The de-factocontemporary use of the nuzriahhas raised some doubts, some concerns and some issues in the deployment of the nuzriahin Singapore as a financial and estate planning tool for Muslims. This article looks at the background to the legitimacy and legality of this instrument in the context of the up-dated evolving perception and processes with regard to its use in Singapore. Does this phenomenon make incursions into faraidor do they more significantly point to the signs of our time and to solutions to problems perceived which solutions are already available within the faraidregime - waiting to be re-interpreted and sorted out? The impending amendment of the Administration of Muslim Law Act (Cap 3) (“AMLA”) is timely. Some key legal issues which may be addressed by AMLA are identified below. But what is also needed is a paradigm shift to perceiving Islamic law application in the context of present-day contingencies.
Contemporary Nuzriah – Legal Stalemate on the MUIS Ijtihad
Introduction
Overview of Key Legal Issues
There is a need for the contemporary nuzriahto be viewed in perspective, of its concept, its application history, its culture and legal heuristics.
The writer looks at the contemporary use of the nuzriahwith some conservative optimism that it could be one of the more useful tools in Muslim financial and estate planning. The Majlis Ugama Islam Singapura (“MUIS”) had in its irsyad on “Islam and Nuzriah” declared that in contemporary use, the nuzriahhas its legal basis in the concept of this type of “hibah” (gift) by which possession passes usually three days before death and one day on accidental or sudden death. There is legal basis for adopting this outlook of the hibah, even if it should fall short to satisfy the conventional conditions for its making – in Singapore – as a common law gift inter vivos. Another genre of gift? Further, MUIS’ explanation of the nuzriah, which refers to a “deferred possession” involving a “relation-back” doctrine of the gift to a few days before the death of the testator, resonates with similar concepts and doctrines not unknown under common law. The submission is that in effect these common doctrines hold up the nuzriahas far from representing an entirely alien mechanishm, recognised only in Islamic practice.1
New Thinking, Old Concepts
Some milestones have been observed to have taken place in the areas of law and practices on the creation and deployment of the nuzriah in financial and estate planning. They reflect contemporary thinking and in some cases, a breakaway from the perception established and perpetuated by the old Colonial Courts. It is also observed that this development or deviation has been made despite the reluctance of present-day Courts to move away from applying rules of interpretation adopted by the Colonial Courts in cases in the past including those involving Arab traders treated as aliens from Hadramaut.2 In many ways, these judicial pronouncements had been the historical foundations for and the basis of some of the provisions in the Administration of Muslim Law Act3 (“AMLA”), where, particularly s 111 of the Act is encrypted with the processes by which jurisdictions governing the distribution of Muslim estates have been based – no different from those entrenched in the case decisions prior to 1968, the pre-AMLA period. This provision among others is due for an update.
In the absence of legislative changes, issues surrounding the lex domicilii – lex loci situsconundrum over the distribution of a Muslim estate constitute and remain a haunting legacy from Colonial days past. These jurisdictional and legal issues need to be resolved within present-day context.
Islamic Concept of the Nuzriah: Gift Inter-vivos or a Testamentary Bequest?
Under local Islamic practice, the nuzriahwas deemed by the Courts as a testamentary bequest subject to the restriction of the one-third asset faraid distribution rule.4 As earlier observed, in a nuzriah, there is the specific requirement that the effective or implementation date of the nuzriahmust be stated, preferably three days before the death of the testator in the event of serious illness and one hour before a fatal accident. It is unclear but unlikely that a failed nuzriahcould be deemed as converted to a testamentary bequest constituting the permissible one-third disposable asset of the testator’s estate. Colonial English case studies evidently show the consistent unwillingness of the Courts to recognise the nuzriahas a pre-wasiyyahgiftinter vivoson the reasoning that the gift embodied in the nuzriahis contingent on the death of the testator taking place. If necessary, a shift from perceiving the application of Islamic law as a hybrid system to one that is a parallel systemwithin permitted boundaries would render interpretation of Islamic concepts less challenging or confusing. It will obviously take legislative will to place the situation on this course and hence put to rest the need to measure and justify Islamic concepts according to Western yardstick.
Hukum Faraidand Estate Planning – The Hypothesis
The writer will now pose this hypothesis:
Hukum Faraid is not immutable to the intervention of consents5 of the faraid beneficiaries, nor to the paramount application of general law in a secular State and certainly not to the ijtihad of financial and estate planning, within Syariah. Estate planning is not anti-Faraid nor is it intended to challenge the wisdom of Faraid nor to circumvent it.
The execution by Muslims of a Wasiyyah– one that is nottotally subject to the strictures of the fixed Faraiddistribution rules has often been the subject of some debate. The different mazhab(schools of Islamic thoughts) have adopted some variations in applying the distribution rules in wassiyah-making. Now, slowly but surely the creation of a less restrictive wasiyyahis looking like a possibility – if the spirit of the sanctioning of the use of the nuzriahis better understood.6 At least, it could change the way that the nuzriahand wasiyyahare often perceived – not as a way to circumvent the application of faraid but to provide for the well-being of family and kin in accordance with Syariah.7
That said, the Nazar Statement issued by MUISis deployable in the lifetime of a Muslim8 and is fast considered a useful if not already a de factotool for estate and financial planning by Muslims in Singapore.9 This trend or phenomenon may also render obsolete, references to the Colonial Courts’ common law approach to interpreting the nuzriahas in the early decisions10 and even that of the recent past.11 With reference to the above hypothesis, it is apparent that the Quranis receptive to the Faraiddistribution rules being interpreted12 according to individual conscience. The underlying wisdom of Faraidnonetheless stands immutable. The nuzriahwould now be added to the list of Islamic instruments deployable for wealth-planning in the lifetime of a Muslim. This instrument is often deployed in conjunction with the wasiyyah. However, the deployment of the nuzriah could hardly be said to be intended to replace wassiyah-making as the objectives for the creation of the respective documents are distinct.
Islamic Law Application
The observation here is that in effect, Faraid offersa choiceas much as it is a default rule, since it is permissible for Muslims to deal with their assets and property in their lifetime. Claims, debts and other obligations all impact on the balance estate distributable under Faraid. More specifically, the Quran permits flexibility in the application of Faraidby the various exceptions and variations allowed, principally under Surah2.180 to Surah1.182. On the use of instruments to be deployed, the general law or secular law places no impediment to secular instruments and Islamic instruments to be deployed either in conjunction with traditional Islamic instruments or in hybrid forms.13
Recent Development – Wassiyah Wajibah
It is appropriate that the development of the wassiyah wajibah by countries like Egypt, and nearer home, Malaysia14 and Indonesia be mentioned here. It represents one of those developments which underscores the flexibility of Hukum Faraidin providing solutions to inheritance problems. The wassiyah wajibahprovides for the grandparents of children of deceased parents to leave his/her estate to their grandchildren subject to the restriction that such a bequests do not exceed one-third of the estate.
The practice of the wassiyah wajibahhas yet to take root in Singapore. Perhaps it will receive some treatment when the next revision of AMLA comes around. Meanwhile, there is no impediment to these grandchildren receiving such bequests from the grandparents from the disposable one-third part of the estate of a testator.15 The Malaysian fatwa sets out inter aliathe parameters on the deployment of the wassiyah wajibah.
Surah 2.180, 2.181 and 2.182 – Passage to New Horizons
The development of a hybrid systemof Islamic law, (not exactly moving along an integration course with English common law doctrines throughout Colonial Singapore’s legal history) has not contributed to clear rules of practice in the application of Islamic doctrines. Yet, this approach and culture in case law development has to this day been perpetuated in the local Courts. There is a need to consider hearings of the cases brought before present-day Courts to veer away from the old approach to one which may be aligned to current cultures.
Perspective on the Normative Text of the Controversial Surah 2.180
A suggestion that the said Surah2.180 is abrogated as advocated by some scholars would not be in keeping with the traditional reading of the Quran – that it is complete in every sense. It has been observed from the subsequent Surahsthat the Quran generally allows for the limited exercise of personal discretion over the fixed distribution: be it by obtaining consent16 of the faraidbeneficiaries or by the testator himself opting to right a wrongdoing. These verses confirm incidences justifying such permitted election where, as in some parts of the world, Muslims may make a bequest to legal heirs up to the one-third of their disposable asset in the estate.
The absence or an implied abrogation of the said Surah2.180,17 would probably negate the freedom of individuals to make an election to bequest to parents and next of kin instead of introducing a re-conciliation to a difficult interpretation. The unfolding of the multi-layered message of the said Surah2.181 to 2.182 implies the accommodation of the deployment of tools such as the consent, the revocation, the letter of wishes, the hibah, thehibah ruqbaand now, the Nazar Satement. These instruments are capable of accommodation under Surah2.181 and 2.182of the Quran in the consideration for the development of a Muslim document regime.
Nonetheless, it is observed that there is still diffidence over the implications of the message of a personal mandate or election accorded to an individual in respect of inheritance as ordained in the Quran.
Faraid – Its Perception and Application as the Default Rule
The juxtaposition of the default distribution rules vis-à-vis the directive (of Surah2.180) has the potential to upset the inclusive matrix of Faraid.The inclusive approach to reading the specified Surahswould neutralise or even negate the controversy over the alleged abrogation theory of Surah2.180 and thus render it more comprehensible and accommodating than it is sometimes understood.18
The distribution rules under Surah4:11 will have to be revisited from time to time. While these rules set out the fixed distribution under Faraid amongthe various identified legal heirs and serve as an injunction in wassiyah-making,19 it also applies as the default rule to an intestate estate. Read in the context of Surah2.180, the direction in Surah 4.11 is rendered more far-reaching in its application – of permitting legal heirs to further inherit under a testamentary bequest as practiced by the ShiteMuslims. Refer to the full text of Surah4.11.20
MUIS’ Perspective on the Nazar/NuzriahAlongside Faraid
MUIS’ role and perspective on the legitimacy and use of the nuzriahalongside and as complementary to faraid is central to Muslims in Singapore having a common understanding of the concept.
In essence, MUIS’ perspective on the nuzriahis expressed in this term of reference:
Nurziah is taken from the root word nazar. Nazar is a vow made by an individual to perform something at a certain time or upon the occurrence of a certain event for purposes that are accepted by Sharia. By definition, nuzriah is a nazar/vow performed by an individual to give up or surrender a portion or all of his assets before his death to other parties. 21(Emphasis added)
Some Moot Issues Affecting a Nuzriah
In its early fatwatouching on the use of the nuzriah, MUIS is also noted to have declared that in hibah, the property that has been gifted cannot be taken back by the giver viz the transfer of ownership is irrevocable. The nazar/nurziahis revocable on specified conditions being observed and performed as ordained in the Quran.22
Furthermore, it is also observed that the incidence of a Maradul Mautsituation would subject a nuzriah to the one-third restriction of the deceased estate.23 The occurrence of a Maradul Mautsituation would, therefore, infer the need for MUIS or some other body or authority, to monitor the administration of a nuzriah.
Ramifications of the MUIS’ Ijtihad – The Nazar Statement
Apart from its limited use in relation to joint tenancy of real property24 belonging to Muslims who are in a close family relationship, such as between mother and son/daughter, and between spouses, the current issue is whether the Nazar Statement in its enhanced use should and could be extended to cover solely-owned real property and general assets. Many have read the MUIS fatwaissued in 2009 on the deployment of the Nazar Statementfor joint tenancies to exclude a nazarinvolving sole ownership of real property.
The NazarStatementcould be perceived as an effective instrument of transfer within the Islamic law regime in Singapore given the irsyad and dhalil issuedand the unwavering position taken by MUIS in declaring that the nuzriahhas its legal basis as a hibah(gift) but with possession passing at a determinable date three days or one day before the death of the grantor. The gift must be accepted to be valid but possession is said to be deferred.Legislative sanction will be necessary to lend support to this perspective.
References to Nuzriah/Nazar
The Administration of Muslim Law Act (AMLA)
The interpretation of s 2 of AMLA states:
“nazar” means an expressed vow to do any act or to dedicate property for any purpose allowed by the Muslim law.25
No mention of the term “nuzriah”is made anywhere in AMLA. However, as earlier mentioned, in its dhalil,irsyadand fatwas, MUIS clarifies and treats the nuzriahas a generic of the nazar. MUIS also introduced the use of the Nazar Statement, a template which was issued along with its irsyadon the nuzriah – “Nuzriah In Islam”.26
Relevant Decisions on the Nuzriah
Re Fatimah Binte Mohamed bin Ali Al Tway, Deceased (1933)27
In the above case, Sproule J was quoted to have commented on the “nasr” as follows:
In our case there is no evidence of any prayer for the granting of any dear wish, nor of the vouching of that prayer. There is moreover no evidence of a vow, made in advance, to become binding conditionally upon the granting of any such prayer. There appear to be no more than the legal fiction of a nasr intended to ensure a devout Mohamedan from possibly infringing the restriction placed by the Islamic law upon disposition of wasihat.
The nasr, moveover appears to call for performance of the gift immediately, irrevocably and inter vivos ... The gift is to be deemed to be of effect three days before her death if natural one day before, if sudden.
It is very clear to me that in neither case could the gift actually take effect at all except after and by reason of the donor’s death ...
The approach at that time was to view a “nasr” as a vow. MUIS now perceives the “nasr” to be a generic for the “nuzriah” – “another Islamic genreof hibah(gift inter vivos)”.
Mohamed Ismail Bin Ibrahim v Mohd Taha Bin Ibrahim[2004]28
Would the above case, therefore, stand in the way of any Muslim in Singapore attempting to deploy the nuzriahfor financial and estate planning? A testamentary nuzriahwas concluded to have been deployed in that case – the Court pronounced that the nuzriah was not a hibahbut a bequest under the Will, since the effective date of the nuzriahwas the contingency of the death of the testator. The nuzriahdeployed in that case was said to be unrecognised under Islamic practices, based on the expert opinion of a young Islamic scholar from Johore. The testimony of the then Mufti of MUIS did not prevail with the Court.
Shafeeg Bin Salim Talib and Another (administrators of the estate of Obeidillah Bin Salim Bin Talib, deceased) v Fatimah Bte Abud Bin Talib and Others (2009 Appeal)29
The decision of the Court of Appeal in that case re-confirmed the MUIS fatwaof 2009 on joint tenancy and the use of the Nazar Statementto be non-binding on the Court. Reference made to the 2009 general fatwawas spoken in the same breath as reference to the individualfatwamentioned in that case. More importantly, one critical issue as to the binding nature of the general fatwaamong Muslims inter sewas not dealt with by counsel nor by the Court. This cast an uncertain tone to the discussion on the fatwaof 2009 and other claims that followed – leaving such issues as the Harta Sepecarianclaim unexplored and unanswered. This claim was premised on the fatwa submitted by counsel which failed to be considered inter aliaon grounds that such fatwawas not binding on the Court. This otherwise substantive claim was cast aside on this purported technicality – a case of the baby being cast out with the bath water.
It is respectfully submitted that the pronouncements in the Shafeeg’s appealwill require a more driven examination on the nature and implications of the fatwaspresented in the case, before the decision can be taken as the last word on the ramifications of the MUIS’ fatwas. The MUIS fatwaof 2009 on joint tenancy supports the creation of right of survivorship as applicable to the Muslim estate, albeit with some limitations. The 2009 fatwaon joint tenancy was not in conflict with the general law in its application to Muslims as to call for the judicial pronouncement that general law prevails over Islamic law on this issue.
MUIS Fatwas in AMLA
A brief note on the classes of fatwasissued by MUIS may introduce another perspective to the Court of Appeal decision in Shafeeg’s case.30AMLA identifies three types of fatwas31which may be issued by MUIS. These are:
1. The individual fatwa– issued at the request of individuals;
2. The general fatwaissued by MUIS of its own accord; and
3. The fatwarequested by the Court.
For now, the uses and ramifications of these classes of fatwacan only be gathered from the wording of the legislative provisions of AMLA. No definitive explanation is provided under the Act.
Implications and ramifications of types (1) and (3) of fatwas identified above have from time to time been dealt with by the local Courts with regard to the non-binding nature of such fatwason them.32 The practical functions of the “general” and other fatwasremain inadequately understood and their respective distinctions are often presumptive or misunderstood in the general reference to the terms.
The Nuzriah – Another Genre of the Hibah?
Use of the Nuzriah Then and Now
In Singapore, de facto use of the nuzriahby Arab traders since Colonial days is indisputable as discussed in Re Fatimah (1933). Judicial decisions in the cases of Mohd Ismail and Shafeeg Bin Salim Talib and Shafeeg’s Case which provide diametrical positions to MUIS’ stand on the nuzriahare case-specific and are certainly not written in stone. They need to be read in context and with a more directed examination of the relevant Islamic claims presented.
Testamentary & Non-Testamentary Nuzriah
A nuzriahcan be created within a wassiyahas a testamentary nuzriahor one that is created independently or outside of the wassiyah. In the deliberation of the early Colonial Courts, it was said that a nuzriahcould not exist outside of a wassiyah. It was judicially pronounced that the nuzriahcould only take effect on the death of the testator.33 The same line of reasoning has since been adopted in the relatively recent judgments in the cases of Mohd Ismail Bin Ibrahim v Mohd Taha Bin Ibrahim and ShafeegBin Salim Talib.
The Non-Testamentary nuzriahhas, however, come into its own with the position taken by MUIS that such a nuzriahhas its legal basis in the giftinter vivos. A new genreof giftfor the secular Courts to consider?34 The use of the nuzriah for joint tenancy with right of survivorship arose out of a need to create the right of survivorship35 albeit in the limited circumstances of joint tenancy holdings involving spousal and close family relationship, there being no concept of joint-tenancy in Islam.
The Extended Nuzriah – A Milestone Un-Noticed?
The possible extended use of the nuzriahto other general properties and assets other than joint tenancy interests in real estate is another MUIS’ Ijtihad.36It is understood that MUIS had in the past, on requests for individualfatwasvalidated such nuzriahson a case-by-case basis.37
However to-date, there has been no generalfatwaissued by MUIS on the extended use of the nuzriah. The writer is not aware of any concerted dissemination by MUIS of any information to the public on the extended useof the nuzriah.
Nonetheless, the Syariah principles underscoring the nuzriahrequire its creation to be read in the context of charity, substantive Islamic law and rituals. MUIS’ irsyad on the nuzriahalso emphasises the spirit and intention (niat)behind the making of a nuzriahand the rules by which Muslims should be guided.
Relevant excerpts of MUIS’ irsyadon nuzriahare reproduced below:
What is the hukumfor making nuzriah?
In Islam, making nazaris basically permissible. However it becomes compulsory if it would save a person’s life. It can also be haram if it endangers the life of others or to cause injustice to others ...
The same applies to nuzriah. If by making nuzriahone will do injustice to his legal beneficiaries, either by making them receive less than what they deserved or preventing them from receiving anything from his wealth after his death, the act would be haram. However, if the nuzriahis made to ensure the well-being of those under his charge so that there is no injustice towards them, then it is permissible to make the nuzriah.
MUIS’ cautionary statement on the basis for the use of the vow or the hibah ruqbahand the transfer of ownership in the property – the subject of the vow or hibah – is a significant statement on the legal issue of transfer of ownership inherent in the nuzriah:
It is important to be aware and have knowledge in nuzriahand hibah ruqbato ensure that the transfer of ownershipis not carried out with the wilful intention of discriminating or accidental disregard of an heir or any parties’ rights. Although the fiq scholars differ in opinion regarding the principles of nuzriahand hibah ruqba, both instrument can still be used based on certain condition with regard to its benefit and needs. (emphasis added)
Stalemate on MUIS Fatwaon the NuzriahVis-à-vis Case Decisions
On an overview, the binding nature of the respective MUIS fatwas onMuslims per sehas yet to be addressed. Implications and ramifications of types (1) and (3) of the fatwas identified above have from time to time been dealt with by the local Courts with regard to the non-binding nature of such fatwason them. The practical distinctions and ramifications of the “general” and other fatwassuch as that on Harta Sepencarianwere not raised in Shafeeg’s case38and, therefore, not considered in the deliberations of the Court.
At the micro level, the management of the processes involved in the making of the nuzriahand ramifications of the MUIS fatwasneed coverage under AMLA. There is also the jurisdictional issue which needs to be re-considered and dealt with in the context of current developments. The Syariah Court which is already in place would be the logical Muslim forum.
Immediate Concern – The Nuzriah Option
Meanwhile, the more immediate concern is for the judiciary and MUIS to align their sights and visions to agree on and accommodate some common grounds. Legislature’s handling of the next revision of AMLA is critical in establishing new signposts as to whether law-making will accommodate the phenomena associated with the deployment of the nuzriah, in this niche area of practice and whether it is ready to let go of part of the historical baggage.
Further, the Muslim community in Singapore is divided on their understanding as to the optionswhich are open to them in the deployment of the nuzriah for financial and estate planning. These options relate firstly to the decision as to whether it is right or appropriate to make the wassiyahor to leave this world intestate – thus submitting the total estate to the default distribution rule (Faraid). More significantly, there is also the option to exercise personal discretion to seek lifetime planning and to provide for family and kin according to the general discipline of Syariahin the management of their estates, for which proper and effective documentation are necessary.
The Muslim community needs clear and more immediate guidelines. In the area of the creation of the nuzriahthe polarized positions taken by the Courts and by MUIS respectively, are sending out mixed and confusing signals to the Muslim community as well as to their consultants, the non-Muslims and secular institutions who will have dealings with them. The stalemate, perceived or otherwise, over the legitimacy and the deployment of the nuzriahrequires a reconciliation and a resolution. It is respectfully submitted that law-making by the case law route can have its limitations and in these circumstances, may not quite offer the best choice. In this log-jam, there may be a need to exercise professional ijtihad.39
► Hairani Saban Hardjoe*
CK Tan & Co
E-mail: [email protected]
All rights reserved.
* The views and opinion expressed here are the personal reflection and views of the writer. No part of this work is to be taken as solution to problems presented nor as advice rendered on any of the issues raised and discussed. Under no circumstance are they to be acted upon. Readers are urged to seek advice from their legal, financial, religious or other qualified professional consultants.
Due to publication constraints of the Singapore Law Gazette this article has been summarized from a fuller unpublished version.
Notes
1 See: “The Doctrine of Relation Back in the Law of Preferences in Bankruptcy” (Nov 1928) Vol 28 (7) Columbia Law Review 943-950. Published by Columbia Law Review Association Inc.
2 A location in Southern Arabia.
3 (Cap 3) Singapore Statutes.
4 See Re Fatimah binte Mohamed bin Ali Al Tway[1933] 1 MLJ 21.
For the requirement for a male consent refer to Re Estate of Siti bte Naydeen[1985] 1 MLJ 24. Refer also to the Singapore Court of Appeal decision in Shiraz Abidally Husain and Another v Husain Safdar Abidally[2007] SGCA 16. This decision involved the issue of the consent executed by the faraidbeneficiaries. Refer also to Surahs2.181- 2.182. Surahs2.224-Surah2.225 refer to the making of oaths and intentions.
5 The Nazar Statementtemplate was prescribed by MUIS some years back and is still in use today.
6 Refer to Siti Binti Yatim v Mohamed Nor Bin Bujai[1928] FMSLR 6 – on the validity of Will and effect of bequest to heir.
7 The testamentary nuzriahis subject to the restriction of the one-third disposable asset of the estate.
8 Colonial Courts in Singapore had consistently viewed the nazaror nuzriahas capable of creating a testamentary gift – effective only on the contingency of the testator’s death Re Fatimah, supra(note 4 above) and not as a pre-death gift inter vivos.
9 Refer to Re Fatimah, supra(note 4 above)
10 See Shafeeg’s case. [2009] SGHC 100; [2010] SGCA 11 Civil Appeal No 70 of 2009.
11 Surah 2.180 of the Quran, where it is expressed that changes can be made to bequests in the face of partiality or wrongdoing or injustice on the part of the testator. The Consent, Gift inter vivosand Letter of Wishes have been known to be deployed to effectively implement such modification to Faraiddistribution rules. To date, case laws have established the validity or legality of such instruments by the English Common Law approach.
12 A hybrid form of instrumentation is already provided for in AMLA with respect to Will-making. See s 111 of AMLA.
13 Refer to the JAKIM: Hukum Pelaksanaan Wasiat Wajibah; available at: http://www.e-fatwa.gov.my/fatwa-kebangsaan/hukum-pelaksanaan-wasiat-wajibah. The writer is indebted to Suhaimi Salleh for providing this reference.
14 See Fatwa 11283 of the Kingdom of Saudi Arabia; available at: http://alifta.com/Fatwa/Fatwaprint.aspx?id=6247&BookID=7§ioned=>
15 Refer to the case of Siti Binti Yatim v Mohamed Nor Bin Bujai[1925-1931] 06 FMSLR 135 on the need to have the consent of the other beneficiaries where the Will makes a bequest to one of the legal Faraidbeneficiaries. Refer also to Re Estate of Siti bte Naydeen[1985] 1 MLJ 24 on the requirement to obtain consent of a male beneficiary and the Court of Appeal case of Shiraz Abidally Husain and Another v Husain Safdar Abidally,supra(note 4 above) on the deployment of the consent..
16 Interpreted by some Islamic scholars to have been abrogated.
17 There have also been discussions among scholars of Islam that the arithmetic of the balance estate distributable to the Faraid beneficiaries do not in some cases add up exactly to 100 per cent.
18 In practice, the wassiyahmakes a general reference for the balance estate of the testator to be administered according to Islamic law (Faraid), thus fulfilling the injunction under Surah4.11.
19 It does seem that the wassiyyah wajibahhas made incursions into Faraidbut of a nature which is permissible if not obligatory. See also note 14.
20 Excerpt from an English translation of the MUIS dhalil (2008) – on the issuance of the fatwahon joint tenancy.
21 Refer to Surah5:89 of the Quran: “GOD does not hold you responsible for the mere utterance of oaths; He holds you responsible for your actual intentions. If you violate an oath, you shall atone by feeding ten poor people from the same food you offer to your own family, or clothing them, or by freeing a slave. If you cannot afford this, then you shall fast three days. This is the atonement for violating the oaths that you swore to keep. You shall fulfill your oaths. GOD thus explains His revelations to you, that you may be appreciative”.
22 A maradul mautsituation is one where death from an illness is anticipated and occurs within one hundred days of a gift being made. Refer to Mustak Ahmed Bin Dato` Haji Abdul Rahim Gulam Rasool Shaik v Abdul Wahid Bin Dato` Haji Abdul Rahim Gulam Rasool Shaik & Ors; SH [1987] 2 MLJ 449 on the objective or subjective test to determine a maradul mautsituation.
23 The MUIS Fatwa of 2009 on joint tenancy is of limited application. It applies to cases involving a Muslim estate in respect of property held in joint tenancy by two owners in a spousal or close family relationship.
24 This reference in AMLA is wider than the interpretation given in the case of Re Fatimah, supra (note 4 above), which identifies the nazarwith the secular gift inter vivos.
25 Refer to MUIS’ website for reference to the nazar. Refer also to Surahof the 76.7 of Quran.
26 Supra.
27 Supra.
28 Supra.
29 As distinguished from decisions made in Colonial times where it was the norm to interpret Islamic issues by and according to Common Law rules and doctrines.
30 Section 32 of AMLA.(Cap 3).
31 See Shafeeg, supra(note 10 above).
32 InRe Fatimah,supra(note 4 above).
33 In its general fatwaon the CPF nomination, MUIS had likened this nomination as a “new kind of hibah”. It is noted that this ijtihadapproach to reconciling and integrating Syariah concepts to secular doctrines underscores most of the recent fatwaissued by MUIS.
34 This approach is noted to be supported and adopted by followers of the Hanafi mazhab.
35 The fatwa discussed in Shafeeg(supra, note 10 above) involved the issue on joint tenancy and the right of survivorship. From the Islamic perspective, this issue is now governed by a MUIS 2009 general fatwa. There is no general fatwaissued on general assets.
This confirmation that in principle a nuzriahcan be created over the general assets of a Muslim in Singapore was stated by Ustaz Irwan Hadi Mohd Shuhaimy during a Muslim Financial Planning Association Conference held in September 2012. He added, however, that all such arrangements will be viewed by MUIS on a case-to-case basis if and when such nuzriahwas to be presented to them.
36 The casual confirmation that a case-by-case review would be made by MUIS of Muslims deploying the nuzriah for general assets is not an adequate commitment as it makes planning uncertain. Normative compliance requirements can be included as pre-conditions to be observed prior to the making of such a nuzriahunder the Nazar Statement.
37 Supra.
38 “Professional ijtihad” – this is a term introduced by the writer to denote the liberal approach to ijtihad as against the orthodox meaning understood of the term, ie. juristic thinking. “Ijtihad” being one of the secondary sources of Islamic law, one would be discouraged from bandying “professional ijtihad” to the ranks of a generic or traditional source. The term is used here to refer to the effort and responsibility which a professional or consultant, or any other service provider will be assuming and undertaking when offering advice and solutions in this area of work.