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Inter-Asia Cultural Studies, Volume 5, Number 3, 2004 13 Routledgeg ^ Taylor 6. Francis Cro up

Traditionalism and its impact on the administration ofjustice: the case of the Syariah Court of Singapore

Noor Aisha Bte Abdul RAHMAN

ABSTRACT TMs pa per examines, by way of case studies, the influence of traditionalism as a style of

thought on the administration of Muslim law on divorce in the Syariah Court of Singapore, It focuses

on the mode of its operation in the selection, construction and application of the law, and highlights its

repercussions on the lives of parties in family breakdowns. The paper also touches upon the effects of

traditionalism on the development of a more progressive legal culture and identifies measures that would

alleviate the problem.

KEYWORDS: Administration of Muslim law, Muslim law on divorce, Syariah Court, Singapore,

divorce, traditionalism

Divorce amongst Muslims in Singapore, and its socio-economic ramifications on the family andcommunity in general, remain major concerns. Statistics reveal that the number of divorceswithin the community over the past decade has generally been increasing.^ The impact ofdivorce on the lives of parties and their children is such that they are significantly affected notonly by the laws regulating divorce but also how these laws operate in practice. Generallyhowever, this dimen sion of Muslim divorce has not received as much scholarly attention as theoverwhelming theoretical expositions on the law itself contained in innumerable jurisprudentialworks on the subject.

In Singapore, the few studies that examine the practice of Muslim divorce law focus onspecific themes relating to the Muslim matrimonial court. These include the various types ofdivorces granted by the Court under relevant statutes (Djamour 1966), collation of courtjudgments (Salbiah 1988), specific problems on procedures, powers, jurisdicfion, personnel ofthe Court and their impact on the Court's effectiveness as the arbiter of Muslim law inmatrimonial disputes (Siraj 1963, 1966, Ahmad Ibrahim 1962). A number of these works alsofocus on lacvmae in substantive and procedural aspects of the laws that affect the administra-tion of divorce (Rubin 1992, Tham 1994).

This paper aims to contribute yet another dimension to ideas on the judicial administrafionof Muslim divorce. The overriding aim is to examine sociologically the dominant style ofthought or orientafion of the group of judicial officials who select, interpret and apply theMuslim law. It also highlights the impact of their mode of thinking on the actual lives of men,

women and children in family breakdowns. This approach has neither been utilized in theabove-mentioned studies nor, to the best of my kn owledge, comm only found in works relatingto divorce and the law generally. Examining the orientation of this relevant group towardsMuslim law helps avoid pitfalls in identifying the source of problems pertaining to theadministrafion of divorce. It also allows for a more objecfive understanding and appraisal of thelaw. Often what is perceived as limitafions of substantive law can in fact be attributed to thejudicial atfitude towards the law and what condifions its perception and beliefs. This approachalso allows us to steer away from addressing divorce law from the angle of its theological ordoctrinal correctness. Understanding the mode of thinking on laws and their implicafions on

ISSN 1464-9373 Print/ISSN 1469-8447 Onlme/04/030415-18 © 2004 Taylor & Francis Ltd

DOI: 10.1080/1464937042000288705



4 1 6 Noor Aisha Bte Abdul Rahman

lives contributes to a more balanced diagnosis of problems in administering divorce, not tomention the administration of justice generally. For the purposes of this study, traditionalismas a style of thought, is highly relevant.

The prevalence of traditionalism on the administration of the Muslim law of divorce hasserious consequences on the dominant type of legal culture that emerges, the compatibility ofsuch culture with the demands of contemporary society and the effects they bear upon the lives

of aggrieved parties.^ This paper aims to concretize the problem of traditionalism by focusingon its mode of operation and repercussions in the specific context of the administration ofMuslim family laws in the Syariah Court of Singapore.

Mannheim (1986) conceptualized traditionalism as a dogmatic attitude that clings firmly toold ways, resisting innovations or accepting them only unwillingly. This rejection or fear ofinnovation is not based upon conscious reflection or deliberation. Sociologist Towler (1984:80-93) explicates traditionalism as a style of religious belief thus: its essence is to cherish theentire tradition received as sacred such that if any part is threatened or called into question, itis the whole pattern which is put at risk. It is characterized by a strong sense of 'obligatoriness'of 'the necessity of believing rather than what is believed'. The distinctive cognitive style beingthe attitude of unquestioning acceptance that has no place for doubt. It is not concerned withabstract principles, only with their application. As Towler explains, the implicit plea in

traditionalism is not for questions to be answered but for all questioning to be taken away andput under lock and key of a trustworthy authority. Hence, traditionalists cannot justify whatthey believe. The best they can do is to recite the creed or quo te a verse from the scriptu re. Sinceits main thrust is to keep a whole religious 'tradition' intact it is necessarily opposed to anychange and is always alert to press attempts at innovation into the established mould. It isimportant to reiterate that traditionalism as a style of thought with its distinct features andcharacteristics differs from ideology or a system of beliefs conditioned by the perspectives andinterests of the group that expounds it.^ Thus, groups upholding various ideologies or beliefsmay nevertheless manifest a similar style of thought pertaining to matters that fall within acertain domain. For instance, followers of Christianity or Islam subscribe to different beliefsystems, but how they experience or vmderstand its doctrines or religious traditions and lawscan reflect similar traits of traditionalism. In applying or appropriating selections of these

inherited traditions of the past as living practices, traditionalism is revealed in the highly rigidor dogmatic way of conceiving and experiencing them.

The Syariah Court, constituted on 24 November 1958, administers the laws pertaining tomarriages and divorces amon g M uslims in Singapore. The powers and jurisdiction of the Courtare regulated by the Administration of the Muslim Law Act (AMLA) 1968. Its main object, asits title suggests, is to administer the Muslim law within those areas defined by the Act.Substantive laws on m arriage, divorce and its ancillary issues are not com prehensively codified.In all these matters, the Court is granted jurisdiction to apply 'Muslim law as varied whereapplicable by Malay custom'. These have been understood to include interpretations of relevantverses from the Koran, Hadith (Traditions of the Prophet Muhammad and his Companions)and the legal opinions of scholars from the past. The questions of which interpretations andopinions of law ought to be applied and what should be the principles governing legal

interpretation are left entirely to the judges. It is in these aspects that significant p roblem s o ccur.The AMLA, being a creature of statute is itself an innovation in legal development.

Developed from the Mohammedan Marriage Ordinance 1880, it represents conscious attemptsat keeping abreast with personal law reforms that were taking place in the Muslim world.* Theframers of the AMLA, mindful of ensuring that Muslim law remained relevant to the needs ofcontemporary Muslim families were emphatic in improving the status of women whilebuttressing the family institution. In this respect, traditional sources of legal authorities wereconserved while legal development and reforms from other Muslim states were assimilated.Where necessary, the views of legal scholars from the various schools of Muslim law deemed



Traditionalism an d the adm inistration of justice 4 1 7

more advantageous to women, particularly in relation to the issue of maintenance and theirright to divorce are incorporated explicitly. As the then Minister of Culture and Social Affairs,Mr Othman Wok, maintained in the third reading of the Bill in 1966:

The Bill in the main follows the structure of various Administration of Muslim Lawenactments in the States in Western Malaya and it has followed the changes in theAdministration of Muslim law in the Arab countries and in Pakistan... The Bill how-

ever, incorporates provisions, which were designed to control the exercise of the rightto divorce and permission of polygamy which were first introduced in Singapore. TheBill represents a significant advance in social legislation for the protection of womenand it is hoped that Muslim wom en w ill...welcom e the Bill...which represents a charterwhich has restored to Muslim women their rights of which for long they have beendeprived.^

The framers of the AMLA can thus be said to reflect a style of thought which, unliketraditionalism, is oriented to meanings that can be historically and sociologically explained.

In contrast to the spirit of the AMLA, traditionalism evident in the orientation of Courtofficials reveals the following traits.

1. The unquestioned assumption that Islamic family law as a whole is absolute, immutable andbinding.

2. The belief that the laws as interpreted by legal scholars of the past are complete, final andinfallible.

3. A strong sense of need to be bound by the letter of the law with little concern, if at all forits underlying spirit or intent.

4. Reasoning marked by non-distinction between law as a product of a particular historicalepoch and the eternal values or moral principles underlying it.

5. A tendency to remain confined within the narrow limits of specific legal authorities despitethe availability of wide ranging legal opinions and rulings on the subject.

6. A general lack of concern with the effects of the law.7. A sense of irrelevance of reform ideas or the need to reform existing legal opinions.

8. A general apathy in the application of reason.All these traits are attempts at guarding and preserving what is deemed a body of divine

and absolute legal traditions that are highly revered. The acceptance of these authorities asbinding rules is not questioned while the rich and diverse body of juristic thought and legaltraditions are of little interest or concern. These salient features of the traditionalist style ofthough t are prevalent in the Syariah Court in view of the religious orientation of the d ominan tjudicial elite who selects and interprets the Syariah. The style of discourse on the law is thusinfluenced by their style of thought in this domain. This situation is reinforced by the generalabsence of contrary or opposing orientations from those who deal with the law or itsapplication. Members of the legal profession, such as lawyers, who may not manifest traits oftraditionalism in their approach towards the civil law are likely to resort to traditionalism inmatters of religious law for it is socially determined as the right mode of thought for thisspecific domain.

Traditionalism as practised thus undermines the purpose of Muslim family laws, which aremoulded for the needs of humans. As noted by a Muslim jurist, the law essentially seeks toserve the needs of men by removing hardship and not for the glorification of the Lawgiver(Abdur Rahim 1963: 43).* Thus it is certainly not a mechanical bundle of decrees administeredwithout relation to its purpose and effects on society. It is in this spirit that the Syariahgenerally was developed. In Muslim legal history, certain laws were abrogated or modified andnew laws introdu ced and assimilated from variou s sources precisely with the object of fulfillingthe need s of society as it evolved (Sharif 1966: 122). Even pro min ent jurists them selves did not




claim infallibility, maintaining that followers were free to depart from their opinions if theirapplication ga ve rise to unw arran ted ha rdsh ip or violated p ublic good (Sharif 1966: 1230),Underlying these is the firm belief against the unthinking application of laws, a valueconcretized in the instructions of the Caliph Omar to his judge Abu Musa al-Ashari to attachimportance to reasoning by way of comparison and analogy, thereupon seeking judgment thatis nearest to justice (Ramathan 1961: 25), Such attitudes are clearly inconsistent with the

dogmatic application of laws in the administration of justice. Traditionalism thus impedes theadministration of justice, as we shall demonstrate through the effects that result from tradition-alism as the style of thought pertaining to the administration of laws relating specifically todivorce.

Talak (Divorce)

One manifestation of traditionalism is the view consistently upheld by the Syariah Court inSingapore that divorce is the exclusive preserve of the husband, who can terminate hismarriage without cause,^ Such a view stems from the opinions of certain classical jurists basedon an inference from verse 2:237 of the Koran which relates to the issue of dower upon divorce.The verse stipulates: 'And if you divorce them before consummation but after the fixation ofa dower for them, then the half of the dower is due to them unless they remit it or the man'shalf is remitted by him in whose hand is the marriage tie. And the remission of the man's halfis the nearest to righteousness. And do not forget liberality between yourselves for Allah seeswell all that you do,'* The persistence of this view without recourse to any other clearly revealsthe belief that the law on this aspect is fixed and absolute leaving no room for question.

Yet while the Muslim law on divorce recognizes that law cannot completely sustain amarriage, it is misleading to maintain that it gives a husband the unfettered right to divorce hiswife. As with the case of every civilized society where unrestricted divorce is disapproved byvalues strong enough to attain the expression of law, so is the case with Islamic divorce laws.Jurists have argued that law and religion are closely connected and must be borne in mindwhen discussing the institution of divorce. Any attempt to understand the spirit and intent ofIslamic divorce laws mu st be based up on the principle that the regulations are perme ated withvalues which enjoin self-restraint, justice, respect and kindness to women (Syed Ameer Ali1986: 432). It is in this light that they have repeatedly invoked the relevant verses from theKoran specifically warrung men that 'if your women are obedient to you, you must not seekseparation from them' (Syed Ameer Ali 1986: 443) and that the Law permits divorce only wherethere is no possibility of reconciliation between spouses,' They have also based their argumentson many Had ith from the Prophet Moham med, the most notable being that 'divorce is the mostdetestable of all perm itted thin gs' (M uham mad Ali 1944: 284), These serve to reinforce the po intthat, although divorce is permitted, it is only allowed as a way out of a hateful union that canno longer achieve the objectives of marriage. It is in this spirit that these jurists maintain adivergence of opinions on the legal right of a husband to divorce his wife.

Unrestricted talak have also been condemned by contemporary jurists. More than 30 years

ago, the then State Advocate General of Singapore, Ahmad Ibrahim attacked the commonnotion that a Muslim male has the arbitrary right to dissolve his marriage. Comparing thesituation with the Women's Charter, he asserted:

The w e 1961 permits divorce on grounds which are substantially common to thehusband and wife. It is only the Muslims in Singapore who claim that a Muslimhusband should have an unrestricted right of repudiating his wife. Is this freedom reallybeneficial to all Muslims? Is it in the interest of the Muslim community that a husbandshould be able to abandon his wife and children for no fault of the wife and leave herwithout support after the three months of eddah (maintenance)? Again in most other



Traditionalism an d the administration of justice 4 19

Muslim countries the right of the Muslim husband has been restricted and it is onlybigoted fanaticism and a lack of social consciousness which leads the Muslim men inSingapore to claim their exclusive rights in this matter. (Djamour 1966: 176)

In the well known case of Shri Jiauddin Ah med v Anw ara Begum, the Gauhati High Courtfor instance ruled that the Sura lv verse 35 'And if you fear a breach between the two, appoint

two arbiters, one from his family and the other from hers. If they wish for peace, Allah willcause their reconciliation. For Allah has full knowledge of all and is acquainted with all things',should be read in the spirit of avoidance of divorce. Hence not only must arbitrary divorce beruled out, all means of reconciliation must have been exhausted before a divorce can takeeffect.'" Thus, safeguards have been legislated, including that found in section 2 of the MuslimFamily Law Ordinance 1961 of Pakistan which expressly stipulates that any talak pronouncedoutside the Court is not valid until the application has been heard by an Arbitration Councilwho determines that the marriage can no longer subsist. In the same spirit, the Tunisianlegislation by way of Article 23 of the law of 1956 prov ides th at no divorce pro nou nced outsidethe Court will have any legal validity.

In the light of the above views, the doctrinal position of the Syariah Court in Singapore inrelation to the husband's absolute right to divorce stands in contrast with decisions in other

jurisdictions. Its persistence in uph oldin g this view reflects its traditionalistic streak. There is noevidence of the Court's attempts at grappling with divergent legal thought and developmentson the issue, but instead a reliance on particular opinion to the exclusion of all others. Becauseof its desire to cling to the particular selected opinions of past scholars, it does not see thesignificance of variegated judicial traditions in relation to the underlying objectives of divorcelaws. Although freedom is allowed for the assimilation of more progressive and egalitarianviews since the AMLA does not specifically determine when a divorce is valid, such freedomis not exercised.

Even the safeguards provided by the AMLA are not consistently implemented due to thepersistence of the traditionalistic view on divorce. Thus, although section 50 of the AMLAchecks arbitrary divorce by allowing for the appointment of arbitrators or hakam, in practice thisinstitution is invoked only in the event of a husband refusing to divorce his wife. Today, Court

counsellors perform the task of arbitration before a divorce proceeding. However, the Courtratifies talak pronounced prior to counselling if it is satisfied that the talak is clearly exp ressed.In such cases it has consistently upheld the view that the talak takes effect from the moment itis pronounced even if it is prior to arbitration.

Another manifestation of the effect of traditionalism is the way in which mutaah (compen-sation) for the divorced wife is administered. The law provides for compensation to women(mutaah) if she had been divorced without reasonable cause. The basis for this obligation isfound in Surah 11 Verse 236 which states: 'There is no blame on you if you divorce women butbestow on them a suitable gift, the wealthy according to his means and the poor according tohis means: a gift of a reasonable sum is due from those who wish to do the right thing.' TheAMLA incorporates this right. However, in implementing this provision, the Court makes nodistinction between divorces pronounced arbitrarily and those based on justifiable grounds.

Generally, all husbands who pronounce divorce are subjected to mutaah whatever may be thecause of the divorce. As such, there are practically no checks on abuse of talak.

An extension of the traditionalist mould is reflected in the matter of the triple talak utteredby the husband at one go. The effect of this mode of divorce is drastic and harsh for it isirrevocable in the sense that the parties can neither reconcile nor remarry. Furthermore, somescholars are of the view that a wife divorced by the triple talak is ineligible for maintenance asit operates as a final divorce. In view of the harshness of its effects and drawing upon what isperceived as the hu ma ne spirit of the law , some jurists allow for the possibility of reconciliationby rem arriage on the condition th at the ex-wife had entered into another g enuine marriage w ith




a third party and that this marriage has failed. It was reported that the Prophet Muhammedcondemned the triple talak uttered at one go in his lifetime. However it was deemed effectiveby his successor, the Caliph Om ar only in the third year of his reign. Asghar (1999: 106), basinghis argument on reported traditions, submits that Umar did not change the syariah position oftriple talak (i.e. he did not allow it on the basis that it was permissible by the Syariah) butenforced it as a measure of punishment against those who intended to misuse it. Whatever

stand one takes with regards to this view, the law made by Umar clearly reveals that there areaspects of the Syariah which are not understood to be immutable for all times but can besubjected to reconstruction depending on the circumstances of the case. It is perhaps in thisspirit that prom inent scholars maintain that U mar's position on the triple talak reflects his ownijtihad (creative opinion) and is not the only interpretation. Later, other jurists condemned it onthe ground that it serves the ideological interests of certain groups. Syed Ameer Ali (1986: 435),for instance, maintains that it is a heretical mode of divorce introduced by the Omeyyadmonarchs who found that the checks imposed by the Prophet Mohammed on the facility ofrepudiation interfered with their indulgence. Endeavouring to escape the strictness of the lawthey found in the pliability of jurists a loophole for their purpose. Tyabji, (1919: 219) anotherprominent scholar also attacks the triple talak as a 'deplorable development of Sunni law'.Attributing it to the interpretation of certain jurists he asserts: 'It is indeed possible that the

Sunni jurists wished to inflict on a husband who disregarded the requirements of divorce thepenalty of rendering the divorce irrevocable and there are indications that they consider italways in favour of the wife to relieve her of her husband. At the same time, it has beenremarked; men have always moulded the law of marriage so as to be most agreeable tothemselves.'

Subsequently, jurists developed varying interpretations as to its validity, all with the objectof preventing abuse. The Shiites do not recognize its validity while the Hanafies and the Shafiesagree that it is valid but sinful. These jurists nevertheless have attempted to avoid or restrictits validity by determining the intent of the husband at the time he uttered the divorce andgiving effect to that intention. Thus, if it was found that the triple talak was uttered in a stateof momentary anger without the intention of a final divorce, effect would be given to thatintention. Some also held that if the second and third pronoun cemen ts were m ade to em phasize

the first, the triple talak would be deemed as one. The prominent jurist, Ibn Taymiyyah wentso far as to assert that a triple divorce when pronounced at the same time would be countedas only one. Such a position is reflected in the modem legal codes of various Muslim statesincluding Syria, Sudan, Egypt, Morocco and Iraq (Anderson 1976: 124).

In Singapore, the AMLA is silent on the validity of the triple talak uttered at one go. Thismeans that judges are at liberty to select and apply a wide range of legal opinions on the issue.The Court can choose not to recognize this mode of talak if it is convinced that abuse was notthe motive for the divorce. This position is consistent with the underlying objective of the law,which is to avoid divorce as far as possible given the Qur'anic and various Hadith emphaseson arbitration and reconciliation. However, traditionalism reigns, in so far as it is the letter ofthe law rather than its overriding objective that is of concern. Only once, in the case ofMu hamm ed Dawood s/ o KS Sulaiman v KA Abeetha Beevi [SYCNol40/67], did the Cou rtreject its validity. Essentially, the judgment was based on the following grounds, namely, thatthe triple talak though valid according to the four schools of Sunni law was forbidden by theProphet Muhammed whose opinion is more authoritative than the Caliph Omar's. Moreover,it can be abused (the Shafies rule that a woman divorced by this mode is not entitled tomaintenance) and it shuts the door to reconciliation. It is clear that uppermost in the mind ofthe judge was the avoidance of the adverse implications of the triple talak to the parties andtheir families. It is with this in mind that the judge overrode dominant juristic opinions on thisissue. This view is evidently consistent with the legal reforms prevalent in several Muslimstates.



Traditionalism and the administration of justice 4 2 1

Since then, however, cases reveal that the triple talak is deemed valid with all its attendantconsequences. Based on selective opinions of past scholars, the Syariah Court in Singaporetakes into consideration formalities such whether the talak had been clearly expressed or thehusband so intended the divorce. On the issue of intention, two opinions have been expressedon the basis of two fatwa (legal opinion) passed on two separate occasions by the LegalCommittee of the Muslim Religious Council of Singapore (MUIS) both of which have been

applied by the C ourt in different cases. It must be no ted th at the fatwa is merely a legal opinion,which is not binding. The first fatwa states to the effect that even if the talak were clearlyuttered, the husband's intention must also be considered. This confers upon the judgediscretion to view the circumstances of the case before determining whether the talak wasirrevocable or otherwise. Where circumstances justify, the divorce may be deemed a singlerevocable one. This fatwa was applied by the Appeal Board in reversing the decision of theSyariah Court in the case where, given the pathological circumstances of the husband (whopronounced the triple talak while he was an inmate of a drug rehabilitation centre) the Courtacceded to his appeal to have his triple divorce considered as one."

The second opinion is more restrictive. It deems the triple divorce valid as long as it isuttered clearly, without consideration for the husband's intention nor the circumstances underwhich it was pronounced. Despite the harsh consequences it entails, this view was upheld by

the Court in the recent case where the husband had pronounced the three talak three times atone go. The talak was effected outside the Court and the couple reported the matter upon theadvice of their relatives. In Court, the hu sba nd asserted his intention to divorce his wife for fearthat he would otherwise be apprehended by the police on duty if he disclosed the reasonaffecting the soundness of his judgement. He maintained that at that material moment he wasa drug addict imbeknown to his wife.^^

On appeal, the Appeal Board found the judgment of the Syariah Court unsatisfactory. Itruled that certain important factors had b een overlooked in validating the talak. These includedthe absence of further investigations, which ought to have been carried out, and factors suchas the short duration of the marriage, the fact that both the parties had pleaded for reconcili-ation, that no evidence had been taken from the wife and the absence of an oath by the hu sbandto affirm the talak, a practice observed by the M alaysian cou rts. Based on these factors the Board

maintained that the Court did n ot reach a sound and just decision. The case was thu s referredto the Syariah Court for rehearing.

The approach and precautionary measures considered by the Board revealed utmostconcern for the talak not to be deemed valid, particularly as in this case both parties hadconsistently attempted to reconcile over the years while awaiting appeal. It is unfortunatehowever that the Syariah Court failed to apply its mind to the precautionary conditions raisedby the Board. Instead, upon rehearing, the Court based its decision solely on the second fatwaof the Legal Committee. This is in spite of the fact that the Appeal Board is the highest tribunalon Muslim law.

The decision of the judge is a clear illustration of traditionalism. It did not go beyondlooking into the formality of the pronouncement, in spite of the directions to investigate thematter issued by the Appeal Board. The overriding concern is with the letter of the law at theexpense of its underlying spirit, which is intended essentially at preventing abuse of the talakand salvaging a marriage where there is hope for reconciliation. The second fatwa arising fromthe ulama (religious scholars) who comprise the Legal Committee was accepted as conclusive,regardless of circumstances of the case. The judgment stood despite the evidently harshconsequences suffered by the parties.

Yet anoth er m anifestation of traditionalist m entality is evident in the issu e of the validity oftalak uttered in a state of intoxication. The unquestioning acceptance of a selective authority asthe only legitimate source of law without assessing others in the interest of the parties is asalient feature of this orientation. This occurred in a case where the Court, although noting that




reputation, and then she com plains to the Syariah C ourt and if the complain is proven, one talakwould befall on her'.

The AMLA also allows a woman divorce by khula (divorce by redemption). This involvesthe wife redeeming herself by paying her husband a certain amount of money as assessed bythe Court in accordance with the status and means of the parties. Should the husband refuse,the Court is empowered to appoint arbitrators or hakam who can decree a divorce with the

authorization of the principals should their attempts at arbitration fail.Finally, the AMLA recognizes a woman's right to divorce by fasakh (divorce by judicial

decree) on far wider grounds than those usually stipulated in taklik cases. These include thefollowing conditions;

1. that the husband has neglected or failed to provide for her maintenance for a period of threemonths;

2. that the husband has been sentenced to imprisonm ent for a period of three years or u pw ardsand such sentence has become Hnal;

3. that the husband has failed to perform, without reasonable cause, his marital obligations fora period of one year;

4. that the husband was impotent at the time of marriage and continues to be so;

5. that the husband is insane and is suffering from some chronic disease the cure of which maybe lengthy or impossible and which is such as to make the continuance of the marriagerelationship injurious to her;

6. that the husband treats her with cruelty that is to sayi. habitually assau lts her or mak es her life miserable by cruelty of conduct even if such cond uct

does not amount to physical ill-treatmentii. associates with women of ill repute or leads an infamous lifeiii. attempts to force her to live an immoral lifeiv. obstructs h er in the observance of her religious profession or practiceV. lives and cohabits with another woman who is not his wifevi. if he has more wives than one, does not treat her equitably in accordance with the

requirements of the Muslim law; and

vii.on any other ground which is recognized as valid for the dissolution of marriage hy fasakhunder the Muslim law.

Clearly, these laws require w omen intending to obtain divorce by taklik or fasakh to providegrounds for divorce to the satisfaction of the Court. This is consistent with the overridingobjective of Muslim family law, which is to safeguard the sanctity of marriage by checkingill-considered or hasty divorces. However, traditionalism underlies the one-sidedness of theCourt towards this objective. It has been strict both in terms of procedures and the interpret-ation of laws in granting women their right of divorce. The reluctance to give full effect to thelegislative provisions both in its spirit and content is largely due to the unquestioned authorityupheld by the Court that divorce is the prerogative of the husband.'^

For instance, where there is no taklik or marriage conditions, the Court is very reluctant totake into consideration the possibility of allowing a divorce hy fasakh in cases where a husbandrefuses to divorce his wife. They would rather encourage the husband to pronounce the talak.

Despite the stipulated factors in AMLA, which offers much wider grounds than the usual taklikcond itions, the Court ha s not ap plied this provision to the m ajority of the cases before it. In factin the rare cases of its application all these years, divorce by fasakh has been confined only tocases of apostacy and insanity (Salbiah 1988; 386-387).

Instances of the traditionalist attitude are consistently revealed in written grounds ofjudgment as illustrated in the case where the wife applied for divorce on the ground that therehad not been conjugal relations with her husband for over a year, a fact which was not disputedby her husband who nevertheless refused to divorce her.^^ On the facts it could be argued that




she was entitled to a divorce by fasakh as the husband has not fulfilled the obligations arisingfrom the marriage. However the Court did not even apply its mind to this provision, holdinginstead that the wife's application was un acceptable by the Syariah. Since the hus ban d refusedto divorce her, there was no avenue for her to obtain a divorce. Fortunately, her appeal wassuccessful, although the Appeal Board, like the Syariah Court, did not proceed on the basis ofthe fasakh provision but successfully persuad ed the husban d to release his wife by pronou ncing

th e talak.This case also illustrates other hardships a wife is subjected to in the past should her

husband refuse divorce. The Court even acknowledged conditions imposed by her husbandthat undermined her interest and that of her children in order to secure a divorce. Theseincluded an agreement on her part to withdraw her claims for maintenance for her family,grant access to the children at any time and revert their custody to him if she remarries. Thatthese conditions conform to Islamic principles is indeed questionable, for it is generallyacknowledged that the primary consideration in the matter of custody and access under Islamiclaw is the welfare of the child.

This persistent traditionalistic attitude towards a women's right of divorce even in the faceof clearly worded legislation to the contrary is also evident in the another case which involveda marriage of 49 years.^* At the time of marriage, the parties did not enter into a taklik. The

immediate cause of the dispute was the polygamous marriage of the husband without hiswife's consent or knowledge, after which he left the matrimonial home owned by his wife. Atthe end of the divorce proceedings, which he commenced, the Syariah Court ordered him topay his wife maintenance for three m onths an d financial compensation (niutaah). Unfortunatelyhe was not ordered to pronounce the divorce thereby the divorce was not valid according tothe requirement of statute. Unaware of the invalidity of the divorce, both parfies appealedagainst the monetary orders. The Appeal Board in redirecting the case to the Court ruled thatthe orders could not stand because there had been no valid divorce. Upon rehearing however,the husband refused to pronoxmce the divorce because he did not want to satisfy thecompensation the Court had ordered. The wife then was forced to apply for divorce on thegrounds that the husband had left her for more than four months and had not maintained her.

Finding no taklik, the judge referred the matter to the hakam, a decision against which the

wife appealed. The judge's grounds for decision reveal quite clearly a traditionalistic attitudetowards a woman's right to divorce. According to him the wife could not obtain a divorce byfasakh because she had not applied for it. Furthermore such a divorce would not entitle her tomaintenance and mutaah. He also maintained that fasakh can be invoked only if the husbandsuffered certain severe shortcomings such as insanity, poverty, or if he faces other extremehardship. Against these condifions, her situahon does not warTant fasakh. Thus, he submits,divorce can only take effect if the husband desired it, for the power of divorce lies with him.

All these arguments are weak and unconvincing. Procedurally, since 1985, divorce applica-tions need not specify the type of divorce, so as to avoid the inconvenience of having to dealwith recurring applications should a particular type of divorce applied for fail. It was thereforeunreasonable to maintain that the wife had violated procedures. Furthermore, the notion thata wife who has applied for fasakh is not entitled to m aintenance and mutaah is not unanim ous,thereby rendering the justification that the decision was made in her interest, weak (Nasir 1990:105). Even m ore significant, the jud ge in de linea ting th e circum stances in which/flSfl/c/j applieddid not refer at all to the relevant secfion in the AMLA, preferring instead to rely on certainselected authority with a conscribed interpretafion of the law. This resistance against acceptingrelevant provisions contained in the Act underlies an attitude of not wanting to adapt andassimilate principles of law which are seen to depart from traditionally established rulesregardless of their goals and intended purpose. The result is often adverse to the welfare orinterests of the wives.

In this particular case, the hardship suffered by the woman in the prolonged litigation




cannot be underestimated. Her husband who withheld his consent for divorce although he wasthe party who had initiated it, practically abused the situation. The Court's decision to appointthe hakam to arbitrate the case only lengthens the process for it is clear that both parties do notwish to reconcile. It is apparent that the main objective of pushing the matter to the hakam isbecause the hakam is emp owe red to decree the divorce in the even t of a failure of reconciliation.The judge himself, given his traditionalistic mentality, refused to order the divorce by fasakh

probably because he felt bound not to do so in view of the 'authorities' he regards as binding.The non-consideration of divorce by fasakh was also evident in the case in which the wife

applied for divorce alleging that her husband, who had remarried, had not treated her justly,was irresponsible towards her and the children, had not provided sufficient maintenance andthat irreconcilable differences existed between them.''' Although the Court could have con-sidered the relevance of the AMLA provisions, it did not do so. In fact, upon finding no taklik,

the judge held that divorce lay completely in the hands of the husband. Thus he submitted:'The question now is whether given the above reasons the wife can obtain a divorce. Theanswer is yes and no. Yes if the husband agrees to divorce her and no if he doesn't.' Theimplication of the judgment is clear. The wife is expected to put up with her husband even ifhis conduct has caused her extreme unhappiness in spite of the careful and broadly phrasedsection by the lawmakers to provide a humane avenue for women who are unable to put up

with an intolerable marriage.The restrictive judicial interpretation and the general disregard for the legal provisions have

significant consequences. Not only does it reveal the Court's reluctance to exercise judicialpower accorded by statute or to exercise it fully, it also hinders a woman's legal right ofdivorce, a problem aggravated in cases where her husband refuses to divorce her. The casesreveal that the Court will not decree a divorce because it subscribes to the theological view thatthe right of divorce lay in the hands of the husband only. Additional difficulties stand in theway as the divorce process is lengthened and additional costs incurred. Although the power ofthe Court to appoint hakam is discretionary and extends to all types of divorce, they are hardlyever appointed in cases of divorce by taklik or talak. This supports our view that unless thehusba nd consents to a divorce, the Court will not decree one except by way of hakam. In otherwords, the hakam is utilized essentially to decree a divorce.

The view that a husband's consent is a precondition to a decree of divorce also extends tocases where a wife seeks a divorce by redemption. Herein again under Muslim law, there areconflicting views. However, the Syariah Court in Singapore, implicitly basing its opinion onselected interpretations of classical jurists upholds the principle that the husband must consentto such a divorce. The traditionalist streak of unquestioning acceptance is reflected in theabsence of attem pts at referring to alternative judg me nts or juristic opinions. For instance, in thecase of Balqis Fatima v Najm-ul-Ikram Qureshi [PLD 1959 W.P.Lahore 556], hailed as amilestone in the history of the law of divorce by redemption, the full Bench of the PakistanHigh Court had held that vinder Muslim Law the wife is entitled to khuluk as of right if shesatisfies the Court that it would otherwise force her into a hateful union. This principle wasfollowed in the case of Khurshid Bibi v Baboo Muhd Amin [PLD 1967 SC 97]. Based oninterpretations of the Koranic Sura 11 verse 229, the kathi or judge is said to be authorized todissolve the marriage independent of the husband's consent where he is satisfied that thecontinuance of the marriage is improper or likely to condemn the spouses to a life of misery.The verse reads as follows: 'A divorce is only permissible twice. After that the parties shouldeither hold together on equitable terms or separate with kindness. It is not lawful for you mento take back any of your gifts from your wives except when both parties fear that they wouldbe unable to keep the limits ordained by Allah. If ye judges do indeed fear that they would beunable to keep the limits ordained by Allah, there is no blame on either of them if she givessomething for her freedom...'

The section of AMLA which governs khuluk divorce does not state clearly that a khuluk can




has refused or showed reluctance in accepting the testimony of children, arguing that they arenot competent to give evidence against their parents. Yet it should be noted that, in the casesof custody disputes, the Court upholds the preference of the child as long as he is above theage of seven. The argument is tinconvincing for although a child is allowed to make decisionsthat have long term repercussions on his life, his testimony as a witness in taklik cases isdeemed unacceptable. Such problems pertaining to evidence can result in difficulties and

hardsh ip for women wh o need to prove non-m aintenance or physical abuse on the part of theirhusbands.

So reluctant is the Court in granting a taklik divorce that it has even gone so far as to imputethat the maintenance for children as awarded by a Maintenance order from the Family Courtcould have been utilized by the wife for herself, thereby disentitling her to a taklik divorce. Ittook this position in a case where it rejected the wife's application because it was not satisfiedthat she had successfully proven non-maintenance.^°

An extension of the traditionalist view of the exclusive right of men to divorce is alsomanifested in the rather restrictive construction of taklik conditions. For instance, in cases wherehusbands do give maintenance but clearly the amount is inadequate, the Syariah Court hasrefused to grant divorce saying that as long as some n\oney is given, there can be no breachof taklik for non-maintenance; insufficient maintenance does not enable the wife to obtain a

divorce even though it may cause her hardsh ip unless the hu sband agrees to divorce her.̂ ' Thisruling reflects the current position of the Court. The principle that maintenance must bereasonable based on the current standard of living as expounded by many prominent jurists isnot considered.

It even app ears that an admission of acceptance on the wife's p art to bear with non-mainte-nance would be taken against her attempt at applying for a taklik divorce on those grounds. Inone case, the husband had clearly admitted that, for a period of six months in which he wasunemployed, he did not provide maintenance to his wife. In fact he testified that it was his wifewho was supporting their child and him. The judge asked whether she 'was willing' to whichshe answered in the affirmative. He then rejected her divorce application.^^

The construction of the taklik pertaining to 'causing bodily injury' is also a strict one, whichcertainly has the effect of checking a woman's right to be granted divorce. The Court will only

allow divorce if there are visible signs of swelling and bruises accompanied by a doctor'sreport. Assertions of being physically ab used withou t eviden t signs are usually not consideredconvincing evidence. Similarly, a Personal Protection Order obtained from the Family Courtalone does not suffice.

A strict approach is also demanded of the condition 'mar her reputation'. It appears that adivorce can be obtained under this condition only in cases where the husband coerces the wifeto engage in immoral activities such as prostitution or if he engages in such activities himself.

Different opinions are expressed over whether a divorce can be obtained in cases where thehusband humiliates his wife in public by calling her names. One view is that such conductsuffices to constitute breach of taklik. However, there are dicta to the effect that the entirecircumstances of the case must be considered.

Apart from the stringent requirement of proof and strict interpretation of the conditions,procedural rules also create difficulties for women seeking divorce by taklik. In these instances,the imwillingness to m ake adjustment to changing conditions by clinging on to old proced ureshas created unwarranted hardship for women seeking divorce. It is a trait of traditionalism touphold the letter of the law without much thought given to its consequences no matter howoppressive. For instance, vintil 1999, the Court had subjected women who attempted to obtainthe conditional divorce on the ground of their husband's desertion to onerous procedures. Shewas expected to undergo counselling and thus subjected to the long waiting process. At thePreTrail Conference she was asked to serve by way of substituted summons notice of divorcein either the Malay or English press, both in Singapore and Malaysia or the country of his



4 28 Noor Aisha Bte Abdul Rahman

nationality. Three such mandatory advertisements had to be published between intervals offour months each. These constituted evidence during the trial which meant that the wife hadto make trips to Malaysia on the da ys the ad vertisement appeared in the press to obtain it. Therequirement for advertisement in the Malaysian press is likely due to historical factors since, inthose days, marriages between people from both sides of the causeway were common.However it persisted until the end of 1999,

Apart from the publicity and embarrassment she suffers, excessive costs incurred aggra-vated her plight since these wives had also to bear the maintenance of the children and theupkeep of the matrimonial home in their husbands' absence. Women who appealed to theCourt for lack of finance were even advised to get financial assistance from the MuslimReligious Council! The requirement for publication in the Malaysian press for instance despitethe changed historical context is an example of the irrationality of the traditionalist attitude. Itis also pertinent to point out that, consistent with the traits of traditionalist orientation,procedural changes eventually made were not the product of their self reflection or delibera-tions but imposed by administrators with different orientation seconded to the Court,

Divorce by mutual consent

Yet another area in which traditionalism is manifested lies in the conceptualization andimplementation of the law on divorce by mutual consent, Muslim divorce law recognizes aform of divorce by mutual consent on account of mutual aversion called mubaraat. It operatesas a release on both sides. Injunctions and exhortations aimed at safeguarding marriage againstabuse as found in other modes of divorce also apply here. In order to justify the divorce themarriage must have broken down irretrievably such that both parties genuinely believe thatthey can no longer fulfil its objective.

Divorce by mutual consent has been appraised as a better alternative to fault-based divorceby many legal scholars. They argue that, more often than not in family breakdowns, faultattaches to both parties. Furthermore, the procedure in fault-based divorce is often litigious,engenders bitterness, impedes conciliation and induces collusion that mar the image of the law.Others believe that, although legal grounds for establishing divorce are essential to protecting

the interests of the weaker parties, there is no reason to inconvenience parties or prolong amarriage in which both wish to terminate. Mutual consent has thus been accepted as perhapsa better indicator of breakdown , for wh at better proof of breakdow n is there than w hen partiesthem selves wa nt to get rid of each oth er (W estermarc 1926: 307-308),^^

This mode of divorce has been accorded statutory recognition in the AMLA, It falls outsidethe Syariah Court's jurisdiction and authorizes the kathi to register the divorce if he is satisfiedupon inquiry that both the parties have consented to it. The kathi is not empowered to makeorders pertaining to the ancillary matters arising from the divorce. Divorce by mutual consentis, after all, essentially an am icable form of divorce. Invariably, pa rties are also expected to hav emutually decided issues ancillary to the divorce, which will then be recorded by the kathi.Should a dispute subsequently arise over these issues, the civil court can judicially deterrrunethe matter. However, until 1992, the kathi, oblivious to the governing statute have persisted inmaking orders on these issues despite the absence of jurisdiction and power to do so,^*Eventually, when the civil Court of Appeal clarified this distinction and explained the scopeand ambit of the power and jurisdiction of the Syariah Court and the kathi in relation to theancillary issues of divorce,^^ the Syariah Court's reaction was to confine the application ofmu tual consent divorce to cases involving childless parties withou t m atrimonial prop erty. Thispolicy is based on the argument that these ancillary matters should not be dealt with by thecivil court in dispute cases since the principles applied by that court may be inconsistent withIslamic law.

As is characteristic of traditionalism, such justifications are not based upon careful study of




the principles of civil and Muslim laws on these matters. Because the matter has not beencarefully studied, there has never been a consistent attempt at preventing these ancillary issuesof divorce from being heard by the High Court previously. In fact, there are many instanceswhere the Syariah Court had approved applications to have these issues determined by theHigh Court while the divorce was pending at the Syariah Court, It should also be noted thatthe High Court had always had the jurisdiction to deal with the issue of custody of Muslim

children by virtue of the Guardianship of Infants Act, which is a statute of general applicationwhere the principle of welfare and paramount interest of the child applied by the Court in suchmatters has been upheld as consistent with that of Muslim law,^* In the case of disposition ordivision of matrimonial p roperty, the recently introduced amen dmen ts to AMLA in 1999 drawsupon most of the guiding principles from the Wom en's Charter, revealing that these principlesare not inconsistent with Islamic law. Thus, section 52(8) (a-g) of AMLA stipulates similarprinciples as that found in section 112(2)(a-g)of the Charter, which directs the Court inexercising its power to have regard to a number of considerations including the contributionsof each party towards acquiring, improving or maintaining the property; the welfare of thefamily and the needs of the children amongst other considerations.

The persistence of traditionalism seen in the conceptualization and implementation of thismode of divorce has rather unfortunate consequences. It severely restricts the application of

mutual consent divorce hailed as a reflection of the progressive and humane spirit of the law(Iyer 1987: 74-75), The policy also unduly restricts the freedom to the individual to decide theforum to hear his dispute. After all, it is the individual who is the consumer of the law,^'^ Heor she may perceive certain advantages in having the matter heard in the High Court forvarious reasons, including the speed in which cases are heard, the resources available, and theprofessionalism of the Court amongst others. In cases involving the division of matrimonialproperty, the lack of a clearly uphe ld principle in Syariah Court judgm ents in determining therelevance of fault as a factor in the division may also influence the choice of the forum.Unfortunately however, the input of the traditionalist saw the entrenchment of the status quoin the recent amendments of the AMLA, which restrict kathi divorce to cases where the partiesdo not have matrimonial property and children. This is despite the fact that the new legalprovisions have empowered the Syariah Court to hear disputes on ancillary issues pursuant to

a kathi divorce.

Conclusion

The study reveals that traditionalism hampers the growth and development of legal thought.It gives rise to mental apathy oblivious to the contributions of human knowledge that directlyor indirectly bears upon the understanding of the laws. Instead of enriching the legal traditionto make it more compatible with the demands of modem society for rational and justadministration of laws, traditionalism impoverishes it. Traditionalism thus impedes the prog-ress of genuine legal reforms much needed for contemporary Muslim society.

Although this paper focuses only on divorce, traditionalism and its ramifications also bearconsequences upon ancillary matters arising from divorce including the disposition and

division of matrimonial property, maintenance and financial claims, and custody as well asaccess to children. Subjected to traditionalism, the way in which these issues are determinedcreates adverse repercussions on the ability of parties to get on with their lives and reconstructthe family.

Thus far, reforms in the administration of divorce in the Syariah Court have focused onaddressing gaps in the AMLA, particularly in relation to the power and jurisdiction of theCourt in administering ancillary issues of divorce and questions of enforcement of Courtorders. These legislative improvements are commendable in alleviating inadequacies andlimitations in the administration of divorce. Generally, they do not touch upon the substantive




law governing divorce and its ancillary issues. To expect Parliament to embark upon the task

of codification entails its engagement with determining Islamic law. This can invite serious

problems and political repercussions given the secular nature of the state. The common practice

of referring to the Fatwa Committee on points of law for determination where legal provisions

are silent or ambiguous may foster the perpetuation of traditionalism when similar orientation

prevails.

As of now the AMLA itself contains necessary provisions that give adequate rights andprotection to women. Lawmakers mindful of traditionalism and its significance on the oper-

ation of laws must strive not only for greater clarification of these laws and legal principles but

also ensure that these are formulated with utmost precision, leaving little room for doubt or

ambiguity. They must therefore be vigilant in monitoring gaps and loopholes in these areas that

require amendments and reform, for even radical changes in belief if not effectively prevented,

as Towler asserts, would no doubt meet the same fate again at the hands of traditionalism'

(Towler 1984: 90). Such measures may curb some of the unwarranted effects of traditionalism.

Furthermore, continuous efforts at creating conditions that can stimulate awareness of prob-

lems in relation to our religious orientations and their ramifications on the development of a

rational and progressive legal culture can also support the cause for advancement in the

administration of justice.

Notes

1. A report obtained from the Syariah C ourt on the Number of Divorce Cases between the years 1993 to2003, reveals the following figures: 1228, 1104, 997, 1094, 1225, 1483, 1597, 1659, 1410, 1625 and 1981respectively. In 2003, about a third of the total number of divorces in Singapore occurred amongstMuslim couples. The Straits Times, 2 July 2004, HIO.

2. The phenomenon of traditionalism as an impediment to progress amongst Muslims has been discussedby several scholars; see Shaharuddin (1992), Azhar (2000), Ansari (2001).

3. A good discussion on the meaning of ideology is found in Mannheim (1936)4. Reference to many of these reforms can be found in And erson (1976).5. For background information on the introduction of the AMLA, please refer toParliamentary Debates.

Singapore 24(2), 13 Dec.1965 Col. 42; 24(14), 30 Dec. Col. 770-773; 25(4), 17 Aug. 1966 Col. 237-247.

6. See also the views expressed by the Egyptian scho lar Muh d. Said al-Ashmaw y (1994: 44-45).7. As one judge asserted in the case of Latifah bte Hasan v Jumari bin Yaacob [SYCNo 148/77] 'It is clearthat the power of talak lies in the hands of the husband who can divorce his wife whenever he wishesto even without cause.'

8. Yusuf AH (1935). Yusuf A li in his commentary states that according to Hanafi doctrine the phrase 'hein whose hand is the marriage tie' refers to the husband himself wh o can ordinarily by his act dissolvethe marriage. It therefore bestows onhim to be all the more liberal to the woman and pay her the fulldower even if the marriage was not consum mated. A shgar E ngineer (1999: 99) submits that, althoughgenerally Muslim jurists of all extant schools believe that it is the exclusive preserve of man topronounce divorce, it is important to note that there is no such explicit statement in the Qu r'an, it beingonly an inference, not a divine ruling.

9. Sura 11 Verse 229.10. The judgment was reported in Hodkinson (1984: 259-271).11. Ariffin bin Ahmad v Suraya bte Gulam Shah [SYC16/87].12. Muhammed Rashid bin Maulana Abdul Kadir v Faridah bte Hanafi Marican [SYCll/96].

13. Muhammed Rashid's case above.14. It is perhaps interesting to note that such a judicial attitude is not only confined to the Singapore

Syariah Court. For a discussion of the problem in India, please refer to Zeenat (1987: 218).15. Zainab Abdul Kahar v Salim bin Baba [SYCNo 19/80].16. Aisha Bee Bee bte Shaikh Dawood v Pakir Mohd. BinAbdul Jabbar [SYCNo24/91].17. Kamariah bte Karim v Bunyamin bin Haji Mansur [SYC46/1996].18. Suriana Kapraw i [SYCNo59/81].19. Latifah bte Hassan v Jumari bin Yaacob [SYCNo 148/77].20. Hanah bte Abidin v Amat Ma'arop bin Jamal [SYCNo 18188].21. Salamah bte Saifoodin v Juri bin Abdul Adan [SYCNo003/78].22. Sabariah bte Mohd v Jumari Bin Yacob.[SYCNo 18689].




23 . See also the argument of Hussain (1989:121).24 . After the case of Rahmat bin Slamat v Rozika bte Nabiwul lah [SYCNo 273/92] .

25 . Mvihd. Mu nir v N oor H ida h & other app lication s [1991] 1 MLJ, 276.26 . Myriam v Mohamed Ariff [1948] MLJ, 186-187.

27 . The perspect ive that law must be observed from the point of the individual who is i t s consumer wasdiscussed by Cahn (1967: 154-158).

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Author's biography

Noor Aisha Bte Abdul RAHMAN is current ly an Assistant Professor wi th the Department of Malay Studies,N U S . Her teaching areas include Islam in contemporary Malay socie ty, Malay pol i t ica l cul ture and law




(including the administration of Muslim law) in Malay society. She is a member of the Board of Trusteesof ISEAS and the NUS-Institutional Review Board.

Contact address: Department of Malay Studies, National University of Singapore, ASl #05-2, 11 Arts Link,Singapore, 117570

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