ONCE upon a time, the Malay Rulers were truly individual sovereigns (for historical socio-political reasons it’s not accurate to say that the states were sovereign, but that’s for another article). Laws were formulated and enforced in each kingdom according to institutions legitimised by the Ruler. In some cases, law and order was further decentralised, with local governors having significant powers ultimately carried out in the name of the Ruler – Raja Jumaat’s Lukut comes to mind.
The legal code of Melaka is a well-known example, but rule of law was observed in all states in some form or another. Some laws had economic goals, aimed to preserve adat or had religious connotations, as referenced by the Batu Bersurat Terengganu of 1303 or explicitly mentioned in the Kedah Laws of Dato’ Sri Paduka Tuan of 1667.
When in the 19th century the British wanted to expand their influence in the Malay Peninsula, they accepted the sovereignty of each Ruler, and understood that separate treaties had to be signed with each to gain administrative power in the Golden Chersonese. By 1895, enough treaties had been signed to pursue a policy of centralisation, leading to the formation of the Federated Malay States (FMS).
The monarchs of the Unfederated Malay States (UMS) observed the transferral of power from their brother Rulers’ state institutions to new federal ones with consternation. Thus, to ensure that their realms would remain independent within a modern constitutional setting, Sultan Abu Bakar of Johor and Sultan Zainal Abidin III of Terengganu introduced formal constitutions in 1895 and 1911 respectively.
These efforts had some effect: it was only in 1910 that Sultan Ibrahim of Johor accepted the appointment of a mere General Advisor (as opposed to a British Resident or British Advisor), at the same time securing the survival of the Johor Military Forces that continue to this day; while Terengganu was the last state to receive a British Advisor in 1919 – an act so disruptive that Sultan Muhammad II abdicated in disgust soon after.
These developments annoyed centralisers in the British colonial office who had aspired to see the entire peninsula administered from one federal capital. They then decided to try and entice Terengganu, Kelantan, Kedah and Perlis (and with any luck Johor too) to join the existing federation by pursuing a policy of decentralisation within the FMS. It did not work.
Having said all this, it did not mean that Rulers in the FMS were powerless: institutions such as the Malay College Kuala Kangsar and the Royal Malay Regiment were initiated or greatly enhanced by the FMS Rulers. And of course, all the Rulers remained guardians of Islam and Malay customs.
World War II meant the replacement of the British with the Japanese, who nominally kept the structures intact even though they handed Kedah, Perlis, Kelantan and Terengganu to Thailand in July 1943 (essentially undoing the 1909 Anglo-Siamese Treaty). After the nukes resulted in the Japanese surrender, the British Military Administration took power and recommended the creation of the Malayan Union: a highly centralised political entity that vastly curtailed the relevance of the states.
From this point on the history is better known, for political reasons: Umno’s first claim to fame was successfully fighting the Malayan Union to restore the sovereignty of the Malay Rulers, even though there were many other players such as former Malayan Civil Service officers, the Conservative opposition in the British Parliament and the Rulers themselves! And so by the time the Federation of Malaya saw Merdeka Day, the Federal Constitution, agreed to by the Rulers, stipulated what powers the states had vis-a-vis the federal government. Land was a deemed a state matter (allowing the continued existence of adat land rules in Negeri Sembilan), and so was Islam, enabling the establishment of Syariah courts under the purview of each state.
The Syariah Courts (Criminal Jurisdiction) Act 1965 placed limits on the punishments these Syariah courts could impose, and this is the cause of much chatter now that a Private Member’s Bill is apparently in the works that would remove these limitations to enable the full implementation of the Kelantan Syariah Criminal Offences Enactment II 1993 and the Terengganu Syariah Criminal Law (Hudud and Qisas) Enactment 2003 (only the latter is available on esyariah.gov.my). Another view holds that the 1965 Act is unconstitutional, since the Federal Constitution already lists Islam as a state matter without limitation. Still others argue that the basic structure of the nation cannot be so easily changed regardless.
Whatever happens, the current battle over legal interpretations and parliamentary votes, motivated more by political manoeuvring than religious conviction, may be a pivotal moment in the history of federalism and the rule of law in the Malay Peninsula.
Tunku Abidin Muhriz is president of Ideas.