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Page 1: Delay in Islamic Inheritance Claim – An Ignorance Issue

Procedia - Social and Behavioral Sciences 90 ( 2013 ) 504 – 512

1877-0428 © 2013 The Authors. Published by Elsevier Ltd.Selection and/or peer-review under responsibility of the Faculty of Education, University Technology MARA, Malaysia.doi: 10.1016/j.sbspro.2013.07.120

ScienceDirect

6thInternational Conference on University Learning and Teaching (InCULT 2012)

Delay in Islamic Inheritance Claim – An Ignorance Issue

Noraini Noordina, Adibah Shuibb, Mohammad Said Zainolc, Mohamed Azam Mohamed Adild*

abcFaculty of Computer and Mathematical Sciences, Universiti Teknologi MARA, 40450 Shah Alam, Malaysiac

dCenter of Islamic Thoughts and Understanding, Universiti Teknologi MARA, 40450 Shah Alam, Malaysia

Abstract

Claiming rights to Islamic inheritance persists to be a problem to Muslims even after the Federation of Malaya has obtainedits independence from the British. The legal system has been regarded as the venue most likely to produce solutions to thetime and cost issues in the claims processes. Although Faraid certificates are produced faster now, only minimal improvements to the problem can be attributed to the amendments made to the Small Estates Distribution Act 1955. Syariahlaws on inheritance are exposed to only a small segment of students at High School Certificate or Pre-University level; this may explain why clients often display high degree of ignorance of procedures to claim inheritance. To improve lawawareness among Malaysians, the government is urged to review the current educational policies on Islamic studies and broaden the target group to include high school and university students. This paper wishes to emphasize the ability of the NFPmodel to describe accurately the flow of processes in the administration and distribution Islamic inheritance and find the shortest route through the network. It can clearly represent stages and processes, indicate correct order of activities and show duration of activities in the administration and distribution of Islamic inheritance. Most importantly, it has been designed to be Syariah-compliant. Therefore, the model can help clients to minimize time and money spent on claim processes and serveas an aid to teaching and learning on the management and distribution of Islamic inheritance at higher institutions of learning.

©2012 The Authors. Published by Elsevier Ltd.Selection and/or peer-review under responsibility of the Faculty of Education, University Technology MARA, Malaysia.

Keywords: Faraid; ignorance; Syariah laws; network; shortest route

1. Introduction

When a problem has been in existence for such a long time and no practical solution has been found,one needs to step back and analyze the problem from a different perspective. The solution is there somewhere;one just needs to look closer to find it. As suggested by George Polya, there are four steps to solving a problem:

* Noraini Noordin. Tel.: +006-05-791-7475; fax: +006-05-791-0271.E-mail address: [email protected]

Available online at www.sciencedirect.com

© 2013 The Authors. Published by Elsevier Ltd.Selection and/or peer-review under responsibility of the Faculty of Education, University Technology MARA, Malaysia.

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i) understanding the problem, ii) devising a plan, iii) carrying out the plan, and iv) checking (Mathematics Year 6, 2006).

In order to find a practical solution to the problems in the administration and distribution of Islamic inheritance, the paper will begin by highlighting the time, money and constitutional issues that persist to exist in the system even after the Federation of Malaya has gained its independence from the British(Ibrahim, 2000; Nasohah, 2004). Gaining independence in 1957 did not liberate the government from the clutches of the British. The existing legal system testifies that the government inherited constitutional as well as administrative practices from the British (Buang, 2006; Shuaib, 2003). To rid the legal system of many conflicting and inter-twining laws will take a long time, thus there is at present no fluency in the flow processes of Islamic inheritance for Muslims.

It has been assumed that Faraid Laws can only be practiced in harmony if extensive changes are made to the legal system. Naturally, majority of the previous solutions to minimize time and cost in the administration and distribution of Islamic inheritance are found within the legal system. Unfortunately, these solutions did not have much impact on decreasing the number of unclaimed inheritance(Ahmad & Laluddin, 2010). Hence, practical solutions to these problems have to be found elsewhere than the legal system.

This paper wishes to express concern over the government’s effort to educate Malaysians with respect to knowledge on management and distribution of Islamic inheritance in the school curriculum. In particular, Syariah laws on inheritance are exposed to only a segment of students at Higher School Certificate or Pre-University level education (Majlis Peperiksaan Malaysia, 2000, 2012; Noordin Ayus et al., 2010). It comes as no surprise then that studies indicate prevalent low Faraid awareness among Malaysian Muslims (Abd Majid & Mt Piah, 2005; Abdul Rahman, 2008; Ahmad & Laluddin, 2010; Safar & Othman, 2010). The government is urged to review the current educational policies on Islamic studies and widen the scope of law awareness program to all Malaysian students attending secondary schools and universities in Malaysia in order to increase public knowledge on how to administer and distribute Islamic inheritance.

Literature reviews conclude that patterns in client behavioursduring claim processes may suggest a more practical solution to the problem. In particular, analysis of client behavior among Malaysian Muslims found high degree of ignorance of procedures to claim inheritance(Abdul Rahman, 2008; Mahamood, 2006). The findings indicate that time and money is wasted when Muslims do not know the procedures to claim inheritance. Knowing the procedures involved in managing and distributing Islamic inheritance will prevent them from underestimating the costs involved in the processes. In particular, this paper will share the findings from the current study on the use of network flow programming (NFP) model to describe with precision the claim processes and to help them find the shortest route through the network that will minimize time and money spent on these processes. With these abilities, the NFP model can serve as an aid in teaching and learning of the management and distribution of Islamic inheritance at higher institutions of learning.

2. Methodology

The number of unclaimed inheritance has been on the rise since 2005 (Ahmad & Laluddin, 2010). Studies indicate that normal process time for claims is between three to ten years, but unusual cases may prolong to more than twenty years (Yaacob, 2006). The discussion in this section will be divided into two parts: i) the need to find a more practical solution to the problems in the administration and distribution of the Islamic inheritance and ii) the ability of the NFP model to aid in teaching and learning of the management and distribution of Islamic inheritance at higher institutions of learning.

2.1. The need to find a more practical solution to the problems in the administration and distribution of the Islamic inheritance

To describe the need to find a more practical solution from other areas than the legal system, the discussions in this section are divided into three parts, i) No practical solutions from the legal system, ii) Client behaviour

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among Muslims who petition claims to inheritance, and iii) NFP model a viable solution to the problems in the administration and distribution of Islamic inheritance.

2.1.1. No practical solutions from the legal system

Independence from the British rule did not assure fluency in the flow processes of Islamic inheritance for Muslims in the Federation of Malaya. Inherited constitutional and administrative practices from the British continued to cause serious time, money and constitutional issues in the administration and distribution of Islamic inheritance until today(Disa, 2009; Mahamood, 2006).

Firstly, history has recorded that the British failed to annihilate Faraid Laws during the colonization era (Nasohah, 2004; Noordin, Shuib, Zainol, & Mohamed Adil, 2012). The British were shrewd and did not let down in their efforts to make it difficult for the Muslims to practice Faraid laws in harmony. Therefore, conflicting and inter-twining constitutional issues in the current legal system has made it impossible to set up a unique Syariah-compliant system that can enable Faraid laws to be practiced in harmony. There exist many conflicting and inter-twining laws in the legal system. Examples include List 1(4)(e), 9th Schedule, Federal Constitution, Section 50 of the Administration of Islamic Law (Federal Territories) Act, 1993 and the Probate and Administration Act, 1959, List II - State List (Article 95B (1) (a), Article 74(2) and many more (Noordin et al., 2012).

Secondly, inclusion of Article 121 (1A) into the constitution does not assure that the dual system of courts in Malaysia will never be in conflict with each other. In particular, Syariah courts have limited functionality with regards to the management of Islamic inheritance, thus the civil procedures have to be taken up by the civil courts. Hence, efficient flow for claims cannot be assured(Marican, 2008; Mohamad, 2008).

Thirdly, the last amendment to the Small Estates Distribution Act 1955 defines a “Small Estate” as “an estate of a deceased person consisting wholly or partly of immovable property situated in any State and not exceeding two million ringgit in total value, and its’ value will be determined according to the earliest submission of any petition for probate or letters of administration or petitions for distribution (Small Estates (Distribution) (Amendment) Bill 2007, 2007; Small Estates (Distribution) Act 1955 (Act 98) & Regulations, 2007). Table 1 displays all amendments since 1974 (Abdul Rahman, 2008; Small Estates (Distribution) (Amendment) Bill 2007, 2007).

Table 1. Amendments to the Small Estates Distribution Act 1955 since 1974

DATE CEILING FOR SMALL ESTATES SUPPORTING DOCUMENTS

ORIGINAL AMENDED

May 14 1974 RM10 000 RM25 000 Federal Government Gazette No. PN. PJ2

June 9 1977 RM25000 RM50000 Act 399 Amendment to Act 98 Feb 22 1982 RM50 000 RM300 000 Act A 533 Amendment 1982

Jan 1 1989 RM300 000 RM600 000 Act A 702 Sept 1 2009 RM600000 RM2 million Act A1331

As can be seen, there is a gap of twenty years between the last two amendments. When the last amendment

was finally implemented on 1 September 2009, a huge volume of cases migrated from the Civil High Courts to the Small Estates Distribution Units at the Land Offices (UPPs), shortening the queue of cases at the High courts (Lee, 2008; Sittamparam, 2009). Consequently, majority of current inheritance cases are now classified as Small Estates. This paper wishes to acknowledge that this amendment has paved an easier route for Muslims to claim rights to Small Estates. However, this amendment has minimal effect on decreasing the number of unclaimed

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inheritance (Ahmad & Laluddin, 2010; Dewan Rakyat Parlimen Kedua Belas Penggal Ketiga Mesyuarat Pertama Bil. 11, 2010). Therefore, they do not constitute the best alternative practical solution to the problem.

It is to be noted at this point in the discussion that IT advancements like e-Syariah portal, e-Tapp system and e-Faraidhave improved the speed at which Faraid certificates are produced (Abd Majid & Mt Piah, 2005). However, extensive changes still need to be done on the legal system before Faraid laws can be practiced in harmony. Not finding practical and tangible solutions in the legal system does not imply that time and money cannot be minimized in the claims processes. It indicates that the problems need to be analysed from a different perspective, thus the solution to this problem may be found elsewhere than the legal system.

2.1.2. Client behaviour among Muslims who petition claims to inheritance

Relatives of a deceased Muslim are obligated to fulfil four Syariah duties: i) settlement of funeral expenses ii) imbursement of debts owed by the deceased, iii) execution of a valid will, and iv) distribution of estates among inheritors(Majlis Peperiksaan Malaysia, 2000, 2012; Wan Harun, 2011). The government has integrated these duties into a three-phase procedure in the current administration and distribution system for inheritance, namely the pre-submission phase, the submission phase and the post-submission phase as shown in Table 2. These phases run consecutively one after the other; each phase has its own set of activities that can run either concurrently or sequentially. Due to having many institutions with the authority to handle Islamic inheritance, there is also no one specific Syariah-compliant flow process available to be used at present. Furthermore, literature reviews have concluded that Muslims take from three to ten years to complete a claim on an inheritance and this duration may lengthen to twenty years for difficult case (Yaacob, 2006).

Table 2. Activities to claim inheritance

In order to educate the general public on Faraid laws, many Islamic books today have been written to include

Faraid laws. In addition, university researchers have constructed knowledge web sites onFaraid laws such as e-Syariah Portal, e-Tapp system and e-Faraid(Abd Majid & Mt Piah, 2005; Malaysia Law Resources, 2010; Pembahagian Harta Pusaka Kecil, n.d.). Researchers have also developed user-friendlyFaraid calculators for use by the general public and institutions involved with the management and distribution of Islamic inheritance. By using these calculators, the Muslims are able to understand the division of the inheritance according to Faraid laws. Although this calculator has increased the speed at which Faraid certificates are produced, number of unclaimed inheritance is still increasing (Ahmad & Laluddin, 2010; BERNAMA, 2010).

The above efforts to educate Muslims concerning Faraid laws and eradicate unawareness of Islamic inheritance laws have not been able to reduce the number of unclaimed inheritance. A careful study of client behaviour among the Muslims who petition claims to Small Estates indicates a high degree of ignorance with respect to the processes involved in petitioning claims to inheritance. These clients are confused and have no information on what to do, where to go and how much to spend in a petition to claim rights to Islamic inheritance. Due to not knowing that UPP only charges a minimal fee on claims, they will incur extra costs when

AC

TIV

ITIE

S

PRE-SUBMISSION PHASE SUBMISSION PHASE

POST-SUBMISSION PHASE

Settle funeral Expenses Settle debts of the deceased Execution of will Compile documents to

verify death, certify legitimate heirs and confirm existence of estates

Lodge a petition Valuation of

Estates Hearing Order for

Distribution

Plea (if any) Repeat trial (if

necessary) Pay fee Registration of

ownership of estates

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they submit their claims through law firms or ARB (Abd Ralip, 2011; Buku Panduan Permohonan Pusaka Kecil, n.d.; Lee, 2008). Consequently, the majority of Muslims encounters problems in compiling documents in the pre-submission phase (Abdul Rahman, 2008; Mahamood, 2006).

With respect to Polya’s method to solve a problem, this ignorance issue provides a way out for the problems in the administration and distribution of Islamic inheritance. Interestingly and more importantly, it has provided the basis for developing a more tangible and practical solution in an area other than the legal system. The solution comes in the form of a NFP model.

2.1.3. NFP model a viable solution to the problems in the administration and distribution of Islamic inheritance

All institutions handling distribution of Small Estates abide by similar procedures. Many real situations can be entirely represented by a network model. A NFP model can cater for problems such as transportation problem, assignment problem, shortest path problem, maximum flow problem and many more. In this study, the NFP model is a set of logical and mathematical relationships that represent the process flows for the activities in the administration and distribution of Islamic inheritance at these institutions.

Earlier discussions found that difficulties arise in claiming rights to Islamic inheritance due to the existence of many institutions with the authority to handle administration and distribution of Islamic inheritance. This new NFP model overcomes these difficulties by providing clear guidelines to Muslims of clear processes to follow in their effort to lodge a petition to claim rights to Islamic inheritances.

To ensure compliance to Syariah, this model abides by the stipulations in the three principles governing the management and distribution of inheritance, namely, a) al-muwarrith – certification of death, b) al-warith – declaration of existing heirs and sharers at the time death takes place and c) al-mauruth – affirmation of Islamic inheritance to be inherited, respectively (Abdul Rahman, 2008; Awang, 2008; Zuhaili & Ali Shabuni, 2010). This model also provides a valid visual and conceptual tool to relate variables involved in a claim process. It has the ability to describe precedence relations between activities in the claim processes. In particular, the claim processes are divided into three phases namely, pre-submission phase, submission phase and post-submission phase. To enable functionality of this model, analysis of inheritance data is done to describe the characteristics of the NFP model. In addition to determining the best estimator for activity durations, the NFP model needs to be solved. The formulation of the NFP model is hoped will be able to optimize time and cost used in any claims processes.

2.1.3.1. Determining the best estimator for activity durations

Since majority of claims are categorized as Small Estates this NFP model represents the flow of claims for Small Estates through the administration and distribution processes for inheritance at UPP. Based on the definition for Small Estates, the NFP will only cater for estates valued as follows:

Preliminary findings from inheritance data conclude that they are not constants, and may contain outliers as well as extreme values. When the distributions for all activity data within the network are not error-free, mean and standard deviation (SD) cannot be used as reliable estimates for the activity durations (Barnett & Lewis, 1978; Daszykowski, Kaczmarek, Heyden, & Walczak, 2007; Fisher, 1920; Huber, 2003).

Literature reviews have indicated that median absolute deviation (MAD) is a more robust statistic than SD (Hampel, 2001; Ng & Midi, 2011; Noordin, Shuib, Zainol, & Mohamed Adil, 2011). Under robust statistics, breakdown point (BP) gives the proportion of incorrect observations that can be handled by an estimator before it breaks down. In particular, BP = ½ enables MAD to outperform range, inter-quartile range, variance, SD and

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mean absolute deviation (AVAD) as a robust statistic of the measure of variation, thus MAD has been chosen as the statistic to estimate the activity durations.

Most of the variables in this model are heavy-tailed and non-normally distributed. As such, activity times do not follow the Beta distribution. Hence, this model does not apply the expected time estimates in the Program Review and Evaluation Technique (PERT),

with and

Consideration is also given to the possibility of applying the traditional and classical mean SD to describe spread of data in the model. Median has the same BP value as MAD. In view of the failing capability of mean and SD in the presence of outliers, this NFP model has substituted this traditional approach with the concept of time windows in the form of an interval [MAD, median] to describe spread of data for each activity.

2.1.3.2. Formulating the NFP model

Mathematical models relate important variables that describe a system under study. When this model is operated on mathematically, changing values of the variables affect its’ effectiveness and functionality. This NFP model describes the flow of processes to claim Small Estates. In particular, when a Muslim client lodges a petition to claim Islamic inheritance; the petition goes through stages of processes with number of activities. The activity time can be denoted using where and and will denote the flow from node

Decision variables are the variables within a model that the decision maker controls and are not random. For example, the minimum number of nurses on the morning shifts in the emergency room, the maximum amount of budget to spend on teacher development program per semester, how many flights to Sarawak in a week, etc. This NFP model would like to find the minimum total time for a Muslim to claim Small Estates, such that

where

and if activity in stage is chosen

otherwise.

Optimization procedures aim at either maximizing or minimizing value of a certain criterion. In this model, optimization is affected by constraints in each of the stages. For instance, in Stage 1, constraints to be considered include waiting time for processing documents at the National Registration Department, Syariah courts, or in front of a Commissioner for Oaths.

During an optimization process, sub-optimization may take place when some criterion subordinate to the overall criterion needs to be optimized or when the overall criterion is optimized over only a portion of the total of all possible alternative actions (Ramachandaran et al., 2005; Verma, 2010). Careful observations of activities in each of the stages have revealed possible shifts of individual activity or group of activities to further minimize time. Therefore, sub-optimization is also considered as part of the solution to the network flow programming (NFP) model that describes the current administration and distribution processes of Islamic inheritance in Malaysia.

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2.2. The ability of the NFP model to aid in teaching and learning of the management and distribution of Islamic inheritance at higher institutions of learning

As explained earlier on, Syariah laws on inheritance are exposed to only a small segment of students at High School Certificate or Pre-University level; this may explain why clients often display high degree of ignorance of procedures to claim inheritance. To improve law awareness among Malaysians, it is very important for the government to review the current educational policies on Islamic studies to accommodate the needs of all Malaysians to know how to administer and distribute Islamic inheritance. The target group for the law awareness program can be broadened to include high school and university students.

At this point in the discussion, this paper wishes to emphasize the ability of the NFP model to describe clearly and precisely the flow of processes in the administration and distribution Islamic inheritance. In particular, the network has the ability to clearly represent stages and processes, indicate correct order of activities and show duration of activities in the administration and distribution of Islamic inheritance. Most importantly, it has been designed to be Syariah-compliant. In addition, the NFP model has the ability to find the shortest route through the network. With these attributes, the model can help clients to minimize time and money spent on claim processes and serve as an aid to teaching and learning on the management and distribution of Islamic inheritance at higher institutions of learning.

3. Conclusions

Distribution of Islamic inheritance upon the death of a Muslim is an obligation not to be taken lightly by all Muslims. Previous solutions have not been able to decrease the number of unclaimed inheritance. The gravity of the problem to manage and distribute Islamic inheritance in Malaysia signals the need to find a more practical solution from other areas than the legal system. This paper has pointed out the importance of educating the Malaysians on inheritance laws, thus it is recommended that the Ministry of Education revises its policy on Islamic studies to open more opportunities for Malaysians to be knowledgeable of the Islamic laws on inheritance by widening the scope to include this topic in the high school and university curricula.Knowing the proper procedures to claim inheritance provides the means to eradicate ignorance among the Muslims on this subject and prevent them from overestimating the costs involved in the processes to petition rights to inheritance. This research has chosen to use the NFP model to represent the correct and proper flows of activities in the claims processes that will not only minimize time and cost in petitioning claims to inheritance but also educate Muslims to use the proper procedures in their effort to fulfill their duties properly and efficiently.

Acknowledgements

The authors would like to thank the experts on Islamic inheritance at the UPP in Kuala Kangsar for sharing their knowledge on the subject.

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