POLEMIC FATWA ULAMA IN INTERFAITH NUPTIALS IN INDONESIA

POLEMIC FATWA ULAMA IN INTERFAITH NUPTIALS IN INDONESIA

(Fatwa’s on marital and family issues)

Introduction

Among the fatwas on marital and family issues are those on the pronouncement of three talaqs at once (divorce), inter-religious marriages, child adoption, and the sale of inherited lands. Each of these fatwas will be examined here.

The question of the pronouncement of three talaqs at once is an old issue, as old as Islam itself. Fuqaha’ already have definite ideas about this. In this sense the fatwa of the M.U.I. on the question provides nothing original to the discussion. However, the interesting facet and a new twist in the discussion is how the M.U.I. dealt with the classical question in relation to the Marriage Law of 1974. On 22 September 1981 the Directirate General for Muslim Affairs of the Ministry of Religious Affairs wrote to the M.U.I. to ask about the legal status of the pronouncement of three talaqs at once, and whether it imposes three talaqs or one. The importance of the question lies, indeed, in the legal consequences. If it means only one talaq, which is called raj’I, the legal consequence is that the husband still has the right to return to the wife within the ‘idda period without hacing to conduct a new marriage ceremony. If the pronouncement imposes three talaqs, which is called ba’in, the husband could return to the wife only after she had married another and divorced again (muhallil), in which case the first husband could then conduct a new marriage with her.

The Law Fall Talak

In response to the letter, the M.U.I. issued a fatwa on 24 October 1981 stating that the pronouncement of three talaqs at once imposed only one talaq. While the fatwa recognized the fact that, according to the majority of the Prophet’s companions, all of the four Sunni madhhabs, and Ibn Hazm the Zahiri the pronouncement of three talaqs, it preferred the view of a group of fuqaha’ consisting of Tawus, the Imami madhhab (Shi’i), Ibn Taymiyya, and some of the Zahiri fuqaha’ who said that such a pronouncement imposed only one talaq. The fatwa was signed by Ibrahim Hosen and Musytari Yusuf, the chairman and the secretary of the Fatwa Commite respectively.[1]

In addition to the referebce to the differing views of the fuqaha’, the arguments put forward by the fatwa are not so much concerned with the Qur’an or Hadith or fiqh texts but rather with the Marriage Law passed by parliament in 1974.[2] The fatwa stated that, with the promulgation of the Marriage Law, the cases of the pronouncement of three talaqs at once should not have occurred in the first place. Under the law a husband can pronounce talaqs only before the judges of the Islamic Courts; the judges declare the legality of the pronouncement. Thus, casual pronouncements of talaq by a husband to his wife at home or in a letter can indicate the intention of divorce, but have no legal force.[3] The law is indeed progressive in the sense that it departs from the traditional practice in which casual pronouncements of talaq are held to be valid, and that it courageously discards the established views held by the early fuqaha in favor of a law made by a secular institution, the parliament. Here the M.U.I. correctly recognizes the classical fiqh textz as the products of fuqaha’ rather than as sacreddivine laws. The fatwa goes further by asking the Islamic Courts to make every effort to prevent three-talaq pronouncements, thus in practice ruling out the existence of triple talaq itself. In other words the fatwa of 1981 was a death knell for the practice of three-talaq pronouncement in Indonesia. It is true that, as early as the 1930s, Ahmad Hasan of the Persatuan Islam had given a fatwa to the same efect, but his argument was based on quotations of Hadith rather than on any secular law. Thus, the fatwa of the M.U.I. is different in the sense that laws produced by the state take precedence over the classical fiqh texts. The fatwa and the Marriage law clearly reinforce one another, although it is not easy to make a judgement as to which has the greather influence. Judging by the chronology of events, however, the fatwa seems to hace functioned to clarify the matter, while the legal power remains with the Marriage Law.[4]

Connubial MUI Religious Advices between Umat

Another fatwa of the M.U.I. on marital issues to be examined here is that on inter-religious marriages. This is another question that has been dealt with extensively by classical fiqh texts. The fatwa was issued on 1 june 1980 as a response to the growing concern in society about the increasing incidence of inter-religious marriages. In fact, the discussion for the fatwa took place at the Second Annual Conference of the M.U.I. held in 1980 rather than at the regular Fatwa Commite meeting. The fatwa made two direct statements about the question. Firstly, that a Muslim woman was forbidden (haram) to marry a non-Muslim man; and secondly, that a Muslim man was forbidden (haram) to marry a non-Muslim woman. The fatwa was signed by Hamka and Kafrawi, the general chairman and the secretary of the M.U.I. respectively. Strangely enough, the fatwa was countersigned by the Minister of Religious Affairs, Alamsjah Ratu Perwiranegara. However, the importance of the fatwa is not so much determined by the ministerial signature but rather by the fact that it was discussed and decided by an Annual Conference of the M.U.I.[5]

The arguments put forward by the fatwa consist exclusively of Qur’anic and Hadith quotations, and no reference is made to any fiqh text. The first Qur’anic verse qouted concerns the prohibition of marriage between a Muslim man or a woman and a mushrik (idolator)[6] because Allah considers a Muslim slave better than an idolator; the second concern the permissibility of a Muslim man marrying a woman of the ahl al-kitab (people of the book, namely Christians and Jews)[7]; the third concerns the prohibition of marriage between a Muslim woman and an unbeliever (kafir); the fourth concerns the command to keep oneself and one’s family from going to hell. The Hadiths qouted are concerned, firstly, with the doctrine that a good marriage is equal to half of the faith, and secondly, with the belief that children are born pure (fitra); only the parents make them jews, Christians, or Zoroastrians.[8]

The interesting thing about the fatwa is that, while the qur’an explicitly permis a Muslim man to marry a woman of the ahl al-kitab, the fatwa does not. It forbids such a marriage on the grounds that the mafsada (harm) is greater than the maslaha (benefit). Although the fatwa refers specifically to the case of Indonesia, it is aradical position, for contradcts the explicit statement of the Qur’an. It also contradicts classical fiqh texts that had so far been consulted by MUI for other fatwa Classical fiqh texts are in agreement concerning the permissibility of marriage between a Muslim man and a woman of the ahl-kitab.[9] The question arises as to what the basis for the MUI’s contradiction of the Qur’an was.

A week later, on 19 August 1975, the Jakarta regional council of ‘ulama’ supplied a document presenting quotations of the views of a number of fuqaha’ to serve as further arguments for the earlier statement. The supplementary document refers to the texts of al-Jaziri and Sayyid Sabiq, and two works of tafsir by Rashid Rida, al-Manar, and Sayyid Qutb, Fi zilal al-Qur’an, all of which maintain the prohibition against a Muslim woman marrying a non-Muslim man regardless of his being mushrik or the ahl al-kitab. The texts say that permission is granted only for a Muslim man to marry a woman of the ahl al-kitab.

The second document takes the form of a public letter, issued again some 11 years later on 30 September 1986 by the Jakarta regional council of ‘ulama’. The letter urges Muslims not to engage in inter-religious marriages. After referring to its own statement of 1975, mentioned earlier, and to the fatwa of the M.U.I. of 1980 on inter-religious marriages, the letter gives details as to how to proceed should the question of inter-religious marriage arise. It says that Muslims should not, under any circumstances, engage in marriage with non-Muslim. A Muslim man who, for reasons of necessity, such as living in an area with a non-Muslim majority, is considering marrying a non-Muslim woman of the ahl al-kitab should ask himself if he would be capable of persuading his prospective wife to cenvert to Islam, and if he would be able to raise his future children under Islamic guidance. If the answer is no, he should refrain from the marriage. The letter further says that, should a marriage involving a Muslim man and a non-Muslim woman be arranged, the wedding ceremony should be conducted by the Office of Muslim Affiars (Kantor Urusan Agama, the K.U.A.) under Islamic procedures. To public servants in the Office of Civil Registration, who register non-Muslim marriages, the letter urges that respect by paid to the faith of those who come to have their marriages registered by the office. Should one of the marrying parties be a Muslim, the letter asks the Civil Registration Office to advise the couple to have their marriage registered by the Office for Muslim Affairs (the K.U.A.). The letter claims that this is in line with the spirit of Pancasila, the Constitution of 1945, and the Marriage Law of 1974. The letter was signed by Ahmad Mursjidi and Ghozali Syahlan, the chairman and the secretary of the Jakarta regional council of ‘ulama’ respectively.[10]

The Issue of inheritance and the adopted child

As one of the results of the annual conference of 1984, the M.U.I. issued fatwa on child adoption. The fatwa states that Islam recognizes only natural parenthood bound by legal marriages. Therefore, the fatwa further says, child adoption in Islam neither ends the legal relationship between the child and his or her natural parents nor creates a new legal relationship (including that of inheritance) with his or her adoptive parents. The fatwa maintains that child adoption practiced in Indonesia by foreibner contradicts Article 34 of the Constitution of 1945.[11]

The arguments put forward by the fatwa begin with the quotation of three Qur’anic verses and four Hadiths, followed by references to two works of tafsir and fiqh. The three Qur’anic verses quoted state that God does not make adopted children the real children of the adoptive parents, that adopted children are to keep the family names of their natural parents, and that Muhammad is not the father of Zayd, the adopted son.[12] The four Hadits quoted in the fatwa basically that those who who do not call their adopted children by the family names of their natural parents will have difficulty entering paradise. The two works by Muslims referred to in the fatwa are the Tafsir ayat al-ahkam of al-Sabuni and al-Fatawa of Mahmud Shaltut. Al-Sabuni is quoted by the fatwa to have said that Islam renounced the system of child adoption practiced at the time of the Jahiliyah.[13] Shaltut is quoted to have said that there were two kinds of child adoption, one permitted and the other prohibited in Islam. The one permitted and even encouraged by Islam is child adoption that does not end the legal relationship with the natural parents or create a new legal relationship, including marriage limitations and the right of inheritance, with the adoptive parents.[14]

Debates about the legal status of child adoption are long standing in Indonesia. Earlier in his study mention was made of the controversy in the 1930s between Muslim and the proponents of the adat law over the issue of inheritance and the adopted child, and in the early 1970s over the first draft of the bill on marriage submitted by the government to parliament. In this sense the fatwa is only reactivating an old issue. However, there are two new elements in the fatwa. Firstly, the fatwa’s reference to Article 34 of the Constitution which stated that poor and deprived children are the responsibility of the government; secondly, its mention of the practice by foreign citizens of adopting Indonesian children. The question arises as to the significance of mentioning these two elements in the fatwa.

The explanation is traceable to a statement made by Syukri Ghozali on 14 July 1979 when he was the chairman of the Fatwa Committee and one of the vice chairman of the M.U.I. The statement itself didi not take the form of a fatwa but was rather a paper on child adoption presented during a discussion with the leadership of the Jakarta regional council of ‘ulama’. For some reason the paper, together with the fatwa on inter-religious marriages, was included in a volume published by the Jakarta regional council. The paper began by describing the limitations on child adoption in Islam and re-evaluating the history of the Prophet’s relation to his adopted son, Zayd b. Haritha, for which the paper made reference to relevant Qur’anic verses. Suprisingly the paper later discussed the question of the practice of child adoption for religious motives in Indonesia. It said that it had long been a practice for many deprived Indonesian Muslim children to be adopted and raised as Christians, even to become Christian teachers or missionary workers. The paper further said that some of them were sent abroad for training and, later, returned to Indonesia to preach Christianity. The paper complained that, although such missionary activities should not be permitted in Indonesia, the government didi not take any ction to stop them. Hence, the paper argued, this problem should be made public in order that the practice be somewhat resricted. The paper even suggested that if the decision were made to go public on the issue, it would have to be done thoroughout the country. The paper did not mention the source of the claim of religiously-motivated child adoption, but it did suggest that the paper need further revision.

It seems clear from the foregoing discussion that some fatwas of the M.U.I. on marital and family issues have been conditioned by the question of Muslim-Christian rivalry. The fatwas on inter-religious marraiges, child adoption, and the sale of inherited lands prove this to be the case. The fatwa on the pronouncement of three talaqs at once is rather different in nature. It is a case of imposing state laws over classical fiqh texts. The arguments put forward in those fatwas differ in character. As discussed earlier, in the fatwa on the pronouncement of three talaqs the arguments go Hadith bases. In the other fatwas, however, the arguments rely heavly on Qur’anic and Hadith quotations before referring to any work of tafsir or fiqh. It seems that, when a fatwa is designed to protect the Muslim community as a whole from some external force, the arguments are prepared with as much reference to the scriptures as possible. However, when a fatwa is designed only to meet some internally established need, the arguments are prepared based on fiqh texts in a straighforward manner without prior examination of the Qur’anic bases. This is to say that the presentation of the arguments in the fatwas of the M.U.I. on marital and family issues seems to have been conditioned by the purpose of the fatwas rather than by concern for the consistency of employing a methodology.

---

[1] Present at the meeting preparing for thefatwa were syukri Ghazali, Abdul Aziz, Tengku Muh Saleh, and Syafe’I Hadzami. See Majelis Ulama Indonesia, Kumpulan Fatwa, pp 91,92. For the views of the four Sunni madhhabs on the question, see al-Jziri, al –Fiqh ‘ala al-madhabib al-arba’a vol 4,pp34, and Sayyid Sabiq Fih al-sunnah vol 2, al-Malibari, fath al-mu’in,pp.114

[2] The Politicalsurrounding the debate over the issue of the Maaiage Law was discussed in the preceeding chapter

[3] See article 39 of the Marriage Law

[4] For the Fatw of Ahmad Hassan, see his soal Jawab tentang berbagai masalah Agama Vol1 ( Bandung: Diponegoro, seventh edition, 1983 ),pp. 268-280

[5] Majelis Ulama Indonesia, Tuntunan Perkawinan Bagi Umat Islam Indonesia (Jakarta: Sekretariat MUI, 1986), pp 71-73

[6] Qur’an,2:221

[7] Qur’an, 5: 5

[8] Majelis Ulama Indonesia, Tuntunan Perkawian, pp 75-77

[9] See, fpr example, al-Nawawi, Minhaj al-talibin,p 87; al-Asari, Tuhfat al-tullab bi sharh it tanqih al-lubab (Indonesia; Dar ihya al-kutub al-arabiyaa, reprint,nd), p.96;al-Sharqawi, Sharqawi ‘ala al-tahrir,p.237

[10] Majelis Ulama DKI Jakarta, Seruan tentang perkawinan antar agama ( Jakarta,1986 ),pp.1-19.) And The letter specifically refers to two Jakarta daily newspapers, Kompas of 10 and 12 July 1986, and Pelita of 30 July 1986, and a magazine, Panji Masyarakat No.510,1986

[11] Majelis Ulama Indonesia, Kumpulan Fatwa. P 125

[12] Three out of the four Hadist quoted are reported by both Bukhari and Muslim, and one by Bukhari alone

[13] Muhammad ‘Ali al_Sabuni, Tafsir ayat al-ahkam vol.2 ( Damaskus Matha’a al-ghazali, second edition1977). 269

[14] Shaltut, al-fatawa, 321