floodgate of “dissent” amongst
Muslim towards accepting the
Syariah rulings. Such dissent
(refusing in following Syariah
ruling) is viewed by Islam as a
great wrong. From the Islamic
legal perspective (a maxim) :
“removal of wrongdoings (dar-u al-
mafaasid) takes precedence over
introducing new benefits (jal-bu-al-
masaa-liH).” Thus we would like to
assert that the application of the
Syariah ruling on such matters has
greater precedence, if not the only
ruling, for Muslims.


We have to reiterate our
We are strongly opposed to this contention that steps must be
Stay of proceedings clause section 35B and also the taken to ensure that Syariah
Nil previous 35A. court’s proceedings are not taken
involving certain matters for granted by litigants who are
“Muslims and who are married
35B. - (1) The Court shall stay
under the provision of the Muslim
proceedings before it - law” . As Muslims, we must be
assertive that the application of the
(a) involving any matter in Syariah ruling on such matters has
respect of which it has issued greater precedence, if not the only
a certificate under section ruling, for all Muslims. The very


35A (4), upon issuing the fact there is AMLA would support
certificate; our contention and bear testimony
to the constitutional spirit that
(b) involving any matter relating Muslims should be given their
to maintenance of any wife rights to apply their own religious
during subsistence of the rulings. We are aware of the
marriage, if it comes to the loophole for them in the past (upto
knowledge of the Court that present), that as Singapore citizen,
civil proceedings relating they could also seek indulgence
maintenance of the wife have through the civil court regarding
been commenced in any their cases which, in some
court between the same instance may have led to confilct
parties before, on or after the of jurisdictions between the civil
commencement of the and Syariah courts. Therefore it
would seem obvious that it is the
proceedings before it;
loophole which has to be plugged.
If the consideration or reason for
(c) involving any matter relating
the amendment here is to avoid
to the maintenance of any
“multiplicity of actions”, then, rightly
child of the parties, if it
it should be the civil courts that
comes to the knowledge of must comply with this section
the Court that civil regarding “stay of proceedings”. It
proceedings relating to the should be the civil courts that
maintenance of the child should respect proceedings
have been commenced in any started under the AMLA, by
court between the same Muslims and within the jurisdiction
parties before, on or after the of the Syariah court, unless leave
commencement of the is granted as per section 35A (4).
prroceedings before it;

(d) to which section 35A (1)
would apply apart from
section 35A(5), if it comes to
the knowledge of the Court
that civil proceedings
involving the same matter
between the samee parties


have been commenced in any
court by the consent of the
parties; or

(e) to which section 35A (2)
would apply apart from
section 35A (5), if it comes
to the knowledge of the
Court that civil proceedings
involving the same matter
between the same parties
have been continued in any
court by the consent of the
parties.


35B. - (2) Where leave granted by the We are strongly opposed to this We understand that because in
Court under section 35A is reversed clause section 35B and also the the above amendment section
on appeal under secction 55, the Court previous 35A 35A and 35B, it has obviously
may restore any proceedings which blurred and diminished the powers
have been stayed undersection (1) (a). of the Syariah court, the clause
section 35B (3) has to be inserted
35B. - (3) Nothing in this section shall to redemarcate and re-specify the
prevent the Court from exercising its Syariah court’s residual powers.
powers under sections 51 (2) and 52 Thus directly it reaffirmed our fear
(1), (2) and (3) (a) and (b).” that this amendement will take
away the jurisdiction and reduced
the powers of the Syariah Court.

Also it is obvious in the last phrase
“ ... its powers under sections 51 (2)
and 52 (1) and (3) (a) and (b).”


which this clause redefined, the
Syariah court has indeed lost
substantial powers because the
original section 51 (3) also
contains subsection (c) and (d)
which read as follows :

(c) the custody,
maintenance and
education of the
minor children of
the parties;
(d) the disposition or
division of property
on divorce.

Point of caution
We strongly object to the removal
of such powers from the Syariah
court and bestowing it to the civil
courts to adjudicate in such
matters. The negative implications
to Muslims, to our family institution
and to our community towards
moulding our lives in accordance
with Islamic dictates will definitely
be serious. The “trade-off”
(compromise) cannot be
condoned.


section 51 (Clause 9 of the Bill)


(additional subsections) We are agreeable to this clause. As it gives power to the Syariah
Court to vary or rescind orders for
“(4) The Court may vary or rescind maintenance for married woman
Nil any order made under this section or women who have been
on the application of the person in divorced in certain circumstances
whose favour or against whom and to create the offence of failing
order was made where it is to comply with orders of the
satisfied that the order was based Syariah Court under that section.
on any misrepresentation or
mistake of fact or where there has Note that as section (5) stipulates
been any material change in the penalty for failure of compliance to
circumstances. the court’s order. It would be even
“(5) Any person who fails to comply better if the Minister-in-charge take
with an order of the Court made steps to empower the Syariah
Court so that it too can enforce
under this section shall be guilty
them on its own. The capability for
of an offence and shall be liable
the Syariah court to enforce its
on conviction to imprisonment for
orders would be more meaningful
a term not exceeding 6 months.”
than just giving power to issue the
orders but without it being able to
enforce them (which, by the way,
has has led to the present
situation where litigants sought out
the civil courts indulgence).
Thus the need to expanding
staffing and other infrastructure of
the Syariah court would be more
relevant and urgent.

Original - (repealed) Amendment Our Proposal Justification

Section 52 (Clause 10 of theBill)
52 - (1) The Court shall have power to We do not want the Syariah Court
inquire into and adjudicate upon (a) by deleting subsection (3) and We are agreeable to this clause to be bound by the Women’s
claims by married women or women except for sub-section (6) which Charter but that it should always
substituting the following subsection :
who have been divorced for payment we object since the previous sub- have the discretion to apply them if


of her emas kahwin. section states “... as it thinks just it deems necessary. Although the
“(3) The Court may, at any stage of and equitable” ’has allowed the entire clause widens the scope of
(2) A woman who has been divorced the proceedings for divorce or Syariah Court the prerogative to Section 52, we are concerned that
by her husband may apply to the after making a decree or order apply them. there may still be possibility of it’s
Court for consolatory gift or mutaah for divorce, or after any divorce ruling being over-ruled whenever it
and the Court may after hearing the has been registered whether To rephrase sub-section (6) thus : differs with that adopted by the
parties order payment of such sum as before or after the High court especially where the
may be just and in accordance with commencement of the “The court may exercise its Women’s Charter is applicable.
the Muslim law. Administration of Muslim Law discretion to adopt any part of the The qualifying statement in (6)
(Amendment) Act 1998 under rulings of the High court in making above “so far as they are consistent
(3) In any application for divorce the section 102, on the application an order, including sub-section (2) to with the Muslim law” we feel is still
Court may, at any stage of the of any party, make such orders (10) of the Women’s Charter (Cap. not conclusive as it only excuses
proceedings or after a decree or as it thinks fit with respect to - 353). the Syariah Court from using the
order has been made, make such decisions made by the High court,
orders as it thinks fit with respect (a) the payment of emas but the word “shall apply” binds the
to - kahwin to the wife; Syariah Court to it.
(a) the payment of emas kahwin to (b) the payment of a
We note that when the
the wife; consolotary gift or
amendment touches upon the
(b) the payment of a consolatory mutaah to the wife;
jurisdiction of the High Court it
gift or mutaah to the wife; (c) the custody,
make very clear (bold) intention
(c) the custody, maintenance and maintenance and and reserves its right to apply civil
education of the minor children education of the law, and thereafter binds itself to
of the parties; and minor children of the the Women’s Charter. We should
(d) the disposition or division of parties; and note with caution that in clause
property on divorce. (d) the disposition or 17A (7) & (8) of the present
division of property amendment which state :
(4) The procedure and forms of on divorce”; and
process in suits under this section (7) For the avoidance of any
shall be as prescribed by rules made (b) by inserting, immediately after doubt, the High Court. in
under section 145. subsection (4), the following exercising its jurisdiction or
subsections: powers under subsection (2)
shall apply the civil law.
“(5) In making any order under
subsection (3) (d), the Court (8) Notwithstanding section 3
shall have power to order the (2) of the Women’s Charter
disposition or division of the (Cap. 353), section 112 of that


property in such proportions as it Act shall apply to the High
thinks just and equitable. Court in the exercise of its
jurisdiction or powers under
(6) Subsection (2) to (10) of section subsection (2) (c).
112 of the Women’s Charter
(Cap. 353) shall apply, with the Point of caution :
necessary modifications, to the
Court in making an order under With such bold statement, by
subsection (3) (d) in like manner concurrency, we feel that functions
as those subsections apply to the and the role of the Syariah court
High Court so far as they are will be diluted, further undermining
consistent with the Muslim law. its position. Especially when some
ignorant Muslims may think that
(7) The Court may, on the because the AMLA has explicitly
application of any interested endorsed the concurrency
person, vary or rescind any order arrangement, it is permisseable to
made under subsection (3) (a), alternatively seek the High Courts
(b) or (c) where it is satisfied indulgence.
that the order was based on any
misrepresentation or mistake of The obvious implication of this
fact or where there has been aby amendment is actually the
material change in the extending of the Civil law
circumstances. (especially in matters of custody
and division of wealth) to Muslims
(8) Any person who fails to comply - and not so much extending the
with an order of the Court made powers of the Syariah court as
under this section shall be guilty touted in the media.
of an offence and shall be liable
on conviction to imprisonment Also, we are to note that once we
for a term not exceeding 6 give up any prerogatives within
months.” AMLA, it will be very difficult to
reinstate it back later whenever we
see the need for it again (because
it will require passage through
Parliament again).


Original - (repealed) Amendment Our Proposal Justification

Section 53 ( Clause 11 of the Bill )
Although we are agreeable to this
53. If any person fails or neglects to 53. – (1) The Court may, for every This can be accepted for the time clause as it give effect to orders of
comply with an order of the Court breach of an order made under section being. the Syariah Court, yet we would
made under section 52 the Court may 51 and 52, direct the amount or the rather the Minister-in-charge seek
for every breach of the order direct value of the property due to be levied to give power for enforcement to
the amount or the value of the in the manner provided for levying the Syariah Court and not the
property due to be levied in the fines imposed by a Magistrate’s District court.
manner provided for levying fines Court.
imposed by a Magistrate’s court or Our worry is when rules other than
may sentence him to imprisonment for 53.-(2) For the purposes of This can be accepted for the time the Muslim law may be invoked as
a term not exceeding 6 months. enforcement of any order made under being. the District court may exercise its
this part, any party interested may prerogative to apply them. This
(especially (5)) could further erode
apply for the order to be registered in
the application of the Syariah laws
a District Court in accordance with
amongst Muslims because the
the Rules of Court and the District
position of the Syariah court vis-à-
Court shall register the order in
vis District court becomes lowered
accordance with the Rules of Court. as this clause not only empowers
This can be accepted for the time the latter to exercise the
53.- (3) From the date of registration prerogative of the High court but
being.
of an order under subsection (2), the obviously, (as the clause “may
order shall be of the same force and exercise …. Section 14 of the
effect, and all proceedings may be Guardianship of Infants Act
taken on the order, for the purposes of (Cap.122)…”) intended to confer
enforcement as if it had been an order the litigants the application of
originally obtained in the District rulings based on other than the
Court which shall have power to Syariah (inspite of their both being
enforce it accordingly. Muslims, and having contracted
This can be accepted for the time their marriage in accordance with
53.-(4) A District Court shall have the Muslim laws). Thus from this it
being.
jurisdiction to enforce any order in is inferred that the amendment
accordance with subsection (3) may give the District Court powers
regardless of the monetary amount to over-rule the decisions reached


involved. by the Syariah Court.

53. -(5) In enforcing a custody order This can be accepted for the time Alternative : If the reason for
registered under subsection (2), a being. the amendment is the problem
District Court may exercise the that the Syariah court’s present
powers conferred on the High Court inability to enforce its orders and
by section 14 of the Guardianship of decisions because of constrains
Infants Act (Cap.122) except that the (e.g. staffing etc.) it does not
reference to the sheriff in that section justify the giving away of its own
shall read as a reference to a bailiff prerogatives, seeing that it stands
for the purposes of this subsection. at par with the civil courts. The
Minister-in-charge could, instead
53A - (1) If a judgement or order of This is acceptable. of seeking this amendment, look
the Court is for the execution of a towards beefing up the Syariah
deed, or signing of a document, or for court’s ablility by other
the indorsement of a negotiable administrative means.
insrument, and the party ordered to
execute, sign or indorse such If administrative assistance of the
instrument is absent, or neglects or civil court is necessary, Syariah
refuses to do so, any party interested units could be set up in those
in having the same executed, signed courts without the need to
surrender the Syariah court’s
or indorsed, may prepare a deed,
prerogatives, too much.
document or indorsement of the
instrument in accordance with the
If one argues ( i.e. by invoking
terms of the judgement or order, and
rules for emergency- “dharurah”)
tender the same to the Court for that because of the present
execution upon the proper stamp, if circumstances (i.e. the Syariah
any is required by law. court cannot cope with its cases at
hand) thus it opens a way to
(2) The signature therof by any This is acceptable
adopting the available alternative
president of the Court shall have the (i.e. turning to the civil courts’
same effect as the execution, signing indulgence), even if we are to
or indorsement therof by the party agree to it, we must qualify that
ordered to execute. such agreement must always be
seen as temporary - and we are
(3) Nothing in this section shall be This is acceptable. still required to remove that


taken to abridge the powers of a court constraint. From Islamic legal
under section 53. perspective (maxim) : “whatever is
allowed due to constrained
(4) This section and sections 51 (4) This is acceptable. (wamaa-ubii-Ha lidw-dwaruu-rati)
and (5), 52 (7) and (8) and 53 shall is only allowed according to the
also apply to any judgement or order existence of that constrain (yu-
of the Court made before the qad-daru bi-qad-rihaa)”
commencement of the Administration
of Muslim Law (Amendment) act Thus, it would have been closer to
1998. the Islamic spirit to strengthen the
role and capabilities of Syariah
Costs court rather than this “concurrent”
arrangement (with its attending
53B. The Court may, in its discretion, This is acceptable conditions) which, in our opinion,
order any party to pay any costs of dilutes and weakens the Syariah
any proceedings under this Part, court.
including travelling and subsistence
expenses of the parties and witnesses,
and shall itself assess the amount of
any costs so ordered to be paid.”

As to Amendment of Section 55 and New Section 56A and 56B, we find it agreeable.

PART 2

(b) the lack of the Syariah court’s power to try cases under “Offences”



129. Subject to this Act, this Part Nil To add after clause 129. To ensure consistency betweeen
shall only apply to Muslims. the spirit of the law with the
129. Subject to this Act, this Part execution of its intention, let only
shall only apply to Muslims. the Syariah court to try such cases
and not the district court. And this
the following enabling clause : is not only with regard to offence
for teaching false doctrine but all
“The Syariah court shall have the of Part IX - OFFENCES. We note
power to hear all cases under this that the Shariah court has not
section.” been empowered to try offences
under this section” which covers,
Also to add to section 52 : inter-alia “ .... cohabitation outside
marriage; enticing unmarried
“ The Shariah court shall have the woman; neglect or failure to report
power to prosecute all offences as conversion; false doctrine; etc.”.
mentioned in Part IX (OFFENCES)
of the AMLA.” Granted that the intention of the
amendment under clause 19 of
the Bill, is to raise the maximum
quantum of punishment for such
Section 139 Section 139 (Clause 19 of the Bill)
This is acceptable. offence. Our concern is that the
139. - (1) Whoever shall teach or
amendment should also ensure
publicly expound any (a) by deleting “$500” in the fifth line that the implementation of the
doctrine or perform any cceremony or and substituting “$2,000”; and sentencing itself should also
act relating to the (b) by deleting the words “6 months” reflect the seriousness of the
Muslim religion in any manner in the last line and substituting the offence. As the clause does not
contrary to the Muslim law words “12 months”. specify any minimum mandatory
shall be guilty of an offence and shall sentence, it is up to the judge’s
be liable on conviction discretion. If a case involving say “
to a fine not exceeding $500 or to cohabitation outside marriage,
imprisonment for a term teaching false doctrine or enticing
not exceeding 6 months or to both. unmarried women” is tried in the
District court and the offender
found guilty, the judge (being non-
Shariah judge) may not see the
seriousness of the offence (from


the Islamic perspective). And he
may only impose a fine of mere
$10.00, as sentencing is the
prerogative of the District judge.
We fear that the seriousness of
the offence could be lost thereby
rendering such offenceS without
any deterrent.

This is because inspite of the
stated clause in the AMLA, we
note the Syariah court has not
been able to carry out its intended
role and function under this
clause. If the excuse for inability is
due to lack of manpower, staffing
or other necesary enactment, we
hope the Minister-in-charge of
Muslim Affairs could use the
opportunity of this amendment to
consider removal of such
impotency of the court so that the
status of the Syariah court is not
diminished in the eyes of Muslims,
and the intended objective of the
clause met.

PART 3


(b) “the powers of of the Majlis Ugama Islam Singapura (MUIS) in Haj matters”


88B. The Majlis may regulate any We are agreeable to the clause We are very concerned that
Nil person providing goods or services for subject to inclusion of an unqualified persons may be acting
the purposes of the Haj - additional phrase to (a) thus : as the religious teachers and Haj
guides. The proper compliance of
(a) to ensure that the requirements of “.... including ensuring that those the “Manasik” (rites) is vital for the
the Muslim law are complied with who act as guide for the pilgrims are Haj to be acceptable. From past
in relation to the provision of qualified religious teachers.” experience, we note that certain
those goods or services; irresponsible people have issued
verdicts which is contrary to the
(b) to safeguard the safety and welfare teachings in Islam regarding the
of the persons to whom those matter. We would like MUIS to be
goods or servicess are provided; serious in ensuring such abuses
are checked.
and

(c) to promote the proper
administration of any matter
relating to the Haj.


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