ISLAMIC ESTATE PLANNING: Seeking a just and fair share for all

Seeking a just and fair share for all

By SHAHANAAZ HABIB (The Star : Sunday April 4, 2010)

 

AISHAH had always dreamt of a good family life, with a great husband and four or five children running around.

As luck would have it, she met a wonderful man, Kamil, and after a year they got married.
Ten years later, they were still childless but happy.

Recently, tragedy struck. Kamil who was in his mid-30s died of a heart attack, sparking an unexpected crisis for Aishah.
      

Playing fair: Female entitlement and men getting twice the share of the female in Islam is driven by a certain logic – where a man is held responsible for the maintenance and support of the women in his household whether she is married or unmarried. – AFP

The couple had always lived in Kamil’s family home. He was an only child and had inherited the house from his mother when she died. Although Kamil’s mother had fully paid for the house 30 years ago, Aishah is now in danger of losing it.

Under the faraid law of the Shafie school of thought (which is practised in Malaysia), a wife with no children and no male relatives on the husband’s side inherits only 1/4 of her husband’s home.

The remaining 3/4 goes to Baitul Mal, the treasury body within the state’s Islamic religious council.

(The Hanafi and Hambali schools of thought, which are also from the Sunni tradition, differ from the Shafie (and Maliki) school in their faraid system where Baitul Mal does not stand to inherit. After the initial distribution, if there is any balance, under Hanafi and Hambali schools, it reverts back to the female heirs where there is no male.)

A very worried Aishah says she is still in shock.

“I don’t know what to do. I was told that I can ‘redeem’ the house by paying Baitul Mal the 3/4 portion and at today’s market value, I have to fork about RM200,000 (75% of the market value).

“Where am I going to get that kind of money from? My husband just died and I have to start worrying about my future and making ends meet.

“And now I don’t even have my home. My mother-in-law paid for that house! And it was our home for 10 years and now they want to take it! Where am I going to go? I feel so insecure and vulnerable,” says a desperate Aishah.

         

"The syariah is there to serve the cause of justice and not to apply rules for the sake of rules"-

PROF DR MOHAMMAD HASHIM KAMALI

In another case, Faris was riding pillion on his uncle’s motorbike when a lorry rammed into them, killing them both instantly.

Since his father had already passed away, Faris’ mother is now the sole heir and she inherits 1/3 of Faris’ assets while 2/3 goes to Baitul Mal.

But if it was Faris father – not his mother – who was alive and the only surviving relative, he would have inherited Faris’ entire estate and nothing would have gone to Baitul Mal.

Director-general of the Wakaf, Zakat and Haji department (Jawhar) at the Prime Minister’s Department, Datuk Dr Sohaimi Mohd Salleh, says everyone, especially husbands, fathers and brothers, should not wait to have their wealth apportioned upon their death.

“They should hibah (give) now when they are alive. That way the girls can get more. The girls can even get everything. A person should be wise. He should understand Islam.

“If his kejahilan (ignorance) is the reason his money goes to someone else, why blame others,” he said in an interview.

Under the Shafie faraid system, he points out that Baitul Mal inherits when the person has no heir; has an heir but the person is ineligible to receive the inheritance because he is a non-Muslim or for other reasons (such as he is the dead person’s murderer or an apostate); has an heir but there is “excess or balance” in the distribution according to faraid.

Defending the system, Dr Sohaimi stresses that it “does not totally discriminate women” and women can still go to Baitul Mal to seek help. After all, Baitul Mal uses the money for public welfare and to help the poor and other needy groups.

Why can’t Malaysia then can’t follow the Hambali and Hanafi faraid law (which are after all also Sunni) whereby if there is no male heir, the remaining portion reverts wholly to the woman heir – instead of Baitul Mal – as that would seem fairer to women?

“We are of the Shafie school of thought. So we have to follow the Shafie system. We can’t ikut sedap kita (just take what we please),” says Dr Sohaimi.
However, an expert on Islam, Prof Dr Mohammad Hashim Kamali, raises a pertinent point.

“Did Islam consist of the Shafie, Hanafi, Hambali, Maliki schools of thought during the Prophet’s time and of the leading caliphs and companions during the time of pristine Islam?” he asked.

Dr Hashim, chairman and CEO of the International Institute of Advanced Islamic Studies (IAIS), points out that the mazhabs (schools of thought) only became predominant centuries later.

The Quranic laws of inheritance, he adds, is a fine construction and the problem is that if you interfere with one part, then other parts too are affected.But he points out that the syariah’s ultimate goal is for justice.

“This is the mega principle of Islam. The syariah is there to serve the cause of justice and not to apply rules for the sake of rules.Dr Hashim points out there are “situations of inheritance” whereby in the absence of legal male heirs, the remaining wealth is reverted back to the female heir through a formula called RADD.

RADD is an accepted formula of the Islamic law of inheritance whereby a legal heir is entitled to a larger share by return of the leftover of assets after the initial instance of distribution.

For example, if a father dies leaving only a daughter as his sole heir, she will get half his assets through the faraid entitlement and the remaining half will revert to her under the principle of RADD, and Baitul Mal gets nothing.

“There are certain formulas that remedy situations when normal rules, when applied, will not deliver a fair outcome. Then you go to those exceptional formulas. You have to have those formulas at hand,” says Dr Hashim.

He adds that while the various schools of Islamic jurisprudence differ in their degree of acceptance of the RADD, this could perhaps be applied with greater flexibility in the interest of fair dealing and ihsan (goodness).

Dr Hashim explains that female entitlement and men getting twice the share of the female in Islam is driven by a certain logic - where a man is held responsible for the maintenance and support of the women in his household whether she is married or unmarried.

Before marriage, she is the responsibility of her father or another male relative and after marriage, that responsibility goes to her husband.

“The male relative is obliged to support a woman and that is the rationale for the larger share. But now, you may have a situation where the woman is the only bread-winner and sometimes a woman even supports a male relative.

“We have text and scriptural injunctions of the Quran such as inheritance based on a certain logic but that logic has now changed. Are you open to changing the laws?

“Some would say ‘no’ you can’t open the text to this kind of rationality while others would say

‘yes’ because we have had similar situations in the Quran where non-Muslim citizens in a Muslim state must pay the jizzya (poll tax) while Muslims pay the zakat.

“But we have moved away from that. Now everyone, regardless of religion pays income tax. The logic and rationale for that has changed so we don’t apply the jizzya anymore,” he said.

Islam was very open in its first 100 years, he says, where the Caliphs discussed and consulted and looked to the Quran and Hadis to find a relevant and fair solution to issues.

They applied isthisan (reasoning in the nature of jurisdictional preferences) in addressing situations when the results would go against the spirit of justice if normal rules of law were applied.

He suggests that isthisan could be used here to apply to cases of distribution and inheritance that seem unfair.

He says while judges here apply the Shafie school of law first, they are also allowed to look at the other three Sunni legal schools (Hanafi, Hambali, Maliki)
“whenever they feel it would serve justice in a better way”; after all, one of the principles of Islam is ehsan, which is being good and fair to people.

Room for appeal

When it comes to reality, the Selangor Islamic Religious Council (MAIS) says it does have a heart.
Denying that Baitul Mal is unjust to women, deputy secretary Abdul Halem Hapiz Salihin says “we are only accepting what we are entitled to under the law.”

“There have been instances where we have given the house to the women, especially if she is the only child. There have been also cases where we have reduced the amount the woman needs to pay to redeem the land or house. We do take this into consideration,” he said.

AmanahRaya Legacy Service CEO Rafie Omar too says that it is a wrong perception to think that Baitul Mal is there to grab people’s land or assets. He says women can appeal to Baitul Mal and they will listen.

“I know for a fact that in the Federal Territory, a wife can go to Baitul Mal and present her case and for deserving cases, Baitul Mal will renounce their right or share to the asset; not always but for deserving cases.”