Updated CPF nomination fatwa: (Re)state-ing Shariah?

(Image credit)

I had a discussion with a non-Muslim colleague recently. I find it pleasantly surprising that non-Muslims sometimes understand Islam more than I assume they do. While we have our disagreements, I was glad that the discussion was able to be expanded into the concept of tadarruj (graduality) in applying Shariah. Though I cannot answer all of his questions (I’m no jurist), the keenness of non-Muslims towards Shariah just shows how Islam’s publicity has given Muslims the opportunity to explain the religion to others more easily.

As a Muslim, I cannot say how important Shariah is to Islam, and a Muslim’s way of life. For a Muslim, the Shariah law outlines the dos and don’ts  of the religion, ranging from smiling as a courtesy to praying five times a day to the Islamic penal code. Sherman Jackson said it well:

…Shariah is not just “rules.” While the common translation, “Islamic law,” is not entirely wrong, it is under-inclusive, for shariah includes scores of moral and ethical principles, from honoring one’s parents to helping the poor to being good to one’s neighbor. Moreover, most of the “rules” of shariah carry no prescribed earthly sanctions at all. The prescriptions covering ablution or eating pork or how to dress are just as much a part of shariah as are those governing sale, divorce or jihad.

Such opportunities to explain and elaborate of religious issues shouldn’t be taken lightly.

The “updated” CPF nomination fatwa

Recently Shariah made news again, when the country’s government religious body made an update to a 1971 fatwa related to CPF nomation.

Unlike the commonly understood concept of writing a will to the inheritors – which by the way is also a part of Shariah called wasiyyah – the default status of a property left behind by a Muslim after his death is distributed under the faraidh system, where the inheritors are given a fixed percentage of the property according to Shariah.

This was also the crux of the argument under the previous CPF nomination fatwa in 1971, which stated that basically when a Muslim dies and he has a nominee for his CPF monies, that nominee is considered as a trustee. And as a trustee, the money left behind must be distributed according to the faraidh, instead of it being given solely to the nominee aka trustee.

I managed to catch local Malay channel Suria’s news coverage on the subject and they interviewed some guy in his office (I didn’t get his name). He said that the new fatwa is useful with the current times, and gave an example of a nominee who is also the deceased’s creditor; the creditor will get his loan back as he is the CPF nominee. Unfortunately this expert(?) overlooked the fact that any debt must be fulfilled to the debtor before faraidh can be exercised. Even if the deceased didn’t perform the hajj prior his death, and also has a debt to some guy, the debt to “some guy” takes priority over the deceased’s hajj expenses. And if there’s no money left for his hajj expenses after paying the debt, then so be it.

Debt always takes precedence before the distribution of wealth can take place. (See how sloppiness and lack of preparedness confuse real Islamic understanding?)

Was the “update” necessary?

Nonetheless it was understandable that problems arose when – for instance – greedy family members who were allocated shares of the monies under the faraidh, chose to abstain from compassion.  Example: Abdul the sole breadwinner of a family died and left his wife Minah as the CPF nominee. They also have a school-going daughter. Under the faraidh, the wife would get one-quarter, the daughter one-third, and the rest goes to the Abdul’s brothers. But what is the wife has to take of her sick, elderly parents alone? Or she herself is unwell that she can’t find other avenues of income? Or comes under unique circumstances where she really needs all the money – every single cent of it – left behind by her husband?

Such instances, although may be a rarity, denote the requirement for this specialized, tweaked fatwa. So this – at least in my deduction – partly led to MUIS revising their fatwa and coming up with the fatwa that a CPF nominee is no longer a trustee, but Minah (as in the example above) gets to keep more (if not all) of the money too, and spend it accordingly to her required needs.

A messy workaround

To recapitulate, with the new fatwa MUIS has outlined two clear choices for Muslims on what to do with their CPF money: (1) leave it without any nomination, and it will be distributed through faraidh, or (2) nominate it to someone, and he/she will get the whole lot under hibah, but only when specific fair needs arise.

Obviously here’s where it gets messy. One can always exploit the system when presented with choices. The faraidh system which was before this clean and clear becomes convoluted with decisions that is made based on assumptions. And negative ones at that; a person who chooses to leave a nominee will have to assume whether his relatives will look after his dependents.

I do not deny that there are sometimes complications when dealing with a lot of money, but I personally think that giving Muslims the option to bypass the faraidh is hardly the right way to go.

Faraidh is still faraidh, as the way to distribute money based on the Quran and sunnah. I see it as the fairest inheritance system revealed by Allah. The reason a man may get more than a woman, for instance, is because the man must support his dependents, while for the woman, her share is hers alone.

Fix only what is broken

The way I see it, the problem here was never about faraidh, but how the inheritors spend their money after distribution. So any kind of action or fatwa that is issued should not affect the the original distribution method (faraidh), but should instead focus what happens after the initial distribution, as therein lies the problem. Perhaps to implement rules which ensure the recipients to support the dependents accordingly, one which forces them to pay out money to the deserving dependents, such as a specific law for the deceased children’s maintenance.

In Islam, while there are disagreements between jurists on whether it is wajib (compulsory) to give nafqah (maintenance) to needy relatives, the fact that the fatwa is possibly preventing an uncle from getting his share already means that an uncle is effectively “giving” nafqah to his nephew, reflecting the Hanafi-Hanbali point of view in the matter (which I have no objection to).

The problem is that in Singapore, the maintenance law only covers a very limited scope, perhaps closer to the Shafi’i-Maliki view on nafqah, that it is compulsory only when the immediate parents or offspring are involved. I can see the intention to implement the Shariah (from whatever qualified madhhab it may be) that is indeed commendable and deserves the fullest support, but the confusing workaround that does is not backed by solid religious argument only over-complicates the whole process.

To be fair, the fatwa did state that it is a “moral guidance,” i.e. a disclaimer for it being being (a) non-binding, and (b) should used as the exception instead of the rule. That it why of a person leaves no nominee for his CPF monies, the default fatwa should still apply; it should be distributed according to the faraidh law.

Alternative motive?

It is also hard to dismiss that the updated fatwa serves to accommodate faraidh to existing intestacy laws as this was clearly one of the two options put on the Muslim’s table. Yet another thing that comes to mind is whether the fatwa issuance was a signal of any kind of pressure, specifically one caused by the difference in Islamic and secular law.

[By the way, there’s a recent CPF ruling that allows for automatic transfer of the CPF money to the nominee. This was highlighted to me after reading a report in The Sunday Times article a couple of weeks ago (“All-out effort to pay CPF monies,” 12 September 2010). Meaning once it is automatically and “conveniently” transferred, your nominee can’t take it out. So be careful if you intend to leave some money to buy food and clothe your dependents. Make extra care not to leave everything too automated. We all know once anything goes into the CPF account, it will hardly see the light of day.]

I thought I was out a bit of line to assume the existence of government pressure behind the fatwa, until today’s newspaper reported some ministerial support, especially when it managed to find the “common ground” between Islamic and secular law.

The Straits Times, 27 September 2010

This was also reported in the Malay daily, which after singing days praises for the “updated” fatwa, reported the same minister saying that “it is a positive solution which helps the reconcile the differences between Islamic law and national (secular) law.”

I didn’t realise they were being so straightforward in pointing out the real motive behind the new fatwa.

It doesn’t sit well with me when religious decisions are reached to accommodate systemic deficiencies of man-made law. The roots of Shariah and secular law – some similarities qualified – are still vastly different, and the objectives literally a world apart. So why even attempt to reconcile between the two? To “control” religion?

Don’t get me wrong. I am not dismissing all state-sanctioned fatwas, nor am I against all “new” fatwas. And I fully understand the need for the occasional fatwas based on recent medical findings or latest scientific discoveries. And neither do I question the good intent of the qualified ulama who painstakingly formulate the fatwa.

But what I view with deep skepticism are the factors which led to the call for “fatwa reviews”. I am rational enough to comprehend that certain times the are real needs for a fatwa review, like the Human Organ Transplant Act (HOTA) fatwa. Other times, such as this, while the fatwa itself is perhaps arguable, the part where the trend is indicating a conformation to secular interests is where I draw the line.

I concede that the vast Shariah of Allah is being constricted perform only according to the Singapore’s existing secular legal framework, and so it has been for many years. That was touchy back back then, and it is still touchy now. The ignorant ones should be reminded that delicate existence of the two parallel systems should not be disfigured, just like a hornet’s nest should not be stirred. Disguised “updates” or “improvements” can be easily seen right through, especially when it constrict the Shariah further and further to in order to make it work (i.e. make it fit into Singapore’s system), leaving Muslims here with confusing and frustrating “solutions”.

It really does bring up the question of religion vis-a-vis the state. Maybe the state is actually hoping that issues like these will go unnoticed, such that we the good Muslims of Singapore will support any officially-issued religious edicts without thinking of its consequences. I pray that this fatwa is not a sign of things to come, where the Muslim is cornered and forced to nod to every secular (mis)interpretation of the Shariah. That will be tantamount to religious oppression.

Allaahumma n-Sur-naa yaa Jabbaar.

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Further Reading:

General law will prevail over fatwa

General law will prevail over fatwa (Pt II): Nuzriah not as a substitute?

Fawaaid.sg

Text of updated CPF fatwa

“Fatwa tidak bermaksud perkecil hukum faraid,” Berita Harian

General law will prevail over fatwa (Pt II): Nuzriah not as a substitute?

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Going through MUIS’ 30-odd pages of deliberation on the fatwa regarding nuzriah and joint-tenancy (where the ownership of a property is shared between two people), I have a sense that the exercise of nuzriah is seemingly recommended only on joint-tenancy properties.

Based on what I read and discussions with some colleagues, the fatwa on nuzriah is presented not as a substitute for the faraidh, but instead as a recommendation specifically on properties which were purchased under joint-tenancy agreements. Basically, this is to avoid disputes on claims of the property when there are still surviving joint-tenants living in the place.

To illustrate:

1. Husband and Wife bought an apartment together as joint tenants.

2. Husband passed away leaving $100,000, and the apartment which costs $400,000. As the Wife owns half of the apartment, the husband’s total estate is the $100,000 cash, and half of the apartment’s value which is $200,000, making it a total of $300,000.

3. Husband also has one brother. According to faraid, the Wife and the Husband’s Brother should split the $300,000 equally, making it $150,000 per person.

4. Now even if the wife gives the Husband’s Brother the $100,000 cash, she still has got to fork out another $50,000. It might be very difficult for her to sell off the apartment and get a new one. Add to that the scenario of the Wife taking care of her parents, or suffering from a disease, or facing other difficulties.

5. As such, the nuzriah is recommended to be exercised on the apartment only, which was bought under joint-tenancy agreement. This is especially useful if the wife and children are still living in the house; one wouldn’t expect them to move out after the father’s death so that it can be sold and divided to other beneficiaries; where would they stay then?

In this sense, I agree that this advantageous approach (of nuzriah) in ensuring the well-being of the immediate beneficiaries (usually the surviving wife and children living in the house), while at the same time allowing the rest of the estate (i.e. the $100,000 cash as in the example above) to be allotted according to the faraidh.

Here’s MUIS’ (ambiguous?) official reply to the matter. As for the deliberation, while from my understanding the MUIS’ paper seemed to incline on limiting the nuzriah for joint-tenancy properties, it stopped short of promoting faraidh for properties purchased otherwise.

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General law will prevail over fatwa

From the national daily:

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.’

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.’

About the case:

BUSINESSMAN Obeidillah Salim Talib died without leaving a will five years ago. The condominium unit in Farrer Road, of which he and his wife were joint owners, was left to his wife.

However, administrators of the late Mr Obeidillah’s estate took the issue to court, claiming half the property belonged to the estate.

They applied to the Islamic Religious Council of Singapore (Muis) for a fatwa and challenged the widow’s claim to the whole flat. The fatwa stated that in accordance with Muslim law, half the property should be shared among other beneficiaries, including the late tycoon’s nephews.

Among other things, the lawyers for the administrators argued that joint tenancy is unknown to Muslim law and the court has power to distribute the property according to Muslim law.

But the Court of Appeal held that the property is subject to the Land Titles Act and the law cannot be modified to apply Muslim law to a property subject to the Act.

Under a joint tenancy, when a joint owner dies, the property goes to the other one, regardless of how much each had contributed.

The court also noted a fatwa on the Muis website which stated that if Muslim joint owners of a property failed to make any arrangements to deal with the property before one of them dies, then the surviving owner is entitled to only half of the property.

Chief Justice Chan Sek Keong said this is ‘inconsistent’ with the court’s ruling. The death of a joint tenant means the surviving tenant will become the sole owner of the property, he said.

The court made it clear in this case that the general law took precedence over the fatwa, which has no binding effect on the court.

Of course, this isn’t recent news as it this isn’t the first time the court has overruled a fatwa. It is most pertinent to note that a fatwa is non-binding; there is no religious patriarchy is Islam, so a fatwa can easily contradict or be contradicted by another fatwa. It is up to the ruling authority at the time and space to decide on which is more just.

But what is interesting to note is that so far, it seems that all (?) the nuzriah cases have been ruled against its favor; meaning nuzriah is not legally acknowledged, at least in Singapore. So what’s the issue here? In essence, when a Muslim pass away, his wealth will be divided according to the Islamic inheritance law called faraidh, where each heir (family member) acquires a specific amount as stipulated in Islamic law. If a person wants to write a will (called wasiyyah), only a maximum of 1/3 of the wealth can be allocated for it, while the rest (2/3) must be given to the rightful family members according to the faraidh.

This means that a person (pretty much) cannot cross Sibling X from his will, as 2/3 will always be divided according to the faraidh. But what is a person really wants to doesn’t what the money to go Sibling X? That’s where the nuzriah issue kicks in. Basically in order to deprive Sibling X from his share of inheritance,  one must escape the faraidh. And in order to escape the faraidh, one must make sure he has got no money under his name at the time of death. So how does he do that? By giving out the money right before his death through nuzriah.

However here in sunny Singapore, the nuzriah is not accepted by the court, with apparently valid arguments. Judge Mohideen Rubin had already ruled in 2004:

A specific issue that falls for determination concerns an aspect called, “nuzriah”. The term “nuzriah” does not appear or feature in any of the treatises, writings or books published by or attributed to any Muslim scholars or jurists.

However, reviewing all the learning referred to and the arguments presented, I am of the view that inasmuch as the property delineated for the purposes of the so-called nuzriah would not leave the control, possession and ownership of the testator until after his demise, the said nuzriah is no less than a bequest or testamentary disposition to convey an intended but invalid gift to the persons named (mostly legal heirs), and it plainly transgresses the restrictions imposed by Muslim law. The phraseology employed in the nuzriah segment of the will declaring that the property had already been given away to the proposed devisees three days or an hour before the death of the testator is a textual anachronism and does not convert a myth or fiction into reality, nor do the words referred to render the devise as that of a transaction completed during the testator’s life…

…[M]y conclusion is that the portion ear-marked as nuzriah is void not only on account of its discordance with the principles of Muslim law relating to inheritance but also because of the said segment’s inherent uncertainty.

That being said, it seems the person-in-charge nevertheless has an upbeat outlook for the nuzriah.

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Further reading:

General law will prevail over fatwa (pt II): Nuzriah not as a substitute?