マレーシア研究第４号（2015 年）【論説】

Controversial Boundary:
The Construction of a Framework for Muslim Law
in Singapore in the Period of Decolonization
MITSUNARI

要

Ayumi

旨

植民地から独立国家への移行期にあった 1950〜1960 年代、シンガポールでは婚姻法改革が進められ、非ムスリムの婚姻法は、一夫一婦制と婚姻における女性の権利と地位を保護することを謳う女性憲章（1961 年制定）に統一された。一方、ムスリムは独自の法枠組みを維持し、1957 年ムスリム条例（Muslim Ordinance, 1957）以降、複数回の改訂を経て、1966 年ムスリム法施行法（Administration of Muslim Law Act, 1966）制定で締め括られた。婚姻法枠組みは女性憲章とイスラム法制とに二分されたが、いずれの改革も婚姻における女性の権利と地位の改革を焦点としていた。このことは、改革論議において法枠組みの二分が必ずしも前提とされず、これを乗り越える動きが現れうること、それによって法枠組みの境界が固定的なものではなく、議論と見直しの対象として動態的なものになりうることを意味する。本論文は、脱植民地化期という社会再編期の制度変革の議論の中で、ムスリムと非ムスリムを二分する法枠組みの境界の展開を検討する。特に、改革をめぐる議論を牽引した人物として、シンガポール生まれでマレー人女性福祉協会を創設したチェ・ザハラ（Che Zahara）、ボンベイ生まれのバハイー教徒でシンガポール女性会議を立ち上げたシリン・フォズダー（Shirin Fozdar）、南カリマンタン出身のアラブ系ムス
リムでムスリム同胞団を結成したアフマド・ルトフィ（Ahmad Lutfi）、シンガポール生まれのインド系ムスリムの法律家アフマド・イブラヒム（Ahmad Ibrahim）の活動と構想に焦点を当てる。

Introduction
The decolonizing period of Singapore was a period of reorganization of family law
systems. In Singapore, the Women’s Charter has been enacted in 1961 which replaced
existing marital ordinances1 and introduced a prohibition on plural marriage, except
1

At that time, Christian Marriage Ordinance, and Civil Marriage Ordinance were in force.
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マレーシア研究第４号（2015 年）

Muslim population. In other words, a separate framework for Muslim law wasretained without subsumed into the national family law system, and developed as apart of national law. Nevertheless, the contents of Muslim legislation also underwent
essential changes in this period that mirrored changes in non-Muslim family
legislation, the Women’s Charter went through; a series of Muslim legislations
introduced the control of divorce, the restriction on polygamy, and the lowest
marriageable age and lengthened the period of maintenance for divorced women. In
short, Muslim family law reform attempted to improve women’s status by tightening
marital ties. The Administration of Muslim Law Act (AMLA) in 1966 was the finishing
touch on this reformation; it was advocated as ‘the Muslim side of Women’s Charter’.
The course of legislation, however, was criticized both by Muslim and non-Muslim
activists. The debate primarily pertaining to the boundary between Muslim andnon-Muslim family law frameworks.
The intention of this paper is to trace debates over Muslim family law reforms in
the 1950s and 1960s in order to understand the formation of the Muslim law
administrative system from the perspective of the formation and development ofdefinitive boundaries between the Muslim and non-Muslim legal frameworks. The
protagonists of this debate were Che Zahara2, a pioneering Malay Muslim women’s
activist who established the Malay Women’s Welfare Organization in 1947; Shirin
Fozdar3, a Bahai woman born in India who set up the Singapore Women’s Council,
which strongly advocated for the prohibition of polygamous marriage; Ahmad Lutfi4,
Arab-descendant Muslim from Kalimantan who founded Qalam Press in 1948 andpublished a monthly jawi magazine, Qalam for 20 years from 1950 to 1969; and2 Che Zahara binti Noor Mohamed (1907-1962) was Malay Muslim born in Singapore. Her
father, Noor Mohamed was of the first generation educated in English and worked as revenue
officer. Che Zahara was a member of AWAS (Angkatan Wanita Sedar), which was formed as
women’s section of Malay Nationalist Party to ‘arouse in Malay women the consciousness ofequal rights they have with men, free them from the old bonds of tradition, and to ‘’socialise’
them’. After World War II, Che Zahara opened an orphanage to help orphans and prostitute girls(Manderson, 1980: 55,62; The Straits Times, hereafter ST, 1947.10.12: 5; ST, 1950.10.1: 5; Sham,
3-5).
3 Shirin Fozdar (1905-1992) was born from Persian-Bagai parents in India. She took part in
activities to help women from her teenage and got close with Mahatma Ghandhi. With her
husband, Khodadad Fozdar, a medical practitioner of Bahai faith, she moved to Singapore in
September 1950 and established the Singapore branch of ‘Bahai National Assembly of India andBurma’ at that year (Chew, 1994: 114-115; Ong, 2000: 11; ST, 1950.10.16: 7).
4 Ahmad Lutfi was the pen name of Abdullah bin Hamid al-Edrus (1911-1969), an Arab-Muslim
born in Kalimantan. As an editor and the main writer of Qalam, a monthly Jawi-language
periodical published from 1950 to 1969, he had broad outlook over politics, culture, social
problems, as well as religious issues. He also founded the Muslim Brotherhood in 1956
(Yamamoto, 2003: 59-64).

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Controversial Boundary:The Construction of a Framework for Muslim Law in Singapore in the Period of Decolonization

Ahmad Ibrahim5, born in Singapore to Indian Muslim parents and became a top legal
officer in decolonizing period as a common law expert.

Ⅰ

The Aim of this Paper

This study intends to describe the formation of Muslim legal framework through20 years, by examining a controversy undertaken by four activists over family law
reforms. But the Muslim legislation in Singapore in the 1950s and 1960s failed to
attract much academic interest. Syed Muhd Khairudin Aljunied and Judith Djamour
are of few made reference to this topic.
Aljunied investigated the aftermath of the Maria Hertogh riots in 1950 andassumed that a change in the colonial authoritie’s non-interventionist attitudes
toward religious matters led indirectly to the enactment of the Muslim Ordinance in
1957. Prior to this, there had been repeated Muslim demands for systematic reform
and they skilfully took advantage of the authorities’ bafflement (Aljunied, 2009: 2-20,
119-126).

Djamour, who researched on Malay marriage and the kinship system in Singapore
around 1950 (Djamour, 1959) conducting a survey of trial hearings immediate
aftermath of the introduction of Shariah court 6 . As an account of Muslim law
administration in Singapore at that crucial time, her study describes theadministrative conditions of the Shariah court and Muslim marriages in rich detail.
She argued that divorce rates among Muslims in Singapore declined dramaticallythanks to the procedural rules enacted in Muslim Ordinances and the function of the

Shariah court (Djamour, 1966: 172-182). It is regrettable, however, Djamour treated theconvergence of the critical awareness of the high divorce rate and the course oflegislation as a natural outgrowth, thus the formation of the system was describedlinearly. By contrast, Aljunied suggested that Muslims’ approach toward legal reform
was not monolithic, rather it was based on activities undertaken by diverse
participants, including those in the women’s movement and male leaders of the
Muslim Advisory Board7, while his study doesn’t cover the detail of such multiple
5 Ahmad bin Mohamed Ibrahim (1916-1999) was Indian Muslim born in Singapore. His
grandfather was from North India and his mother was also from Indian family (Abdul Monir
Yaacob et al., 2007: 13-17).
6 Shariah court had been set up by the provision of Muslim Ordinance of 1957 and began to run
in November 1958.
7 The board was established on June 10, 1915, as an emergency measure during the Muslim

43マレーシア研究第４号（2015 年）

debates (Aljunied, 2009: 119-124).
It is Ahmad Ibrahim whose proliferated studies which traced the development offamily law and Muslim family law in Singapore (Ahmad, 1965a; Ahmad, 1965b; Ahmad,
1965c). As an expert on law as well as a moderate Muslim leader, he successively held

various posts such as Vice Chairman of the Muslim Advisory Board (1947–1968), a
nominated member of the Legislative Assembly (1951–1955), Singapore’s first
Advocate General (1959–1963) and Attorney General (1963–1967).

He drafted many

Muslim legislations and also the Women’s Charter. While his essays are rich ininformation from a legal perspective, it does not elucidate the debates in the course of
the legislation. But as some of his essays show that he took part in debates over
Muslim family law reforms and eloquently states his conception for legislations, thispaper examine those essays as primary sources.
Biographical studies have not so thick in comments on the legal reform. Phyllis
Chew Ghim Lian picks up Shirin Fozdar as a driving force in the promulgation of the
Women’s Charter. She described that how Shirin Fozdar urged leaders of religious andethnic groups to enhance women’s status in marital law, and also refer to her
cooperation with Muslim women activists such as Che Zahara and K. M. Siraj 8 (Chew,
1994: 116). But since she concentrates on the promulgation of the Women’s Charter,

she did not pay much attention to the Muslim side of legal reformation and disputes
over it. Talib Samad, who wrote a biography of Ahmad Lutfi, made analysis on Lutfi’s
understandings of old-fashioned religious customs and negative influence of Westernculture, but made no mention to his commentaries over actual legislation (Talib, 2002:
17-43).

Elsewhere, one sees little discussion of Islamic legislation in Singapore in the
1950s and 1960s 9 . However, developments in Singapore was important for both
rebellion in India, and was changed into a standing committee after the end of World War I. The
original name was the Muhammedan Advisory Board. English official R.J. Farrell served as thechair, alongside Muslim leaders representing in ‘each clan’ who were appointed to the board
member. Muslims saw the board as a quasi-official body that issued recommendations to thegovernment, and whose recommendations and advises toward Muslim general were notparticularly welcomed (Yegar, 1979: 99-109). The board was dissolved during World War II, andreorganized and renamed to be Muslim Advisory Board in October 1947 with its membershipcomposed solely of Muslims (Ahmad, 1979: 13).
8 Khatijun Nissa Siraj (1925-) is Singapore born Muslim with mixed origin. Her father, T. K. S.
Dawood was rich merchant from Madras and her maternal grandfather was Turkistan Muslim
moved to Singapore and made a fortune. Siraj studied in Methodist Girls School and in 1952,
established Young Muslim Women’s Association, which later joined the Singapore Women’s
Council led by Shirin Fozdar. When Shariah court has been set up in 1958, she appointed associal worker after broke down the opposition of Chief Kadhi.
9 Hickling situated the legislation of 1950-1960 as an extension of the process started in 1880,
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Controversial Boundary:The Construction of a Framework for Muslim Law in Singapore in the Period of Decolonization

Singapore an and Malaysian legal history for some reasons. First, the family law
system in Singapore and Malaysia share a common origin in the context of Britishcolonialism and in post-colonialism10. For constructing the system of Muslim family
law administration, Singapore was a model for Malaysia in the first decade of 20th
century and then, in the decolonizing period, institutions developed in Malay states
were taken as models by Singapore an legislators. It is worth noting that this crossreference continued since the political independence of each. As Horowitz pointed out,
the Administration of Muslim Law Act (AMLA) in 1966 of Singapore became one of themodels for legal reform undertaken in Malaysia in the 1980s (Horowitz, 1994a: 292-293).
This has been promoted because Ahmad Ibrahim, a drafter of AMLA later moved to
Malaysia and involved in the reformation of the Muslim family law administration11.
Ahmad Ibrahim, in his advocacy statement for Muslim family law provisions as well
as for Women’s Charter, had shown his basic ideas regarding the construction of‘modern family’ through legal measures. This is the second reason why this study
emphasizes the importance of legislation in decolonizing Singapore.
Given the relationship in the early period and the legal development, this paperargues that legislation enacted in Singapore in the 1950s and 1960s was anintermediate point in the history of Muslim Law in Singapore and Malaysia. In
with the enactment of Muslim (Mahomedan) law. Hickling saw that this set out the legal
precedents set by British judges, who applied Islamic law as an extension of common law, andshaped the position of Islamic law in Singapore’s judicial and legal institutions (Hickling, 1992:
157).
10 The Straits Settlements was the heart of the administration in English-occupied Malaya, andserved as a model for Islamic administration in British Malaya. Yegar argues that the enactmentof Muslim law in 1880 as a precedent for all Malay states, thereby providing a framework forapplication of Islamic administration to Muslims. However, since the position of religious
administration and Sultanate authority were significantly different in Singapore (the Straits
Settlement) and in Malay States, this led different standard of institutional development inthose region. For example, the Kathis in Singapore were only to register the marriage anddivorces and seen as government officials who had no expert knowledge of Islamic law, where incontrast, the Malay Kathis were given wide latitude in terms of authority up to hold court withjurisdiction (Yegar, 1979: 94-109, 150-159). In Singapore’s legislation of the 1960s clearly
articulates the construction of institution in accordance with Malaya (ST, 1961.5.15: 4).
11 Ahmad Ibrahim moved to Malaysia in 1969, at which point he played a critical role in thecreation of a law department at the University of Malaya, in addition to his work in reforming
the country’s Muslim legal system. Although Ahmad Ibrahim has been a subject of discussion
among theorists, very little academic analysis has been done of his ideas or the concepts for thelegalization. Horowitz has written most about Ahmad Ibrahim’s contributions to legalization; healso assesses Ahmad Ibrahim’s influence—as he was involved in similar reforms in
Singapore—on the legal reforms enacted in Malaysia in the 1980s, and with reference to thelegal rules of Pakistan, British India, and Singapore. He alludes to the rules that largely gave
rise to common law, which are employed in procedural law, and how such procedural laws
became a point of advocacy for Ahmad Ibrahim, who himself was an expert in common law(Horowitz, 1994a: 292-3). For other analysis on the Ahmad Ibrahim’s work in Malaysia, see(Hamayotsu, 2003; Hooker, 1984).
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reviewing the content and contested points of debates surrounding legislation in thetwo decades, this paper will clarify aspects of Ahmad Ibrahim’s legislative thinking
and form the basis for further analysis of the subsequent development of Muslim law
in this region.

II

Debates in the 1950s: The Rise of Women Activism

1. Activity of Che Zahara and Nadra case
One of the earliest women’s activists urged the Muslim family law reform was Che
Zahara, who established the Malay Women’s Welfare Association in October 1947. As
an ex-member of AWAS Singapore branch, Che Zahara criticized Malay customs likeeasy divorce and child marriage as these customs led Malay women into financial
difficulties until they forced to live immoral lives. She tackled with this issue throughvarious activities; performing educational sketches; establishing a women’s school toteach English, Jawi, sewing and domestic science; advicing for marital conflict; andsupporting to remarriage for young divorcees. Che Zahara’s activities were frequently
covered by English press as ‘sophisticated’, while some of her activities such asprocession, sketches and her sheltering of runaway couples induced severe critiquesfrom the Muslim Advisory Board (ST, 1947.11.27: 6; ST, 1948.6.9: 3; ST, 1954.10.23: 7).
Tension between Che Zahara and the Muslim Advisory Board reached critical level
when Che Zahara supported a bill to ban the marriage of person under 16 years oldirrespective of his/her religion in 1950. The bill had been brought to the Legislative
Assembly as a reaction to the marriage of Nadra, then 13 years old Dutch girl whose
custody rights were disputed by her biological parents in Holland and her Malay foster
mother.
Nadra was a Muslim name of Maria Huberdina Hertogh. She was born to a Dutch
father and an Eurasian mother in the Dutch East Indies in 1937 and was baptized in
the Roman Catholic Church. In 1942, during the Japanese military invasion, Mariawas entrusted to a Malay woman called Aminah, and Aminah raised Maria in Muslim
faith naming her Nadra. After the Japanese surrender, Aminah brought Nadra to herbirth village in Terengganu. In 1950, since the Dutch Consul General demanded that
Nadra be handed over to her biological parents, Aminah brought Nadra to Singapore
to settle the dispute. Though the High Court in Singapore ordered Nadra to be handed

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Controversial Boundary:The Construction of a Framework for Muslim Law in Singapore in the Period of Decolonization

to Dutch parents, in July 1950, the Court of Appeal rescinded the order on the groundof a legal procedural error. Upon receiving the verdict, Aminah arranged for Nadra,
who was 13 years old at the time, to be married to a Malay Muslim man, Mansoor
Abadi, a teacher in training from Kelantan. The marriage incited debate because ofher age. Nadra’s marriage was problematized as ‘child marriage’ and Muslim leaders
expressed that child marriage was oppose to modern society, while they stood thatmarriage already took place under the Muslim law should be left untouched. Shortly
thereafter, John Laycock, a member of the Legislative Council, began a move to ban
the marriage of person under 16 years old (ST, 1950.8.28: 5; ST, 1950.9.2: 7) 12.
Che Zahara welcomed this move and when Laycock announced that the bill would
be revised not to include Muslims since the original bill received united opposition
from the Muslim Advisory Board, she held a mass meeting calling for inclusion ofMuslims into the application of the bill (ST, 1950.9.5: 7; ST, 1950.10.16: 7). Che Zahara
also urged to look up the problems faced by Malay young divorcees because of anotherchild marriage (ST, 1950.10.1: 5). Shirin Fozdar, who had arrived in Singapore just one
month prior undertook Che Zahara’s deed. The allegation of Che Zahara, however, as
well as Shirin Fozdar, met strong opposition from members of the Muslim Advisory
Board (ST, 1950.10.19: 5; ST, 1950.11.13: 4). The bill submitted was revised that
Muslims excluded from its application. Furthermore, the bill itself did not bear fruit
due to continued opposition from Muslim members of Legislative Council (ST,1950.10.25: 6)。

On Che Zahara’s allegation, Ahmad Lutfi also countered in his essays in Qalam.
Ahmad Lutfi argued that in Islam, ability of marriage of a girl is determined based onwhether she has attained puberty (baligh), not by fixed age. But the attitude of Ahmad
Lutfi was not simple. He presented his interest on the same topic as Che Zahara, incriticizing ‘forced Marriage’. Forced marriage is the marriage of virgin girl solemnizedby her guardian (wali mujbir) without consent of bride. While the orthodox view of

Shafi’i school recognize the right of guardian to do so, Ahmad Lutfi condemned theview as baseless in Quran and Hadith of Prophet and tried to conceptualize ‘women’s
right’ in the context of Islam. Ahmad Lutfi argued that women and girls, once they’re
attained puberty, were independent from their parents and had the right to consent tomarriage, thus her guardian’s right to marry her out should depend on it.

12

For chronological event and judicial disputes, see (Hughes, 1980; Haja, 1989).
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The religion affords woman who has already attained puberty freedom andindependence according to logic and in practice, so our woman who has alreadyattained puberty has the freedom with her and that freedom including the rights
of marriage. Therefore, according to al-Quran and Hadith it is illegal to marry avirgin girl to a man without her consent. Asking for her consent is not a matter ofrecommendation (sunat) but an obligation (wajib), because if she does not consent,
the marriage straightly illegal and if she got pregnant, her child becomes
illegitimate (haram) child (Qalam, 1950.11: 14).
By conceptualizing women’s right, Ahmad Lutfi reacted to Che Zahara’s allegation,
but also tried to counter the course of court procedures which trying to determine
Nadra’s religious and marital status through custodial argument, not through Nadra’s
own confession notwithstanding the fact that she already attained puberty (Tsuboi,2013). Ahmad Lutfi’s critique of forced marriage also went to condemn ulamas who

had recognized such customs. His stand on forced marriage issue and his conception of
women’s rights caused criticism from the Mufti of Johor, who argued the Lutfi’s idea
was deviate from Islam. Ahmad Lutfi insisted his view.
In the court, Nadra’s natural parents claimed that the marriage was invalid since
her biological father did not give consent to his daughter’s conversion to Islam, and theHigh Court applied Dutch law on the grounds that legally speaking, Nadra’s domicile
was the Netherlands according to her father. As a result, the marriage was deemedinvalid and a verdict was handed down declaring that custodial rights of Nadra rested
with her natural parents. Seeing emotional ties between Nadra and Aminah, andNadra herself strongly resisted to be separated from Aminah, the case attracted broad
public interest from the first moment. This escalated into deep dissatisfaction when
Nadra’s marriage incited legislative effort to ban similar marriages and when court
issue developed to question her Muslim status and legality of her marriage. The
verdict instigated Malay riots resulted in 18 deaths.
2. Disputes over Muslim Divorce
After the riot, neither Che Zahara nor the Muslim Advisory Board slackened theirrequests for Muslim law reform. Che Zahara claimed to check Muslim divorce, as easy
divorce was the biggest cause of Muslim divorcees’ difficulty, while the Muslim
Advisory Board requested the establishment of Muslim court with special jurisdiction48

Controversial Boundary:The Construction of a Framework for Muslim Law in Singapore in the Period of Decolonization

to deal with Muslim matrimonial issues in along with the laws of colony, criticizing

Kathis, including the one that solemnised marriage of Nadra, neglecting legal
procedures in the administration of Muslim law. At their first point, the Muslim
Advisory Board did not weight the divorce rates and they did not refer to the necessity
to check Muslim divorce by establishing the court. This attitude changed once thediscourses regarding Muslim divorce trend as problem began to attract public interest.
Its leading actor was Shirin Fozdar, founder and the radical leader of inter-religious
and inter-ethnic women’s body, Singapore Council of Women (SCW). As soon as SCW
was founded in April 1952, Fozdar put up the marital law reform for all Singaporean
women. Fozdar criticized the authority’s inaction toward Muslims divorce trend
adopting sensational terminology such as “two marriages, one divorce” (ST, 1952.12.31:
5), “divorce rate here is higher than in Hoollywood” (ST, 1954.1.29: 1).

Beside this, SCW drafted monogamous bill as Fozdar thought that polygamous
marriage symbolically present the unequal status of women. Up to December 1953,
SCW drafted the bill to ban polygamous marriage and sent it to colonial authorities,
members of the Legislative Council, represent bodies of ethnic/religious communities
including the Muslim Advisory Board. In their letter, SCW claimed that monogamyiwas the only way to relieve misery and unhappiness condition of married women.
(…) We are confident that our appeal to you to assist the women to get better maritaltreatment and rights will not go unheeded. The greatness of a nation is often
measured by the caliber of its women. What greatness can we expect for this country
where in every home, the women live in a state of constant fear of being deprived ofhome, security and everything that goes to maintain a happy family. All advanced
nations including Islamic countries like Persia and Turkey have granted similar
rights to their women and progressed through the efforts of these same women who
strove to offer their mite to the cause of human progress. It is very unfortunate thatin this country the women are very backward and their marital ties insecure.
Nowhere in the world is divorce so easy as in this country, but all the facilities ofdivorce are enjoyed by men. Those who indulge in this practice are governed by aBook which to them should be the word of God. Therein it laid down, "And if you feara breach between the two, then appoint a judge from his people and a judge from her
people if they both desire agreement, Allah will effect harmony between them surely
Allah is knowing aware”. Again it is said "of all things permitted to men divorce is themost hated by Allah." (…) Our contention is that the condition laid down about doing49

マレーシア研究第４号（2015 年）"justice between them" makes polygamy impossible. Justice does not consist in giving
them equal share of the material wealth of a man, but equal share of the affection as
well. Is such a thing possible that a man can show the same degree of affection tomore than one woman? The other alternative therefore, in order to please God ismonogamy, "this is more proper that you may not deviate from the right course."(…)(SCW, 1953.12.14)

But the Muslim Advisory Board opposed the SCW that their claim was against
Muslim law and unacceptable to both Muslim men and women. Not only the Muslim
Advisory Board challenged SCW’s view. Che Zahara, a founding member and once avice president of SCW but soon withdrew from her post in SCW (SCW, 1952.4.24),
opposed to the SCW’s plea to apply the ‘one man one wife bill’ to all the marriages
including Muslims with reasoning that high rate of divorce among Malay Muslims had
relevance to polygamy. Che Zahara denied the argument and commented that Muslim
law sanctioned the polygamous marriages (ST, 1953.5.19: 3).
Around nearly the same phase, arguments of Che Zahara and the Muslim
Advisory Board getting closed in urging to setting up of Muslim court to deal withdivorce. The Secretary general of the Muslim Advisory Board clearly connected two
issues when he stated to the press that “There is nothing wrong with our divorce laws,
but we certainly do need better machinery to administer them” (ST, 1953.11.19: 5).
Ahmad Lutfi also took this opportunity to welcome the move to set up Shariah court;…The divorce cases of the last several years in Singapore, which show no sign ofdecreasing, are creating an atmosphere that demands the establishment of Shariah
court. Because this is a public matter, in our opinion, it should be administered by

the government and the government should deal with the matters that are not to beleft out like this. It is desirable to be brought to the government by Muslim membersof Legislative Council (Qalam, 1953.11: 4).

He goes on to argue that the administration of Muslim marriage and divorce laws is a
public matter, and that the government should bear expenses of setting up andrunning courts (Qalam, 1953.11: 4). Behind such arguments was the fact that the
Muslim community had sought, for many years, to set up appeal institutions for the

Kathis.
The Muslim Advisory Board pointed Kathis as the main cause for the high divorce
50

Controversial Boundary:The Construction of a Framework for Muslim Law in Singapore in the Period of Decolonization

occurrence. In the Legislative Council, Ahmad Ibrahim appealed the necessity to havea ‘Kathi Court’, since ‘at present matters of Muslim marriage and divorce are dealt
with by individual Kathis who are to a large extent unfettered by any control or rules’(LC, 1954.7.20). He also pointed that ‘the Kathis in Singapore had in effect a free handin the solemnisation of marriages’ and that ‘the ease with which divorces were granted
by Kathis in the past has been the principal defect of the administration of Muslim
law in Singapore’. For him, this caused by the fact that ‘Kathis in their eagerness toearn the fees for the marriage have been too ready to accept the statement of parties’(Ahmad, 1958.12: 75).

By asserting ‘high divorce rate’ as problem, the Muslim Advisory Board adopted
the position of Che Zahara. The time was ripe; problematic recognition for Muslim
divorce had established through high coverage of press, and this gave the colonial
authority a ground to establish the Muslim court. By the Muslim Ordinance of 1957,

Shariah Court has been set up first in history of Singapore and it administered thestricter divorce procedures embedded in the Muslim Ordinance.
Fozdar’s claim to ban the bigamous marriage, on the other hand, received support
from the People’s Action Party government, and in September 1961, it bear fruit as aprovision in the Women’s Charter13. The preamble of the Women’s Charter declaresthat the charter is ‘An Ordinance to provide for monogamous marriages and for thesolemnization and registration of such marriages; to amend and consolidate the law
relating to divorce, the rights and duties of married persons, the maintenance of wives
and children and the punishment of offences against women and girls; and to provide
for maters incidental hereto’, thereby outlawed polygamous marriages among
non-Muslims. Parts of the charter such as marital provisions including monogamous
marriage, were not applicable to Muslims14. Thus, Muslim side of reform became acontinuous issue. In 1960, before the Women’s Charter passed by the Legislative
Assembly, the Muslim Ordinance was amended to restrict polygamous marriage bylegal procedures; the applicants of polygamous marriages were required preliminary
inquiry by Chief Kathi so that make sure that the marriage have no legal obstacles inregard to Muslim law. In August 1966, a year after the sudden independence fromIt repealed the Christian Marriage Ordinance, the Civil Marriage Ordinance and other
Ordinances related to the status and properties of girls and women.
14 Part II to IV (provisions of monogamous marriages and its solemnization and registration)and part IX (provisions of divorce) and section 166 (provision that assure marriages contracted
before the date of 2nd March 1961 deemed valid) of the Ordinance shall not apply to any person
who is married under the Muslim law. See Women’s Charter Section 3, Item 1, 2.
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Malaysia, the Administration of Muslim Law bill, which introduced the extension ofcustodial period, the minimal age for marriage, the prohibition of registration of triple
talak, and so on passed by the Parliament. Othman Wok, then Minister for Culture
and Social Affairs, advocated for the bill.
While it has not been possible to please everybody and to accept all the
representations made, it is hoped that the Bill will be welcomed as one more step - asignificant step - in the regulation of affairs and in the proper administration of law
in Singapore. The Bill also represents a significant advance in social legislation forthe protection of women, and it is hoped that women will, in particular, welcome theBill. The Bill has not, it is true, given the women all the benefits of the Women'sCharter, 1961, but in itself and within its limitations it represents a charter which
has restored to women their rights of which for long they have been deprived(SP ,1965.12.30).

Between five years since the Muslim Ordinance was amended, there were anotherdebate between Ahmad Lutfi and Ahmad Ibrahim, a legislator and advocator for boththe Women’s Charter and Muslim family legislations.

III

Debates in the1960s: Ahmad Lutfi and Ahmad Ibrahim

1. Disputes over Divorce Provisions
Seeing that Muslim Ordinance imposed substantial restrictions on divorce,
Ahmad Lutfi abandoned its supportive attitude toward Muslim Ordinance and sought
the repeal of such laws. The dissatisfaction with the set of legislations first appeared
in a discussion opposing the Administration of Islamic Law Bill15 in 1960:…(according to the articles,) unless a Kathi or Assistant Kathi has affirmed, uponinquiry, that both husband and wife have reached an agreement, no divorce orReleased by the Singapore government in January 1961 and withdrawn in the same year
because of the strong opposition from Muslim community. The bill introduced the stipulations toestablish the Singapore Muslim Religious Council (Majlis Ugama Islam Singapura) toadminister Muslim fund and trust, to issue fatwa and to collect and distribute zakat and fitra.
Since the bill combined the existing Muslim Ordinance, it also introduced further marital reformin the custody rights of divorced women or in other topics.

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Controversial Boundary:The Construction of a Framework for Muslim Law in Singapore in the Period of Decolonization

reconciliation (rujuk) may be registered. Only in cases where both husband and wife
have agreed to adivorce may a divorce be legally registered. In short, a husband may
not divorce unless his wife has given consent (Qalam, 1961.3: 40).

Ahmad Lutfi argued that the necessity of petitioning the Shariah court to register adivorce due to the inability to obtain an individual to register their divorces, wastantamount to being ‘unable to divorce’, which goes against Islamic law. He further
criticizes the legislation as contradicting Islamic law:
…if it (the right of talak statement) cannot be exercised freely…then regardless ofwhether you can get a divorce through law of Shariah, the divorce will be held in
limbo due to national laws, thus creating a situation in which the husband iscommitting adultery with his wife (Qalam, 1962.6: 5).

Ahmad Lutfi’s position on divorce was expressed very clearly.
The aspects in this legislation we must pay the most attention to are the divorce andthe attendant payment thereto (with regards to the waiting period), and theenforcement of child support payment for children. The reason is that many males failto fulfil this obligation, leaving the children entirely to the divorced wife. Thislegislation would make such payments obligatory, a critical element in stabilizing oursociety (Qalam, 1956.1: 3-4).

He did not advocate for the suppression of divorce; rather he was putting emphasis on
legalizing the husband’s obligation to provide for his dependents. Ahmad Lutfi
repeated same point that ‘such reform would improve the lot of mothers in society andprevent harm to the weaker sex’ (Qalam, 1962.6: 4-5).
There were no significant difference between Ahmad Lutfi and Ahmad Ibrahim on
the issue of the divorce rate and economic and social difficulties of divorced wives andtheir children. On the other hand, there was a gap between them over the measures toaddress those problems. Ahmad Lutfi was reluctant to change the ‘rights’ of husbands
but attempting to solve problems related to divorce by strengthened obligations andresponsibilities of husbands such as providing for dependents. By contrast, Ahmad
Ibrahim claimed that restricting the power of divorce would benefit the Muslim
community in Singapore:53

マレーシア研究第４号（2015 年）

The Women’s Charter, 1961, permits divorce on grounds which are substantiallycommon to the husband and to the wife. It is only the Muslims in Singapore who claimthat the Muslim husband should have an unrestricted right of repudiating his wife. Is
this freedom really beneficial to the Muslims? Is it to the interest of the Muslim
community that a husband should be able to abandon his wife and children for nofault of the wife and to leave the wife without support after three months of eddah?
Again in most 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 (Ahmad, 1964.5: 15).

Ahmad Ibrahim also broached the subject of legal reform in Arab countries, Indonesia,
and Malaysia, and positioned Singapore’s reform as part of the tide of reform in thesecountries.
Recent legislation in the Arab countries based on the Muslim law have decreed that
where the three talaks are pronounced at once, this will only take effect as one talak,but in Singapore the views of the orthodox School are still followed. It is possible
however by the influence of the Shariah Court and the kathis to encourage theMuslims to use only the ahsan (or best) form of talak (Ahmad, 1962.2: xv).

By referring to the movements in Arab countries, Ahmad Ibrahim claimed legitimacy
for similarly conceived policies. Responding to criticism that legal reform in Singapore
as oppressive towards divorce and polygamous marriage, he argued that ‘In many
respect, indeed, the AMLA is moderate and even conservative when compared withsimilar legislation in other Muslim countries’ (ST, 1966.11.17: 8).
2. Polygamous Marriage and the Women’s Charter
Ahmad Lutfi complained that since the condition imposed in the inquiry were too
severe, ‘only three instances of polygamous marriages that successfully met thiscondition in 1960’. He claimed that although the Chief Kathi was charged only with‘confirming that there were no lawful obstacles according to the law of Shariah’, heactually imposed four requirements; the capacity of the husband to maintain his wives,approval of the first wife, approval of the second wife’s guardian, and approval of the54

Controversial Boundary:The Construction of a Framework for Muslim Law in Singapore in the Period of Decolonization

second wife. According to Ahmad Lutfi, the preliminary inquiry was ‘seen by Muslims
as a rule going against Islamic law that was being implemented through stealth’(Qalam, 1962.8: 6).

Ahmad Lutfi’s criticism of the marriage and divorce rules reached a pitch beginning
in January 1961. He came not only argued that the repressive administration of
divorce and polygamous marriage was ‘against Islamic law’ but also criticized the law
for being ‘Christian law’ (Qalam, 1962.8: 40) or an ‘intrusion of the Women’s Charter:’Currently, the shrewd members of the Advisory Board are scheming to incorporate
section 4 of the Women’s Charter16 into Muslim law (Qalam, 1962.10: 6, 40).

Ahmad Ibrahim said of the Women’s Charter: ‘It is an exemplary rule of law from theperspective of a human rights charter’. He argued that the charter’s exemption ofMuslims from the monogamy rule should be revised:
Another major reform in the Women’s Charter, 1961, is the abolition of polygamy,
which again is made applicable to everyone but the Muslims. Is it really to the benefitof the Muslims that they should be allowed to practice polygamy? Polygamy is notenjoined in Islam but permitted subject to strict conditions. Only a person who is blindto the facts of modern social life will deny that polygamy causes the disruption of a
happy family life and brings about hardship to the wife and the children of themarriages. It is difficult enough for the ordinary Muslim to give the comforts of life
and a good education to his children. To allow him to practice polygamy is in effect toallow him to neglect the happiness and education of his children (Ahmad, 1964.5: 15).

Arguing that the Women’s Charter’s ban on polygamous marriage was a model for
modern society, Ibrahim cited other Muslim countries like Turkey and Tunisia as
countries in which ‘polygamy has in fact been abolished’ and added that ‘(poligamy)has been subject to strict control in many other Muslim countries’. His stance wasconfront to that of Ahmad Lutfi, who said of the Women’s Charter had originated in
specific religion or ethnicity, such as Christian law or Buddhist law, and therefore
denies its applicability to Muslims. Ahmad Ibrahim countered such critiques:

16 Section 4 of the Women’s Charter stipulates the person of disability to contract marriages(and this included person who already married).

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マレーシア研究第４号（2015 年）,,,the Government of Singapore is not a Christian Government. It is not the policy
and never has been the policy of the Government to impose a Christian or
Buddhist form of life on the peoples of Singapore. Rather because of the division
between religion and State, the government does not purport to deal or interfere in
religious matters. …It has been stated for example that the Women’s Charter,
1961, is a Christian law, because it imposes monogamy and because it restricts
divorce. This is clearly absurd for it is clear that historically neither monogamy
nor divorce were parts of Christian teachings. It is as absurd to say that thelegislation as regards monogamy or divorce is Christian as to say that the lounge
suit or the motor car is Christian. The Women’s Charter, 1961, in fact repealed theChristian Marriage Ordinance and its provisions override some of the teachings ofChristianity, Hinduism, and Buddhism. It is a State law designed for the welfare
of all citizens and it should be judged on the basis ‘Is it a good law or a bad law?’rather than on the basis ‘Does it comply with this or that provision of Christianity
or Islam? (Ahmad, 1964.5: 12)

While championing legal reform by using the examples of other Muslim countries,
Ahmad Ibrahim also discussed Muslim welfare in Singapore. For this reason, Ahmad
Lutfi’s position, which opposes to the preliminary inquire for polygamous marriage on
the ground that Singapore government was ‘interfering with religious faith’17, comesunder fire from Ahmad Ibrahim who criticized the position for neglecting the benefits
to citizens’ welfare and the community and for merely proclaiming ‘orthodoxy’.
In rejecting welfare legislation and measures which are introduced by the State on theplea that they are contrary to orthodox Shafii beliefs, are the Muslims reallybenefiting themselves or are they rejecting benefits which they should share with
their fellow citizens? Should a legislation be rejected merely because it does not follow
the orthodox Shafii beliefs as understood in Singapore or should the question be asked
will it benefit the Muslims or not? ...In all the criticisms by Muslims of the Women’sCharter, 1961, it has never been suggested that it is not beneficial. (Ahmad, 1964.5:

17 ‘When the Singapore government enacted the law banning polygamous marriage, thegovernment declared that it did not apply to Muslims. However, in fact, the monogamy law wasindirectly applicable to Muslims… In response to this situation, some people asked whether
Muslims would be compelled to follow a law that was in breach of Shariah. Muslims …wereindirectly affected for saying that the government should not interfere with the Islamic religion’(Qalam, 1961.4: 3-4).

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13-14)

Ahmad Ibrahim insisted that Muslim law should be reinterpreted along the concept of‘maslahah or the principle of doing the most benefit to the peoples of that period orcountry’18. His tribute to the Women’s Charter was based on the notion that provisions
for the control of marriage and divorces were the product of progress of the society ofthe time.
…it might be questioned whether in fact the demand for special rights and privileges
for the Muslims is beneficial to them. First it is necessary to emphasis the fact thatthe ideal modern state is a welfare State whose policy is to safeguard and improve thewelfare of its citizens. The considerations which influence policy and legislation must
be the welfare of the inhabitants. …Singapore is a welfare state and its legislation isdesigned to improve the welfare of all its citizens, whether they are Chinese, Indiansor Malays or whether they are Christians, Muslims or Buddhists... (Ahmad, 1964.5:
11-12)

Ahmad Ibrahim’s concept of ‘welfare’, as might be surmised from the terms ‘welfare of
all citizens’, included both Muslims and non-Muslims. But ‘maslahah’ of his usage
exhibited same orientation; rather than the specialist discussions centred oninterpretation of Islamic law and discussions involving Muslims in particular. For
Ahmad Ibrahim, ‘Islamic legislation’ was a framework to provide the welfare for the
Muslim fellows in the ethnically and religiously plural society.
There has recently been a tendency in Singapore among Muslims to demand that
Government should not interfere in matters affecting Muslims and that Muslims
should be allowed to follow their own practices and laws. It is difficult to know what
the self-appointed champions of the Muslim way of life really desire… Such a demandis clearly absurd and dangerous in a State where Muslims are a small minority andwhere it is necessary in the context of not only Singapore but of Malaysia to create a

Maslahah is a concept that can be deduced from Islamic law, and means public welfare. It has
become the basis for legal scholars politically sidestepping a strictly speculative conclusion. The
concept of maslahah served as the basis for wide-ranging reforms in Islamic law in Southeast
Asian Muslim intellectual currents from mid-20th century on. Thereafter (after mid-twentiethcentury), general recognition of maslahah as one goal of Shariah expanded, and questions began
to be asked how maslahah would affect legal decisions (Feener, 2007: 49-50).
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national consciousness transcending racial and religious groups…(Ahmad, 1964.5:
11-12)In short, Islamic law in Singapore was conceived and realized as somethingcompatible with the Women’s Charter and as a model for equal rights for men andwomen. It was a system akin to the modern judiciary within an administrative
framework. It may be that what Ahmad Ibrahim created in pursuing legal equality
under the law was not simply an institution for registering marriage and divorce, but
a modern judicial framework for Muslims.

Conclusion
The Muslim family law reform in decolonizing period was essentially thelegislation for women. It is worth pointing that Muslim family law reform in
Singapore modelled on that in Malay states as well as Muslim countries like Egypt,
Pakistan and secular India which introduced family law reforms in the 1950s also.
However, the most influential model was the Women’s Charter as it was thecounterpart in terms of family legislation.
In the 1950s, where the future course of legislative reform was not so clear, both
Che Zahara and Shirin Fozdar demanded unified reform law for women. Their
allegations were similar but left one point. While Fozdar thought that the prohibitionof polygamy should be applied irrespective of religion, Che Zahara refuted this andasserted that cause of high divorce rate were not polygamous marriages. Rather thanadvocated for ‘one man one wife bill’, Che Zahara supported the establishment of aMuslim court to control Muslim divorce. But in anyway, it seems certain that thediscourses both by Che Zahara and Shirin Fozdar attracted public attention to the
divorce trend of Muslims and prepared ground for establishment of first Shariah
Court in Singaporean history.
In 1960s, criticisms of the administration of the Shariah court and Kathis, and theMuslim Ordinance surfaced. These criticisms were strongly conscious for contents of
the Women’s Charter. Initially supported the legislation, Ahmad Lutfi’s attitudestiffened when he realized that its provisions ‘essentially’ changed the marital rightsof Muslims and follow the Women’s Charter. His expressed allegation for ‘women’s
rights’ stopped to appear after the debate with Che Zahara, and coincidentally with
this, he began to emphasize the responsibilities of men. This change evidences the fact
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Controversial Boundary:The Construction of a Framework for Muslim Law in Singapore in the Period of Decolonizationthat Ahmad Lutfi wrote his essays in reaction to issue of the times. His emphasis on
men’s responsibilities mirrored his understanding that he had to recognize women’s
rights in the rhetoric of Islam in competence with the one outlined in the Women’sCharter.
Ahmad Ibrahim took a moderate course. He advocated for provisions that thequest for similar provisions as in the Women’s Charter was a universal trend that
already introduced in Muslim countries in the Middle East and South East. Thus, headopted the similar reforms in the framework of Muslim legislation without hesitation.
In reacting to criticism, Ahmad Ibrahim repeatedly stated the concept ‘modern society’,arguing that the interpretation of Muslim law had to be in line with the times andcondition of the society. For him, as ‘welfare’ was a borderless concept that should beappreciated in a plural and modern society, the control of divorce through legislation
was a means of providing welfare of his fellow Muslims.
The framework for Muslim law was developed coincidentally with that of
non-Muslim fellow. As energetic debates above indicate, the border between ‘Muslim’and ‘non-Muslims’ was not previously fixed or just an inheritance of colonial rule but
was very controversial and by such controversy the framework reached a balance: abalance of different quests to become equal to others and to be different from others,
quests came together with living in a multi-ethnic society.

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