Law and Society in Malaysia

Pluralism, Religion and Ethnicity

Andrew Harding, Dian A. H. Shah, Andrew Harding, Dian A. H. Shah

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351357654
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

This book provides a systematic and interdisciplinary examination of law and legal institutions in Malaysia. It examines legal issues from historical, social, and political perspectives, and discusses the role of law in relation to Malaysian multiculturalism, religion, politics, and society. It shows how the Malaysian legal system is at the heart of debates about how to deal with the country's problems, which include ethnic and religious divisions, uneven and unsustainable development, and political authoritarianism; and it argues that the Malaysian legal system has much to teach other plural polities, nations within the common law tradition, and federal states.

1 The creation of Greater Malaysia

Law, politics, ethnicity, and religion^*

Kevin Y. L. Tan

Editors’ notes

This chapter standing at the beginning of this book is deeply historical and explains the role of Islam in Malaysia from the Malacca Empire and the colonial period right through to 2017. The chief frame of reference is religion and its official recognition in the formation of ‘Greater Malaysia’ during its constitutionally formative period from 1946 up to 1963, and how that history continues to be relevant to the issues explored in later chapters of this book. Kevin Tan offers us an overview of this history, which gives us a clear and concise understanding of the tension between pluralism and the official position of Islam and how and why that position was defined.

Entwined with the issue of the place of Islam in both law and society is the issue of ethnicity. In particular readers of this chapter may wish to examine this further by looking at the chapters by Wilson Tay (Chapter 3) and Rueban Ratna Balasubramaniam (Chapter 2), who both examine, albeit from different perspectives, the phenomenon of the Malaysian ‘social contract’ which aims to protect the special position of Malays/Muslims while guaranteeing the legitimate interests of the minority groups. Kevin Tan’s chapter explains the politics surrounding the inclusion of Article 3 of the Federal Constitution, which makes Islam the religion of the Federation, and how the place of religion in the polity has been used to reinforce the dominant political power of the Malays in contemporary Malaysia.

This account also explains the role of the Malay rulers, for which see Chapter 4 by Andrew Harding.

Regarding religion and its legal impact on society, readers may wish to explore the later chapters in the book, especially those by Dian A. H. Shah (Chapter 7) and Tan Beng (Chapter 8).

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Introduction

Today, we speak of Malaysia, and of Malaysian food or Malaysian politics, Malaysian law, or even Malaysian culture, as if Malaysia had always existed as an organic, coherent political entity. Those born after 1965 have been bombarded by so much ‘Malaysianess’ that few have paused to think how artificial Malaysia really is. Even Malaya is an odd but politically convenient construct dating back only to 1946. The Federation of Malaysia came into being in 1963, an amalgamation of the Federation of Malaya, the State of Singapore, and the British Borneo territories of Sabah and Sarawak. This chapter examines a particular facet of the constitutional bargain that went into the making of Malaysia – how Islam came to be the Federation’s ‘official religion’ and how this has impacted the pluralism that existed in Malayan society. My main purpose is not to repeat or to summarize the many excellent books and articles on the creation of Malaysia¹ but to simply highlight some of the salient milestones of this historical episode to try to understand the logic of what happened in 1963.

Islam in South East Asia

To understand the role of Islam in Malaysia, we need to go some way back in time.² Islam came to South East Asia in the 1200s, at the tail end of the Buddhist Sri Vijaya empire and at about the same time as the ascendance of the Hindu Majapahit empire. Parameswara, the prince whose forebears founded Temasek (modern Singapore) and who in turn founded Malacca in 1402, was the first significant royal to convert to Islam. He changed his name to Iskandar Shah and established the line of kings whose branches and tentacles have reached almost every segment of Malaysian royalty.³ By establishing Islam as the religion of the royals and more generally over the next 200 years, Islam supplanted earlier Buddhist and Hindu influences (which in any case were on the wane) in the Malay peninsula and the surrounding region, including what is now modern Indonesia. Not surprisingly, the rise of Islam in South East Asia corresponded with the height of Ottoman power in the Middle East. This, coupled with the influence of Arab traders from India and Hadhramaut (modern-day Yemen), secured Islam as the principal religion practised in the region. By the time of the Second World War, Islam was the dominant religion of the Malays both on the peninsula and in the neighbouring Dutch East Indies (now Indonesia).

Islam in Malaya

Over the course of the next 350 years, Islam as a religion was to become tightly enmeshed with the Malay identity to the extent that in Malaysia ‘it is unimaginable to thinking of Malayness without Islam’ (Nagata 2011: 11). The British colonized Malaya in parts. Penang – which it colonized in 1786 – was the first of its colonies, but it was not for almost another century that the British truly intervened in the affairs of the Malay peninsula. Capitalizing on the state of unrest resulting from the Larut Wars in Perak in the 1870s, the British forced the Sultan of Perak to accept a British ‘adviser’ through the Engagement of Pangkor (more commonly referred to as the Pangkor Treaty) of 1874 (Sadka 1968). Article VI of the Treaty required the sultan to ‘provide a suitable residence’ for the British resident ‘whose advice must be asked and acted upon on all questions other than those touching Malay Religion and Custom’ (emphasis added). This concession to the sultan was to become the bedrock of the ruler’s identity and ‘right’ in the ensuing years, all the more so because the Pangkor model was used throughout the rest of the Malay states. One might also observe that the term ‘Malay Religion’ conflates the religion of Islam with the ethnicity of the majority of its adherents on the peninsula. This legal conflation may be explained by the social fact that by this time, Islam had become the major unifying force among the Malays. As anthropologist Judith Nagata explains:

Beyond ‘race’, religion took over as the major portal and bond of unity, capable of transcending locality and birthplace, through its appeal to shared values and ethical principles. For several decades, it was possible to ‘become Malay’ (masuk melayu) through Islam, including by conversion. Cases where (biological) race may be secondary to religion and culture in family matters are illustrated by fictive kinship, in the form of adoptions (anak angkat) of non-Muslim children who thereby become full status Malays. For generations, numerous biologically Chinese children have become socially Muslim and Malay by this practice of fictive kinship.

(2011: 19)

The next major legal confirmation of this conflation was seen in the 1895 Constitution of the State of Johor which presents a list of definitions of Malay terms used for the principal personages of the state. Among them, the ‘ruler’ was defined as ‘a person of the Malay race, of Royal blood, a descendant of the Johor sovereigns, a male and of the Muslim faith’. Article VII of the same constitution provided that the religion of the state of Johor was the ‘Muslim religion’ and that

on no account may any other religion be made or spoken of as the religion of the country, although all other religions are allowed and are always understood as proper to be allowed, to be practiced in peace and harmony by the people professing them in all and every part of the Territory and Dependencies of the State of Johor.⁴

The idea that Malays are necessarily Muslims percolated into the national conscience but in different degrees. Thus, by the end of the Japanese Occupation in 1945, Malay nationalism and identity was fast coalescing but not homogenizing. Factions soon appeared on the horizon. Three distinct groups could be recognized. The first group were the reformist Islamic activists who were drawn to the teachings of the Egyptian-centred Abduh movement⁵ that stressed social rather than political change. The second group hailed mainly from a rural peasant background and was a product of the Malay-medium education system which, at its highest levels, exposed its students to the teachings of Indonesian nationalism and socialism. Out of this group grew the Kesatuan Melayu Muda or Young Malays Union, which served as a training ground for left-wing groups active during and just after the Japanese Occupation. Finally, there was the English-educated elite from the traditional aristocracy. They were loyal to the British but sought to protect Malays from the power of the Chinese and Indian immigrants (Roff 1967).

The MacMichael treaties fiasco

The emergence of Malay consciousness and nationalism that manifested in the post-war politics of Malaya thus comprised these three groups, each jostling to advance its position and agenda. Running alongside this awakening of national consciousness was the British plan to constitutionally restructure their possessions in the Malay Peninsula (Stockwell 1974). Because of the piecemeal way in which the British intervened in the Peninsula, three separate constitutional arrangements operated cheek by jowl. First, there were the Straits Settlements – comprising Singapore, Malacca, and Penang – which British colonies obtained by cession. Second, there were the Federated Malay States – comprising Perak, Pahang, Selangor, and Negri Sembilan – all of whom accepted the primacy of the British resident. Third, there were the Unfederated Malay States – made up of Johor, Kedah, Kelantan, Perlis, and Terengganu – each of which accepted a British adviser. During the Second World War, the War Office and the Colonial Office began working out plans on how best to rationalize these constitutional arrangements. The plan was to dissolve the Straits Settlements and merge Penang and Malacca with the Federated Malay States and the Unfederated Malay States to form the Malayan Union. The trickiest part of this enterprise was to convince the Malay rulers to surrender their sovereignty to the British and then have the British control them under a written constitution (Stockwell 1979; Lau 1990).

The man that the British chose to execute this unpleasant task was Sir Harold MacMichael, a former Governor of Tanganyika and High Commissioner to Palestine. MacMichael arrived in Malaya in October 1945 and over the course of two months, visited and browbeat the various Malay rulers (usually styled ‘sultan’) into signing the new treaties. MacMichael carried a big stick. He had specific instructions not only to secure the new treaties but to also:

recommend the names and credentials of the Malay personage whom he considered competent and responsible to sign the new treaties in any of the states where the rulers recognized by the British government before the war were no longer in office or had compromised with the Japanese during the war.

(Khong 1984: 78)

This was a major threat to the rulers especially since six of the nine rulers had ascended their thrones during the Japanese Occupation and, because of this, their positions had not been formally recognized by the British. The other three rulers had remained on their thrones during the Japanese Occupation and this could easily be interpreted as their willing collaboration with the enemy. The rulers were really left with little choice but to sign the treaties MacMichael put before them.

With the treaties in hand, Britain was now able to effect its Malayan Union plan. However, the plan failed almost before it was put into action. The rulers were extremely unhappy with the way MacMichael forced them into signing the treaties which not only left them weaker but lowered their status in the eyes of their subjects (Cheah 1988; Smith 1994). On the matter of religion, Khong Kim Hoong noted:

the Malayan Union weakened the Sultans’ position. The old treaties recognised them as the heads of the Muslim religion in their respective states and the British officials were explicitly precluded from any interference into any matters concerning religion. The Malayan Union Order-in-Council provided for a Council of Sultans where the Governor would sit as President. This Council was empowered to consider legislation relating solely to matters affecting the Muslim religion. The Governor’s chairmanship over the Council of Sultans which had powers over religious matters meant that they had been relegated to a secondary position. The Rulers were afraid that this change would adversely affect them. As heads of the Muslim religion, they were the leaders of Malay social life. Removed from this position, they would no longer be able to command the respect that had almost elevated them to the position of deities and would lose the control over their followers. Such deliberate action on the part of the British to remove them from the scene for good was naturally resented.

(1984: 80–1)

The Malayan Union was launched on 1 April 1946 but was practically stillborn. Amid howls of protest from the rulers and the Malay masses, the British were forced to consider an alternative scheme which would restore the rulers to their pre-MacMichael positions (Yeo 1973; Stockwell 1979; Lau 1990). Subsequent discussions and further constitutional tweaking led to the Union’s dissolution on 1 February 1948 and its replacement by the Federation of Malaya.

The main consequence of Britain’s manipulation of the Malay rulers was the widespread awakening of Malay nationalism, and with that, political parties founded on race and religion (Funston 1980). Leading the charge was the group led by men such as Dr Burhanuddin el Hemi and Ustaz Abu Bakar al-Bakir who were active in the Partai Kebangsaan Melayu Sa-Malaya (Malay Nationalist Party or MNP) which was established in 1945 and had, by the 1950s, close to 100,000 followers. The emphasis on religion and Islamic reformism championed by the MNP eventually led to the formation of the Pan-Malayan Islamic Party (PMIP, better known today as PAS) in November 1951 (Ahmad Noor 2004; 2014).

But it was not this group to whom the British turned for opinions; nor were they the ones to whom the British believed they could entrust an independent Malaya. That group, the chosen one, was the United Malays National Organisation (UMNO), which had been established by Onn bin Jaafar in 1946 in the aftermath of the MacMichael treaties fiasco (Stockwell 1977). The leaders of UMNO were from the third group – traditional elites who were initially more concerned with restoring Malay prestige than in seeking political power. Founder Onn bin Jaafar came from a line of Menteri Besars (chief ministers) in Johor while his successor, Tunku Abdul Rahman, was a member of the royal house of Kedah. Leaders in UMNO saw it as their responsibility to reclaim the lost prestige of the Malays and of their hereditary rulers, the sultans, from the indignity and ignominy of the MacMichael treaties. There was a need to stamp and restore Malay dominance⁶ in all spheres, and the economically successful Chinese and Indian minorities had to be kept at bay. If Malaya was to be independent, then it had to be on terms that favoured the Malays, the sons of the soil.

The failure of the Malayan Union of 1946 led to the crafting of a new polity. Some would even argue that through the introduction of the Malayan Union, the British sowed the seeds of distrust and enmity between the Malays and non-Malays. The British, genuinely shocked at the degree of protest and resentment engendered by the Malayan Union scheme, sought to forge a new, more inclusive consensus and this led ultimately to the creation of the Federation of Malaya ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of tables
• List of contributors
• Acknowledgements
• Preface
• 1. The creation of Greater Malaysia: law, politics, ethnicity, and religion
• 2. Malaysia’s blocked social contract debate
• 3. Dimensions of Ketuanan Melayu in the Malaysian constitutional framework
• 4. ‘Nazrinian’ monarchy in Malaysia: the resilience and revival of a traditional institution
• 5. The particular in the universal: negotiating the right to education and cultural–linguistic rights of minority children in East Malaysia
• 6. Legal pluralism in Malaysia: the case of Iban native customary rights in Sarawak
• 7. Religion, conversions, and custody: battles in the Malaysian appellate courts
• 8. The rise of ‘Islamic’ sexual morality and state power in Malaysia
• 9. Justice and enforcement agencies personnel in Malaysia and their views on domestic violence, marriage, and religion
• 10. Political and religious hegemony via the suppression of expression: book banning and film censorship in Malaysia
• Index