Thursday, March 25, 2010

'General law will prevail over fatwa'

Mar 25, 2010

Court rules widow gets whole condo unit as joint owner; fatwa is expert opinion only
By K.C. Vijayan

SINGAPORE'S highest court has ruled that a fatwa - a religious opinion on Islamic law issued by Islamic authorities here - will not bind the court to take the same view.

At best, it is considered only as an expert opinion - like those given by accident reconstruction engineers or forensic scientists in court.

The Court of Appeal made the ruling when it dismissed a move by the administrators of the estate of Mr Obeidillah Salim Talib to declare that a half share of his apartment should be given to his estate for distribution to other beneficiaries like his nephews.

Under civil law, when a joint owner dies, the whole property goes to the surviving joint owner, regardless of his or her contribution to it.

The split is different under Muslim inheritance laws, which provide for half the property to be distributed to the dead owner's family members such as siblings and others.

The administrators of the estate went to the Islamic Religious Council of Singapore (Muis) in March 2007 to apply a fatwa to that effect.

But the Court of Appeal has ruled that despite the fatwa obtained from Muis by the administrators, Mr Obeidillah's widow was entitled to the whole property under civil law.
In reaffirming a decision by the High Court on the inheritance dispute, Chief Justice Chan Sek Keong (above) said: 'The general law will prevail against the Muslim law on this issue.'

[Comment: I thought it a poor choice of words: "against Muslim Law". "Against" is so confrontational and provocative.]

Lawyers and academics told The Straits Times that it was difficult to tell when general law would take precedence over Muslim law as every case before the court is different.
In any case, fatwas are intended to provide 'moral guidance' for Muslims.

But the current ruling could have an impact on insurance claims and joint bank accounts held by Muslims.

For example, in joint accounts, the money goes to the surviving owner under common law. But Muslim laws dictate that half the amount should go to the estate.

Lawyer Halijah Mohamad, a former chairman of the Law Society's Muslim Law Practice Committee, said the current ruling by the Court of Appeal would show 'the way forward' for Muslims to make their wishes known regarding their estates.

She said: 'Joint owners could make a nuzriah, or a vow, to expressly state the share that is to be given to the surviving tenant...They could make clear their intentions as to how they want to dispose of their property when they die, right from the moment they acquire it.'

Mrs Halijah added that while the case involved private property, the impact of the ruling would be felt more by Housing Board flat owners. An HDB spokesman said yesterday about 79 per cent of Malay flat owners are joint owners.

Senior lawyer Nizam Ahmad noted that the fatwa in the present case did also indicate what Muslims could do, through a gift or vow, to put them in compliance with civil law.

It advised Muslim joint owners to make arrangements - such as making the property a gift in the event of their deaths - to make sure the surviving owner would be entitled to the property.
Final-year National University of Singapore law student Aidil Zulkifli, who had written a paper about the declining influence of fatwa as accepted legal opinion in an Association of Muslim Professionals publication last year, said although the fatwa carried no legal weight, it held 'moral force' as to what Muslims could do. But he questioned if the value of the fatwa had been weakened by the court's ruling.

When contacted yesterday, a Muis spokesman said: 'We are studying the judgment.'

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