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N. Kaptein Sayyid Uthmân on the Legal Validity of Documentary Evidence

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N. Kaptein Sayyid Uthmân on the Legal Validity of Documentary Evidence N. Kaptein Sayyid Uthmân on the legal validity of documentary evidence In: Bijdragen tot de Taal-, Land- en Volkenkunde 153 (1997), no: 1, Leiden, 85-102 This PDF-file was downloaded from http://www.kitlv-journals.nl Downloaded from Brill.com10/02/2021 03:44:01AM via free access NICO KAPTEIN Sayyid 'Uthman on the Legal Validity of Documentary Evidence1 /. Introduction The Batavian scholar of Arab descent Sayyid 'Uthman ibn 'Abd Allah ibn 'Aqil ibn Yahya al-'Alawï (1822-1914) was one of the most productive Islamic scholars in the Netherlands East Indies of his time. In Dutch coloni- al historiography he is best known as adviser on Muslim affairs to the Dutch colonial administration, or as 'Honorary Adviser on Arab Affairs' ('Honorair Adviseur voor Arabische Zaken'), as his official title ran (Snouck Hurgronje 1924a; Azra 1995). In spite of this, no book-length monograph has been devoted to him so far, and many aspects of his life and work still remain obscure. It is assumed that he acquired his adviser- ship because his ideas were in close harmony with the religious policy pursued by the Dutch in the Netherlands East Indies. In addition it has been claimed that, this advisership notwithstanding, Sayyid 'Uthman re- frained from expressing certain opinions because of his function as such, in order to uphold current Dutch policy (Steenbrink 1984:137). Although doubtless Sayyid 'Uthman's view that it was perfectly pos- sible to lead the life of a pious Muslim and at the same time be an obedient and loyal servant of the infidel Dutch government made him the ideal candidate for this advisership, the assumption that this function did not af- fect his perception of Islam needs to be refined. To demonstrate this, I will analyse Sayyid 'Uthman's views on the legal validity of documentary evi- dence in this article. In Islamic law, documentary evidence in principle is 1 A part of this paper was presented at the International Seminar on Islamic Studies in South East Asia (ISIS), Universiti Brunei Darusalam, 20-23 November 1995. I would like to thank Martin van Bruinessen for his valuable comments on the pre-final draft of the text. NICO KAPTEIN took his Ph.D. at Leiden University and is currently a lecturer and coördinator with the Indonesian-Netherlands Cooperation in Islamic Studies (INIS) project at this University. Interested in traditional Islamic thinking in Indonesia as reflected in fatwa, and in religious relations between the Middle East and Southeast Asia, he has recently published 'Meccan Fatwas from the End of the Nineteenth Century on Indonesian Affairs', Studia hlamika 2-4 (1995): 141-60, and 'Circum- cision in Indonesia: Muslim or not?', in: J.G. Platvoet and K. van der Toorn (eds), Pluralism and Identity; Studies in Religious Behaviour, pp. 285-302, Leiden: Brill, 1995. Dr. Kaptein may be contacted at INIS, Nonnensteeg 1-3, 2311 VJ Leiden, The Netherlands. His E-mail address is: [email protected]. BKl 153-1 (1997) Downloaded from Brill.com10/02/2021 03:44:01AM via free access 86 Nico Kaptein inadmissible.2 Understandably, this led to tensions between Muslims and the burgeoning colonial bureaucracy. An interesting example of this is pro- vided by the colonial government's appointment of panghulu (religious leaders) in Batavia in the late nineteenth century. These appointments were not recognized by the Islamic community because they were effected through written instruments, whereas in Islam only oral appointments of civil servants are acceptable (Snouck Hurgronje 1893:363). I shall examine Sayyid 'Uthman's views on the validity of documentary evidence before and after he became involved in the colonial administration in 1889, and try to explain the political relevance of these views. I shall conclude with some general remarks on the works of this remarkable man. 2. A case of conditional repudiation in Batavia in 1881 The question of the legal validity of documentary evidence arose in con- nection with a case of conditional repudiation on which Sayyid 'Uthman's opinion was asked. This case is well documented in a small lithographed booklet containing copies of the relevant documents, and thus constituting a dossier on the subject in question. The original documents are written in Arabic, and the connecting passages and some summaries of relevant texts in Malay. The booklet once formed part of the personal library of the famous Dutch Oriëntalist C. Snouck Hurgronje (1857-1936), who spent the years 1889-1906 in the Netherlands East Indies as Adviser on Native and Arab Affairs in the service of the Dutch colonial government. During this period Snouck Hurgronje amassed an enormous collection of printed and manuscript works. After his death in 1936 this collection was bequeathed to the Leiden University Library. This is how the booklet, providing the material for the present section, came to form part of the collections of this library, where it is now kept under number 893 F 20. It is stated nowhere in this booklet where or when it was published. On page 1 it contains a statement that the case in question was initiated in A.H. 1298, which corresponds to A.D. 1880/1881. Therefore the date of publication will not have been too long after this year. The booklet has no title, and I shall here refer to it as Segala Soal Jawab (hereafter abbre- viated as SSJ), as these are the first words occurring on the cover. These are followed by a few lines of Malay indicating its contents, which read as follows: 'This contains the questions and answers relating to the issue of the imper- missibility of validating a repudiation on the sole basis of written statements by witnesses who have since died. They [i.e., the questions and answers] have been sent to the Noble City of Mecca and confïrmed by the mufti of Mecca and other 'l''* 2 For a brief introduction to this issue from the point of view of Islamic law, see Peters 1995. Downloaded from Brill.com10/02/2021 03:44:01AM via free access Sayyid 'Uthman on Documentary Evidence 87 The booklet deals with a specific case of conditional repudiation (ta'lïq al- talaq). Under the marriage law in force in large parts of the Netherlands East Indies at the time, it was customary for the husband to state immedi- ately after the conclusion of the marriage contract that his wife would be repudiated in the event of his failure to fulfil certain specified conditions vis-a-vis her. As was said above, the case was initiated in 1298/1881, when a woman asked a district imam (Muslim leader) to confirm her divorce from her hus- band, who had left her to go on a sea journey4 and had subsequently been absent for approximately ten years. Although the imam who had married (menikahkan) the woman, as well as the witnesses who had been present at the conclusion of the marriage, had since died, the marriage register {buku nikah) contained a ta'liq statement in writing, 'as is usual and in ac- cordance with the customary law of the province {adat negen)', with the signature of the husband (tekannya suami) appended beneath it. State- ments of this kind, as was indicated above, specify the conditions under which the marriage may be dissolved. This documentary evidence notwith- standing, the imam to whom the woman had applied did not confirm the repudiation, because he was aware of pronouncements of 'ulamd' for- bidding the passing of verdicts on the sole basis of documentary evidence, without the verbal testimony of the witnesses concerned (557:8-9). The issue moved a step further ahead when the imam in question put the case to Sayyid 'Uthman. The question (in Arabic) to the Sayyid about whether or not the wife had in fact been repudiated in this instance (557:1- 2) and Sayyid 'Uthman's lengthy reply denying the validity of the talaq (repudiation) under the given circumstances are contained in the above- mentioned booklet, the reply constituting the greater part of it (557:2-7). This answer will be studied in detail below. After that, this reply was discussed by a legal advisory council (majlis fatwa), which doubtless convened in Batavia (557:10). The majority of the members of this council endorsed Sayyid 'Uthman's view. Three of them, however, expressed the opinion - with reference to the principle of emergency (darüra), to part of a Qur'anic verse (Süra 2:185), and to a quotation from a Muslim legal manual (the Fath al-Mu'ïn by the sixteenth- century scholar Zayn al-Dïn al-Malaybarï, see Juynboll 1930:375) - that the marriage could be dissolved on the basis of the written document in the absence of the witnesses (557:9). Thereupon the district imam informed the woman of his decision not to 3 'Ini segala soal jawab atas masalah tiada harus mehukumkan talak dengan semata-mata tulisan saksi-saksi yang telah tnati. Maka telah dikirim ke Mekah al- musharrafah dan telah ditashihkannya oleh mufti Mekah beserta lain ulama lagi.' 4 The adat specified different periods of time for the absence of the husband, depending on whether he had travelled by land or by sea upon departure. See Snouck Hurgronje 1893:384. Downloaded from Brill.com10/02/2021 03:44:01AM via free access 88 Nico Kaptein validate her repudiation. The case then moved on to a higher level when it was submitted to a number of authoritative Muslim scholars in Mecca for arbitration. All of these also stated that the repudiation could not be validated (557:10-11). The said booklet is very interesting for a number of reasons.
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