S y o r i a h a n d L a w D i s c o u r s e I s s u e 4
75
PROBLEMS AND ISSUES ON THE RIGHT OFA PERSON TO INHERIT UNDER THE ISLAMIC LAW OF SUCCESSION
Dr. Mariam Saidona Tagoranao
Abstract
This article provides a brief description on the background of the Islamic law of succession, with reference to some problems and issues related to the obligatory bequests, the doctrine of representation' and other ratification on the bequests under the four schools of law. The focus is on the controversial issues regarding the obligatory bequest and the representation ofgrandchildren which has been claimed by the ulama of Pakistan2 aspure innovation as it runs against the principle of Islamic law.
A knowledge of the dzflerences, relative strength and weaknesses of these may be useful in devising and proposing statutory changes and such other measures which may be found to be necessary in strengthening and developing the Islamic law of succession in Muslim countries and other nations with Muslim minorities.
~ T R O D U C T I O N
The Islamic law of inheritance has been regarded by the Muslim jurists as immutable and final considering that it consists mainly of rules laid by the and the Traditions of the Prophet (s.a.w). It has always been admired for its completeness and comprehensiveness as well as the successes with which it has achieved to answer and decide all questions affecting the right of a person to succeed who are bound to the deceased by mutual ties and responsibilities which stem from blood relationship. It shows that the principle of Islamic law of is capable of solving all difficulties and in handling situations related to the inheritance that might arise in their application in a complex developing society such as we are now. However, with the legislative changes introduced into rslamic law in several parts of the world especially to the Muslim countries, reforms have been made. With this, current approach had been that led to the reformation of the Islamic law of succession through the aPP lication of talJiq, tarjih and takhyir (option) in favour of general convenience and welfare of the Ummah. The difficulties involved in this had been increased by the presence of additional factors and considerations in the particular case; such as the influence of other legal systems introduced by the West and the customary laws prevalent among the Muslim communities. Thus, additional complications lnake the clear appreciation and application of the principles involved even more urgent Some legal principles underwent a momentous change as subject after s u b j ect was gradually questioned and narrowed down if not excluded from the P u rview of the traditional Islamic law of succession in other Muslim countries.
Zls
doctrine is contrary to the traditional Islamic p ~ c i p l e of Inheritance, viz, "the nearest in kinship excludes the See Tahir Mahmood. 1972. Fami4 LUW Refom in the Muslim World. New Delhi: The Indian Law Institute, p,252.D i s k u s i S y a r i a h d o n U n d a n g - U n d a n g S i r i 4
But there are number of countries who have preserved the traditional legal system of Islam, whereas, some of them have recently reformed many of its principles but a reform that can be based almost entirely on the express wording of the Qur'an and the tradition of the Prophet (s.a.w). An example of this is the controversial provision on obligatory bequest, the major and important principle introduced into the Law of Wills to some Muslim countries. Analysis of its legality and the purpose of introducing it, forms the subject matter of the present study. Aside from this, we have the doctrine of representation, the most controversial refom made to the Islamic law of inheritance. For a long time, a controversy has been going on for its reform or replacement to make it in accordance with the principle of Islamic law. In this connection, knowledge of its background and sources and the objectives in promulgating this doctrine is necessary in order to understand this reformation. Before we examine and analyze the issues mentioned above, we find it necessary to review the nature and conditions of a valid Will under the Islamic law.
NATURE AND CONDITIONS OF A VALID WILL
The customary law concerning bequests in pre-Islamic Arabia did not concern itself with the disposition of the estate to the nearest relatives. The estates were distributed in accordance with the wishes of the deceased as stated in his statement.
A Person could make bequests in favour of any one, depriving his own parents, children and wives.3 In most cases bequests were made to whomever the deceased chose regardless of sex, belief and status in the society. It was also customary for the deceased to bequeath his whole estate.
The Qur'an modified the jahiliyyah system in order to guide them and to correct unjust customary laws on Wills and inheritance. The first bequest ayat from the Qur'an revealed to the Prophet (s.a.w) was made for parents and the nearest relatives and it also includes procedural matters regarding bequest. The Qur'an says:
It is prescribed, when death approaches any of you, if he leaves any goods, that he make a bequest to parent and next of kin, according to reasonable usage: this is due fkom the God-fearing.'
If anyone changes the bequest after hearing it, the guilt shall be on those who make the change. For Allah hears and knows (All things)'
The first ayat of the Qur'an mentioned above is generally known as the
"wasiya or bequest ayah " which was revealed when no revelation was yet fixed as to the rules of inheritance. Later the inheritance ayat superceded the bequest ayat, for both dealt with succession matters and the latter (the inheritance ayat) was
'
' A W Rahman Doi 1.1989. Shariah: The I s h i c h. Kuala Lumpm AS. Noordccn. p. 328.Al-Qur'aa A/-Baqarah 2: 180
'
AI-Qur'an. A/-Baqarah 2: 181S y a r i a l t a n d L a r v D i s c o u r s e I s s u e 4
more accurate in dividing the estate by giving fixed portions rather than by leaving it to the testator's discretion, for the testator may feel more inclined towards the people he favours, so giving them a greater portion of the estate, perhaps even more than he gives to his nearest r e l a t i ~ e s . ~ In addition to these, there are other Qur'anic ayat which clearly allowed the disposition of estate by bequest. The Qur7an says: (The distribution in all cases is) after the payment of legacies and debts."' This ayah was repeated four times in the Qur'an to be used for those who are not mentioned as Qur'anic heirs.
Islamic law, however, provides certain limitations in making a bequest in order to safeguard the inheritance rights of the legal heirs. These limitations can be attributed to the tradition of the Prophet (s.a.w) that the testator cannot dispose more than one third of his property by bequest. The second restriction concerns the rule, where the testator may not make a bequests in favour of his compulsory or legal heirs. Any bequest, however, made in favour of a legal heir may be allowed if other heirs consented. Ibn 'Abbas reported that the Prophet said: "No legacy is to be left to an heir unless the other heirs are agreeable."8 In similar case, Yahya reported that he heard Imam Malik said:
The established Sunnah with us, in which there is no dispute, is that it is not permitted for a testator to make a bequest (in addition to the fixed share) in favour of an heir, unless the other heirs permit him. If some of them permit him and the others refuse, he is also allowed to diminish the share of those who have given their full permission. Those who refuse (may) take their full share from the inheritan~e."~
If we look at this rule, it is seen that despite the meritorious purposes of the testator in executing a Will, the Islamic law of inheritance does not allow him to defeat the two-thirds rights of the legal heirs of the estate. We agree with an argument that this rule can avoid the enmity which may arise as a result of the P' eferential treatment of one of their number by the deceased in his Will.Io
There was a time that the validity of a bequest in favour of an heir became a controversial issue under the Islamic law of succession. The jurists in this respect expressed conflicting views. Under the Hanafi and the Hanbali Schools, a bequest in favour of an heir is valid but shall be effective only if consented to by other heirs after the testator's death. The Maliki School regards such a bequest invalidper se.
T h e shafiCi jurists are divided on the point, some favouring the ~ ~ l i k f i and others the Hanafi-Hanbali view." The Egyptian Law settled this controversy by a dopting the principle of Jafri (Ithna 'Ashari) School which provides that a in favour of an heir is valid and effective without regard to the consent of any other person.
r dZaid 1 986. The IsIamic Lmr of Bequest. London: Scorpion Pub]irhhg ~ d . P, 12
,
Al-~ur'an A1 Nisa'4:ll.~ i ~ h k a f 01-Mmabih, trans. by James Robson, Lahore: Sh Muhammad Ashraf, n.d., p.657.
mam
Malik, Al-Muwatta', trans. by Aisha and Ya'qub Johnson, Dewan Press, 1982, p.356.,a See J, ~ o u l s o n . 1971. Succession in the Muslim Family. Cambridge: University Printing House, p.239,
,,
hi^ Mahmood, Family Law Refonn in the Muslim World, op.cit., p.57.78 D i s k u s i S y a r i a h d o n U n d a n g - U n d a n g S i r 1 4
OBLIGATORY BEQUEST
The Doctrine of Obligatory Bequest was introduced in several Muslim countries as a special law to solve the problem of the exclusion of the orphan grandchildren of the testator by a provision prescribing an obligatory bequest in their favour equal to what the parent would have inherited had he survived, provided that this does not exceed the bequeathable third. This is a unique law bearing in mind that it does not exist in any known school of Islamic jurisprudence. It has been considered as an obligatory bequest because it will be put into effect by operation of law and through the voluntary act of the testator or he may or may not have so intended it. The purpose of this law is that if a person has several issues and any one of them, during his lifetime, dies living behind issues, thereafter he (the grandfather) dies and the issues of the deceased son, because of the existence of other sons of their grandfather, stand debarred from inheritance, and if grandfather and the grandmother make no Will in their favour, bequest to the extent of one- third of the property belonging to the deceased (grandfather) shall be considered to have been legally made in favour of the grandsons and granddaughters and one- third of the estate shall first be assigned to them. Thereafter, the rest of the estate shall be divided between the heirs."
One of those who recently adopted the obligatory bequest is the State of Selangor as clearly provided under the Wills Enactment 1999 that if a person dies without making any bequest to his grandchildren through his son who has predeceased him or dies with him at the same time, then his grandchildren are entitled to one-third of his estate." If such grandchildren are given a bequest that has a value that is less than one-third share of the estate of the testator, the will of the testator will have to be carried out in accordance with the doctrine of the obligatory bequest.I4 The obligatory bequest for the grandchildren will be to the extent of their father's share in the estate of their deceased grandfather, on the presumption that the grandfather had predeceased the father, and provided that the obligatory bequest does not exceed one-third of the value of the deceased's estate.15 However, the Selangor Enactment provides that the grandchildren are not entitled to the obligatory bequest in the following cases:
a) If the grandchildren have inherited from their grandfather or grandmother (as the case may be).I6
b) If the grandfather or grandmother had, during his or her lifetime and, without having received any consideration made a bequest to the grandchildren or gave them property equivalent to what they would have been entitled to receive according to the obligatory bequesti7
According to this Enactment, if the bequest is less than what they would have been entitled to, it must be increased accordingly and, if it was more, the excess shall
'2Tanzil-ul-Rahman,. 1980. A Code of Muslim Personal h Karachi: Islamic Publishers. p.2 13.
l 3 Selangor Wills Enactment, 1999, s 27 (1)
I' Ibid.
lJ Ibid. s27 (2).
l6 Ibid. s 27 (3).
Ibid.
S y a r i a h a n d L a w D i s c o z ~ r s e I s s u e 4
79 be treated as a voluntary bequest which requires the consent of (all the) heirs after the grandmother or grandfather dies.I8
BACKGROUND AND SOURCES
The ~ r i n c i p l e of obligatory bequest was borrowed from the modern law of Syria, Tunisia and Morocco, which in turn was borrowed by them from Egypt. The Egyptian Law of Bequest, 1946, introduced the obligatory bequest, purposely, to make a provision for orphan grandchildren of the testator. Under the Egyptian and Tunisian laws, the children of a predeceased son or daughter, who would be excluded from the succession are entitled of what the parents would have inherited had he or she survived, provided that such a bequest shall not exceed a third of the whole estate of the deceased.Ig According to the Syrian and Moroccan laws, the right to an obligatory bequest is available to the children of a predeceased son (how low soever), so that the children who would be excluded from succession are entitled to the share of their father had he survived the praepositus provided that it shall not exceed a third of the estate.20 In the Philippines, Article 107 of the
slim
Code provides that, "Should the testator die without having made a bequest in favour of any child of his son who predeceased him, or who simultaneously dies with him, such child shall be entitled to one-third of the share that would have pertained to the father if he was alive."2' This provision is almost identical with the corresponding provisions under the Syrian and the Moroccan laws and the selangor Wills Enactment mentioned above. Their difference lies on the share to b e received by the children of a predeceased son. Under the Philippines Muslim c o d e , the said children will be entitled to one-third of the share that would have P ertained to the father (the predeceased son) if he was alive; whereas, in Syria, Morocco and Selangor, the children of a predeceased son or agnatic grandson who would be excluded from succession under the traditional law are now entitled to either the share of the inheritance their father received had he survived the r a e p o s i t ~ ~ or one-third of the net estate, whichever is less. In other words, fhe grandchildren under the Selangor Enactment and the Syrian and Moroccan laws will receive more share from the estate of the deceased than those P rovided under the Philippine's Muslim Code.~anzil-ul-Rahman pointed out that the statutory provisions on obligatory bequest under Section 76, 77 and 78 of the Egyptian Law, in spirit, appear to be based 0" the opinions of some of the successors of the Companions of the Prophet (s. a. W ) like Abdullah b. Abi Awfa, Talha b. Mutrif, Ta'us, Sha'bi and others and, among the traditionalists, Imam Ibn H a ~ m . ~ ~
Y 181bid.
,9 191, The Tunisian Code. Art. 76-79, The Egyptian Law ofBequest, 1946.
20&cle 257, Syrian Law of Personal Stam, 1953. Art. 266-267, Moroccan Code ofPersonal Status, 1958
21 m i c l e 107, Code of Muslim Personal Laws in the Philippines or Presidential Decree 1083.
zz Tanzil-ul-Rahman, A Code of Muslim Personal Lows, op.cit. p. 2 14.
D i s k u s i S y a r i a h d o n U n d a n g - U n d a n g S i r i 4
They believed that the doctrine of obligatory bequest has been derived from and based upon the authority of the Qur'an itself as follows:
It is prescribed when death approaches any of you if he leave any goods, that he make a bequest to parents and next of kin, according to reasonable usage; this is due from the God fearing.23
Some Muslim jurists believed that this ayah had been completely repealed by the later Qur'anic rules of inheritance and the tradition stated by the Prophet:
"God has bestowed upon every entitled one his right (and) now there is no Will for any heir at all."24 With this verse from the Qur'an and the tradition mentioned above, some ulama asserted that it is not obligatory to make a bequest in favour of relatives whether they be heirs or non-heirs. However, other jurists (including the father of Muslim jurisprudence himself, Al-Shafi'i) held that the ayah was repealed only in respect of those close relatives who actually received a share of inheritance, and that it was still desirable at least for bequests to be made in favour of other close relatives. There are also ulama who based it on the tradition of the Prophet: "A Muslim who holds property has no right to pass even two nights without making and keeping a written Will with him."25 With this tradition, they claimed that it is obligatory for Muslim to make a will.
As mentioned above that Imam Ibn Hazm was one of those who argued that making a bequests in favour of non-heir relatives is obligatory. Thus, if the deceased failed to fulfill an obligatory act, it is proper for others to perform it on behalf of the deceased. It is believed that the modem legislations of Egypt on Obligatory bequests appear to have been based basically on this rule of conduct. According to Ibn Hazm, the performance of such duties by an officer of the court shall be equally valid provided that the quantum of the will shall in no case be more than one-third of the estate of the deceased. In other words, the court can adjudicate the case by fulfilling the obligation of the testator, as if the bequest have been duly accepted by the issues of the predeceased son. Ibn Hazm explained that the meaning of relatives is not limited to the category of grandsons and granddaughters, rather an obligatory bequest can be made in favour of the relatives of the mother and the father who are destitute or under miserable condition. However, when we turn to the statutory provisions made on obligatory bequest under the Egyptian, Syrian and Moroccan laws as well as under the Philippine' Muslim Code and the Selangor Enactment, we find that it is limited to the grandchildren of the testator. Thus, we submit that this limitation is considered as an innovation based on the principle of Ibn Hazm.
--
a Al-Qur'an. Al-Beqarah 2: 180.
Mishkat Al-Ma#abih, Kmchi, p. 265. See Td-ul-Rahaum, A Codr o j W & n P m d Lmop.ctt. ~ 2 1 2 . uMuhammad W M u s a Cairo. 1960. p.340 See T d - i l R.hmmr. A Codr o f ~ I i m P m o t m I b . ~ . c i l .
S y a r i a l l a n d L a w D i s c o u r s e l s s u e 4
81 DISTINCTIONS AND SIMILARITIES
There are two significant points of distinction between the obligatory bequest under the Selangor Enactment (as well as Syrian and Moroccan law) and the Egyptian law.
First, under the Selangor Enactment, the newly introduced right shall be available to the children of the predeceased son (or son's how low soever under Syrian and Moroccan laws) and not to the children of a predeceased daughter as well, as under the Egyptian law;
Secondly, the Selangor Enactment is silent on how such entitlement for obligatory bequest should be apportioned among the children of the predeceased son. There is no problem if the children of the predeceased son are all males in the degree. However, if the predeceased son is survived only by his son and daughter, what principle should be applied? Is the traditional principle of ta 'sib applicable to the one-third of the share that would have pertained to their father had he survived? This kind of measure has been adopted under the Egyptian law which that the share of each predeceased descendant has to be divided among his or her heirs in accordance with the rule of 'double shares for the males.' But under the Selangor Enactment, there seems to be a vacuum on this principle.
Third, another point of difference is, if the Will provides more than the bequeathable one-third, the Selangor Enactment stated that the excess shall be treated as a voluntary Will which requires the consent of all the heirs. Under the Egyptian law, the excess will be governed by the general law of testamentary succession based on the Jafri (Ithna 'Ashari) law which provides that a bequest in favour of an heir is valid and effective without regard to the consent of any other person.
On the similarities between the Obligatory bequest provided under the selangor Enactment and the Egyptian Law, it can be said as follows:
First, both laws expressly provide that the whole share of a predeceased child would go to his issues (or her issues under Egyptian Law).
Second, The two systems agreed that the grandchildren will not be entitled to an ~bligatory bequest if the grandparent has already made in their favour either a bequest or gift inter vivos equivalent to what would otherwise be the amount of the obligatory bequest or if the testator had, during his or her lifetime and, without having received any consideration, made a bequest to the grandchildren
,,
gave them property equivalent to what they would have been entitled to receive according to the obligatory bequest.82 D i s k u s i S y a r i a h d a n U n d a n g - U n d a n g S i r i 4
Comparing the obligatory bequest under the Selangor Enactment with the Syrian and the Moroccan laws, they are almost in perfect accord except that based on the modem legislations of these two countries, the benefit under the law of obligatory bequest is given to the lineal descendants (how low soever) of a predeceased son of the prepositus, which is "in accord with the traditional Hanafi law under which agnacy is the primary basis of right to i n h e r i t a n ~ e . " ~ ~ Under the Selangor Enactment, it shows that obligatory bequest applies only to the first lineal descendant of a predeceased son of the praepositus.
ANALYSIS ON THE EXCLUSION OF PREDECEASED DAUGHTER'S CHILDREN
Questions arise as to why the right is not available to the issues of a predeceased daughter of the deceased (except under the Egyptian law). According to one commentator:
Sentiments such as sympathy towards orphans in their helplessness may enter into the case of the children of the predeceased son. Their case is also legally stronger as they are the agnates of the deceased, but the children of the predeceased daughter are neither legally in the same footing as the children of the son nor on any sentimental grounds. The predeceased daughter's children are not absolutely helpless as they have the fullest right to inherit from their father's side.27
There are some ulama who believed that this limitation set by the statutory provision which is for the issues of predeceased son only is inconsistent with its declare aim and object. As clearly provided that the objectives for enacting the law of obligatory bequest is to support the relatives who are in untold miserable condition without the means of supporting themselves but then, they have been deprived of their inheritance through the presence of a relative nearer than themselves to the deceased. In such circumstances, the issues of the predeceased daughter should be given the same right under the obligatory bequest. In Egypt, it is clearly provided under the Law of Bequests, 1946, that this principle shall be applicable, among the descendants of a predeceased daughter, to the first generation only, but among those of a predeceased son agnatic descendants how low soever will have its benefit.28
DOCTRINE OF REPRESENTATION
The Islamic law of succession under which the nearer relations always exclude remoter relations in the same category does not recognize the Doctrine of Representation. The general rule is, if a son of the praepositus is living at the time of his or her death, no grandson can claim any share in the estate left by the
Anderson and Coulson. Islamic Luw in Contempormy CulMolChange (Saccdum XVIII) Heft. 1-2/1967. p.83, cited in Tahir Mahmood. Family Law Reform in the Modrm World. op. cit. p.289.
nA.B.M SultanuI Alam Chowdhury, % F'rob1e-m of reprcscntatiw in the Muslim Law of Inheritance," Isl& St*
Journal. Vo1.3. N0.3 (1964). p.384.
Tahir Mahmood. Family Reform in the hthlim World op.cit. p.58.
S y a r i a h o n d L a w D i s c o l r r s e I s s u e 4
83 p r a e p o s i t ~ ~ . This doctrine is known to have been implemented by Pakistan under the Family Law Ordinance (1961), which advocates the rule of representational succession by lineal descendants as part of the laws of inheritance. Section 4 of this Ordinance provides that, "In the event of the death of any son or daughter of the praepositus before the opening of the succession, the children of such son or daughter shall receive p e r stripes a share equivalent to that which son or daughter would have receive if alive." This is the most controversial aspect of the Ordinance because the ulama considered it as in contravention of the Islamic law of inheritance. It has been criticized not only by the ulama but also by the Western and Oriental scholars in introducing the principle of representation to overturn the fundamental rule, "the nearer excludes the more remote. An author from the West describe the "havoc it plays with traditional Sharicah system" in such a way that this doctrine would upset "the delicate balance achieved by the shariCah between the two distinct categories of heirs."29 Because of the anomalous situation created by this, the courts of Pakistan disagree over its interpretation.
The strict interpretation of Section 4 of the Ordinance was applied in the case of Mrs Zarina J a n v. Mst. Akbar Jan3' based on the following facts: P leaves daughter and daughter of a predeceased son. The Lower Appellate Court decided in favour of the deceased's daughter by awarding her two thirds of the deceased's estate (one-third as heir to her father and one-third as heir to her predeceased brother).
This decision was reversed by the Peshawar High Court by accepting the appeal of the granddaughter. In effect, the granddaughter inherited the full two-thirds share which her father would have inherited from the parent had he been alive at the time of the deceased's death. According to the High Court, the Lower Appellate Court erred in opening the succession (of the predeceased son of P) for division between his daughter (P's granddaughter) and sister (P's d a ~ g h t e r ) . ~ ' The strict of section 4 as applied in this case (Mst. Zarina J a n v. Mst Akbar l a n ) is deemed to be inconsistent and opposed to the Islamic law of inheritance.
The courts disagreement over the interpretation of section 4 has been eventually concluded by the Supreme Court of Pakistan in the case of Mst. Zainab
,,.
~ ~ m a l Khan.32 This case arose on the following facts: The deceased was survived by the daughter of a predeceased son and the son of a predeceased brother. The Supreme Court applied the interpretation of Section 4 of the Ordinance propounded by the Lahore High Court. Section 4 of the Ordinance was re-wrote in deciding the case mentioned above as if that section reads:"In the event of the death of any son or daughter of the propositus before the opening of succession, such predeceased child shall be allotted a notional share equivalent to what he or she, as the case may be, would have received if alive. This notional share shall then be distributed among the heirs of the predeceased child, as if that child had died immediately after his uarent." -
z e I S o n . 1965. Recent Reforms in the Islamic Low oflnheritance. 14 I.C.L.Q. 59.
,,
~ L D 1975 Peshawar 252.3 1 &id. at 254
,z PLD 1990 Supreme Court 105 1.
D i s k u s i S y a r i a h d o n U n d a n g - U n d a n g S i r i 4
In effect, the Lahore High Court distributed the whole estate among the heirs of the predeceased son, i.e., his daughter (taking one-half as Qur'anic heir) and his male agnatic cousin (taking the remaining one-half as residuary).
According to the Supreme Court, the contention that the appellant (daughter of P's son) would inherit the entire share of her father being the sole surviving child, is against the principle of Islamic law of inheritance. She would get whatever she would be entitled to get on the death of her father. The intention of Section 4 is to safeguard the interest of the children of predeceased son and not to deprived the other heirs of the propositus of their due." The interpretation adopted by the Supreme Court in this case is the recent reform in making the Ordinance consistent to the principle of the Islamic law.
DIFFERENCE BETWEEN OBLIGATORY BEQUEST AND THE DOCTRINE OF REPRESENTATION
The obligatory bequests cannot be treated as based equally with the doctrine of representation as applied in Pakistan. Despite the recent development in the interpretation of section 4 of the Pakistan Ordinance, it greatly differs from the obligatory bequests adopted by some Muslim countries. There are two significant points of distinction:
First, the doctrine of representation adopted in Pakistan lead to anomalous situations and disturbs the scheme of intestate succession under the Islamic law of succession. Under the obligatory bequests, the structure of the Islamic law of intestate is not affected because the Court will act as though, a bequest had practically been made by the grandfather to the children of the predeceased son.
Second, the Obligatory Bequests has been considered as a supplement to the Islamic law of inheritance because it makes provision for orphaned grandchildren while it leaves completely untouched the structure of the Islamic law of intestate.
KD
1990 Supreme Court 1057.In considering the distinguishing features of these two principles, we might say that the obligatory bequest is more consistent with Islamic law of succession than the doctrine of representation. However, whatever their differences, both devices have the purpose of ameliorating the position of the orphaned grandchildren of the praepositus.
j y a r i a h a n d L a w D i s c o u r s e I s s u e 4
CONCLUSION
obligatory bequest has been the major subject of reform made under the Islamic law of succession. It has been adopted by some Muslim countries and other states with Muslim minorities. However, based on the comparisons made on how they implemented it, it shows that there is no absolute uniformity among them. It is believed that if they have differences in applying the doctrine, it is because each country springs from different schools or based on the process of how they re- interpreted the provisions of the Qur'an and the Sunnah and also the way how they employed Ijtihad. There are countries that used to solve the minor problems arising during the course of the practical application of the inheritance law in Islam by giving peculiar interpretations to make it in accordance with the national law or modern legislation and to accommodate local custom and usage; and sometime solution given become an issue because some ulama believed that it is purely innovation, therefore, it is contrary to the jurisprudential theories of'1slam.
Nowadays, if we want to avoid the application of secular laws, Muslim law should be broad based and the provisions of all accepted schools of$gh be taken into consideration. The Prophet said: "Diversity of opinion among my people is a mercy from God."' This tradition has a significant implication on the flexibility of Islamic legal system. In line with this, it is believed that with the compulsory application of the Islamic law of Inheritance and the restriction that law imposes on the exclusion of remote relatives, it is justified to make a
P revision
on obligatory Will to fulfill the right of the grandchildren debarred from receiving the share of their predeceased parent after the testator's death.In the so-called doctrine of representation, we can see that the application is causing final subversion to the Islamic law because it upsets the scheme of which has been held unalterable and sacrosanct by the Muslim jurists.
~f this principle will not be reformed within the bounds of the strict rules of law, time may come, that it should be applied with other non-heirs cases This doctrine has been regarded by some Muslim authors as an extra- doctrinal reform which goes beyond the limits of Islamic juristic opinion.
sdd.
1931 Muhammadan Lmv An Abridgment Lmdon : p.17. See Tahir Mahmood. Farnib ~ n . R ~in the . wli,,, world. op.cit. p.267.x.:
.86 D i s k u s i S y a r i o h d u n U n d a n g - U n d a n g S i r i 4
BIBLIOGRAPHY
Ali, Abdullah Yusuf. 1992. The Meaning of the Holy Qur'an. Brentwood: Amana Corporation.
Ali Khan, Muhammad Mustafa. 1989 Islamic law of Inheritance, A New Approach.
New Delhi: Kitab Bhavan. 1989.
Ali, Syeed Amir. 1976 Mohammedan Law. Lahore: Law Publishing Company.
Anderson, J.N.D. 1959 Islamic Law in the Modern World. Connecticut: Greenwood Press.
Chowdry, A.B.M Sultanul Alam. 1964 "The Problem of Representation in the Muslim Law of Inheritance." Islamic Studies Journal. Vol3, No.3, September 1964.
PP.
375-391.
Coulson, N.J. 197 1 Succession in the Muslim Family. Cambridge: University Press.
Doi, 'Abd al-Rahman I. 1989 Sharpah: The Islamic Law. Kuala Lumpur: A.S.
Noordeen.
Egyptian Law of Testamentary Disposition, 1946.
Esposito, John L. 1974 M i l i m Family Law in Egypt and Pakistan: A Critical Analysis of Legal Reform, Its Sources and Methodological Problems. (Ph.D.
Dissertation, Temple University, 1974). Ann Arbor, Michigan: Xerox University Microfilms.
Mahmood, Tahir. 1972 Family Law Reform in the Muslim World. New Delhi: Indian Law Institute.
Marican Pawancheek, 2004 Islamic Law of Inheritance. Kuala Lumpur: Malayan Law Journal Sdn Bhd.
Moroccan Code of Personal Status, 1958.
Pakistan Muslim Family Laws Ordinance, 196 1.
Presidential Decree No. 1083 (February 14, 1977) otherwise known as the Code of Muslim Personal Laws of the Philippines.
Rahman, Tanzil-ur. A Code of Mtrslim Personal Law. Karachi: Islamic Publishers, 1980.
Selangor Administration of Islamic Law Enactment, 1999.
Syrian Law of Personal Status, 1953.
Tunisian Code of Personal Status, 1956.
Zaid, Abdul Aziz Muhammad. The Islamic Law of Bequest. London: Scorpion Publishing Ltd., 1986.
