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.
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.
General law will prevail over fatwa
General law will prevail over fatwa (Pt II): Nuzriah not as a substitute?
Text of updated CPF fatwa
“Fatwa tidak bermaksud perkecil hukum faraid,” Berita Harian