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Published online by Cambridge University Press: 16 April 2015
This paper examines the relationship between three religio-legal traditions and their interactions and responses to the concept of gender equality as reflected in their inheritance practices. Specifically, questions of accommodation and authenticity will be explored through the Hindu, Confucian and Islamic traditions as they exist in contemporary India, Singapore and Hong Kong. While the primary focus will be on the current state of law and practice, the paper will begin personal laws during the period of British colonization. The impact of British jurisprudence will be recounted as background to understanding the contemporary state of the three traditions. For India and Singapore this history will include the impact of their independence movements on their personal laws. Hong Kong's history will include the impact of the territory's return to China.
1 Baxi, Upendra, “The Colonialist Heritage” in Legrand, Pierre & Munday, Roderick, eds., Comparative Legal Studies: Traditions and Transitions (New York: Cambridge University Press, 2003) at 50 Google Scholar.
2 I see “authenticity” as a dynamic concept which, like beauty, is in the eye of the beholder. A belief system is perceived as authentic when it has the power to gather “people together in collectives that are felt to be real, essential, and vital, providing participants with meaning, unity, and a surpassing sense of belonging.” (Quoted passage taken from Lindholm, Charles, Culture and Authenticity (Maiden, MA: Blackwell Publishing, 2008) at 1.Google Scholar)
3 I have borrowed here the term coined by Warren, Mary Anne in her work, Gendercide: The Implications of Sex Selection (Totowa, N.J.: Rowman and Allanheld, 1985)Google Scholar. The term so captured the essence of the problem that it has come into common usage, being now the title of a website (www.gendercide.org (last accessed on 25 July 2011)) and employed by The Economist to describe the issue. (See Anonymous, “Gendercide: The Worldwide War on Baby Girls” The Economist (4 March 2010), online: <http://www.economist.com/node/15636231> (last accessed 4on 25 July 2011.)+(last+accessed+4on+25+July+2011.)>Google ScholarPubMed
4 From the website Gendercide Watch – What is gendercide?, online: <http://www.gendercide.org/what_is_gendercide.html>.
5 Anonymous, The Economist (4 March 2010), online: <http://www.economist.com/node/15636231> (last accessed on 25 July 2011).
6 Ibid.
7 Ibid.
8 Ibid.
9 See Ying, Tan Liang, “Changing Mindsets: How China's Abnormal Sex Ratio Is Turning Its Government into a Champion of Gender Equality” (2008) 3 As. J.C.L 27 Google Scholar.
10 From the CIA Factbook website, online: <https://www.cia.gov/library/publications/the-world-factbook/fields/2018.html> (last accessed on 11 September 2011).
11 Ibid.
12 Agarwal, Bina, A Field of One's Own: Gender and Land Rights in South Asia (Cambridge, England; New York, USA: Cambridge University Press, 1994) at 28 Google Scholar.
13 Ibid. at 29, citing Kumar's, S. K. “Role of the Household Economy in Child Nutrition at Low Incomes”, Occasional Paper No. 95, Dept. of Agricultural Economics, Cornell University (1978)Google Scholar; and Gulati's, L. “Profile of a Female Agricultural Labourer”, Review of Agriculture, Economic and Political Weekly (25 March 1978) at A27–A47 Google Scholar.
14 Petersen, Carole J., “Engendering a Legal System: The Unique Challenge of Postcolonial Hong Kong” in Lee, Eliza W. Y., ed., Gender and Change in Hong Kong: Globalization, Postcolonialism, and Chinese Patriarchy (Vancouver, B.C.: University of British Columbia Press, 2003) at 23 Google Scholar.
15 According to the Office of the United Nations High Commissioner for Human Rights (as stated on its website, online: Office of the United Nations High Commissioner for Human Rights <http://www2.ohchr.org/english/bodies/cedaw/convention.htm> (last accessed on 15 September 2011)), the Convention was adopted on 18 December 1979 by the UN General Assembly. The Convention, according to the website, “is often described as an international bill of rights for women.”
16 CEDAW website, <http://www.un.org/womenwatch/daw/cedaw/states.htm> (last accessed on 21 April 2009).
17 Ibid.
18 Ibid. See also the website for the Centre for Comparative and Public Law at the Faculty of Law, the University of Hong Kong, <http://www.hku.hk/ccpl/research_projects_issues/cedaw /index.html> (last accessed on 21 April 2009).
19 Carole J. Petersen, “Engendering a Legal System”, supra note 14 at 23.
20 Centre for Comparative and Public Law at the Faculty of Law, the University of Hong Kong, online: <http://www.hku.hk/ccpl/research_projects_issues/cedaw/index.html> (last accessed on 21 April 2009).
21 From the quote appearing in “The Command of Language and the Language of Command” in Cohn, Bernard S., Colonialism and Its Forms of Knowledge – The British in India (Princeton, New Jersey: Princeton University Press, 1996) at 26 Google Scholar citing to “Reports from Committees of the House of Commons…” 1772-1773 at 4:348-50.
22 Desai, Sunderlal T., Mulla Principles of Hindu Law, 15th ed. (Bombay: N.M. Tripathi Private Limited, 1982) at s. 21Google Scholar.
23 Although the period under discussion predates partition and the creation of India's States, geographical references are generally to regions and States as they exist within contemporary India only, unless otherwise noted.
24 Sunderlal T. Desai, Mulla Principles of Hindu Law, supra note 22 at s. 22.
25 Ibid. at s. 33.
26 Ibid. at s. 33(2).
27 Ibid. at s. 24.
28 Bina Agarwal, A Field of One's Own, supra note 12 at 86.
29 Carroll, Lucy, “Daughter's Right of Inheritance in India: A Perspective on the Problem of Dowry” Vol. 25, No. 4 (Oct. 1991) Modern Asian Studies 791-809 at 791–792 CrossRefGoogle Scholar.
30 Ibid. at 792.
31 Sunderlal T. Desai, Mulla Principles of Hindu Law, supra note 22 at s. 78.
32 Bina Agarwal, A Field of One's Own, supra note 12 at 88.
33 Ibid.
34 Ibid.
35 Sunderlal T. Desai, Mulla Principles of Hindu Law, supra note 22 at s. 112.
36 Ibid. at s. 124.
37 Ibid.
38 Ibid. at s. 130.
39 Ibid. at s. 147.
40 Ibid. at ss. 168-169.
41 Coulson, N.J., Succession in the Muslim Family (Cambridge, England: Cambridge University Press, 1971) at 4–5 CrossRefGoogle Scholar.
42 Ibid. at 4.
43 Ibid.
44 Ibid.
45 Ibid. at 5.
46 Ibid.
47 Ibid.
48 Hooker, M.B., Islamic Law in South-East Asia (Singapore: Oxford University Press, 1984) at 3 Google Scholar.
49 Carroll, Lucy, “Orphaned Grandchildren in Islamic Law of Succession: Reform and Islamization in Pakistan” (1998) Vol. 5 No. 3 The Islamic Inheritance System, Islamic Law and Society 409–447 at 415CrossRefGoogle Scholar.
50 Pearl, David, A Textbook on Muslim Personal Law, 2nd ed. (London; Wolfeboro, N.H.: Croom Helm, 1987) at 149 Google Scholar.
51 See Withers-Payne, C.H., The Mahomedan Law of Inheritance According to the School of Shafi'i (Singapore: Printers Limited, 1932) at Appendix I, footnote (a)Google Scholar.
52 These shares are calculated in accordance with the “Table of Succession According to the Shafi'i School of Law” provided in Ibrahim, Ahmad Professor, The Distribution of Estates According to Shafi'i Law (Singapore: Malayan Law Journal Pte. Ltd., 1976)Google Scholar.
53 Powers, David S., “The Islamic Inheritance System: A Socio-Historical Approach” (1993) Vol. 8 No. 1 Arab Law Quarterly 13–29 at 21CrossRefGoogle Scholar.
54 David Pearl, A Textbook on Muslim Personal Law, supra note 50 at 189.
55 David S. Powers, “The Islamic Inheritance System”, supra note 53 at 21.
56 This qualification reflects the diminished availability or utility of gifts to a waqf as is discussed below.
57 David S. Powers, “The Islamic inheritance System”, supra note 53 at 21; at 22, Powers qualifies this by stating that the donor may not favor one child over another.
58 Bina Agarwal, A Field of One's Own, supra note 12 at 98.
59 Ibid.
60 Karim, Wazir Jahan, Women and Culture: Between Malay Adat and Islam (Boulder: Westview Press, 1992) at 14 Google Scholar.
61 Ibid.
62 Peletz, Michael G., “Social History and Evolution in the Interrelationship of Adat and Islam in Rembau, Negeri Sembilan” (1981) Research Notes and Discussions Paper No. 27, Institute of Southeast Asian Studies at 1 Google Scholar.
63 Wazir Jahan Karim, Women and Culture: Between Malay Adat and Islam, supra note 60 at 12.
64 Ibid. at 5.
65 Kozlowski, Gregory C., “Muslim Women and Control of Property in North India” in Women in Colonial India: Essays on Survival, Work and the State, Indian Economic and Social History Review (Delhi: Oxford University Press, 1989) 114–132 at 116Google Scholar.
66 Ibid. at 117.
67 Wakefield, David, Fenjia: Household Division and Inheritance in Qing and Republican China (Honolulu, Hawai'i: University of Hawai'i Press, 1998) at 12 Google Scholar.
68 Ibid.
69 McGovern, William M. Jr., Kurtz, Sheldon F. & Rein, Jan Ellen, Wills, Trusts and Estates – Including Taxation and Future Interests (St. Paul, Minn.: West Publishing Co., 1988) at 3, §1.2Google Scholar.
70 The Romanisation of Chinese characters employed here is the same as that used by the courts at the time.
71 See In The Goods of Lao Leong An [1893] 1 SSLR 1 Google Scholar and The King v. Sim Boon Lip (1902-1903) VII SSLR 4 Google Scholar.
72 [1911] XII SSLR 120; [1908] SSLR 2.
73 See Part XI, s. 246 and List III of the Seventh Schedule of the Indian Constitution.
74 Bina Agarwal, A Field of One's Own, supra note 12 at 214.
75 From Jain, Sonu, “Women didn't receive rights without struggle” The Indian Express (13 September 2005), online: <www.binaagarwal.com/popular%20writings/hsaa_interview%20_indianexpress_13sep05.pdf> (last accessed on 19 July 2010)Google Scholar.
76 Bina Agarwal, A Field of One's Own, supra note 12 at 214, citing to Sivaramayya, B., “The Hindu Succession (Andhra Pradesh) Amendment Act 1985: A Move in the Wrong Direction” (1988) 20(2) Journal of the Indian Law Institute 166–173 Google Scholar; and The Hindu Succession (Tamil Nadu Amendment) Act 1989 (Act No. 1 of 1989).
77 Supra note 75.
78 Ibid.
79 Agarwal, Bina, “Landmark step to gender equality” The Hindu (25 September 2005), online: <http://www.binaagarwal.com/popular%20writings/Landmark%20Step%20to%20Gender%20Equality%20TheHindu_25sep05.pdf> (last accessed on 19 July 2010)Google Scholar.
80 Ibid.
81 Brulé, Rachel, “Changes in India's Property Rights Regime and the Implications for Improved Gender Parity: Evidence from Regression Discontinuity Analysis of Panel Data for 17 Indian States” at 2 (draft as of 1 September 2010), online: <http://ssrn.com/abstract=1670882> (last accessed on 30 October 2010)Google Scholar. For the quoted proposition, Brulé, cites both her own research and that of Deininger, Klaus, Nagarajan, Hari & Goyal, Aparajita, “Can Changes in Inheritance Legislation Improve Female Asset Ownership? Evidence from India's Hindu Succession Act” (2010) Working Paper, The World Bank Google Scholar.
82 Rachel Brulé, “Changes in India's Property Rights Regime and the Implications for Improved Gender Parity”, ibid. Brulé's work focuses a statistical analysis of the phenomenon of improved gender parity and does not provide a detailed analysis of the causal factors.
83 See Ahmad, Imtiaz, “Personal Laws: Promoting Reform from Within” Vol. 30, No. 45 (Nov. 11, 1995) Economic and Political Weekly at 2851–2852 Google Scholar; see also Vatuk, Sylvia, “Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal Law” (2008) 42, 2/3 Modern Asian Studies 489–518 CrossRefGoogle Scholar.
84 Nair, Janaki, Women and Law in Colonial India: A Social History (New Delhi: Kali for Women, 1996) at 192 Google Scholar.
85 Ibid. at 192-193.
86 Agarwal, Bina, “Women's Inheritance: next steps” The Indian Express (17 October 2005), online: <http://www.binaagarwal.com/popular%20writings/Women%27s%20Inheritance_%20Next%20Steps%20IndianExpress_17Oct05.pdf> (last accessed on 19 July 2010)Google Scholar.
87 Ibid.
88 Administration of Muslim Law Act (Cap. 3, 2009 Rev. Ed. Sing.), s. 111(1).
89 Ibid., s. 34.
90 Shafeeg bin Salim Talib and another v. Fatimah bte Abud bin Talib and others [2010] 2 SLR 1123 at [27]Google Scholar.
91 Ibid. at [35]-[49].
92 Saniah bte Ali & Ors v. Abdullah bin Ali [1990] 3 MLJ 135.
93 Saniah bte Ali & Ors v. Abdullah bin Ali [1990] 3 MLJ 135 Google Scholar and Shafeeg bin Salim Talib and another v. Fatimah bte Abud bin Talib and others [2010] 2 SLR 1123 at [63]Google Scholar.
94 See David S. Powers, “The Islamic Inheritance System”, supra note 53.
95 Kum, Leong Wai, “Fifty Years and More of the Women's Charter of Singapore” (2008) S.J.L.S. 1–24 at 2Google Scholar.
96 Ibid.
97 Ibid. at 3.
98 Ibid. at 3, citing to Sing, ., Government Gazette Extraordinary, vol. 14, no. 51 (Singapore: Government Printing Office, 1959)Google Scholar.
99 Leong Wai Kum, “Fifty Years and More of the Women's Charter of Singapore”, supra note 95 at 3, citing to Sing, . Legislative Assembly Debates, vol. 14, no. 2, cols. 1545-1547 (24 May 1961)Google Scholar.
100 [1957] HKLR 420.
101 Wong Yu Shi and Others v. Wong Ying Kuen [1957] HKLR 420 at 443 Google Scholar.
102 Evans, D.M. Emrys, “The New Law of Succession in Hong Kong” (1973) 3 Hong Kong L. J. 7 at 12, footnote 17Google Scholar.
103 Ibid. at 11.
104 The following list of the interrelated legislation is taken from footnotes 12 and 13 in D.M. Emrys Evans, “The New Law of Succession in Hong Kong”, supra note 102 at 11.
105 Intestates' Estates Ordinance (Cap. 73, LHK 1971 ed.), ss. 4(3) and 4(4), as reported in D.M. Emrys Evans, “The New Law of Succession in Hong Kong”, supra note 102 at 37.
106 Intestates' Estates Ordinance (Cap. 73, LHK 1971 ed.), s. 4(2), as reported in D.M. Emrys Evans, “The New Law of Succession in Hong Kong”, supra note 102 at 37.
107 D.M. Emrys Evans, “The New Law of Succession in Hong Kong”, supra note 102 at 36.
108 Ibid. at 35, citing to the Probate and Administration Ordinance, 1971.
109 Intestates' Estates Ordinance (Cap. 73, LHK 1971 ed.), s. 4(3), as reported in D.M. Emrys Evans, “The New Law of Succession in Hong Kong”, supra note 102 at 37.
110 D.M. Emrys Evans, “The New Law of Succession in Hong Kong” supra note 102 at 36.
111 Intestates' Estates Ordinance (Cap. 73, LHK 1971 ed.), s. 13.
112 D.M. Emrys Evans, “The Law of Succession in Hong Kong” (1980) 10 Hong Kong L. J. 19 at 21-22.
113 Ibid. at 21, 23.
114 Wan, Wong Pik, “Negotiating Gender: The Women's Movement for Legal Reform in Colonial Hong Kong”, a dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Political Science, University of California, Los Angeles (Ann Arbor, MI: Bell & Howell Information and Learning Company, 2000) at 180 Google Scholar.
115 Ibid. at 298.
116 From documentation obtained on the website of Hong Kong Baptist University, online: <http://hkbu.edu.hk/~pchksar/JD/jd-full1.htm> (last accessed on 15 July 2010).
117 Wong Pik Wan, “Negotiating Gender: The Women's Movement for Legal Reform in Colonial Hong Kong”, supra note 114 at 298.
118 Ibid.
119 Ibid. at 181.
120 Ibid. at 181, citing to Davies, Stephen & Roberts, Elfed, Political Dictionary for Hong Kong. (Hong Kong: Macmillan Publishers (HK) Ltd., 1990) at 187 Google Scholar.
121 Wong Pik Wan, “Negotiating Gender: The Women's Movement for Legal Reform in Colonial Hong Kong”, supra note 117 at 181.
122 Ibid. at 182.
123 Chi-fai, Cheung, “Villagers Profit in Secret Land Deals” South China Morning Post (4 November 2011) as reported by Hong Kong News Watch, online: <http://topics.scmp.com/news/hk-news-watch/article/Villagers-profit-in-secret-land-deals> (last accessed on 11 April 2012)Google Scholar.
124 Ibid.
125 Chi-Ping, Ho, “Small House Policy Needs Revision” China Daily eClips (1 March 2011), online: <http://www.cdeclips.com/en/hongkong/fullstory.html?id=51374> (last accessed on 11 April 2012)Google Scholar.
125 Ho, Lusina, “Traditional Confucian Values and Western Legal Frameworks: The Law of Succession” in Bell, Daniel A. & Chaibong, Hahm, eds., Confucianism for the Modern World (Cambridge, England; New York, USA: Cambridge University Press, 2003) at 305 Google Scholar.
127 Ibid. at 309.
128 Ibid.
129 Ibid.
130 Ibid. at 310.
131 Ibid.
132 See for example Chan Sin Yee, “The Confucian Conception of Gender in the Twenty-First Century” in Daniel A. Bell & Hahm Chaibong, eds., Confucianism for the Modern World, supra note 125 at 312-333; see also Rosenlee, Li-Hsiang Lisa, Confucianism and Women: A Philosophical Interpretation (Albany, NY: State University of New York Press, 2005)Google Scholar.