Chapter 3: The Facts about Malays

In this research, the discussion about Malays is vital. This chapter would study about the Malays, Malays composition, norms, values and their belief according to historical perspective. This is very essential to be discussed in order to relate its relevancy with Islam and its agendas in Malaysia.

3.1

Malays and their composition among the rest of ethnics in Malaysia To begin to understand the Malay, you must live in his country, speak his language, respect his faith, be interested in his interest, humour his prejudices, sympathies with and help him in trouble, and share his pleasures and risks. Only thus can you hope to win his confidence. Only through that confidence can you hope to understand the inner man, and his knowledge can therefore only come to those who have the opportunity and use it. Frank Swettenham.1

3.1.1 Who is Malay? According to the Federal Constitution, a Malay must be a Muslim, habitually speak the Malay language, conform to Malay custom and be born in the Federation.2 There is no reference of Malay as a race in the said definition.3 In the opinion of Mohd Ridzuan bin Awang and Yahaya bin Udin, this article lays down only four criteria an individual has to fulfil to be declared as Malay. He or she must be a Muslim, speak Bahasa Malaysia, comply with the Malay custom and have his permanent domicile in Malaysia or Singapore.4 The Article does not make any reference to race by birth qualification or de

1 2

Frank Swettenham. (1967). Stories and Sketches. Kuala Lumpur: Oxford University Press. Page: 16. Federal Constitution, Article 160. 3 Dr Bashiran Begum Mobarak Ali & Dr Ainul Jaria Maidin. Who Is A Malay: Defining Malayness From The Legislative Perspective. [2008] 5 CLJ i. 4 Mohd Ridzuan Awang, Tanah Simpanan Melayu Analisa Sosioekonomi Dan Perundangan, Kuala Lumpur, Richme Enterprise, 1987, p. 11; Yahaya Udin, Malay Reservations - are There Adequate Safeguards, Unpublished Dissertation for Master of Comparative Laws, International Islamic University Malaysia, 1991, p. 49.

jure race.5 It promotes a de facto race6 that is, where race could be extended by legislation. There were propositions that Malays in Malaysia should be regarded as a cultural group and not a race. As such, other races such as Chinese, Indians, Pakistanis or Eurasians could be regarded as Malay if they fulfil all the above requirements (religion, language, and custom).7 Khoo Kay Kim is of the view that the definition of Malay as provided in the Federal Constitution is not specific or restricted as it appears to be very general and can be interpreted to include indigenous people of the Malay Archipelago.8 It would be useful to analyse the different limbs of the definition of Malay as provided in the Federal Constitution in order to understand the intention of the legislators. Professing of the Religion of Islam There were cases in the Federated Malay States where Chinese and Indians settled permanently in the Malay States, were involved in business and/or married Malay women and converted to Islam. There were also Malays from the Malay Archipelago who were not Muslims. The British colonials were aware of that and thus faced some difficulties in defining the term Malay.9 They were also aware that the Malays in the Federated Malay States were all Muslims and strongly resisted to be converted to other religions.10 In the Federated Malay States the terms Malay and Muslim are used synonymously.11 Thus, Islam is viewed as synonymous to Malay and being a member of Malay society.12 It was perceived that all Malays were Muslims, and those who converted to Islam became Malays. According to Syed Naquib Al-Attas13 , the process of conversion to Islam was called masuk Melayu, which literally means to enter or convert into the Malay race. The British felt that for the protection and preservation of the Malay race and the establishment of a permanent agricultural population, they had to define Malay by way of religion. On Federal Council proceedings it was argued that it was impossible to define

I. Talaog Davies, Malay, Intisari, Vol. 1, No. 2 (1963) p. 27; in Muhammad Said Abd Kadir Al-Haj, Undang-Undang Tanah Rizab MelayuSiapakah Melayu? 2nd ed., Kuala Lumpur: Kementerian Tanah dan Pembangunan Koperasi, 1992, p. 16. 6 Dr Bashiran Begum Mobarak Ali & Dr Ainul Jaria Maidin. Who Is A Malay: Defining Malayness From The Legislative Perspective. [2008] 5 CLJ i. 7 Ibid. 8 Khoo Kay Kim, Origin of Malays New Straits Times, Monday, 25 September 2000, p. 2. 9 Proceedings of the Federal Council of the Federated Malay States For The year 1913 at B 24. 10 Mohd Salleh Abbas, Traditional Elements of the Malaysian Constitution in F.A. Trindade and H.P. Lee (Eds.) Further Perspectives And Developments: Essays In Honour Of Tun Mohamed Suffian, p. 5. According him, Islam has been the religion of the Malays for the last 500 years. 11 Ibid, p. 6; See also M.R. Mohd Nawi, Economic View of Puasa, Intisari, Vol. 1, No. 2, p. 52; and Shirle Gordon, Contradictions, Intisari, Vol. 1, No. 2, p. 30. 12 M.B. Hooker, The Orang Asli and the Laws of Malaysia: With Special Reference to Land, Akademika, Journal of Social Science and Humanities, No. 48 (January 1996) p. 43. 13 S.M. Naquib Al-Attas, Islam Dalam Sejarah Dan Kebudayaan Melayu, Kuala Lumpur, University Kebangsaan Malayisa, 1972, p. 20.

the Malay without religious census.14 In the Selangor Land Code 1891, the term Mohammedan as found in s. 23 was used to define Malay.15 In the Malay Kampong Lands Enactment 1912, foreign born Malays would only be considered Malays under the Enactment if they were Muslims. Moreover, the Malay Reservation Enactment 1913 defined a Malay as a person belonging to any Malayan race who habitually speaks the Malay language or any Malayan language and professes the Moslem religion.16 In the previous draft Bill of the Malay Reservation, cl. 2 provided the definition of a Malay as a person born in the Malay Peninsula or on any island adjacent thereto, or belonging to any Malayan race of the Malay Archipelago who habitually speaks the Malay language or any Malayan language and professes the Moslem religion. Now, will a Malay cease to be a Malay under the Federal Constitution if he renounces the Islamic faith? The Attorney General of Malaysia made it very clear by saying that Malay who changes his/her religion shall no longer be considered as such. Moreover, the provisions in the Federal Constitution concerning Malay privileges shall no longer be applicable to him/her.17 In the unreported judgement of Azlina Jailani, Yang Arif Datuk Faiza Thambi Chik said that the Federal Constitution restricts a Malay from renouncing the religion of Islam. However, the researcher strongly believes that to renounce Islam would mean the abandonment of his Malay way of life under the Federal Constitution. Habitual Speaking of the Malay Language The next requirement for a person to be declared a Malay is that he/she must habitually speak the Malay language. Malay language is neither defined in the Federal Constitution nor by the Interpretation Acts 1948 and 1967. The earliest evidence of Malay language is found in Kitab Pemimpin Johor written in 1878 by Muhammad Ibrahim Munsyi in Singapore.18 It is written in Jawi, and Malay has often been described as the lingua franca of the area.19 Article 152(1) of the Federal Constitution provides that the national language of the Federation shall be the Malay language. There are various dialects of Malay being spoken by Malays in their respective States. For example, the Malays in Kelantan have a different dialect, similar to Malays in Negeri Sembilan whose dialect originated from Minangkabau.
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Proceedings of the Federal Council of the Federated Malay States For The year 1913 at B 25. Selangor Order in Council, No. 111 of 1891, David, above n 1 at 74; W.E. Maxwell was the key man behind the drafting of Selangor Land Code 1891; See SS BA Office 1892 (M 243/86). The Land Code 1891Makes representations to the Muhammadan populations. 16 Malay Reservation Enactment s. 2 17 The Utusan Zaman, 28 June 1970, p. 1 cited in Saodah Sheikh Mahmood, Malay Reservation and Malay Land Holdings: A case study of Economic Protection Discussed in the Context of Trengganu Reservation Enactment 17/1360, Thesis submitted to Fakulti Ekonomi dan Pentadbiran, University Malaya, Kuala Lumpur, August 1971, pp. 18-19. 18 M.A. Fawzi Mohd Basri, Kitab Pemimpin Johor: Suatu Pengenalan, Malaysia Dari Segi Sejarah, No. 10, 1981, p. 47. According to the author, one of the earliest sources of Malay grammar is by G.H. Werndly titled Maleische Spraakunsi, written in 1736. 19 R.S. Milne & K.J. Ratnam, Malaysia-New States in a New Nation: Political Development of Sarawak and Sabah in Malaysia, Frank Cass, London, 1974, p. 6.

Reading the said Article with the National Language Act 1963/67 it has been specified that Bahasa Malaysia is the national language of the Federation. Suffian LP confirmed this in the historical case of Merdeka University Berhad v. Government of Malaysia 20 by saying that Bahasa Malaysia is the official language of the country. Mohd Salleh Abbas argued that by declaring the Malay language - the lingua franca of Malaysia - the national language it served to unite the various races into one single nation by a shared language.21 There are Malays who can neither speak the various Malay dialects nor the official Bahasa Malaysia. Can these people still be considered Malays? If we were to interpret the provisions, than the person ceases to be a Malay under the Federal Constitution. Conformity with Malay Custom The next issue that needs to be analysed is the definition of Malay custom. There is no precise definition of custom found in the Federal Constitution. Custom according to the Collins English Dictionary is the long established habits or traditions of a society collectively.22 In Haji Saemah v. Haji Sulaiman23 Horne J: There is a wealth of authority as to how a custom must be established and the effect of those authorities is concisely stated in the 9th ed. of Law of Evidence (Woodroffe and Ameer Ali) p. 175: "Custom as used in the sense of a rule which in a particular district, class, or family has from long usage obtained the force of law must be ancient, continued, unaltered, uninterrupted, uniform, constant, peaceable and acquiesced in reasonable, certain and definite, compulsory and not optional to every person to follow or not. The acts required for the establishment of customary law must have been performed with the consciousness that they spring from a legal necessity.... In Kok Heng Chow v. Lay Mee Yin (f)24 Evans J cited the Indian case of Raja Rama Rao v. Raja of Pittapur XLV Indian Appeals 148 ... where custom was defined by Lord Dunedin who said: When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the courts of a country, the courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case... Therefore, the meaning of custom can be simplified to mean:
[1982] 2 MLJ 243. Mohd Salleh Abbas, ''Traditional Elements of the Malaysian Constitution'' in F.A. Trindade and H.P. Lee (eds.) Further Perspectives And Developments: Essays In Honour Of Tun Mohamed Suffian, p. 10. 22 Collins English Dictionary. 23 Haji Saemah v. Haji Sulaiman [1948] MLJ 108. 24 Kok Heng Chow v. Lay Mee Yin (f)[1948] MLJ 157 at 160.
21 20

a rule which in a particular family or in a particular district has from long usage obtained the force of law. It must be ancient, certain and reasonable and being in derogation of the general rules of law must be construed strictly. The custom practiced by a particular group of people in a particular district may govern various parts of their lives. This custom is also passed on throughout the generation and is strongly adhered to by the group of people in that particular district. There are two types of adat or customary law in the Peninsular Malayan states namely adat perpateh and adat temenggong in practise. Custom is the oldest form of law-making. Briefly speaking, custom is a continuing course of conduct observed by the community.25 Customs reflect the norms and values of a society and can be either of a social or legal nature. Sanction is more certain in legal customs than the social ones. In one sense, custom is the principle source of the law, in another conventional trade or business usage. It can also mean local custom, which applies only to a definite locality or to a definite class, persons or people within the locality.26 Malay custom as defined by the Laws of the Constitution of Johore as the custom observed in the State or in any particular area within the State.27 Yet, a lot of elements of Malay custom are strongly influenced by Hindu custom and culture. The normal practices of the Malays are eating on plantain leaves with ones fingers, eating sambal belacan or cencaluk, wearing sarong and songkok, staying in attap huts, squatting on mats, etc. It would definitely include the loyalty to Malay Rulers. There have been contentions that although members of other races converted to Islam, married Malay women and fluently spoke Malay, they should not be considered as Malays as they are not subjects of His Highness, the Ruler. In one of the reports of the Constitutional Proposals for Malaya, it was proposed that the subjects of His Highness, the Ruler should mean any Malay born in that State or born of a father who is a subject of the Ruler of that State.28 Furthermore, in the Federal Court case of Kesultanan Pahang v. Sathask Realty Sdn Bhd29 it was argued that the word subject referred only to natural persons as there was an element of allegiance to the Ruler attached to it. Mohd Azmi FCJ agreed by saying that there was a special relationship existing between the Rulers and the subjects which needed to be preserved. Malay feudal30 society was a rigid class society where the ruling class and their families formed the upper strata, while the rakyat (ordinary subjects) formed the lower strata. The
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P.S. Atchuthen, Jurisprudence and Legal Theory, London, 1985, p. 104. P.K. Bandyopadhyay, Customary Laws of the Santal and the Mahali in the State of West BengalA Comparative Study And Present Position Under the Law, Thesis submitted To The University of North Bengal For the Degree of Doctor of Philosophy In Law, 2003, p. 3. 27 Laws of the Constitution of Johore, Second Part, Article 1. 28 See ibid., statement made by Colonel H.S. Lee. 29 [1998] 2 CLJ 559 FC. 30 The social system that existed during pre-colonial period. For the concept and definition of feudal system see S.H. Alatas, Modernization and Social Change, Melbourne: Angus & Robertson, 1973; J.M. Gullick, The Indigenous Political Systems of Western Malaya, London: The Athlone Press, 1958; Wan Hashim, A Malay Peasant Community in Upper Perak, Integration And Transformations, Bangi: Penerbit University

Sultan was the ruler of the state. The other members of the aristocracy became the Orang Besar and district chiefs. The Malays believed that the rulers were given mystical powers (daulat) by God. The rulers were regarded as the shadow of God on Earth and according to the traditional belief no commoner could touch them without suffering death. Shaharuddin comments that it is in the Malay custom that the Malays should not be disloyal or treacherous to their rulers, even as their rulers behave cruelly or unjustly.31 Kerana adat Melayu, tiada pernah derhaka, literally translated as because it was the custom that the Malays not to commit treason. This traditional loyalty to the rulers is still part and parcel of Malay custom.32 The popular Malay proverb Biar mati anak jangan mati Adat (Let the child die but not the Custom) is strongly imbued in the psyche of Malays. Many elements of the Malay custom have been preserved in wedding ceremonies, majlis tahlil, the ceremonial for the appointment of the Yang di-Pertuan Agong and Raja Permaisuri Agong and also in the respective state appointments like the appointment of the Sovereign of the State of Kedah. Raja Azlan Shah J in the case of Roberts Alias Kamarulaman v. Ummi Kalthom33 was faced with the question whether a divorced Muslim husband can claim a half share as harta sapencharian of immovable property jointly acquired by both spouses during the marriage. The latest exposition of the law on harta sapencharian wasjudicially considered by Briggs J in 1950 in Hujah Lijah bte Jamal v. Fatimah bte MatDiah [1950] MLJ 63. He defined it as "acquired property during the subsistence oftheir marriage of a husband and wife out of their resources or by their joint efforts.After stating that "on full consideration of those cases and of the views of thelearned author" in the valuable treatise of Taylor on "Malay FamilyLaw" printed in Part 1 of Volume XV of the Journal of the Malayan Branch, RoyalAsiatic Society (May 1937), the trial judge said at page 64: ... I think there can be no doubt that the rules governing hartasapencharian are not a part of Islamic law proper, but a matter of Malay adat.

Kebangsaan Malaysia, 1978, pp 7-15, 68; S. Husin Ali, ''A Note on Malay Society and Culture'' in S. Takdir Alisjahbana, Xavier S. Thani Nayagam, Wong Gongwu (eds.), The Cultural Problems of Malaysia in theContext of Southeast Asia, Kuala Lumpur: The Malaysian Society of Orientalists, p. 73. 31 Shahharuddin Maaruf, Malay Ideas on Development: From Feudal Lord to Capitalist, Singapore, Times Book International, 1988, p. 5. One of the examples where the ruler behaved unjustly and out of greed is the case of Sultan Kedah. According to Hickling, the Sultan of Kedah was a weak man, too fond of money, very relaxed in the execution of laws ... Birch, writing of the Perak in the 1870''s recorded that all the chiefs, within their districts were Magistrates and could inflict fines. When the fine was above $25 it all went to the Sultan. What was below that sum was appropriated by the Chiefs. No accounts or records were kept. The mischievous effect of such a rule could not be disputed and even extended to the Sultan himself who preferred fining a man for murder rather than inflict capital punishment because he pocketed a large fee. 32 The National Operations Council, The 13 May TradegyA Report (Kuala Lumpur: 1969) p. 5. 33 [1966] 1 MLJ 63.

The requirement to comply with the elements of Malay custom is as mandatory as being a Muslim. Hence, if a Malay does not comply with the custom, could he be considered a Malay? This leaves yet another question unanswered: How much of the custom must a person conform to and who would determine the quantum of such? Could there be a possibility that the ruler can disown his subject on the basis that he/she has not complied with the custom? Even though the requirement of custom is mandatory, there is no authoritative source on this subject. It is most likely that the term conforms to Malay custom carries a social or conventional rather than legal connotation. The drafters of the Federal Constitution have never intended it to have any legal sanctions. In a passing statement it was said that no man is said to be a real Malayan unless he can eat a durian.[57]

1.6.3.2

The integration and assimilation of Malay customs with Islam