Two phenomena struck me as particularly incongruous while researching for my book Fluid Jurisdictions: Colonial Law and Arabs in Southeast and plagued me throughout the process of writing it. The first was “illegal occupations” (‘onwettige occupaties’) which referred to land occupied by populations who were not allowed to own the land according to Dutch colonial law.[1] The second was the notion of kafāʾa, which referred to sufficiency in marriage, something the Arab communities in Netherlands Indies were particularly concerned with in the early twentieth century.[2] While the first phenomenon revealed yet another absurd injustice of colonial rule, the second revealed painful injustices perpetrated by colonial subjects on each other.
From January 1936 to March 1937, a Malay man named Ahmad worked his way out of the autonomous jurisdiction of Batu Bara in Sumatra into the heart of colonial rule, Batavia in the Netherlands Indies. Indeed, the Arab diasporic elite who formed the subject of my book were far from being exemplary in courting colonial jurisdictions, although the phenomenon was startling. The very specificity of Ahmad’s desperate situation led him to engage the colonial legal system as a tactic to get out of a bind. For most people, their individual lifetimes’ woes and challenges were urgent, in need of immediate reprieve without signifying assent to European colonialism. For them, colonial jurisdictions can appear attractive as they offer potential (behold this opportunity) rather than remonstration (do this or else be punished). This is also the story of the paradox inherent in the autonomy of religious law in most colonies: individuals were exempted from direct intervention in many settings while being subjected to it regardless. Such was the power of colonial sovereignty.
Towards the end of 1935, in Batu Bara on the east coast of the island Sumatra in the Netherlands Indies, a Malay man named Ahmad (sometimes spelt ‘Amat’) married a 20-year-old woman named Saniah (sometimes spelt as Zaniah) binti Orang Kaja Ingah more commonly known as Siti (sometimes spelt as ‘Si Tih’) in Basitang more than 200 kilometres from his own village in Batu Bara (spelt as Batoe Bara). Saniah was the daughter of a nobleman (rank of Orang Kaya) in Sipare-pare, a town 30 miles northwest of Batu Bara. They deliberately married far from their respective homes because Saniah’s father Orang Kaja Ingah bin Datoek Hadji Aminoellah disproved of the union. Accompanied by two male witnesses, the qāḍī of Basitang was the wali hakim, or judicial guardian, appointed by local authorities to authorize her marriage even though her father, her male guardian who would normally be the wali, known as ‘wali nasab’ was still alive. This is allowed because Saniah was two marhalahs (one marhalah being 44 kilometers) away from her home. After three days, they returned to Ahmad’s village but were waylaid by a government official (Bestuurder) of Indrapura who was acting upon the complaint of Saniah’s father who alleged that their marriage was neither between two equals and nor did he consent to it as her wali. Ahmad was detained for two months before appearing in the court of Indrapura on January 18, 1936 where he was informed that his marriage to Saniah was invalid because they were not equal in status which did not fulfil the notion of kafāʾa (sufficiency) because she was a descendant of people independent of foreign rule, and was even of aristocratic descent (toeroenan orang jang berbangsa) while he was a descendant of a slave (toeroenan jang beloem mardaheka) since his grandmother was a slave either in the past or at the time of his marriage. Ahmad defended himself by arguing that one does not draw descent from one’s female ancestor, only from a male ancestor, though he would surely know that while most Malays do not, some Muslim communities in Sumatra do draw lineage from female ancestors. In July 1936, he wrote to the Dutch Advisor for Native and Arab Affairs, G.F. Pijper in Batavia to explain his situation: “I presented five witnesses in court who were descendants of aristocrats in Sipare pare (hometown of his betrothed) in court but their testimonies were not recognised.”[3]
The difference in social status of the bride and groom was determined by both Dutch and local communities because while the rank of Datuk/Datoek and Orang Kaya/Kaja predated Dutch rule in the region, the autonomous or more accurately, semi-independent status (Zelfbesturende Landschappen) of Indrapura was granted by the Dutch in 1926. The Dutch government believed that Ahmad was not a descendant of a slave (niet van slavenafkomst) but he was certainly of a much lower class.
In his letter to Pijper written in Malay, Ahmad consistently referred to Islamic law or sharī‘a as “Ugama Mohamed” literally “religion of Muhammad” in line with Dutch formulation of “Mohamedansch wet” or “Mohamedansch weg” (way of Muhammad). As the case moved further up the legal hierarchy, we see rejection of Islamic law in favor of legibility be it in terms of established categories or standards. We also see a tendency to move away from an engagement with the substantive content of Islamic law in favor of discussion of jurisdictions – which legal system applied, whose realm was this, and so on. Either way, these questions were asked in light of the totality of the circumstances of colonial rule.
Not only were translations done across languages, they were also conducted along chains of legal courts up the hierarchy of legal institutions from village, to provincial, to state, to national level. The case was first brought before the Indrapura Council (Kerapatan Inderapoera) on January 18, 1936 where qāḍīs decided the case in favor of Ahmad. Ahmad sought three opinions on the validity of his marriage to Saniah from neighboring regions in northern Sumatra namely the muftī of Tanjung Balai in Asahan, the muftī of Serdang, and the muftī of Deli in Medan, expecting that they would certainly support his case. However, his hopes were dashed when the Council ordered him to pay 140 guilders within a month to Saniah’s father as ‘wang antaran’ (dowry given by groom to bride’s family which is not compulsory in a marriage) or ‘mas kawin’ (mahr which is compulsory in marriage) — he did not know which — a pathetic irony since the consummated marriage was declared void by the Council due to insufficiency and absence of the bride’s wali.[4] Dissatisfied, he brought up the case to Raad Agama of Batoe Bara, an official religious court. The judges in the Raad Agama discussed Ahmad’s case with the three muftīs for two hours and again ruled his marriage invalid. They also deemed the opinions of the three muftīs invalid because they were not from Batu Bara. Was this a case of different adat (customs) or simply a case of jurisdictional differences?
The only muftī who had authority according to the Dutch was Hadji Samsoedin of Indrapoera who did not disappoint offering an in-depth response and a multi-faceted view of the issue – local perspective from Sipare-pare, and the wider Shāfi‘ī madhhab perspective. He began by stating that the bride’s father was the descendant of not just aristocrats but royal princes of Sipare-pare with 1,100 subjects including himself.[5] The first book he referred to was Fatḥ al- Muʿīn written by Ahmad Zayn al-Din ibn Muhammad al-Ghazāli al-Malibári (commonly referred to as Makhdum II), the Malayali jurist from Malabar (b. 1531). Samsoedin addressed the qāḍī‘s acceptance of kafā’a more than his naïve acceptance than that Saniah’s father was absent (the qāḍī might not know after all).[6] He was quick to add that things not stated in the Qur’ān could be reinterpreted in other ways by citing Ibn Hajar al-Haytamī al-Makkī’s Tuhfat al-Muhtaj bi Sharh al-Minhaj. Neither did Samsoedin consider aristocrats and princes a separate category of Muslims in Islamic law unlike the Prophet and his Companions and the Salaf (the first three generations of Muslims). Although he downplayed the notion of kafāʾa, he refrained from going against his fellow muftīs.
Finally, Pijper, the highest authority Ahmad sought an audience with, weighed all the evidence in the correspondence forwarded to him and proceeded to position himself as a muftī albeit with different concerns. He acknowledged that the four Muslim muftīs’ “dazzling overview” of marriage laws focused at length on the validity of authority of the wali hakim.[7] Unlike the other muftis, he pondered the question of kafāʾa just once, stating “Different directions can be distinguished in Mohammedan law in this regard: should one adhere to the teaching that among all Muslims that Arabs occupy the highest rank and among the Arabs the members of the tribe of Quraish, to which the Prophet also belonged? Or should we adopt the reformist standpoint that all believers, of whatever origin, are equal?” He posed but did not answer this question.
While Indonesian muftīs were careful not to ascribe intention to Saniah and Ahmad’s decision to marry more than 200 kilometers from their homes, they? Or Pijper? repeatedly pointed that they “ran away” (weggenloopen) to a place which was more than two “marhalahs” to escape the jurisdiction of what he called “wali-from-the-family” (wali-uit-de-familie) although he was familiar with the term “wali nasab” whom he deemed to be protector of the woman which meant that the couple’s actions was “perhaps not contrary to the letter of the law, but it is contrary to the spirit and the intention (of the law).” In essence, Pijper extracted jurisdictional concerns from the case, being particularly rankled that Saniah departed her father’s jurisdiction to deliberately enter the ‘wali hakim’s’ jurisdiction.[8] He ruled in accordance with the rulings of the Kerapatan Inderapoera and Raad Agama Batoe Bara although the basis of his rulings were entirely jurisdictional – the marriage could only be validated by wali nasab and not the wali hakim – going against muftīs’ interpretations but ultimately, arriving at the same ruling that the marriage between Saniah and Ahmad was indeed invalid.
Notes:
[1] Nurfadzilah Yahaya, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (Ithaca: Cornell University Press, 2020), 65.
[2] Ibid. 40-41, 55.
[3] KITLV Collection DH 488, Kampoeng Lalagan den 20 Juli 1936 Univ no. 488.
[4] Bezwaar van Amat tegen de uitspraak van den Kerapatan Besar van Batoe Bara, De Assistent-Resident van Asahan, Tandjoeng Balei, March 4,1937.
[5] KITLV Collection DH 488, Hadji Samsoedin, Keterangan advies dari Hadji Samsoedin Kadhi negeri Indrapoera. August 7, 1937.
[6] Hadji Samsoedin cited it as no. 340 chapter 3. The line is no. 386 in later versions of Fath Al-Mu’in. أما القاضي فلا يصح له تزويجها لغير كف ء وإن رضيت به على المعتمد إن كان ولي غائب أو مفقود لانه كالنائب عنه فلا يترك الحظ له
[7] KITLV Collection DH 488, “Bezwaar van Amat tegen de uitspraak van den Kerapatan Besar van Batoe Bara” G.F. Pijper to Government in charge of east coast of Sumatra in Medan, August 19 1937.
[8] British and Dutch authorities were consistently concerned about women’s freedom from their families and often tried to bring them back into the fold.
Suggested Bluebook citation: Nurfadzilah Yahaya, What does Equality Mean in the Colonies?, Islamic Law Blog (July 15, 2021), https://islamiclaw.blog/2021/07/15/what-does-equality-mean-in-the-colonies/)
(Suggested Chicago citation: Nurfadzilah Yahaya, “What does Equality Mean in the Colonies?,” Islamic Law Blog, July 15, 2021, https://islamiclaw.blog/2021/07/15/what-does-equality-mean-in-the-colonies/)