SELECT COMMITTEE ON MUSLIMS BILL (Consideration of amendments)

11.15 a.m.

The Chief Secretary (Mr W. A. C. Goode): Sir, I move,

That it be an instruction to the Select Committee on the Muslims Bill to consider amendments to the Bill to provide that no Muslim shall dispose of his property by will except in accordance with Muslim law.

Sir, the purpose of this motion is to instruct the Select Committee to give this particular amendment their specific attention. The wording of the motion will not, I am advised, in any way restrict the Select Committee in considering other clauses of the Bill, but it will have the effect of inviting them particularly to consider including in the Bill an amendment to provide, as in the case of clause 47 of the old Bill, that the law of Islam shall apply to Muslims who die testate. As I have already stated, it is my intention, on behalf of the Government in that Select Committee, to introduce an amendment designed for that purpose.

I think, Sir, that it will be useful, both for the Select Committee and in order that this matter shall be fully understood and the issues stated, that we should on this motion consider the principle behind the new clause which I propose to move in the Select Committee. I have already stated, in speaking on the Second Reading, that there seems to us on this side of the House to be no question at all that the inclusion of such a clause is most widely and earnestly desired by the vast majority of Muslims in Singapore. It does, however, raise difficulties and there are two difficulties to which I should like to refer briefly.

The first is the issue of basic principle. Is it right in Singapore to compel persons, who profess a particular religion, to comply with the precepts of that religion? We must bear in mind, Sir, that this is not a Muslim State and hitherto the law in Singapore has allowed the individual freedom of conscience to follow his religion or not as he pleases. For instance, it is not an offence in Singa pore, as it is in several of the Muslim Malay States of the Federation, for a Muslim to drink alcohol, or for a Muslim to enter licensed premises, or for a person to sell a Muslim coffee during the hours of puasa. If we admit in this Bill the principle of compelling a Muslim to follow the law of Islam in wills, are we then prepared to extend that principle and to compel them to follow other precepts of the law of Islam? And if we admit the principle for Muslims, are we then to extend it for Hindus, Christians and other religious communities which we have here in Singapore? That is the first important question on which Members of this House, and I hope members of the public, should make up their minds. The question of principle - is it right that we should compel a person to observe the tenets of his religion?

The second objection which has been put forward is a more practical one which has been put forward indeed by some Muslims who are against this clause; and that is, they argue that a clause on these lines, if enacted, will cause hardship to Muslims, because, quite apart from denying to the individual Muslim the freedom to dispose of his property by will as he pleases, the effect of this clause will be to break up and fragment Muslim estates; so that, for example, if a Muslim who has built up a flourishing business dies, the business will have to be wound up and sold in order that the proceeds may be realised and distributed amongst his heirs in accordance with the Muslim law of inheritance. This, it is argued, is a grave handicap to the building up of Muslim and particularly Malay business and commercial interests, because the energies and fruits of one man's efforts cannot be carried on and sustained and increased by his heir or some person whom he thinks most competent to keep that family business going.

A further practical objection which has been raised is that the effect of applying the law of Islam to wills will be to throw into doubt a large number of existing wills and may therefore lead to much litigation and again hardship and expense to the beneficiaries of an estate. But, on the other hand, Sir, as I have said, there seems to be no doubt at all that the vast majority of the Muslims - and they, after all, are the persons most closely affected - do, nevertheless, want a clause on these lines included, and it is in deference to that strongly and widely expressed opinion that the Government will introduce a new clause on these lines at the Committee stage.

I hope, Sir, that Members of this House will take the opportunity provided by this motion to put forward their views for and against legislation on the lines which I have referred to. That will, of course, be useful for the Select Committee, and it will be valuable so that public opinion may be advised of the intention of the Government.

One last point, Sir, and it is this: if any Member of the Assembly so wishes, he will have a further opportunity of debating this particular clause at the Report stage, assuming that we report the Bill back including a clause on the lines of the old clause 47. He can do so by moving a motion to recommit that particular clause. But I hope, Sir, that this morning we shall get expressions of views from Members on both sides of the House. Sir, I beg to move.

Mr J. M. Jumabhoy: Mr Speaker, Sir, I rise to second the motion but reserve my right to speak at a later stage.

Question proposed.

11.25 a.m.

Mr R. Jumabhoy: Mr Speaker, Sir, I missed the opportunity of speaking on the principles of the Muslims Bill. Now I take the opportunity to speak on this motion which is item No. 4 on the Order Paper. Although I am an Indian though born in the Muslim faith, I have never taken any public interest in this issue as I never argue about religion. I leave this to the religious experts.

Sir, representations were made to me regarding the clause to which the Hon. the Chief Secretary has referred and other clauses in the old Bill and I had to speak on a previous occasion and also in the previous Select Committee on the Muslims Bill. Singapore is not a secular State like India. The State religion is Christianity. Any Muslim can, if he wants, make a will during his lifetime. If he does not as per Muslim code, he is committing an offence against his God and his religion. Therefore, why should the estate of a Muslim be distributed if he dies after making a will, according to the Muslim law? This is one side of the case. But in the Bill itself there is more than one controversial point. Here is a Bill asking Muslims to follow the tenets of Islam. At the same time, there is a clause in the Bill which goes against Koranic rules. Since 1,400 years, no man, however big, has been able to change the Koran. I do not know who is responsible for this, Sir, but the proviso in clause 41 of the Bill is definitely against the Muslim religion. For those who stand for the Muslim religion and want Muslims to act according to Muslim religious laws, this proviso, which is against the tenets of Islam, should not be there. This was the main bone of contention in the previous Select Committee. Sir, I had an interview with the Chairman of the Muslim Advisory Board and I have also received a copy of a letter addressed by him to the Chief Secretary dated 18th October, 1956, in which the Chairman of the Muslim Advisory Board suggests certain amendments, one of which is that the proviso in clause 41 of the old Bill (1 think it is the same proviso in the new Bill) be removed. If that is done, then the whole Bill is based on the laws of Islam and I wonder whether any Muslim will have any objection then. I want to be very brief as the Bill will be committed to a Select Committee and it can be more fully discussed there. I have no particular objection to clause 47. The fact is that representations on this clause have been made to me, and as an elected Member, it is my duty to bring these representations before the House and eventually before the Select Committee. Some one has spread the rumour that I am against this clause personally. That is incorrect. There are always mischief-makers.

Sir, everyone will now be very happy that a Shariah Court will be established immediately -

Mr Speaker: Order.

Mr R. Jumabhoy: Sir, I was speaking on the same topic -

Mr Speaker: Order. If the hon. Member is developing an argument which is relevant to item 4, that is all right, but I cannot see how a Shariah Court has any relevance to item 4.

Mr R. Jumabhoy: Mr Speaker, Sir, if you will permit me, I wish to explain this. All this is connected with the Muslim religion and this clause is on the Muslim religion. If you will allow me to speak, I will continue.

Mr Speaker: The hon. Member can continue, but I will pull him up again if he is out of order.

Mr R. Jumabhoy: Sir, nobody will be more happy than I to have the Bill passed and I hope the Select Committee will get down to its work immediately so that there will be no delay.

The Minister for Local Government, Lands and Housing (Inche Abdul Hamid bin Haji Jumat): Mr Speaker, Sir, on a point of information. The Member for Telok Ayer made a statement to the effect that the State religion of Singapore is Christianity. May I know the source of his information, please?

Mr R. Jumabhoy: Sir, I may or may not be correct, but I think the Government can say it now. May I have an answer, Sir?

Inche Abdul Hamid: Mr Speaker, Sir, I rise to support the motion.

Mr R. Jumabhoy: Sir, may I have an answer?

Mr Speaker: Order. The hon. Member cannot compel an answer.

11.31 a.m.

Inche Abdul Hamid: Sir, speaking as one of the leaders of the Malay community and of U.M.N.O. in Singapore, I can say without any hesitation at all that this motion has the overwhelming support of the Malays in this island.

In moving the motion, the Hon. the Chief Secretary has enumerated some pertinent points why this controversial clause should be omitted. One of the questions posed was, "If we admit the principle of compelling Muslims to follow the law of Islam in wills, are we next to compel them to observe puasa?" On the face of it, Mr Speaker, there is some substance in what he says, but then there is this difference. In the case of the former, non-compliance with Islamic laws affects a number of people, whereas non-observance of the puasa is a matter between, the person himself and God. I do not say, Sir, as a Muslim, that it is a good thing not to observe puasa, but it is definitely a lesser evil.

It has also been pointed out that Singapore is a colony and not a Muslim State and hence Singapore should not have Muslim laws on its statute book. The same argument, Sir, can also be applied to the Christian religion and yet we have in our laws today provisions which compel Christians to be monogamous. I wonder, Sir, whether this is a case of one man's food being another man's poison !

11.33 a.m.

The Attorney-General (Mr C. H. Butterfield): Mr Speaker, Sir, there are one or two observations which I consider it my duty to make as Attorney-General on the motion which is now before this Assembly. As I understand it, Sir, what in effect the Select Committee is being asked or indeed instructed to do is to consider an amendment to the existing law which will limit the freedom which every Muslim at present enjoys under the law in common with every other person, no matter to what community he belongs, to dispose of his property by will in any way that he pleases. I hope, Sir, in making these few observations, to avoid anything controversial, and I also hope that what I do say will be of some assistance to Members of this Assembly and indeed to the Select Committee, if it should be appointed.

In the first place, Sir, I think it is important that Members of the Assembly should understand what the present law is. This has been referred to briefly by one of the Members who has already spoken, and I hope the House will be patient with me if I refer again to it. Generally, Sir, the law at present emphasises and underlines the freedom of all Muslims to dispose of their property by will as they please. So it is, Sir, that the existing law - the Muslims Ordinance - provides that:

"Nothing in this Ordinance shall be held to prevent any Muslim directing by his will that his estate shall be administered according to the law of Islam."

That, I think, Sir, has been the law here in Singapore since 1880 and that provision is reproduced in clause 40 (3) of the Bill which is now before the Assembly.

There is, Sir, another provision in the Muslims Ordinance which takes account of the law of Islam and this provision, I am referring to section 27 of the Muslims Ordinance which again is reproduced in clause 41 of the Bill which we are now considering, provides, Sir, that in the case of any Muslim dying intestate, the estate and effects shall be administered according to the law of Islam. There has been some reference made to the proviso which is part of that clause, but I am not concerned with that at this moment. So the present position, Sir, is that, first, all Muslims are free to make a will and that, secondly, if a Muslim does make a will, he is free to -direct that his property shall be administered according to the law of Islam. That, as I have said, Sir, has been the law in Singapore - I think I am right in saying - since 1880. Thirdly, Sir, the law provides that if he does not leave a will, that is, if he dies intestate, his estate must be administered according to the law of Islam. As I have said, Sir, the law which I have briefly stated has been in force in Singapore for many years, and I am sure that Members will have appreciated that any change in the law on the lines which the motion before the House now contemplates will alter the existing rights of individuals in relation to their property, and will moreover place under a legal disability in relation to their property members of that particular community, a legal disability which it is not intended to impose on individual members of other communities.

I would like now, Sir, if I may, to refer to one or two points of detail which might perhaps provoke some comments from Members of the Assembly and I do so because I feel - I hope I am right - that the Select Committee may be assisted by what may be said as a result of some of the points which I am now going to mention. As I see it, Sir, any Select Committee which may be appointed in accordance with the terms of this motion will have to consider very carefully the scope of the proposed new clauses. It seems to me, Sir, that the matters to be considered by the Select Committee should include the question of what is to be done with wills which have already been made when the new legislation is to come into force. I think, too, that the Committee, I suggest, would wish to consider whether only Muslims domiciled in the colony should be affected by this legislation. I assume, Sir, that it will be accepted that this must be the case. I suggest, too, Sir, that the Committee will perhaps wish to restrict the terms of the proposed legislation, if there is to be any, to property situated in Singapore, and will further wish to consider whether wills within the scope of the intended legislation are to be invalidated to the extent only that they are inconsistent with the law of Islam. Sir, other questions will no doubt occur to the Committee - I am sure they will - and indeed they may be in the minds of Members this morning. These particular questions to which I have referred do appear to me to be questions of importance and, as I say, if what I have said will be helpful to the Select Committee, I shall be satisfied that what I have said has not been out of place.

Mr Marshall: Mr Speaker, Sir, I have always thought that the time has come for provisions to be made to limit the powers of disposing of one's property by will at one's complete discretion, and it has been my view for some time that the Government should amend the Wills Ordinance in order to protect the dependants of a deceased person who may not be inclined to think of them and may wish to dispose of his property without consideration for the welfare of his widow and his children. The Muslim law, as I understand it, does, in fact, insist that the widow and children of a deceased are protected in the disposal of his property. It may well be, Sir, that the Muslim law goes much further than I would be prepared to go in limiting the powers of a person to dispose of his property by will, but there is certainly a great deal of good sense in the protection it seeks to give to the family against an unreasonable head of the family.

However, the question before us now, Sir, is not whether we should amend the law of disposal of property in order to protect the dependants, but we are asked to consider a very radical departure from the principle that has been accepted in this Assembly, that is, the principle that we must give the fullest facilities to all races for the observance of their religious customs and traditions. In this case, the Muslims have the fullest facilities for observing the law of Islam in respect of the disposal of property in accordance with the provisions of clause 40 (3) of the Bill:

"Nothing in this Ordinance contained shall be held to prevent any Muslim person directing by his or her will that his or her estate and effects shall be administered according to the law of Islam."

They have the opportunity to do so, but what we are, in fact, asked to consider is whether they should be compelled to do so : those Muslims who do not wish to observe the law of Islam in respect of their property.

Now, Sir, we are going from the principle of the fullest opportunity for observance of customs and traditions of religious beliefs to the principle of policing the enforcement of a religious belief. That is a very grave departure indeed, because, though I will freely admit that, in so far as I am conscious of the laws of the various religious customs, at the time they were made they were appropriate for the social and economic circumstances then prevailing - it does not follow that they are appropriate today; and once we accept the principle of policing any aspect of the laws of a particular religion, we are throwing the doors open for very grave repercussions, particularly in view of the plural society and the many religions which are domiciled in this territory.

In these circumstances, Sir, before this House is asked to take a decision on so grave a matter, it is my hope that the Select Committee will also advise the House in its report of provisions of a similar character, if any, and of the conditions prevailing in connection with the disposal of property by Muslims in the following territories : the Federation and each of the States of the Federation, Indonesia, Pakistan and Egypt. It is true that Pakistan is a theocratic State, Sir, but it would be interesting to know how they have dealt with this aspect of Muslim law in these Muslim territories and to what extent this particular law is, in fact, valid and useful.

I trust, Sir, that we will not lose the lesson of this debate and that Government will give serious consideration to a law limiting the disposal of property by deceased persons in order to protect to some extent their dependants at the time of death.

11.47 a.m.

Mr J. M. Jumabhoy: Mr Speaker, Sir, I most strongly welcome the motion moved by my friend and colleague the Hon. the Chief Secretary for directing, the Select Committee to consider the inclusion of the old clause 47. Certain arguments have been raised against the introduction of this clause. One of them is that it is a matter of basic principle - is it right to compel a person who professes a particular religion to comply with its precepts? Sir, organised society needs some sort of curbing, and it is recognised that the component members of an organised society have to tie themselves down with certain laws in order to conduct relations with each other. These laws, Sir, have been derived from various sources, but some of these sources are religion, customs and usage. In certain cases the customs and usage have been based on religious laws, and in other cases probably certain laws have been based on older customs that were prevailing in those tribes and people who received that religion. But it is certain, Sir, that the principle has already been accepted of forcing members of an organised society to follow certain rules in regard to their conduct with each other, and many of these rules that are called laws are derived from religious laws.

Now, Sir, what is wrong with compelling persons who profess a particular religion to comply with its precepts? If they like it, if they are agreeable to it, I do not think there is anything wrong. Sir, take the principle of any legislation that comes up in any country, going before a House of the representatives of the people of that country. If the representatives agree to that legislation being put through, it means that, according to the functioning of democracy, they are carrying out the wishes of the people concerned; the people concerned being the people of the country. In this case the people concerned are Muslims. This legislation will apply to Muslims, and as far as I am aware, more than 99 per cent of the Muslims in Singapore are in favour of incorporating this clause in the Bill. Sir, if we follow the democratic principle of this House passing legislation for the whole of Singapore, because it applies to all the people of Singapore, then, on the same parallel, Sir, if Muslims want certain legislation which affects them only, I do not see any reason why any Member of this House should not agree to it. The criterion by which you judge your laws is whether they are acceptable in common sense. If a law is not acceptable in common sense, then you say it is bad and you refuse to pass it. But if there are good grounds behind the customs or the usage that call for the enactment of that law, then you say the principles behind the proposed legislation are good and therefore you pass it. But, Sir, what are the principles behind these provisions in the Muslim law which we want to incorporate into clause 47? They are to provide for the rightful heirs of a deceased person. Sir, the Muslim who makes a will has the right, according to Islamic law, to will away one-third of his property without consulting anybody. So he has the freedom of willing away one-third of his property and the restriction applies only to the remaining two-thirds, and the law of Islam says that this two-thirds should be applied for the benefit of his heirs who otherwise might be left unprovided for. It often happens that a person getting on in age is sometimes smitten with religion and leaves every thing to charity, or he may have a temporary quarrel with one of his sons and cut him off his will, or he may get into the clutches of a beautiful girl and forget about his wife and children -

Mr Marshall: That does not apply to Muslims only.

Mr J. M. Jumabhoy: That is true. Sir, we have also accepted the principle of compelling Muslims to follow certain Islamic laws, because clause 41 of this Bill is actually a derivation of an amendment to the Muslims Ordinance in 1924, and compels the distribution of the property of an intestate Muslim according to the law of Islam; but that does not apply to other communities of the society in Singapore. If any person other than a Muslim dies intestate, his property is distributed according to the old English law; but here you are compelling a Muslim who dies intestate to have his property distributed according to the law of Islam. So you have accepted the principle of compelling Muslims to follow certain Muslim precepts.

The question was raised as to how far we should go in compelling Muslims to observe their religion. For instance, puasa was cited. I would say, Sir, that as far as the people affected are concerned, if they want it, they can have it. This is according to purely democratic principles. The same answer will apply to the question - should we compel people of other religions to follow their religions? - and that is, if they want it, they should have it. And why not? In fact, we have incorporated religious laws into our laws in many respects. My friend and colleague the Minister for Local Government, Lands and Housing mentioned just now that the Christian practice of a man being allowed to marry only one wife is enforceable in the Penal Code. If a Christian marries more than one wife, he is hauled up before a court under the Penal Code for a bigamous marriage. That principle has been accepted. You are forcing a Christian to confine himself to one wife at one time! The section in the Penal Code on bigamy does not read:

"Nothing in this Ordinance (or whatever it is) contained shall be held to prevent any Christian from marrying more than one wife."

It does not read that way, Sir, as pointed out by my friend the Member for Cairnhill, and Muslims are not forced to distribute their property, if they do not want to, according to the law of Islam. (Referring to clause 40 (3) of the Muslims Bill.)

The practice in India, Sir, which is not a theocratic State, is this. The Muslims have been excluded from that part of the Indian Succession Act which deals with testamentary matters and disposal of property and succession and so on, so that there is no express legislation binding the Muslims not to follow their own religious laws. It is not the same position here in Singapore, because you have the operation of the Wills Ordinance so that if a Muslim makes a will at present which is not in accordance with the law of Islam, that will is good. But in India that position has been neutralised by the exclusion of Muslims from that portion of the Indian Succession Act which deals with disposition and so on. Case law in India has established many, many decades back that, as far as disposal of property is concerned, where wills are not in accordance with Islamic laws, the law of Islam shall prevail and there have been hundreds and thousands of cases, I believe, in India in which judgment to this effect has been given; and it is a recognised case law now in India that that portion of the will which is in excess of what is allowed according to the law of Islam is not recognised. Further, the Shariah Act of 1937 in India states that where the parties are Muslims, then the Muslim personal law shall be applicable in matters of succession and other major matters connected with Islamic law. So that there again is a positive direction to the courts that if a case comes up where a will is contested and the parties are Muslims, then the Muslim personal law shall apply. I shall quote, Sir, from Moolah's 10th Edition, Principles of Mohammedan Law, which is a recognised authority in India:

"Limits of testamentary power

A Mohammedan cannot by will dispose of' more than a third of the surplus of his, estate after payment of funeral expenses and' debts. Bequests in excess of the legal third cannot take effect unless there is consent thereto after the death of the testator."

There, Sir, you have an answer to the point raised by my friend the Chief Secretary as to the breaking up of Muslim businesses and estates. That can very well be avoided. Even though the will is not in accordance with the law of Islam and if those aggrieved are getting less than what they should but if they consent to the extra portion given to others who should not have got it under Islamic law, then that bequest is valid. So if a person leaves his business to a son whom he considers is best fitted to run it, and though that son's share of his property is in excess of what he should have according to Islamic law, the other sons can, by consent after the death of the testator, agree to the business being carried on by that son. There are, of course, other ways of overcoming that difficulty. Limited companies can be formed during the lifetime of the testator, or the children could be taken into partnership, in which case when the testator dies, only that portion of the shares which is his is subject to distribution, and the rest is not. Then, of course, there is a proviso in the Islamic law that one-third of the property can be left by the testator to anybody he likes. He can make use of that proviso to leave one-third to any particular heir provided he obtains consent beforehand from the other heirs.

Sir, we have now all the arguments answered point by point. The final point I wish to make, Sir, is that if a Muslim lady marries a Muslim man, she has an expectation of a certain share of his property on his death. She has that expectation because she married a Muslim according to Muslim marriage rites, and both of them are Muslims. Now if the law of Islam is not applied and the testator wills away his property as he likes, then what happens is that she may be entirely cut off from his will and then she will have lost the right of expectation to which she is entitled, because she has married a Muslim according to Muslim marriage rites. Sir, there is also an obligation on the part of the husband to leave the wife her rightful portion of his property according to Islamic law, and if he can get out of that at will because the law of the country does not force him to do this, then he is breaking his obligation to her.

12 noon.

The Minister for Communications and Works (Mr Francis Thomas): Mr Speaker, Sir, this is not a matter on which I am very well informed but I should like to make one or two remarks because I personally intend to support the Muslim desire that they should obstruct their economic progress. I should like to explain why.

I personally dislike very much the introduction of any element of theocracy into a State. I think it is a very dangerous thing. My objection is basically a Christian objection. I do not want to get into a lecture on theology, but there is a well-known saying, "Render to Caesar the things that are Caesar's and to God the things that are God's"; and that is taken by Christians to mean that the State has its proper functions and you leave those ordinary day-to-day matters to the State, whilst the things that are God's are matters between man and his God. If I acted on that principle as a good Christian, I am afraid I should vote against this clause 47 when it comes up before the Committee, but I do not think it would be appropriate to bring a Christian principle to bear on a Muslim matter in this way and I should use other methods of judgment on it.

I cannot help feeling a great respect for the Muslim community which is aware, and must be aware, that this determination to follow strictly the law laid down for the distribution of camels and goats in the deserts of Arabia is not really quite appropriate in dealing with stocks and shares and installations of machinery and that kind of thing in a modern technological State. They must also be aware that it is a difficult law to apply and one which will be economically difficult for their community. I honour very highly their willingness to make sacrifices of wealth and expectations of profit in the interests of their faith, and I think that is a factor which should be given full weight.

As a Socialist, I also see certain socialist advantages in it. I have pointed out that this Muslim religious law is inappropriate in a modern capitalist State. I do not think it will have any particular bad effect if we have a fully Socialist State because there will be nothing very significant to leave in your will, and therefore, as far as it goes, this Muslim law would fit in quite happily with a Socialist State which I hope some day we shall establish. For those reasons, Mr Speaker, I personally intend to give my voice for it.

Question put, and agreed to.

Resolved,

That it be an instruction to the Select Committee on the Muslims Bill to consider amendments to the Bill to provide that no Muslim shall dispose of his property by will except in accordance with Muslim law.

Mr Speaker: I think this is an appropriate time to suspend. I shall take the Chair again at half-past two.

Sitting accordingly suspended at 12.04 p.m. until 2.30 p.m. Sitting resumed at 2.30 p.m.