You are on page 1of 19

Inter-Asia Cultural Studies, Volume 5, Number 3, 2004

13 Routledge
g ^ Taylor 6. Francis Croup

Traditionalism and its impact on the administration of justice: the case of the Syariah Court of Singapore
Noor Aisha Bte Abdul RAHMAN

ABSTRACT TMs paper 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 and community in general, remain major concerns. Statistics reveal that the number of divorces within the community over the past decade has generally been increasing.^ The impact of divorce on the lives of parties and their children is such that they are significantly affected not only by the laws regulating divorce but also how these laws operate in practice. Generally however, this dimension of Muslim divorce has not received as much scholarly attention as the overwhelming theoretical expositions on the law itself contained in innumerable jurisprudential works on the subject. In Singapore, the few studies that examine the practice of Muslim divorce law focus on specific themes relating to the Muslim matrimonial court. These include the various types of divorces granted by the Court under relevant statutes (Djamour 1966), collation of court judgments (Salbiah 1988), specific problems on procedures, powers, jurisdicfion, personnel of the Court and their impact on the Court's effectiveness as the arbiter of Muslim law in matrimonial disputes (Siraj 1963, 1966, Ahmad Ibrahim 1962). A number of these works also focus on lacvmae in substantive and procedural aspects of the laws that affect the administration of divorce (Rubin 1992, Tham 1994). This paper aims to contribute yet another dimension to ideas on the judicial administrafion of Muslim divorce. The overriding aim is to examine sociologically the dominant style of thought or orientafion of the group of judicial officials who select, interpret and apply the Muslim 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 the above-mentioned studies nor, to the best of my knowledge, commonly found in works relating to divorce and the law generally. Examining the orientation of this relevant group towards Muslim law helps avoid pitfalls in identifying the source of problems pertaining to the administrafion of divorce. It also allows for a more objecfive understanding and appraisal of the law. Often what is perceived as limitafions of substantive law can in fact be attributed to the judicial atfitude towards the law and what condifions its perception and beliefs. This approach also allows us to steer away from addressing divorce law from the angle of its theological or doctrinal 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

416 Noor Aisha Bte Abdul Rahman

lives contributes to a more balanced diagnosis of problems in administering divorce, not to mention the administration of justice generally. For the purposes of this study, traditionalism as a style of thought, is highly relevant. The prevalence of traditionalism on the administration of the Muslim law of divorce has serious consequences on the dominant type of legal culture that emerges, the compatibility of such 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 focusing on its mode of operation and repercussions in the specific context of the administration of Muslim family laws in the Syariah Court of Singapore. Mannheim (1986) conceptualized traditionalism as a dogmatic attitude that clings firmly to old ways, resisting innovations or accepting them only unwillingly. This rejection or fear of innovation 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 the entire tradition received as sacred such that if any part is threatened or called into question, it is 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 being the attitude of unquestioning acceptance that has no place for doubt. It is not concerned with abstract 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 and put under lock and key of a trustworthy authority. Hence, traditionalists cannot justify what they believe. The best they can do is to recite the creed or quote a verse from the scripture. Since its main thrust is to keep a whole religious 'tradition' intact it is necessarily opposed to any change and is always alert to press attempts at innovation into the established mould. It is important to reiterate that traditionalism as a style of thought with its distinct features and characteristics differs from ideology or a system of beliefs conditioned by the perspectives and interests of the group that expounds it.^ Thus, groups upholding various ideologies or beliefs may nevertheless manifest a similar style of thought pertaining to matters that fall within a certain domain. For instance, followers of Christianity or Islam subscribe to different belief systems, but how they experience or vmderstand its doctrines or religious traditions and laws can 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 rigid or dogmatic way of conceiving and experiencing them. The Syariah Court, constituted on 24 November 1958, administers the laws pertaining to marriages and divorces among Muslims in Singapore. The powers and jurisdiction of the Court are regulated by the Administration of the Muslim Law Act (AMLA) 1968. Its main object, as its title suggests, is to administer the Muslim law within those areas defined by the Act. Substantive laws on marriage, divorce and its ancillary issues are not comprehensively codified. In all these matters, the Court is granted jurisdiction to apply 'Muslim law as varied where applicable by Malay custom'. These have been understood to include interpretations of relevant verses 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 and opinions 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 problems occur. The AMLA, being a creature of statute is itself an innovation in legal development. Developed from the Mohammedan Marriage Ordinance 1880, it represents conscious attempts at keeping abreast with personal law reforms that were taking place in the Muslim world.* The framers of the AMLA, mindful of ensuring that Muslim law remained relevant to the needs of contemporary Muslim families were emphatic in improving the status of women while buttressing the family institution. In this respect, traditional sources of legal authorities were conserved 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 and the administration of justice 417

more advantageous to women, particularly in relation to the issue of maintenance and their right 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 Law enactments in the States in Western Malaya and it has followed the changes in the Administration of Muslim law in the Arab countries and in Pakistan... The Bill however, incorporates provisions, which were designed to control the exercise of the right to divorce and permission of polygamy which were first introduced in Singapore. The Bill represents a significant advance in social legislation for the protection of women and it is hoped that Muslim women will...welcome the Bill...which represents a charter which has restored to Muslim women their rights of which for long they have been deprived.^ The framers of the AMLA can thus be said to reflect a style of thought which, unlike traditionalism, 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 Court officials reveals the following traits. 1. The unquestioned assumption that Islamic family law as a whole is absolute, immutable and binding. 2. The belief that the laws as interpreted by legal scholars of the past are complete, final and infallible. 3. A strong sense of need to be bound by the letter of the law with little concern, if at all for its underlying spirit or intent. 4. Reasoning marked by non-distinction between law as a product of a particular historical epoch and the eternal values or moral principles underlying it. 5. A tendency to remain confined within the narrow limits of specific legal authorities despite the 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 as binding rules is not questioned while the rich and diverse body of juristic thought and legal traditions are of little interest or concern. These salient features of the traditionalist style of thought are prevalent in the Syariah Court in view of the religious orientation of the dominant judicial elite who selects and interprets the Syariah. The style of discourse on the law is thus influenced by their style of thought in this domain. This situation is reinforced by the general absence of contrary or opposing orientations from those who deal with the law or its application. Members of the legal profession, such as lawyers, who may not manifest traits of traditionalism in their approach towards the civil law are likely to resort to traditionalism in matters of religious law for it is socially determined as the right mode of thought for this specific domain. Traditionalism as practised thus undermines the purpose of Muslim family laws, which are moulded for the needs of humans. As noted by a Muslim jurist, the law essentially seeks to serve 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 administered without relation to its purpose and effects on society. It is in this spirit that the Syariah generally was developed. In Muslim legal history, certain laws were abrogated or modified and new laws introduced and assimilated from various sources precisely with the object of fulfilling the needs of society as it evolved (Sharif 1966: 122). Even prominent jurists themselves did not

418 Noor Aisha Bte Abdul Rahman

claim infallibility, maintaining that followers were free to depart from their opinions if their application gave rise to unwarranted hardship or violated public good (Sharif 1966: 1230), Underlying these is the firm belief against the unthinking application of laws, a value concretized in the instructions of the Caliph Omar to his judge Abu Musa al-Ashari to attach importance to reasoning by way of comparison and analogy, thereupon seeking judgment that is 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 the administration of justice, as we shall demonstrate through the effects that result from traditionalism as the style of thought pertaining to the administration of laws relating specifically to divorce. Talak (Divorce) One manifestation of traditionalism is the view consistently upheld by the Syariah Court in Singapore that divorce is the exclusive preserve of the husband, who can terminate his marriage without cause,^ Such a view stems from the opinions of certain classical jurists based on 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 of a dower for them, then the half of the dower is due to them unless they remit it or the man's half is remitted by him in whose hand is the marriage tie. And the remission of the man's half is the nearest to righteousness. And do not forget liberality between yourselves for Allah sees well all that you do,'* The persistence of this view without recourse to any other clearly reveals the 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 a marriage, it is misleading to maintain that it gives a husband the unfettered right to divorce his wife. As with the case of every civilized society where unrestricted divorce is disapproved by values 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 mind when discussing the institution of divorce. Any attempt to understand the spirit and intent of Islamic divorce laws must be based upon the principle that the regulations are permeated with values which enjoin self-restraint, justice, respect and kindness to women (Syed Ameer Ali 1986: 432). It is in this light that they have repeatedly invoked the relevant verses from the Koran specifically warrung men that 'if your women are obedient to you, you must not seek separation from them' (Syed Ameer Ali 1986: 443) and that the Law permits divorce only where there is no possibility of reconciliation between spouses,' They have also based their arguments on many Hadith from the Prophet Mohammed, the most notable being that 'divorce is the most detestable of all permitted things' (Muhammad Ali 1944: 284), These serve to reinforce the point that, although divorce is permitted, it is only allowed as a way out of a hateful union that can no longer achieve the objectives of marriage. It is in this spirit that these jurists maintain a divergence 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 common notion that a Muslim male has the arbitrary right to dissolve his marriage. Comparing the situation with the Women's Charter, he asserted: The w e 1961 permits divorce on grounds which are substantially common to the husband and wife. It is only the Muslims in Singapore who claim that a Muslim husband should have an unrestricted right of repudiating his wife. Is this freedom really beneficial to all Muslims? Is it in the interest of the Muslim community that a husband should be able to abandon his wife and children for no fault of the wife and leave her without support after the three months of eddah (maintenance)? Again in most other

Traditionalism and the administration of justice 419

Muslim countries the right of the Muslim husband has been restricted and it is only bigoted fanaticism and a lack of social consciousness which leads the Muslim men in Singapore to claim their exclusive rights in this matter. (Djamour 1966: 176) In the well known case of Shri Jiauddin Ahmed v Anwara Begum, the Gauhati High Court for 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 will cause 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 be ruled out, all means of reconciliation must have been exhausted before a divorce can take effect.'" Thus, safeguards have been legislated, including that found in section 2 of the Muslim Family Law Ordinance 1961 of Pakistan which expressly stipulates that any talak pronounced outside the Court is not valid until the application has been heard by an Arbitration Council who determines that the marriage can no longer subsist. In the same spirit, the Tunisian legislation by way of Article 23 of the law of 1956 provides that no divorce pronounced outside the Court will have any legal validity. In the light of the above views, the doctrinal position of the Syariah Court in Singapore in relation to the husband's absolute right to divorce stands in contrast with decisions in other jurisdictions. Its persistence in upholding this view reflects its traditionalistic streak. There is no evidence of the Court's attempts at grappling with divergent legal thought and developments on the issue, but instead a reliance on particular opinion to the exclusion of all others. Because of its desire to cling to the particular selected opinions of past scholars, it does not see the significance of variegated judicial traditions in relation to the underlying objectives of divorce laws. Although freedom is allowed for the assimilation of more progressive and egalitarian views since the AMLA does not specifically determine when a divorce is valid, such freedom is not exercised. Even the safeguards provided by the AMLA are not consistently implemented due to the persistence of the traditionalistic view on divorce. Thus, although section 50 of the AMLA checks arbitrary divorce by allowing for the appointment of arbitrators or hakam, in practice this institution 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 Court ratifies talak pronounced prior to counselling if it is satisfied that the talak is clearly expressed. In such cases it has consistently upheld the view that the talak takes effect from the moment it is pronounced even if it is prior to arbitration. Another manifestation of the effect of traditionalism is the way in which mutaah (compensation) 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 is found in Surah 11 Verse 236 which states: 'There is no blame on you if you divorce women but bestow on them a suitable gift, the wealthy according to his means and the poor according to his means: a gift of a reasonable sum is due from those who wish to do the right thing.' The AMLA incorporates this right. However, in implementing this provision, the Court makes no distinction between divorces pronounced arbitrarily and those based on justifiable grounds. Generally, all husbands who pronounce divorce are subjected to mutaah whatever may be the cause 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 uttered by the husband at one go. The effect of this mode of divorce is drastic and harsh for it is irrevocable in the sense that the parties can neither reconcile nor remarry. Furthermore, some scholars are of the view that a wife divorced by the triple talak is ineligible for maintenance as it operates as a final divorce. In view of the harshness of its effects and drawing upon what is perceived as the humane spirit of the law, some jurists allow for the possibility of reconciliation by remarriage on the condition that the ex-wife had entered into another genuine marriage with

420 Noor Aisha Bte Abdul Rahman

a third party and that this marriage has failed. It was reported that the Prophet Muhammed condemned the triple talak uttered at one go in his lifetime. However it was deemed effective by his successor, the Caliph Omar only in the third year of his reign. Asghar (1999: 106), basing his argument on reported traditions, submits that Umar did not change the syariah position of triple talak (i.e. he did not allow it on the basis that it was permissible by the Syariah) but enforced 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 are aspects of the Syariah which are not understood to be immutable for all times but can be subjected to reconstruction depending on the circumstances of the case. It is perhaps in this spirit that prominent scholars maintain that Umar's position on the triple talak reflects his own ijtihad (creative opinion) and is not the only interpretation. Later, other jurists condemned it on the 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 Omeyyad monarchs who found that the checks imposed by the Prophet Mohammed on the facility of repudiation interfered with their indulgence. Endeavouring to escape the strictness of the law they found in the pliability of jurists a loophole for their purpose. Tyabji, (1919: 219) another prominent 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 the penalty of rendering the divorce irrevocable and there are indications that they consider it always in favour of the wife to relieve her of her husband. At the same time, it has been remarked; men have always moulded the law of marriage so as to be most agreeable to themselves.' Subsequently, jurists developed varying interpretations as to its validity, all with the object of preventing abuse. The Shiites do not recognize its validity while the Hanafies and the Shafies agree that it is valid but sinful. These jurists nevertheless have attempted to avoid or restrict its validity by determining the intent of the husband at the time he uttered the divorce and giving effect to that intention. Thus, if it was found that the triple talak was uttered in a state of momentary anger without the intention of a final divorce, effect would be given to that intention. Some also held that if the second and third pronouncements were made to emphasize the first, the triple talak would be deemed as one. The prominent jurist, Ibn Taymiyyah went so far as to assert that a triple divorce when pronounced at the same time would be counted as only one. Such a position is reflected in the modem legal codes of various Muslim states including 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. This means 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 not the 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 emphases on arbitration and reconciliation. However, traditionalism reigns, in so far as it is the letter of the law rather than its overriding objective that is of concern. Only once, in the case of Muhammed Dawood s/o KS Sulaiman v KA Abeetha Beevi [SYCNol40/67], did the Court reject its validity. Essentially, the judgment was based on the following grounds, namely, that the triple talak though valid according to the four schools of Sunni law was forbidden by the Prophet 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 to maintenance) and it shuts the door to reconciliation. It is clear that uppermost in the mind of the judge was the avoidance of the adverse implications of the triple talak to the parties and their families. It is with this in mind that the judge overrode dominant juristic opinions on this issue. This view is evidently consistent with the legal reforms prevalent in several Muslim states.

Traditionalism and the administration of justice 421

Since then, however, cases reveal that the triple talak is deemed valid with all its attendant consequences. Based on selective opinions of past scholars, the Syariah Court in Singapore takes into consideration formalities such whether the talak had been clearly expressed or the husband so intended the divorce. On the issue of intention, two opinions have been expressed on the basis of two fatwa (legal opinion) passed on two separate occasions by the Legal Committee of the Muslim Religious Council of Singapore (MUIS) both of which have been applied by the Court in different cases. It must be noted that the fatwa is merely a legal opinion, which is not binding. The first fatwa states to the effect that even if the talak were clearly uttered, the husband's intention must also be considered. This confers upon the judge discretion to view the circumstances of the case before determining whether the talak was irrevocable or otherwise. Where circumstances justify, the divorce may be deemed a single revocable one. This fatwa was applied by the Appeal Board in reversing the decision of the Syariah Court in the case where, given the pathological circumstances of the husband (who pronounced the triple talak while he was an inmate of a drug rehabilitation centre) the Court acceded 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 is uttered clearly, without consideration for the husband's intention nor the circumstances under which 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 at one go. The talak was effected outside the Court and the couple reported the matter upon the advice of their relatives. In Court, the husband asserted his intention to divorce his wife for fear that he would otherwise be apprehended by the police on duty if he disclosed the reason affecting the soundness of his judgement. He maintained that at that material moment he was a drug addict imbeknown to his wife.^^ On appeal, the Appeal Board found the judgment of the Syariah Court unsatisfactory. It ruled that certain important factors had been overlooked in validating the talak. These included the absence of further investigations, which ought to have been carried out, and factors such as the short duration of the marriage, the fact that both the parties had pleaded for reconciliation, that no evidence had been taken from the wife and the absence of an oath by the husband to affirm the talak, a practice observed by the Malaysian courts. Based on these factors the Board maintained that the Court did not reach a sound and just decision. The case was thus referred to the Syariah Court for rehearing. The approach and precautionary measures considered by the Board revealed utmost concern for the talak not to be deemed valid, particularly as in this case both parties had consistently attempted to reconcile over the years while awaiting appeal. It is unfortunate however that the Syariah Court failed to apply its mind to the precautionary conditions raised by the Board. Instead, upon rehearing, the Court based its decision solely on the second fatwa of the Legal Committee. This is in spite of the fact that the Appeal Board is the highest tribunal on Muslim law. The decision of the judge is a clear illustration of traditionalism. It did not go beyond looking into the formality of the pronouncement, in spite of the directions to investigate the matter issued by the Appeal Board. The overriding concern is with the letter of the law at the expense of its underlying spirit, which is intended essentially at preventing abuse of the talak and salvaging a marriage where there is hope for reconciliation. The second fatwa arising from the ulama (religious scholars) who comprise the Legal Committee was accepted as conclusive, regardless of circumstances of the case. The judgment stood despite the evidently harsh consequences suffered by the parties. Yet another manifestation of traditionalist mentality is evident in the issue of the validity of talak uttered in a state of intoxication. The unquestioning acceptance of a selective authority as the only legitimate source of law without assessing others in the interest of the parties is a salient feature of this orientation. This occurred in a case where the Court, although noting that

422 Noor Aisha Bte Abdul Rahman

the husband was at the material time affected by the drugs he had consumed, submitted that the triple talak which he had uttered three times at one go was nevertheless effective.^^ Here again the judgment was based solely upon the opinion of the Legal Committee who cited the authority of a past scholar to the effect that a talak is effective if the intoxicant is consumed voluntarily with full awareness of the consequences it induces. The Court accepted this view completely although there existed a wide divergence of juristic opinions amongst the Sunni legal scholars on this issue. For instance, the Malikis generally deem such a talak ineffective as the rational faculties under the influence of intoxicants is impaired. Maintaining a more or less similar position to the effect that the talak will not be effective if the man is so drunk (voluntarily or otherwise) as to bring about a suspension of his reason are the Hanafi scholars. The Hanbalis left the issue open on the basis that differences of opinion on this matter persisted even among the Companions of the Prophet Muhammed. Two views are said to have been opined by Shafie. While the first deems it ineffective, the second modified view is that it is valid subject to certain conditions, such as whether the intoxicant had been consumed voluntarily and if so whether his rational capacity was impaired or whether the consumption was considered a crime by the society concerned (Syed Ameer Ali 1986; 441). Unfortunately none of these opinions were considered. In the above case, the Syariah Court in Singapore did not even consider whether in fact the drug had been consumed voluntarily and that the husband understood fully the consequences of his actions. Thus, while the Court maintains the need to preserve marriages by emphasizing its role as arbitrator of marital disputes, it nevertheless upholds divorce prior to arbitration, sanctions permanent divorces based solely on how it was uttered and accepts without question the right of arbitrary divorce by men. The overriding concern in validating divorce in all these circumstances is the unquestioning application of laws deemed binding and complete. Little regard is had for the effects of judgments on individuals and their families. That traditionalism is the dominant operating force is reinforced by the fact that divorce applications by women are made procedurally onerous and costly. The Court also resists decreeing divorces initiated by wives. Divorce at the instance of the wife Consistent w^ith the Syariah, the AMLA has given statutory recognition to the right of women to obtain divorce by various means. This reflects the progressive spirit of the lawmakers who have selected and assimilated the major legal opinions of past scholars that are seen to be just and relevant to the needs of contemporary society. As the prominent jurist Fyzee (1936; 123) has observed; 'It is sometimes suggested that the greatest defect of the Islamic system is the absolute power given to the husband to divorce his wife without cause.... But experience shows that greater suffering is engendered by the husband's withholding divorce than by his irresponsible exercise of this right. Under such conditions, the power to release herself is the surest safeguard for the wife. No system of law can produce marital happiness but humane laws may at least alleviate suffering. And when marital life is wrecked, the home utterly broken up by misunderstanding, cruelty and infidelity, what greater boon can a wife have than the power to secure her own liberty.' Under the AMLA, women can obtain divorce by cerai taklik (conditional divorce). Marriage being a civil contract, divorce can be obtained by a woman if she proves to the satisfaction of the Court that at least one of the conditions in the marriage agreement has been breached or violated. In Singapore, it is the usual - though not mandatory practice - to include standard conditions in the marriage certificate signed by both parties and their witnesses. The conditions state that 'If on any occasion I should desert my wife intentionally or otherwise for four months or more or I or my representative fail to provide her maintenance for this period while she is loyal to me or I do anything that may cause her bodily hurt or destroy her property or mar her

Traditionalism and the administration of justice 423

reputation, and then she complains to the Syariah Court and if the complain is proven, one talak would befall on her'. The AMLA also allows a woman divorce by khula (divorce by redemption). This involves the wife redeeming herself by paying her husband a certain amount of money as assessed by the 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 the following conditions; 1. that the husband has neglected or failed to provide for her maintenance for a period of three months; 2. that the husband has been sentenced to imprisonment for a period of three years or upwards and such sentence has become Hnal; 3. that the husband has failed to perform, without reasonable cause, his marital obligations for a 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 may be lengthy or impossible and which is such as to make the continuance of the marriage relationship injurious to her; 6. that the husband treats her with cruelty that is to say i. habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment ii. associates with women of ill repute or leads an infamous life iii. attempts to force her to live an immoral life iv. obstructs her in the observance of her religious profession or practice V. lives and cohabits with another woman who is not his wife vi. 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 fasakh under the Muslim law. Clearly, these laws require women intending to obtain divorce by taklik or fasakh to provide grounds for divorce to the satisfaction of the Court. This is consistent with the overriding objective of Muslim family law, which is to safeguard the sanctity of marriage by checking ill-considered or hasty divorces. However, traditionalism underlies the one-sidedness of the Court towards this objective. It has been strict both in terms of procedures and the interpretation of laws in granting women their right of divorce. The reluctance to give full effect to the legislative provisions both in its spirit and content is largely due to the unquestioned authority upheld 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 to take into consideration the possibility of allowing a divorce hy fasakh in cases where a husband refuses 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 taklik conditions, the Court has not applied this provision to the majority of the cases before it. In fact in the rare cases of its application all these years, divorce by fasakh has been confined only to cases of apostacy and insanity (Salbiah 1988; 386-387). Instances of the traditionalist attitude are consistently revealed in written grounds of judgment as illustrated in the case where the wife applied for divorce on the ground that there had not been conjugal relations with her husband for over a year, a fact which was not disputed by her husband who nevertheless refused to divorce her.^^ On the facts it could be argued that

424 Noor Aisha Bte Abdul Rahman

she was entitled to a divorce by fasakh as the husband has not fulfilled the obligations arising from the marriage. However the Court did not even apply its mind to this provision, holding instead that the wife's application was unacceptable by the Syariah. Since the husband refused to divorce her, there was no avenue for her to obtain a divorce. Fortunately, her appeal was successful, although the Appeal Board, like the Syariah Court, did not proceed on the basis of the fasakh provision but successfully persuaded the husband to release his wife by pronouncing
the 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 husband that undermined her interest and that of her children in order to secure a divorce. These included 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. That these conditions conform to Islamic principles is indeed questionable, for it is generally acknowledged that the primary consideration in the matter of custody and access under Islamic law is the welfare of the child. This persistent traditionalistic attitude towards a women's right of divorce even in the face of clearly worded legislation to the contrary is also evident in the another case which involved a 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 his wife's consent or knowledge, after which he left the matrimonial home owned by his wife. At the end of the divorce proceedings, which he commenced, the Syariah Court ordered him to pay his wife maintenance for three months and financial compensation (niutaah). Unfortunately he was not ordered to pronounce the divorce thereby the divorce was not valid according to the requirement of statute. Unaware of the invalidity of the divorce, both parfies appealed against the monetary orders. The Appeal Board in redirecting the case to the Court ruled that the 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 the compensation the Court had ordered. The wife then was forced to apply for divorce on the grounds 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 attitude towards a woman's right to divorce. According to him the wife could not obtain a divorce by fasakh because she had not applied for it. Furthermore such a divorce would not entitle her to maintenance and mutaah. He also maintained that fasakh can be invoked only if the husband suffered certain severe shortcomings such as insanity, poverty, or if he faces other extreme hardship. 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 applications need not specify the type of divorce, so as to avoid the inconvenience of having to deal with recurring applications should a particular type of divorce applied for fail. It was therefore unreasonable to maintain that the wife had violated procedures. Furthermore, the notion that a wife who has applied for fasakh is not entitled to maintenance and mutaah is not unanimous, thereby rendering the justification that the decision was made in her interest, weak (Nasir 1990: 105). Even more significant, the judge in delineating the circumstances in which/flSfl/c/j applied did not refer at all to the relevant secfion in the AMLA, preferring instead to rely on certain selected authority with a conscribed interpretafion of the law. This resistance against accepting relevant provisions contained in the Act underlies an attitude of not wanting to adapt and assimilate principles of law which are seen to depart from traditionally established rules regardless of their goals and intended purpose. The result is often adverse to the welfare or interests of the wives. In this particular case, the hardship suffered by the woman in the prolonged litigation

Traditionalism and the administration of justice 425

cannot be underestimated. Her husband who withheld his consent for divorce although he was the party who had initiated it, practically abused the situation. The Court's decision to appoint the hakam to arbitrate the case only lengthens the process for it is clear that both parties do not wish to reconcile. It is apparent that the main objective of pushing the matter to the hakam is because the hakam is empowered to decree the divorce in the event 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 and that irreconcilable differences existed between them.''' Although the Court could have considered 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. The answer is yes and no. Yes if the husband agrees to divorce her and no if he doesn't.' The implication of the judgment is clear. The wife is expected to put up with her husband even if his conduct has caused her extreme unhappiness in spite of the careful and broadly phrased section 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 judicial power accorded by statute or to exercise it fully, it also hinders a woman's legal right of divorce, a problem aggravated in cases where her husband refuses to divorce her. The cases reveal that the Court will not decree a divorce because it subscribes to the theological view that the right of divorce lay in the hands of the husband only. Additional difficulties stand in the way as the divorce process is lengthened and additional costs incurred. Although the power of the Court to appoint hakam is discretionary and extends to all types of divorce, they are hardly ever appointed in cases of divorce by taklik or talak. This supports our view that unless the husband consents to a divorce, the Court will not decree one except by way of hakam. In other words, 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 to cases where a wife seeks a divorce by redemption. Herein again under Muslim law, there are conflicting views. However, the Syariah Court in Singapore, implicitly basing its opinion on selected interpretations of classical jurists upholds the principle that the husband must consent to such a divorce. The traditionalist streak of unquestioning acceptance is reflected in the absence of attempts at referring to alternative judgments or juristic opinions. For instance, in the case of Balqis Fatima v Najm-ul-Ikram Qureshi [PLD 1959 W.P.Lahore 556], hailed as a milestone in the history of the law of divorce by redemption, the full Bench of the Pakistan High Court had held that vinder Muslim Law the wife is entitled to khuluk as of right if she satisfies the Court that it would otherwise force her into a hateful union. This principle was followed in the case of Khurshid Bibi v Baboo Muhd Amin [PLD 1967 SC 97]. Based on interpretations of the Koranic Sura 11 verse 229, the kathi or judge is said to be authorized to dissolve the marriage independent of the husband's consent where he is satisfied that the continuance 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 should either hold together on equitable terms or separate with kindness. It is not lawful for you men to take back any of your gifts from your wives except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye judges do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom...' The section of AMLA which governs khuluk divorce does not state clearly that a khuluk can

426 Noor Aisha Bte Abdul Rahman

be obtained only with the husband's consent. It also does not state explicitly that the judge cannot order a divorce by khuluk in cases where the husband is not a consenting party. It merely confers upon the court a discretionary power to appoint hakam who can decree a divorce if the principals confer such authority on them. In the absence of clarity, this section of the law can be read in the spirit of the traditions granting women the right to divorce as of right. The dominance of the traditionalist style of thought however, reveals an unflinching adherence to the general view of the classical jurists on this issue. Prolonged litigation imposed by the divorce process and costs incurred aggravates hardship. It should be noted that the parties would have already undergone a long divorce process sometimes for a year involving counselling, mediation, and trials. It was only relatively recently that changes were introduced such that, should a husband refuse divorce, the parties would be referred to the hakam without first being subjected to trial. Nevertheless, they continue to undergo mandatory counselling and mediation, which can take several months. It is also no secret that many husbands abuse their right by withholding consent, thereby prolonging the divorce process in order to 'punish' their wives. Nevertheless, this situation is an improvement from the past where, despite legal provisions, applications for divorce by wives were dismissed and wives ordered to return home after prolonged litigation on the grounds that their husbands refused divorce.^* Such judgments aggravated their plight and misery as they were expected to put up with hateful unions. There were also cases where wives not only had to comply with the redemption money imposed by their husbands to obtain divorce, they also had to put up with other unreasonable conditions, which were not legally relevant to khuluk divorce, such as withdrawal of maintenance claims and demands for child access. Such were the consequences of the traditionalistic orientation of judges. Although legal departures are evident today, the underlying basis of judgment remains the same. The husband's consent is needed for divorce to take effect, failing which it is not the Court but the hakam who can decree the divorce because they have been authorized by the parties, particularly the husband to do so. In other words, because of the husband's authorization, the decree is valid. Given the prevailing conditions, the surest safeguard for a wife appears to be the existence of a takiik and proof of its violation or breach. However, there is at present no statutory provision for even a minimum takiik to be incorporated in all marriages. The existence of takiik itself does not ensure that a divorce can be easily obtained. Much depends upon judicial interpretation accorded to these conditions. Consistent with the prevalent traditionalistic orientation, judicial attitude towards takiik divorce is one of caution. This stands in sharp contrast with the Court's approach to granting talak even if arbitrarily pronounced. Past cases reveal that the Court requires the husband to pronounce the divorce even if the conditions in the marriage contract have been violated. Should he refuse, the divorce application would be turned down.^' Indeed, this reflects the traditionalist thinking that stands by a particular view regardless of the implications it bears on the wives. For what is the point of the takiik, if it can only be effected by the pronouncement of divorce by the husband who can withhold it at will? Although the Court has departed from this practice, the change is not due to a change in orientation that conditions how the law is perceived but to the need to respond to practical considerations in resolving recurring applications for divorce initiated by women. The requirements and standards of proof also create difficulties for women who wish to obtain takiik divorce. This is seen in cases involving the grounds of non-maintenance for a period of four months or more. Often in such cases, there would be a lack of clear evidentiary proof for, in cases of domestic disputes, it is indeed difficult to ensure the existence of witnesses who can testify the absence of such support. Yet, the Syariah Court has traditionally refused to grant a divorce to the wife on the strength of her testimony alone. Due to the difficulty of obtaining witnesses for marital quarrels or disputes, which often occur within the confines of the home, it is quite common for counsels to resort to the testimony of children of the divorcing parties to substantiate their client's position. However, the Court

Traditionalism and the administration of justice 427

has refused or showed reluctance in accepting the testimony of children, arguing that they are not competent to give evidence against their parents. Yet it should be noted that, in the cases of custody disputes, the Court upholds the preference of the child as long as he is above the age of seven. The argument is tinconvincing for although a child is allowed to make decisions that have long term repercussions on his life, his testimony as a witness in taklik cases is deemed unacceptable. Such problems pertaining to evidence can result in difficulties and hardship for women who need to prove non-maintenance or physical abuse on the part of their husbands. So reluctant is the Court in granting a taklik divorce that it has even gone so far as to impute that the maintenance for children as awarded by a Maintenance order from the Family Court could have been utilized by the wife for herself, thereby disentitling her to a taklik divorce. It took this position in a case where it rejected the wife's application because it was not satisfied that she had successfully proven non-maintenance.^ An extension of the traditionalist view of the exclusive right of men to divorce is also manifested in the rather restrictive construction of taklik conditions. For instance, in cases where husbands do give maintenance but clearly the amount is inadequate, the Syariah Court has refused to grant divorce saying that as long as some n\oney is given, there can be no breach of taklik for non-maintenance; insufficient maintenance does not enable the wife to obtain a divorce even though it may cause her hardship unless the husband agrees to divorce her.^' This ruling reflects the current position of the Court. The principle that maintenance must be reasonable based on the current standard of living as expounded by many prominent jurists is not considered. It even appears that an admission of acceptance on the wife's part to bear with non-maintenance would be taken against her attempt at applying for a taklik divorce on those grounds. In one case, the husband had clearly admitted that, for a period of six months in which he was unemployed, he did not provide maintenance to his wife. In fact he testified that it was his wife who was supporting their child and him. The judge asked whether she 'was willing' to which she 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, which certainly 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's report. Assertions of being physically abused without evident signs are usually not considered convincing evidence. Similarly, a Personal Protection Order obtained from the Family Court alone does not suffice. A strict approach is also demanded of the condition 'mar her reputation'. It appears that a divorce can be obtained under this condition only in cases where the husband coerces the wife to 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 the husband humiliates his wife in public by calling her names. One view is that such conduct suffices to constitute breach of taklik. However, there are dicta to the effect that the entire circumstances 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 make adjustment to changing conditions by clinging on to old procedures has created unwarranted hardship for women seeking divorce. It is a trait of traditionalism to uphold the letter of the law without much thought given to its consequences no matter how oppressive. For instance, vintil 1999, the Court had subjected women who attempted to obtain the conditional divorce on the ground of their husband's desertion to onerous procedures. She was expected to undergo counselling and thus subjected to the long waiting process. At the PreTrail Conference she was asked to serve by way of substituted summons notice of divorce in either the Malay or English press, both in Singapore and Malaysia or the country of his

428 Noor Aisha Bte Abdul Rahman

nationality. Three such mandatory advertisements had to be published between intervals of four months each. These constituted evidence during the trial which meant that the wife had to make trips to Malaysia on the days the advertisement appeared in the press to obtain it. The requirement for advertisement in the Malaysian press is likely due to historical factors since, in those 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 aggravated her plight since these wives had also to bear the maintenance of the children and the upkeep of the matrimonial home in their husbands' absence. Women who appealed to the Court for lack of finance were even advised to get financial assistance from the Muslim Religious Council! The requirement for publication in the Malaysian press for instance despite the changed historical context is an example of the irrationality of the traditionalist attitude. It is 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 deliberations 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 and implementation of the law on divorce by mutual consent, Muslim divorce law recognizes a form of divorce by mutual consent on account of mutual aversion called mubaraat. It operates as a release on both sides. Injunctions and exhortations aimed at safeguarding marriage against abuse as found in other modes of divorce also apply here. In order to justify the divorce the marriage must have broken down irretrievably such that both parties genuinely believe that they can no longer fulfil its objective. Divorce by mutual consent has been appraised as a better alternative to fault-based divorce by many legal scholars. They argue that, more often than not in family breakdowns, fault attaches 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 a marriage in which both wish to terminate. Mutual consent has thus been accepted as perhaps a better indicator of breakdown, for what better proof of breakdown is there than when parties themselves want to get rid of each other (Westermarc 1926: 307-308),^^ This mode of divorce has been accorded statutory recognition in the AMLA, It falls outside the Syariah Court's jurisdiction and authorizes the kathi to register the divorce if he is satisfied upon inquiry that both the parties have consented to it. The kathi is not empowered to make orders pertaining to the ancillary matters arising from the divorce. Divorce by mutual consent is, after all, essentially an amicable form of divorce. Invariably, parties are also expected to have mutually 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 deterrrune the matter. However, until 1992, the kathi, oblivious to the governing statute have persisted in making 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 scope and ambit of the power and jurisdiction of the Syariah Court and the kathi in relation to the ancillary issues of divorce,^^ the Syariah Court's reaction was to confine the application of mutual consent divorce to cases involving childless parties without matrimonial property. This policy is based on the argument that these ancillary matters should not be dealt with by the civil court in dispute cases since the principles applied by that court may be inconsistent with Islamic law. As is characteristic of traditionalism, such justifications are not based upon careful study of

Traditionalism and the administration of justice 429

the principles of civil and Muslim laws on these matters. Because the matter has not been carefully studied, there has never been a consistent attempt at preventing these ancillary issues of divorce from being heard by the High Court previously. In fact, there are many instances where the Syariah Court had approved applications to have these issues determined by the High Court while the divorce was pending at the Syariah Court, It should also be noted that the 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 application where the principle of welfare and paramount interest of the child applied by the Court in such matters has been upheld as consistent with that of Muslim law,^* In the case of disposition or division of matrimonial property, the recently introduced amendments to AMLA in 1999 draws upon most of the guiding principles from the Women's Charter, revealing that these principles are not inconsistent with Islamic law. Thus, section 52(8) (a-g) of AMLA stipulates similar principles as that found in section 112(2)(a-g)of the Charter, which directs the Court in exercising its power to have regard to a number of considerations including the contributions of each party towards acquiring, improving or maintaining the property; the welfare of the family and the needs of the children amongst other considerations. The persistence of traditionalism seen in the conceptualization and implementation of this mode 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 the forum to hear his dispute. After all, it is the individual who is the consumer of the law,^'^ He or she may perceive certain advantages in having the matter heard in the High Court for various reasons, including the speed in which cases are heard, the resources available, and the professionalism of the Court amongst others. In cases involving the division of matrimonial property, the lack of a clearly upheld principle in Syariah Court judgments in determining the relevance 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 quo in the recent amendments of the AMLA, which restrict kathi divorce to cases where the parties do not have matrimonial property and children. This is despite the fact that the new legal provisions 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 directly or indirectly bears upon the understanding of the laws. Instead of enriching the legal tradition to make it more compatible with the demands of modem society for rational and just administration of laws, traditionalism impoverishes it. Traditionalism thus impedes the progress of genuine legal reforms much needed for contemporary Muslim society. Although this paper focuses only on divorce, traditionalism and its ramifications also bear consequences upon ancillary matters arising from divorce including the disposition and division of matrimonial property, maintenance and financial claims, and custody as well as access to children. Subjected to traditionalism, the way in which these issues are determined creates adverse repercussions on the ability of parties to get on with their lives and reconstruct the family. Thus far, reforms in the administration of divorce in the Syariah Court have focused on addressing gaps in the AMLA, particularly in relation to the power and jurisdiction of the Court in administering ancillary issues of divorce and questions of enforcement of Court orders. These legislative improvements are commendable in alleviating inadequacies and limitations in the administration of divorce. Generally, they do not touch upon the substantive

430 Noor Aisha Bte Abdul Rahman 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 and protection to women. Lawmakers mindful of traditionalism and its significance on the operation 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 problems 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 Court on the Number of Divorce Cases between the years 1993 to 2003, reveals the following figures: 1228, 1104, 997, 1094, 1225, 1483, 1597, 1659, 1410, 1625 and 1981 respectively. In 2003, about a third of the total number of divorces in Singapore occurred amongst Muslim couples. The Straits Times, 2 July 2004, HIO. 2. The phenomenon of traditionalism as an impediment to progress amongst Muslims has been discussed by 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 Anderson (1976). 5. For background information on the introduction of the AMLA, please refer to Parliamentary 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 scholar Muhd. Said al-Ashmawy (1994: 44-45). 7. As one judge asserted in the case of Latifah bte Hasan v Jumari bin Yaacob [SYCNo 148/77] 'It is clear that the power of talak lies in the hands of the husband who can divorce his wife whenever he wishes to even without cause.' 8. Yusuf AH (1935). Yusuf Ali in his commentary states that according to Hanafi doctrine the phrase 'he in whose hand is the marriage tie' refers to the husband himself who can ordinarily by his act dissolve the marriage. It therefore bestows on him to be all the more liberal to the woman and pay her the full dower even if the marriage was not consummated. Ashgar Engineer (1999: 99) submits that, although generally Muslim jurists of all extant schools believe that it is the exclusive preserve of man to pronounce divorce, it is important to note that there is no such explicit statement in the Qur'an, it being only 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. Bin Abdul Jabbar [SYCNo24/91]. 17. Kamariah bte Karim v Bunyamin bin Haji Mansur [SYC46/1996]. 18. Suriana Kaprawi [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].

Traditionalism and the administration of justice 431

23. 24. 25. 26. 27. See also the argument of Hussain (1989:121). After the case of Rahmat bin Slamat v Rozika bte Nabiwullah [SYCNo 273/92]. Mvihd. Munir v Noor Hidah & other applications [1991] 1 MLJ, 276. Myriam v Mohamed Ariff [1948] MLJ, 186-187. The perspective that law must be observed from the point of the individual who is its consumer was discussed by Cahn (1967: 154-158).

Abdur Rahim (1963). The Principles ofMuhammedan Jurisprudence According to Hanafi, Maliki, Shaft and Hanbali Schools, Lahore: All Pakistan Legal Decisions. Ahmad Ibrahim (1962) 'Muslim marriage and divorce in Singapore', MLj XXV(lll): xvii. Anderson, Norman (1976) Law Reform in the Muslim World, London: Athlone Press. Ansari, M. T. (ed.) (2001) Secularism, Islam and Modernity: Selected Essays of Alam Khundmiri, Sage Publications. Asghar Ali Engineer (1999) The Quran, Women and Modern Society, Delhi: Sterling Publisher. Azhar bin Ibrahim (2000) The Understanding of Islam as Reftected in Classical Malay Texts: A Study of the Interplay between Religion and Values, MA Thesis, National University of Singapore. Cahn, Edmond (1967) Confronting Injustice, Lenore L. Cahn (ed.), London: Victor Gollanz. Djamour, Judith (1966) The Muslim Matrimonial Court of Singapore, London: Athlone Press. Fyzee, Asaf A. (1936) 'The Muslim wife's right of dissolving her marriage'. The Bombay Law Reporter Journal, Nov.15, XXXV111(21):113. Hodkinson, Keith (1984) Muslim Family Law: A Sourcebook, London: Croom Helm. Hussain, Jaffer S. (1989) 'Marriage Breakdown under the Law Reform (Marriage and Divorce) Act, 1976 and in Islam: a comparative view', IIU Law Journal 1(1): 113. Iyer, Krishna V.R (1987) The Muslim Women Protection of Rights in the Divorce Act 1986, Lucknow: Eastern Book Co. Mannheim, Karl (1936) Ideology and Utopia, New York: Harcourt, Brace and Co. Mannheim, Karl. (1986) Conservatism: a Contribution to the Sociology of Knowledge, London: Routledge. Muhammad Said al-Ashmawy (1994) Islam and the Political Order, Washington DC: Council for Research in Values and Philosophy. Muhammed Ali (1944) A Manual of Hadith, London: Curzon. Nasir, Jamil J. (1990) The Status of Women under Islamic Law and Under Modern Islamic Legislation, London: Graham and Trotman. Ramathan, Said (1961) Islamic Laiv: Its Scope and Equity, London: Macmillan. Rubin MPH (Chairman) (1992) Report on the Revieio of the Syariah Court. (Unpublished) Salbiah Ahmad (1988) The Administration of the Muslim Family Law in Singapore, MA Thesis (unpublished). International Islamic University. KL, Malaysia. Shaharuddin Maaruf (1992) 'Some theoretical problems concerning tradition and modernization among the Malays of SEA'. In Yong Mun Cheong (ed.) Asian Traditions and Modernization, Singapore: Times Academic Press. Sharif, M.M. (ed.) (1966) A History of Muslim Philosophy, Weisbaden: Otto Harrassowitz. Siraj M. (1963) 'The Syariah Court of Singapore and its control of the divorce rate', MLR 5(1): 148. Siraj M. (1966) 'Ancillary orders on Muslim divorce: the practice of the Syariah Court in Singapore', MLR 8(1): 86. Syed Ameer Ali (1986) Mohammedan Law: Compiled from Authorities in the Original Arabic, New Delhi: Nusrat Ali for Kitab Bhavan. Tham Seong Chee (1994) Divorce in the Muslim Community of Singapore. Report prepared for the Ministry of Community Development. Singapore. (Unpublished) Towler, Robert (1984) The Need for Certainty: a Sociological Study of Conventional Religion, London: Routledge. Tyabji, Faiz Badruddin (1919) Principles of Muhammedan Law: An Essay at a Complete Statement of the Personal Laws Applicable to Muslims in British India, Calcutta: Butterworth. Westermarc, Edward (1926) A Short History of Marriage, London: Macmillan. Yusuf Ali (1935) The Holy Quran: Text, Translation and Commentary, Lahore: Muhammad Ashraf. Zeenat Shaukat Ali (1987) Marriage and Divorce in Islam: An Appraisal, Bombay: Jaico Pub.

Author's biography Noor Aisha Bte Abdul RAHMAN is currently an Assistant Professor with the Department of Malay Studies, NUS. Her teaching areas include Islam in contemporary Malay society, Malay political culture and law

432 Noor Aisha Bte Abdul Rahman (including the administration of Muslim law) in Malay society. She is a member of the Board of Trustees of 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