Letter to the Editor
Dependants should be made EPF beneficiaries
9 September 2002

Sisters in Islam (SIS) agrees with Wanita Barisan Nasional chief Datuk Seri Rafidah Aziz that it is necessary to safeguard the interests of women who find themselves in the lurch upon their husbands’ death (NST, September 9, 2002). However, SIS is very worried that the suggestion made by the Wanita BN i.e. to make it compulsory for a married man or woman to name the spouse as the main beneficiary would in fact backfire and cause further discrimination against Muslim women in particular. Unlike the civil law for non-Muslims which has now abolished polygamy and unequal distribution of inheritance between men and women, the Muslims have to take into consideration the issues of polygamy and the faraid system of inheritance.

First of all, the law allows a Muslim man to have more than one wife, and the Wanita BN chief said it could be left to him which wife he wanted to name as the main beneficiary. This could cause very grave injustice in cases where the man might name his new wife and leave the first wife to whom he had been married for a long time in the lurch. Such an act would also be completely against the Qur’anic injunction in Surah an-Nisa’ 4 : 3 which only permits polygamy in situations where the man would not deal unjustly with his wife. The financial rights of the first wife should in fact be given the greatest consideration in polygamous marriages, as in many cases in these days the husband had married the first wife when he was comparatively poor and then when he becomes wealthy, he married another woman.

Secondly, SIS is concerned with the possible discriminatory effect of selective gender neutral provisions which, due to certain other factors, have the effect of discriminating against Muslim women. The suggestion that it should also be compulsory for a married woman to name her spouse as the main EPF beneficiary would lead to such discriminatory results. One of the results would be that in polygamous marriages, the husband would be able to benefit from the EPF funds of all his wives, and the wives’ children, parents or other relatives could be left in the lurch.

Justice is a central notion of the syariah in its broader sense. In order to ensure that justice be done to Muslims in general and Muslim women in particular, certain concepts on property, financial rights and responsibilities need to be properly understood. It is unfortunate that the administration of the syariah laws on inheritance emphasize the provision that male heirs be given a double share under the faraid distribution, without emphasizing on the rationale for this rule — that the man has the legal responsibility to provide maintenance for the family, and thus every female should always have a man to provide for her needs, be he a father, a brother, a husband or a son. In today’s society, however, many women have to earn their own living and provide for their own needs, and widowed and divorced mothers often have to provide for their children’s needs. There is no mechanism in the present legal system for women to obtain the redress that would reflect on the balance and justice that was originally intended by the syariah. In the past, the concept of men receiving a greater share in inheritance was not a feature that was special to Islamic law. For instance, the Distribution Act 1958 for non-Muslims previously provided that the husband of a deceased woman would receive the whole of her estate, while the wife of a deceased man would only receive one third of his estate if he had children, or one half if he had no children. However, this discrimination against non-Muslim women has been removed in the 1990s with the amendment to the Distribution Act.

It is therefore proposed that firstly, a distinction should be clarified between the properties which would form the deceased Muslim’s estate (pusaka), and the maintenance funds (dana nafkah) which are not actually property but has been set aside in the interests of the deceased and his immediate dependants. Secondly, a distinction should be clarified between heirs (waris) for the pusaka, and dependants (orang tanggungan) for the maintenance funds. The concept of dependants should be understood in accordance with Islamic principles. A man’s wife and children are his main dependants, but a woman’s husband is not her dependant. It is a man’s responsibility to provide for the maintenance of his wife and children. This concept of “maintenance funds for dependants” could be applied for making it compulsory for a deceased man’s EPF funds to be used mainly for the benefit of his wife, and perhaps his children. On the other hand, in the case of a woman, since her husband is not her dependant, the EPF funds should be used mainly for the benefit of her dependant children, and perhaps, of her aged parents, in cases where the woman has been contributing towards their financial support. It might also be pointed out that there might be a few individual cases where the funds available would be more than sufficient for reasonable provision to be made for the man’s wife and children, but he had also left aged parents who are in need of financial support. It is further proposed that in such situations a certain discretion and flexibility may be necessary to ensure justice by applying the “maintenance funds for dependants” concept.