In my book, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (Cornell University Press, 2020), I demonstrate how colonialism embodies a contradiction; in a sense, colonial authorities limited and restricted subjects’ lives, but their authority gave rise to a sense of possibility for some colonial subjects perceived to be elite.[1] The largest transformation of European colonialism wrought in the Islamic world was not codification of Islamic law but rather, the carving out of a separate jurisdiction for religious affairs.
A British judge, “whose tone suggested the Pulpit than the Bench” was severely censured in 1921 in Singapore for making public his views on Islamic law, specifically on ṭalāq, a term that refers to divorce by effected by a Muslim husband’s unilateral pronouncement.[2] The judge, Fiennes Cecil Arthur Barrett-Lennard was generally keen on improving “the moral attitude of communities” — he once ordered a European jury member to uncross his legs out of respect for the court.[3] Barrett-Lennard addressed the controversial notion of ṭalāq while referring to the momentous pronouncement made by a wealthy merchant 26 years prior to the case in December 1895 to his wife. They later resumed cohabitation without remarrying, and had a son and a daughter shortly after.[4] The case appeared in the Straits Settlements Court of Appeal in 1921 when both children who were born after the resumed cohabitation laid claim to their late father’s estate. They could not appeal to default application of Islamic law because being illegitimate, they could not inherit. Neither descendant were explicitly named as heirs in their father’s will, hence the complication.
Barrett-Lennard learned through counsel in court that “divorce took effect from the pronouncement of the talak, or the date of writing, and the fact of non-communication to the wife did not in any way alter it.”[5] Barrett-Lennard referred to the law as a “monstrous law” much to the chagrin of Muslim colonial subjects present in court that day. The news spread throughout the Straits Settlements of Singapore, Penang and Malacca as well as other parts of the Malay Peninsula where the Muslim population collectively entered a “solemn protest” against Barrett-Lennard. What is striking about this incident was that his British colleagues were intent on distancing themselves from his rhetoric mainly due to fear of repercussions in the form of unrest. In fact the Chairman of Civil Servants warned the Governor of the Straits Settlements that “[w]hile the educated portion of the Mohamedan community will realise that such conduct as is the subject of this protest cannot possibly explain the approval of His Majesty, the more ignorant sections of the Community are prone to attribute to the words of officers holding high positions an importance a sanction which they may not merit.”[6]
Understandably angered by complaints made about him, Barrett-Lennard wrote “when the judgments are delivered Your Excellency (the Governor) will, doubtless, learn not only what the Prophet himself wrote, but also the malediction ascribed by him to the Creator.”[7] Barrett-Lennard did not elaborate on this, and of course the Prophet did not write anything himself. It is possible that Barrett-Lennard was referring to the ḥadīth reported by ʿAbd-Allāh ibn ʿUmar who said “The Messenger of Allah, peace and blessings be upon him, said, “The most hateful of lawful matters to Allah is divorce.” Barrett-Lennard held back from saying this outright, choosing to instead play on the word “judgments” – being both a reference to the end of times, and the judgment on the case at hand which he could not deliver yet because it was still ongoing. One could see how other colonial officials resented his constant display of educated knowingness manifested in his dealings with colonial subjects.
At the same time, Barrett-Lennard also came under attack from Roland Farrer, Chairman of Civil Servants along with eleven others reported that “[a]lmost immediately after taking his seat for the first time in Singapore, Barrett-Lennard issued an order that all Mohammedan witnesses must, before entering the witness-box, remove their Head-dresses and their Foot-gear.”[8] Barrett-Lennard constantly denied making this demand but it did damage his reputation as his fellow British compatriots resented him for making the courtroom a sacred space. This complaint about observing decorum in court accompanied a more strongly-worded letter from Governor Laurence Guillemard who was so concerned that he did not think twice about interfering in an ongoing court case in 1921 with the possible intent of removing the presiding judge and in so doing, risked weakening the authority of the court in the colony.
It is very telling that in his letter to the Governor to justify his actions, Barrett-Lennard chose not to emphasize his legal credentials which should have been clear anyway to the Governor. Instead he drew on his familiarity with Muslims in Empire whom he encountered while in both military and legal service elsewhere as if his insults against Muslims and Islamic law came from a learned place. He retorted that “as a former officer in a Mohammedan Company of the King’s African Rifles, and as a former member of the Mombasa Appeal Court, I was acquainted, fully six years ago, with the common Mohammedan usages, [that I] will treat with the contempt which it merits.”[9] It was one thing to request a fellow European to uncross his legs – it is quite another, the Governor emphasized to Winston Churchill (then a Member of Parliament) to “convey the impression to the Oriental races inhabiting the Colony that they are living under unjust laws under conditions which a decent Government would not tolerate.”[10] In private correspondence amongst colonial judges and high-ranking officials, Muslim subjects were regarded as universal, specificity of place faded into the background. After all, Anglo-Mohamedan law, devised from the late eighteenth century onwards in British India had become a franchise, a forced trope exported throughout Empire to be enforced wherever Muslim subjects were present. Very much a blend of Islamic law, interpretations of Islamic law by East India Company employees and English Common Law, it charted out what British judges outside of India were expected to do in the courtroom for the rest of the colonial period without depending on Muslim expertise. For the most part, Barrett-Lennard’s constant hectoring was aimed at the executive government who resented him and colluded to have him removed. Subsequently his criticism of subject populations’ issues was used to oust him for fear of “unrest which may be fomented in a mixed community of sensitive and excitable Orientals, by a tactless judge inspired with a missionary spirit, and ignorant of local conditions…”[11] It was deemed sufficient by Churchill in 1922, and Barrett-Lennard did not rankle his colleagues further until he finally left for Jamaica in 1925.
For a while in the 1920s, there was a credible threat to executive power by an irascible judge whose anger coincidentally intersected with reformers of Islamic law concerned about ṭalāq. For colonial governments, precarious Muslim marriages could not be politicized – Islamic law certainly should not be polarized in the wake of high-profile cases. Activism in judicial circles did not have a place in the Straits Settlements during this period lest it provided opportunities for colonial subjects to push for rights through judges or by worse, by becoming judges themselves at some point. We see how colonial judges were not supposed to directly address legal content, they were simply supposed to consistently structure the legal system and enforce it. Barrett-Lennard’s criticism may not be representative of judges’ behavior, but it speaks to a larger truth which was that “religion” however defined, became a protected bubble for all parties even as it was constantly disputed, interpreted, and codified.
Notes:
[1] Nurfadzilah Yahaya, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (Ithaca: Cornell University Press, 2020).
[2] FCO 141/16013/MAB L. N. Guillemard to Winston Churchill, January 28, 1922.
[3] “Family Law.” The Oxford Dictionary of Islam. ed. Esposito (John L.: Oxford University Press).
[4] FCO 141/16013/MAB, “Alsagoff Appeal: Arguments of the Talak and Divorce” November 8, 1921. For the law report on the original case, see Syed Mohamed Yassin, Sheriffa Rogayah V. Syed Abdulrahman and Others [1915-23] 15 Straits Settlements Law Reports (SSLR) 199.
[5] The entire exchange between legal counsel and Judge Barrett-Lennard can be found in my book. Nurfadzilah Yahaya, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (Ithaca: Cornell University Press, 2020), 52-53.
[6] FCO 141/16013/MAB, Roland J. Farrer and 11 others, November 28, 1921.
[7] FCO 141/16013/MAB, Fiennes Barrett-Lennard to Laurence Guillemard, Singapore, January 12, 1922.
[8] FCO 141/16013/MAB, Roland J. Farrer and 11 others, November 28, 1921.
[9] FCO 141/16013/MAB, Fiennes Barrett-Lennard to Laurence Guillemard, Singapore, January 12, 1922.
[10] FCO 141/16013/MAB, L. N. Guillemard, Singapore to Winston Churchill, Colonial Office, London January 28 1922.
[11] FCO 141/16013/MAB, L. N. Guillemard, Singapore to Winston Churchill, Colonial Office, London January 28, 1922.
Suggested Bluebook citation: Nurfadzilah Yahaya, Ṭalāq in the Colonies – Constraints on Colonial Judiciary, Islamic Law Blog (July 8, 2021), https://islamiclaw.blog/2021/07/08/%e1%b9%adalaq-in-the-colonies-constraints-on-colonial-judiciary/)
(Suggested Chicago citation: Nurfadzilah Yahaya, “Ṭalāq in the Colonies – Constraints on Colonial Judiciary,” Islamic Law Blog, July 8, 2021, https://islamiclaw.blog/2021/07/08/%e1%b9%adalaq-in-the-colonies-constraints-on-colonial-judiciary/)