Monday, 15 March 2010

WHO IS A MALAY: DEFINING 'MALAYNESS' FROM THE LEGISLATIVE PERSPECTIVE by Dr Bashiran Begum Mobarak Ali* & Dr Ainul Jaria Maidin**

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, sympathise 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
Introduction
Article 153 of the Federal Constitution grants the Yang di-Pertuan Agong responsibility for safeguarding the rights and privileges of the Malays and other indigenous people of Malaysia. The article specifies how the Federal government can protect the interests of these groups by establishing quotas for entry into the civil service, public scholarships and public education. It is often considered to be part of the social contract.
Article 153 is considered as one of the most controversial provisions in the Federal Constitution by some Malaysian. Critics consider it as a means of an unwanted racist distinction between Malaysians of different ethnic origins. It has led to the implementation of affirmative action policies which solely benefited the Malays who already constitute the majority of the population. Despite general ostentation of the article, support for it is maintained. This article has to be understood as a continuation of previous laws devised by the British to protect the indigenous Malay populace from being outnumbered and overruled by Chinese and Indian immigrant workers who had been granted permission to settle in Malaya to assist the British government in the tin mines and plantations respectively.
Although the first clause of the article provides that the government should act "in accordance with the provisions of this article", some believe that the government has overstepped its constitutional powers by implementing policies which give undue favor to the Malays, particularly under the New Economic Policy (NEP). Regulations setting a minimum equity holding for the Bumiputra1 have been established, with practically all real estate sold to the Bumiputra in Malaysia discounted at rates ranging from 5% to 15%. This has prompted many Non-Malays especially the Muslims among them to seek recognition as Malays. There is a misconception that converting to the religion of Islam makes a person a Malay who can seek to benefit from all the Malay privileges. The term "masuk Melayu" is also used to refer to a person who converts to Islam relying on the literal meaning of the definition of Malay in the Federal Constitution 1957.
It is 50 years since Malaysia has achieved independence from its colonial masters, and the country has progressed tremendously in terms of social, economical and political development. It has also brought about various challenges to the Malays, especially in terms of the protection of property rights and privileges that are being safeguarded by the Federal Constitution. Some Malaysians are viewing the position of the Malays and the privileges granted to them with prejudice. There are also attempts to pass off as Malays by people who demand their recognition as 'Malays' since they do fulfill the criteria required for 'Malayness' as prescribed in the Federal Constitution of Malaysia 1957.
Confusion reigns over who has the right to be called 'Malay' and who does not. Serious queries are made to determine once and for all as to who is a 'Malay' by those who wish to enjoy the Malay privileges.
The Britannica Concise Encyclopedia defines Malay as:
Any member of an ethnic group that probably originated in Borneo and expanded into Sumatra and the Malay Peninsula. They constitute more than half the population of Peninsular Malaysia. They are mainly a rural people, growing rice for food and rubber as a cash crop. Heavily influenced by India, they were Hinduized before converting to Islam in the 15th century. Their culture has also been influenced by the cultures of the Thai, Javanese, and Sumatrans. Malay society has traditionally been somewhat feudal; class distinctions are still marked, and marriages have traditionally been arranged by parents and governed by Islamic law.2
The British definition of Malay is derived from their own perception and understanding of Malay customs and culture from long observation. According to Stamford Raffles, the Malayu nation has to be considered as one people, "speaking one language, though spread over so wide a space, preserving their character and customs, in all the maritime states lying between Sulu Seas and the Southern Oceans."3
The name Malay is sometimes used to describe the concept of a Malay race, which includes all the ethnic groups inhabiting the Malay Archipelago and which are not of older aboriginal stock.
The term Melayu (Malay person in the Malay Language), in the Federal Constitution of Malaysia, refers to a person who professes Islam, habitually speaks the Malay language, conforms to Malay custom and who has at least one ancestor from the Malay Peninsula or Singapore.4 The Malay ethnic group is distinct from the concept of a Malay race, which encompasses a wider group of people, including most of Indonesia and the Philippines.
The confusion arising in Malaysia today over who shall be considered 'Malay' is due to the various definitions provided in the Federal Constitution of Malaysia, other federal legislations, and the state constitutions and state enactments. However, one cannot disagree that all the definitions in the statutes were intended to achieve the same objective, that is to ensure that the Malays receive the privileges and benefits they are guaranteed.
Despite the definitions provided in all the various statutes, the question as to 'Who is a Malay?' remains unresolved. What are the relevant criteria to classify a person as 'Malay' in Malaysia? Is the term 'Malay' used to denote a race? Is it merely a political invention? Or used to refer to a group of people coming from a particular geographical location? Can any person including the Orang Asli, particularly the Semai,5 call themselves Malays? Should they be recognised as Malays pursuant to the Federal Constitution? What is the position of the Federal Legislation or State Enactments these people are seeking to assert?
It is possible that the definition of 'Malay' is suited to the need of a particular state depending on its geographical location and needs of the ruler of the state rather than for the purpose of the state. It is also possible that the drafters of the Federal Constitution have been aware of the definition of 'Malay' in the various State Enactments, yet, in the process of promoting unity of the Malays included the definition - in the hope that all the States would adopt it?
Could there be a possibility that the legislators never intended to accord a broad definition of 'Malayness' and thus wanted to inhibit any cases of 'conversion' to the Malay race? The abuse of racial identity might provide an avenue for Malay 'converts' to enjoy certain privileges that were granted exclusively to Malays (reservation of land, permits, etc.).
Different opinions pertaining to the definition of 'Malay' were put forward by British colonial officials who were trying their best to provide a precise and clear definition as to who was a 'Malay' and who was not. Interestingly, their definition has remained applicable until today.
This paper discusses the various definitions of 'Malay' found in the Federal and State legislation, with the aim to suggest the use of one single definition of 'Malay'. Only with a clear definition of 'Malay' it can be ensured that Malay privileges are not given to others falsely pretending to be Malays.
Defining The Term 'Malay'
The term 'Malay' has been defined in many differing ways and there exists no single precise and clear definition that can be used as a universal reference without causing confusion. At this point one is reminded of the conversation between Humpty Dumpty and Alice in the Fairy Tale, Alice in Wonderland.
'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean - neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'6
This simply means that one word can be interpreted and given various meanings to suit any circumstances and needs if it is not given a precise and clear meaning.
Terminology is not the last, but the first, act of analytical activity in creating a field of study. This is because the choice of terms defines (limits, directs) both what one wishes to look at, and how one looks at it.7 (Allott 1985: 22). Thus, the choice of a given terminology involves a certain level of abstraction and theorization. The terminology used must be clear so as to provide the reader with a clear and precise meaning rather than leaving it to be interpreted by the reader.
'Malay' is an ambiguous term that is not determined exclusively by the Federal Constitution. Ought 'Malayness' be defined by race or by the geographical location of a group of people?8 According to Othman, 'Melayu' is not a political invention and it includes the people of Malaysia, Indonesia and the Philippines. The Philippines were inhabited by people who are ethnically Malay, and Indonesians are also mostly of the Malay race and profess Islam.9 The Malaysian Peninsula or Federation of Malaya has always been known as Tanah Melayu and became known as Malaysia when Sabah, Sarawak and Singapore joined the Federation.10 As mentioned earlier, the term 'Malay' has been defined differently in various sources, such as:
- Definition of Malay in the Federal Constitution
- Definition of Malay in State Constitutions.
- Definition of Malay - Revisiting the Legislative History
- Definition of Malay in the context of the State Malay Reservation Enactments
- Definition of Malay in other statutes.
These definitions and their implications are discussed in detail below.
Definition Of 'Malay' In The Federal Constitution
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.11 There is no reference of Malay as a race in the said definition. In the opinion of Mohd Ridzuan bin Awang and Yahaya bin Udin, the article (ie, art. 160) 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.12 The Article does not make any reference to race by birth qualification or de jure race.13 It promotes a de factorace14 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.15 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). 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.16
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'.17 They were also aware that the Malays in the Federated Malay States were all Muslims and strongly resisted to be converted to other religions.18
In the Federated Malay States the terms 'Malay' and 'Muslim' are used synonymously.19 Thus, Islam is viewed as synonymous to 'Malay' and being a member of Malay society.20 It was perceived that all Malays were Muslims, and those who converted to Islam became Malays. According to Syed Naquib Al-Attas21 and Norhashimah Yassin,22 the process of conversion to Islam was called 'masuk Melayu', which literally means to enter or convert into the Malay race.23
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 the 'Malay' without religious census.24 In the Selangor Land Code 1891, the term 'Mohammedan' as found in s. 23 was used to define Malay.25 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.'26 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 a 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.27 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.28 However, the authors strongly believe 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 1967.29 The earliest evidence of Malay language is found in Kitab Pemimpin Johor written in 1878 by Muhammad Ibrahim Munsyi in Singapore.30 It is written in Jawi, and Malay has often been described as the 'lingua franca' of the area.31
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 Negri Sembilan whose dialect originated from Minangkabau.
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 Malaysia32 by saying that Bahasa Malaysia is the official language of the country.33 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.34 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.'35 What is meant by the word custom or adat? Worley J in Low Bee Hoe (w) v. Morsalim and Goh Tien Lim v. Lee Ang Chin36 cited the Indian case of Harpushad v. Sheo Dyal [1876] LR 3 IA 259 and accepted the Privy Council's explanation of the meaning of custom as:
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. It must be proved as a fact and in the case above cited their Lordships said, "A judge cannot without giving evidence as a witness import into a case his own knowledge of particular facts."
In Haji Saemah v. Haji Sulaiman37 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 edn 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)38 Evans J cited the Indian case ofRaja 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:
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.39 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.40
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.41 Yet, a lot of elements of Malay custom is strongly influenced by Hindu custom and culture. According to M.B. Hooker, Islam could not completely eradicate earlier Hindu and customary influence in the absence of anything like a centralised authority.42
The normal practices of the Malays are eating on plaintain leaves with one's fingers, eating sambal belacan or cencaluk, wearing sarong and songkok, staying in attap huts, squatting on mats, etc.43It 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 Malays44 as they are not 'subjects of His Highness, the Ruler.'45 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.46 Furthermore, in the Federal Court case of Kesultanan Pahang v. Sathask Realty Sdn Bhd47 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.48
Malay feudal49 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.50 The Sultan was the ruler of the state. The other members of the aristocracy became the Orang Besar and district chiefs. The rakyat was considered inferior in terms of power, status and wealth. Considering the customary values and ideas of the Malays, the establishment of a ruling class and the submission to the rulers was part and parcel of their life.51 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.'52Kerana adat Melayu, tiada pernah derhaka, literally translated as 'because it was the custom that the Malays not to commit treason.' This is what as Chandra Muzaffar claims a blind or unquestionable loyalty to the rulers,53 carrying out the wishes and desires of the ruler without questioning the motives behind his wishes or the rationality of his desires. This traditional loyalty to the rulers is still part and parcel of Malay custom.54 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.55
Raja Azlan Shah J in the case of Roberts Alias Kamarulaman v. Ummi Kalthom56was 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 was judicially considered by Briggs J in 1950 in Hujah Lijah bte Jamal v. Fatimah bte Mat Diah [1950] MLJ 63. He defined it as "acquired property during the subsistence of their 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 the learned author" in the valuable treatise of Taylor on "Malay Family Law" printed in Part 1 of Volume XV of the Journal of the Malayan Branch, Royal Asiatic Society (May 1937), the trial judge said at page 64:
... I think there can be no doubt that the rules governing harta sapencharian are not a part of Islamic law proper, but a matter of Malay 'adat'.
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
The Definition Of Malay In The State Constitutions
Malay can be defined and categorised in various ways which all depend on the intention and creativity of the state drafters after getting approval from the Sultan and the Menteri Besar. Listed below are some of the provisions that include the term 'Malay' such as 'Malay race', 'royal blood of the Malay race', 'Selangor Malays', 'Malay of royal blood', etc. Each state constitution declares Islam the religion of the state and recognises the Malay custom.
State Of Selangor Darul Ehsan
The Laws of the Constitution of Selangor 1959
Summary Of The Provision
Part 1
Article 'Elders' include any male Selangor Malay who professes
4(1) the Muslim Religion of the 'Shafei Muzahab'58 of not less than 35 years of age. He must be able to read and write in the Malay language.
'Hukum Syara' means the body of law known in [colonial] English as 'Muhammadan laws'.
'Orang-Orang Besar' means the Territorial Chiefs of Hulu Selangor, Kuala Selangor, Kuala Lumpur, Klang, Hulu Langat, Kuala Langat, and any other Malay land.
5 The Sultan shall be a person who is a Malay, of Royal Blood, a descendant of the Sultan of Selangor, male, and professes the Muslim Religion.
8(1) If there is no eligible sovereign, the person to be chosen and appointed shall be a male of mature age, sound mind, of Malay extraction, born in the State of Selangor, a subject of the former sultan, professes the Muslim religion, and of Good Blood. He must be able to read and write in the Malay language.
9(2) The Regent and the members of the Council of Regency shall be of the Malay race and born in the State of Selangor, professes the Muslim religion, and a subject of the former sultan.
13(1) In the failure of succession, the person to be chosen and appointed shall be a male of mature age, sound mind, of the Malay race and born in the State of Selangor, a subject of the former sultan, professes the Muslim religion, and be of Good Blood. He must be able to read and write in the Malay language.
16 The Heir shall be a person who is a Malay, of Royal Blood, a descendant of Selangor Sultans, a male, and professes the Muslim Religion.
22(1) His Highness may appoint any person of the Malay race who professes the Muslim Religion to take his place as a member of the Conference of Rulers.
35 The official language of the Dewan di-Raja shall be Malay.
41(1) Tengku Ampuan shall be of Royal Blood of the Malay race and profess the Muslim Religion.
44(1) Raja Puan Muda shall be of the royal blood of the Malay race and profess the Muslim Religion.
Part 2
47 The religion of the State shall be the Muslim Religion.
51(2) The Menteri59 Besar is of the Malay race and professes the Muslim Religion.
52(2) The State Secretary shall be of the Malay race and
(a) profess the Muslim Religion.
59 The official language of the State Executive Council shall be Malay.
82 Subject to the provisions of Article 152 of the Federal Constitution, the official language of the Legislative Assembly shall be the Malay language.60
91 It shall be the responsibility of His Highness to safeguard the special position of the Malays.
The installation of the Sultan and the appointment of the Tengku Ampuan shall be according to the custom of the State.61 Another Malay custom that still exists in Selangor is the establishment of Dewan di-Raja who aids and advises the Sultan.62
The other prevailing custom is that the Sultan is considered the "fountain of all honours and dignities". The types of award and the conferring of awards by the Sultan are also a Malay custom.63 The Sultan may make regulations for His Court and Palace based on the custom of the State.64
The concept of Elders, Raja Muda, Tengku Laksamana, and Orang-orang Besar falls under the Malay custom of Selangor.65 Certain Islamic phrases are added to the oath to bind the conscience of the person taking the oath.66
State Of Pahang Darul Makmur
Provisions from the Constitution of Pahang
Summary Of The Provision
Part 1
Article 3 The Sovereign shall be a male Malay of Royal Blood and
of the Muslim Religion.
6(1) If there are no available descendants to be appointed as Sovereign, the supporters of the State may appoint a man of mature age, sound mind, a Malay subject of the Ruler of the State of Pahang who professes the Muslim Religion and be able to read and write in the Malay language.
12(2) The Sovereign may appoint any person of the Malay race professing the Muslim religion to take his place as a Member of the Conference of Rulers.
12A Her Royal Highness, Tengku Ampuan of Pahang, shall be
(1) of the Malay race of Royal blood, of the Muslim religion.67
19(1) The Regent shall be a Malay of royal blood, subject of
(a) the Sovereign, and profess the Muslim Religion.
19(1) The Council of Regency shall consist of members who
(b) are Malay subjects of the Sovereign and profess the Muslim Religion.
23 The Religion of the State shall be of Muslim Religion.
36(1) 'Hukum Shara'68 means the body of Law known in [colonial] English as the Law of the Religion of Islam.
Part 2
3(2) Menteri Besar shall be of the Malay race and profess the Muslim Religion.
11(2) The State Secretary shall be of the Malay race and profess the Muslim religion.69
46 The official language shall be Malay.
47 It is the responsibility of the Ruler to safeguard the position of the Malays.
The Council of Religion and Malay Custom will advise the sovereign in all matters relating to religion and Malay custom.70 In addition, the Sovereign shall establish a Majlis Adat Istiadat Negeri Pahang to advise him in all matters relating to the Adat Istiadat in the State. The Sultan is the "fountain of all honours and dignities". The awards and the conferring of awards follow the Malay custom.71 The concept and members of the Jumaah Pangkuan Negeri follows the Malay custom.72
State Of Perak Darul Ridzuan
Provisions from the Constitution of Perak
Summary Of The Provision
Part 1
Article 5 The religion of the State will be the Muslim religion.
9(1) His Royal Highness may appoint any person of Malay race and professing the Muslim Religion to represent him in the Conference of Rulers.
12(1) The Mentri Besar should be of Malay race and Muslim Religion.73
27 The official language of the State shall be Malay.
27B His Royal Highness shall be responsible to safeguard the special position of Malays.
36C(2) The State Secretary shall be a Malay and profess the
(a) Muslim religion.
50 The official language of the Legislative Assembly shall be Malay.
Part 2
4 Elders are those senior male of Perak Malays professing the Muslim religion of the Shafei Muzahab. They must be able to read and write the Malay language.
Hukum Shara means the Law of the Religion of Islam.
Waris Negeri must be professing the Muslim Religion of the Shafei Muzahab.
5 The Sovereign shall be a male Malay of Royal blood. Able to read and write and professing the Muslim Religion of the Shafei Muzahab.
9(2) If there is no eligible descendant to be appointed as Sovereign, the Dewan Negara may appoint a male of mature age, sound mind, a Malay subject of His Royal Highness who professes the Muslim Religion of the Shafei Muzahab and is of good blood. He will be able to read and write in his own language.
16(1) The members of the Council of Regent shall be of Malay
(b) race, subjects of the Sovereign who profess the Muslim religion.
26(1) The Raja Perempuan shall be of Malay race of the Royal blood, married to the Sovereign in accordance with Muslim Religion and professing such religion.
27(1) Raja Permaisuri must be married to the Sovereign in accordance with the Muslim Religion and professing such religion.
35(1) The Consort of the Bakal Sultan shall be of Royal blood.
35(2) The Sovereign may appoint the Bakal Sultan's consort a commoner as a Che Puan Besar.
38 The Orang Besar Negeri or Toh Muda shall be a male subject of His Royal Highness, be able to read and write and profess the Muslim religion of the Shafei Muzahab.
44 The Sovereign may appoint one of the wives of the Orang Besar Negeri to hold the title as Toh Puan provided that such wife professes the Muslim Religion of Shafei Muzahab. The condition of Muslim Religion does not apply to the wife of Orang Kaya Kaya Mahakurnia.
47(2) The person appointed as Orang Belas Enam Belas shall be a male Malay subject of His Highness, profess the Muslim religion of the Shafei Muzahab and be able to read and write.
55 The Raja Bendahara shall be the Keeper of Malay Custom.
69 The official language of the Dewan Negara shall be Malay.
The Majlis Agama Islam and the Adat Melayu shall advise the Sultan on the religion and Malay custom.74 In the case of Raja Perempuan and Raja Permaisuri, the provisions read 'professing such religion' which may refer to the Muslim religion or may not. Said parties could therefore be Jews or unitarian Christians, as these people can be contracted in marriage without converting to the Muslim religion. They could also be Muslims of other madhhabs (Hanafite, Malikite, Hanbalite, Shi'ite). The Raja Permaisuri may not be Malay. The Laws of the Constitution of Perak define 'Adat Melayu' in its widest sense as the custom or usage of the Malays which is observed in the State.75
The wife of Orang Besar Negeri may not necessarily be Malay whereas the wife of Orang Kaya Kaya Mahakurnia may neither be a Malay nor a Muslim. The concept of Elders and Orang Besar Negeri follows the Malay custom of Perak.76 The Malay custom that still prevails is the Royal Prerogatives where the Sultan is the Fountain of Honour, Justice, Mercy, the Head of Religion and the Protector of Malay custom. In addition he is the ultimate owner of the soil.77 The conferring of titles and dignities and institute Orders and Badges of Honour ad Dignity follows the Malay custom of Perak.78
On the advice of the Dewan Negara, the appointment and installation of the three Bakal Sultans shall follow and shall be according to the Malay custom.79 Similar to the appointment of male persons to be called Raja and Orang Besar Neger, Orang Kaya, Orang Kaya Kaya, Toh Muda, Orang Besar Enam Belas are a prevailing Perak Malay custom.80
The installation of oath shall be according to Malay custom.81 Keeper of the Malay custom is the Raja Bendahara.82
State Of Negeri Sembilan Darul Khusus
Provisions from the Constitution of Negeri Sembilan 1959
Summary Of The Provision
Part 1
Article 5 The Religion of the State shall be Islam.
7(3) The Yang DiPertuan Besar shall be a male of a Malay race, sound mind, and profess the religion of the State.
13(2) His Highness may appoint any person of Malay race professing the Muslim religion to attend the Conference of Rulers during his absence.
23 The official language of the Dewan shall be Malay.
Part 2
36(2) The Menteri Besar must be of Malay race and profess the Muslim Religion.
37(2)
(a) The State Secretary shall be of a Malay race and profess the Muslim Religion.
41 The official language of the State Executive Council shall be Malay.
66 The language of the Legislative Assembly shall be the National Language.
75 It is a responsibility of the Ruler to safeguard the special position of the Malays.
The Majlis Ugama Islam shall aid and advise His Highness and the Ruling Chiefs in matters relating to religion.83 The appointment of the Dato' Shahbandar of Sungei Ujong shall be elected lawfully according to the custom of the Luak of Sungei Ujong.84 The Dewan Keadilan dan Undang shall be responsible to advice on the questions relating to Malay custom including questions relating to the election succession or removal of any of the Ruling Chiefs.85 The advice of the Dewan on questions relating to Malay custom shall be final and shall not be challenged in any court.86 The Yang diPertuan Besar by custom must be elected by the Undangs of the territories.87 Yang DiPertuan is the head of the Muslim religion and in exercising his powers in this office he must obtain the consent of the Undangs. The office of Undang is based on adat in that the particular holder must be a male member of one of the matrilineal clans of his area and is elected by the clan chiefs. The Undangs shall be elected in accordance with the custom of their respective luaks (tribes).88
State Of Kedah Darul Aman
Provisions from the Constitution of Kedah
Summary Of The Provision
12 In the vacancy of the Sovereign, the Council of Succession shall choose a male of mature age, sound mind, Kedah Malay, subject of the State of Kedah who professes the Muslim Religion Ahli Sunnah Waljama'ah, and is able to read and write in his own language.
17 The Sovereign shall be a Malay of Royal Blood, a descendant of Kedah Sovereigns, a male professing the Muslim Religion Ahli Sunnah Waljama'ah.
18(3) A Regent shall be a Malay, professing the Muslim Religion Ahli Sunnah Waljama'ah and subject of the State of Kedah
19(1) Representative of the Ruler to the Conference of Rulers shall be of a Malay race and profess the Muslim Religion.
23 Installation of the Sovereign shall be according to the custom.
26(1) Sultanah of Kedah shall be a Malay of good blood or a Sharifah.
27 An Heir shall be a Malay, a descendant of a Sovereign, a male professing the Muslim Religion Ahli Sunnah Waljama'ah.
33A The religion of the State shall be the Muslim Religion of Ahli Sunnah Waljama'ah.
35(2) Menteri Besar shall be of a Malay race and profess the Muslim Religion.
36(2) State Secretary shall be of a Malay race and profess the Muslim Religion.
39(2)(d) The Ruler is the Head of Muslim Religion and Malay custom.
40 The official language of the State Executive Council shall be Malay.
62(1) Subject to the provisions of Article 152 of the Federal Constitution, the official language of the Legislative Assembly shall be Malay.
70 Responsibility of the Sovereign to safeguard the special position of the Malays.
In Kedah, the Sovereign shall be installed according to the custom of the State of Kedah. Requirements of the Sultanah of Kedah is that she must be a Malay of good blood or a Sharifah and married to him in accordance with the Muslim religion. There is no requirement of her being a Muslim.
State Of Kelantan Darul Naim
Provisions from the Constitution of Kelantan
Summary Of The Provision
Part 1
Article 5 The religion of the State shall be the Islamic Religion.
6(1) The Head of Religion shall be His Royal Highness.
9(1) His Royal Highness may appoint a Representative who is of a Malay race and professes the Religion of Islam to represent Him for the Conference of Rulers.
12(3) The Menteri Besar and the Deputy must be of a Malay race, subjects of His Royal Highness and profess the Islamic Religion.
13(2)(a) The State Secretary shall be of a Malay race and profess the Islamic Religion.
15(2)(d) The Ruler is the Head of the Muslim Religion and Malay Custom.
27 The official language of the State Executive Council shall be Malay.
27B His Royal Highness shall be responsible to safeguard the special position of the Malays.
50(1) Subject to the provisions of the Article 152 of the Federal Constitution, the official language of the Assembly shall be Malay.
Part 2
Article 4 Hukum Syarak means the body of law known as the Law of the Religion of Islam or Islamic Law.
Ahlu-s Sunnah wal Jamaah is the school established by Abu Al-Hassan Al-Asha'ri and Abu Mansoor Al-Maturidi.
Kerabat D'Raja means any person who is a Malay of Royal Blood, professing the Islamic Religion and a descendant of Long Yunus.
7 Council of Succession shall consist of at least six members who shall be of Malay race and subjects of the Ruler of the State.
9/18 In the case there is no eligible Sovereign, the Council of Succession may appoint a mature male, sound mind, of a Malay race, born in the State of Kelantan of a father who was also born in the State of Kelantan, is a subject of the Former Sovereign, professes the Islamic Religion Ahlu-s Sunnah wal Jamaah, and in addition is able to read and write in the Malay language.
15 The Sovereign and His Heirs shall be a person who is a Malay of Royal Blood, a descendant of Long Yunus, and a male professing the Islamic religion Ahlu-s Sunnah wal Jamaah.
19 Council of Regency shall consist of members who are of Malay race born in the State of Kelantan professing the Islamic Religion Ahlu-s Sunnah wal Jamaah and being subjects of the Sovereign.
26(1) The Raja Perempuan of Kelantan shall be of a Malay race and of the Islamic Religion.
29 The Heir shall be a person who is a Malay of Royal Blood, a descendant of Kelantan Sovereign, and a male professing the Islamic religion Ahlu-s Sunnah wal Jamaah.
In Kelantan, the Council for Religion and Malay Custom are required to advise His Royal Highness the Sultan on matters pertaining to Religion of Islam and Malay custom.89
State Of Perlis Indera Kayangan
Provisions from the Constitution of Perlis
Summary Of The Provision
Article 5 The religion of the State shall be Islam Ahli Sunnah Waljam'aah.
14(1) If there is vacancy in the appointment of Sovereignty in Perlis, the Council of Succession may choose a male of mature age, a Perlis Malay, and a subject of Perlis who professes the religion of Islam Ahli Sunnah Waljam'aah.
19 The Sovereign shall be a person who is a Malay, of Royal Blood, a descendant of the Sovereign of Perlis, and a male who professes the religion of Islam Ahli Sunnah Waljam'aah.
20(3) Regent or the members of the Council of Regency shall be a Malay who professes the religion of Islam Ahli Sunnah Waljam'aah.
21 The Sovereign may appoint any person of Malay race professing the religion of Islam to represent him to the Conference of Rulers.
25 The Sovereign shall be installed according to the custom of Perlis.
28(1) The Raja Perempuan Perlis shall be of the Malay race.
29 The Heir shall be a male Malay, a descendant of a Sovereign, and profess the religion of Islam Ahli Sunnah Waljam'aah.
37(2) The Menteri Besar shall be of a Malay race and profess the religion of Islam.
38(2)(a) The State Secretary shall be of a Malay race and profess the religion of Islam.
42 The official language of the State Executive Council shall be Malay.
64(1) Subject to the provisions of Article 152 the Federal Constitution, the official language of the Assembly shall be Malay.
72 It is the responsibility of the Ruler to safeguard the special position of the Malays
The Majlis Ugama Islam and Adat Istiadat Melayu shall aid and advise the Sultan on matters of religion and Malay custom.90 The installation of the Sultan shall follow the custom of Perlis.91 The Sovereign is the fountain of all honours and dignities. The confirmation of title and dignities and institute Orders and Badges of Honour and Dignity follows the Malay custom.92 The Sovereign may make regulations for his Court and Palace according the custom of the State and this shall include all the ceremonial duties.93
State Of Terengganu Darul Naim
Provisions from the Constitution of Terengganu 1911
Summary of the provision
Chapter The Raja must be of the Mohamedan religion and a Two male Malay of the lineage and descent of the Sultan Trengganu.
Chapter If there are no more descendants, then State Council Three shall elect a male of the Trengganu Malay race, a Trengganu subject, profess the Mohamedan religion, and have a good knowledge of reading, composition and writing in his language.
Chapter The Ministers must be Mohammedan subjects of
Twenty- Trengganu.
Four
Chapter The Ministers upon oath shall affirm that they are of the
Twenty- Mohammedan religion and subjects of Trengganu.
Five
Chapter The State official religion is Islam.
Fifty-
One
Part 1
Article 3 The Religion of the State shall be the Muslim Religion.
7A(1) His Royal Highness may appoint any person of Malay race who professes the Religion of Islam to represent him to attend the Conference of Rulers.
10(1) Mentri Besar94 shall be of Malay race and profess the Muslim Religion.
13(2)(a) The State Secretary shall be of a Malay race and profess the Muslim Religion
25 The official language of the State Executive Council shall be Malay.
25B It is the responsibility of His Royal Highness to safeguard the special position of the Malays.
48(1) Subject to the provisions of Article 152 the Federal Constitution, the official language of the Assembly shall be Malay.
Part 2
Article 5 The Sultan shall be of Malay race, male lineage of the Sultans of Trengganu, and profess Muslim Religion
9 In case of failure of all the descendants, the State may appoint a Trengganu Malay of good stock, subject of the Ruler who professes the Muslim Religion and has received a good education.
17(1)(a) The Waris Ganti shall be a Malay and a male of the lineage of the Sultans of Trengganu.
The Tengku Ampuan Besar and Tengku Puan Muda shall be of Malay race, of the Royal blood, and profess the Religion of Islam.
The Head of Religion shall be the Sultan and the Majlis Ugama Islam and Adat Melayu shall aid and advise the Sultan on matters relating to religion and Malay custom.95 The conferring of titles and the types of titles belong to the Malay custom.
The appointment of the Successor shall be according to the custom of the State.96 The Sovereign may make regulations for his Court and palace e according the custom of the State and this shall include all the ceremonial duties.97
State Of Johore Darul Takzim
Provisions from the Constitution of Johore
Summary of the provision
Part 1
Article 1 Supporters of the Country shall be of Malay race, professing the Muslim religion and a subject of His Highness.
2 The Sovereign shall be of Malay race of Royal Blood, a descendant of Johore Sovereigns, a male, and of Muslim faith.
5 In a situation where there is no direct descendant of the Ruler to be appointed as a Sovereign, the State shall elect a man of mature age, sound mind, a real Johore Malay, subject of the State of Johore who professes the Muslim religion and is able to read and write in his own language.
11D The Council of regency shall consist of three members of Malay race and subjects of His Highness who profess the Muslim religion.
27A(a) Menteri Besar shall be a Malay race who professes the Muslim Religion and is a subject of His Highness
30 Counsellor must be a Malay, and a subject of His Highness who professes the Muslim Religion.
31 The Counsellor shall declare upon oath that he is a true Malay, a subject of His Highness, and a Muslim.
57 The State Religion shall be Muslim Religion.
57B His Highness may appoint a Malay professing the Muslim Religion as His representative to the Conference of Rulers.
Part 2
Article 1 Malay custom means Malay custom that has been observed in the State from time to time.
3 Menteri Besar must be of a Malay race and profess the religion of Islam.98
6(2)(a) State Secretary shall be of Malay race and profess the Muslim Religion.
7(2)(d) The Ruler is the Head of the Muslim Religion and Malay custom.
8 The official language of the State Executive Council shall be Malay.
Part 3
Article 1 It is the responsibility of the Ruler to safeguard the special position of the Malays.
The Ruler and the Regent solemnly declares to protect the religion of Islam and the Malay custom of Johore.99 The State Of Johore still maintains the terms as Raja Muda, Bendahara, Temenggong.100 The customs of the State shall be exercised with justice and fairness by the Court of Justice.101
State Of Penang
Provision from the Constitution of State of Penang
Summary of the provision
Article 5 Islam is the religion of the State.
The Head of Religion of Islam shall be the Yang di-Pertuan Agung.102
State Of Malacca
Provisions from the Constitution of the State of Malacca
Summary of the provision
Article 4A Islam is the religion of the State.
The Head of Religion of Islam shall be the Yang di-Pertuan Agung103
State Of Sabah
Provisions from the Constitution of the State of Sabah
Summary of the provision
Article 5A Islam is the religion of the State.
11A The official language of the State Cabinet and the Legislative Assembly shall be Bahasa Malaysia.
41 It shall be the responsibility of the Yang di-Pertua Negeri to safeguard the special position of the Natives
The Head of Religion of Islam shall be the Yang di-Pertuan Agung.104
State Of Sarawak
Provisions from the Constitution of the State of Sarawak
Summary of the provision
Article 39 It shall be the responsibility of the Yang di-Pertua Negeri to safeguard the special position of the Natives.
In the context of Sarawak, it is a norm that any person who is a Muslim is a Malay. And in most cases in Sarawak, if there is mix marriage between two races, there are normally classified as Malays.105 Many of the Malays in Sarawak are called Melanau. However, upon conversion to Islam, they began calling themselves Malays. Therefore, a Melanau can convert to Islam and declare himself a Malay.106 The Head of Religion of Islam shall be the Yang di-Pertuan Agung.107
Definition of Malay - Revisiting The Legislative History
There have been various discussions on the definition of the term 'Malay'. Different opinions pertaining to its definition were put forward earlier by British colonials who were trying their best in defining this particular race.
British rule in the Malay States created two types of Malays,108 the native Malays and the immigrant Malays. As immigrant Malays109 were considered those who had migrated from Sumatra and other Malay States.110 Almost all Malays were Muslims.111 In 1891, W.E. Maxwell, the British Resident of Selangor, introduced the Selangor Land Code. For the Malay peasants he had created a category of 'smallholding customary lands' to provide a security of land tenure for them. Basically, the customary provisions of Selangor Land Code followed the Malacca Land Code prepared for the State of Malacca in the 1880s. Section 23 of the Selangor Land Code prohibited the 'Muhammadan' landowners from mortgaging or transferring their rights over land to non-'Muhammadans'.112 In some respects, this provision resembled the Malay Reservations Enactment which was put into force 22 years later. Both were aimed at the same group the Malays.
In the Selangor Land Code Maxwell advocated the term 'Muhammadan' rather than 'Malay.' There could be so many explanations for this particular choice. It could be that Maxwell thought the Malays and 'Muhammadans' were synonymous. Another possible explanation would be that Maxwell - being an advocate of the Malay rights - believed that Malays should be ruled according to their own religious laws.113
On the other hand, maybe to him the term 'Malay' and ethnic entity was ambiguous and difficult to define. Not all the Malays in the Malay States were local Malays. Some came from Sumatra or other parts of East Indies and were accepted as Malays by virtue of their similarities in race. It was difficult to differentiate them. As has been argued earlier, the major threat was posed by Chinese and Indian immigrants. To protect and preserve the Malays, irrespective of whether they were local or foreign Malays, Maxwell thought the easiest way was to qualify them was through religion.
The Ulu Langat Land Officer in 1911 remarked on this:
... by 'Malays' the committee meant that all the inhabitants of the Malay Peninsula and Archipelago of Malay Race including Banjarees, Boyanese, Javanese etc., the object being to establish a permanent agricultural population of Malayan race.114
He further added that these people should make their permanent homes in the respective states and adhere to the requirements of Malay custom. On the other hand, Sir George Maxwell believed that 'Malays should be confined only to the indigenous people of British Malaya and exclude the descendants of immigrants from the Netherlands East Indies.'115
The Constitutional Committee - while drafting the Malaysian Constitution - accepted the opinion of the Ulu Langat Land Officer that a Malay should be the one by virtue of race.116 This will include only Malays and descendants of Malays originating from the Malay Archipelago,117 ie, from the island groups of Indonesia, Singapore, Thailand, Burma, Myanmar, etc. In Raja Mohar's opinion 'the Article finally accepts the existing definition of a Malay as someone belonging to the Malay 'race'.'118
The Malay Reservation Enactment 1913 defines Malay as 'a person belonging to any Malayan race who habitually speaks the Malay language or any Malayan language and professes the Moslem religion.'119 In the previous draft Bill, cl. 2 provides the definition of Malay as 'a person born in 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.' There was no explanation given for the amendments from the previous bill.
The purpose for a very wide definition of Malay was that the British colonials intended the word 'Malay' to be read as all inhabitants of the Malay Peninsula and Archipelago including the Banjarese, Boyanese, Javanese etc.. The object was to establish a permanent agricultural population of Malayan race.120 It was argued during the reading of the Bill that it was impossible to define the word 'Malay' without a religious census.121 Furthermore, the Federal Council Proceedings stated that the definition of Malay was ambiguous, and should include Chinese who had settled in the Malay States and has converted to Islam.122 Finally it was agreed that if there was any dispute in the interpretation of the term 'Malay' it had to be referred to the Ruler of the State in Council and should not be brought up to the courts.123
Definition Of Malay In The Context Of The State Malay Reservation Enactments (MRE)
Article 89(6) of the Federal Constitution states that the definition of Malay is left to the discretion of the State where the person resides. This is only in relation to those persons who are interested to acquire Malay reservation land. The Malay Reservation Enactment of each State categorised 'Malay' in two terms: 'Malay' individuals and 'Malay' companies. Muhammad Said on the other hand came up with four ways of how to determine 'Malay' under the respective State MRE. First by way of definition, second by declaration, third by way of recognition, and last by characterisation.124 In the Federated Malay States (FMS) Malay Reservation Enactment, s. 2, there are three conditions for a person's declaration as Malay. The person must belong to a Malayan race, must speak the Malay language or any Malayan language habitually, and lastly, be a Muslim.
It may be observed that there exists a conflict between the definition of Malay provided in the Federated Malay States (FMS) Malay Reservation Enactment of Malay with Article 160 of the Constitution. Article 160 does not define Malay as belonging to any Malayan race. Therefore, in cases where there is inconsistency between the MRE and the Constitution, by virtue of art. 75 of the Constitution, the provisions of the Constitution shall prevail. However, in the opinion of Shaik Noor Alam, art. 89(6) resolves this apparent conflict in favour of the Malay Reservation Enactment.125 Muhammad Said's mimeograph Enakmen-Enakmen Rizab Melayu, Satu Kajian Perbandingan further confirms this view. The same definition of Malay we find in the Trengganu Malay Reservation Enactment in s. 2. It is rather apparent that the words 'any Malayan race' or 'any Malayan language', are ambiguous and cannot serve any precise legal definition. Above all they have not received any judicial construction.126 The additional use of the word 'belonging' does not resolve this problem in any way.
The Johor Malay Reservation Enactment in s. 2 defines Malay as 'belonging to the Malay or any Malaysian race'. What is the difference between 'Malay' as opposed to 'any Malayan race' as applied by other states? The Johor Malay Reservation Enactment also allows Malay reservation land to be alienated to 'any Malaysian race.' Why making this difference? Is it confined to the same Malay ethnic group in the Malay Archipelago or was the intention of the legislators to include all other races who are deemed to be Malays under the Constitution? K.A. Blacker, Commissioner of Lands and Mines of Johore, clarified this ambiguity by stating that:
The Enactment imposes a test of race, and so goes further than the old cl. 124 of the Federation of Malaya Agreement, which defined a Malay as a person who habitually speaks the Malay language, professes the Muslim religion, and conforms to Malay custom.
[...] I would define a Malay or Malaysian race as one indigenous to the Malay Peninsula and Archipelago: a definition which would exclude an Arab community if that community is still racially identifiable as such, ie, if it has not been subject to such miscegenation with stock as to lessen its distinct Arab characteristics.127
The same was agreed by Mohamed Zahir in his article entitled 'Land Laws in the Unfederated Malay States to 1966' as he believes the definition of Malay is not confined only to Johor Malays but refers to all those Malays who comply to art. 160(2) of the Federal Constitution. Furthermore, he said that on the language qualification it includes the dialects, which originated from Java and Sumatera, such as Bugis and Nariong dialects.128
Meanwhile, the Kelantan Malay Reservation Enactment in section 2 has adopted similar provisions of Federated Malay States Malay Reservation Enactment on the definition of Malay and further extends the meaning of 'Malay' to include Majlis Ugama Islam and the Official Administrator. The Kelantan Malay Reservation Enactment has omitted the specific reference to 'habitually speaks the Malay language.' It merely states 'who speaks any Malayan language.' Furthermore, it has restricted the alienation of Malay reservation lands to the native of the State ie, Kelantan under ss. 2 and 9 of the Kelantan Land Enactment 1938. In Kelantan, the State Authority can only alienate Malay reservation land to the native Malays of Kelantan. However, according to M.B. Hooker, natives of Kelantan shall include also the Orang Asli. Therefore for the purposes of Malay reservation, an Orang Asli may qualify as Malay in Kelantan as long as he is the native of the State.129
The Perlis Malay Reservation Enactment extends to include persons of 'Arab descent' who habitually speak the Malay language.130
The Kedah Malay Reservation Enactment is identical to Perlis and has made reference to Siamese agriculturists who are permanent residents in the State. Its definition of 'Malay' is much wider. According to the Kedah Enactment, Malay means 'whose parents, with at least one of them being a person of Malayan race or Arab descent'.132 Said has attempted to make out the different definitions of 'Malay' in the Malay Reservation Enactments of Perlis and Kedah.133 According to him, both states accept that an Arab descendent can own land in these states, although it is not applicable to a person of an Arab race.134 A further clarification can be seen in the following Table A:
No. Mother Father Kedah MRE Perlis MRE
1 Malay Malay Malay Malay
2 Malay Non-Malay Malay Non-Malay
3 Malay Arab descent Malay Malay
4 Arab descent Malay Malay Malay
5 Arab descent Non-Malay Malay Non-Malay
6 Arab descent Arab descent Malay Malay
7 Non-Malay Malay Malay Malay
8 Non-Malay Arab descent Malay Malay
9 Non-Malay Non-Malay Non-Malay Non-Malay
Table A
Source: M.Said Abd Kadir, Undang-Undang Tanah Rizab Melayu- Siapakah Melayu?
The terms 'Malay', 'Malayan' and 'Malaysian' create ambiguity, confusion and uncertainty as to who does the Enactment actually apply. Wong, Sallehuddin, Davies, Rashid and Said agree that the definition of Malay in the respective Malay Reservation Enactments is vague by allowing it to be interpreted in a number of ways. Ultimately, it may lead to abuse of the objective and purpose of enacting the Malay Reservation Enactment which is to protect and preserve the Malay race. Said gives an example where the Malay Reservation Enactment has been abused where both parents were non-Malays but gave birth to a Malay child and declared the child in the birth-certificate as 'Malay'.
Said is of the opinion that when the British colonials enacted the Malay Reservation Enactment, it was intended to include all the inhabitants of the Malay Peninsula and Archipelago of Malay race including Banjarees, Boyanese, Javanese, Bugis, Pattani, etc.135 The same opinion is shared by Hussein who claims that there exists no such ambiguity in the use of the terms as they all refer to the same inhabitants of the Malay Archipelago.136 The British colonials had in definite terms rejected the idea to include the Indians and the Chinese into the 'Malayans' as they were not 'subjects of His Highness, the Sultan.'137Moreover, according to Shirle Gordon when the British defined the term 'Malay' it had to be defined separately 'according to the ethnic composition and interest of the various states'. For example Kedah royalty were partially of Siamese origin and Perlis royalty of Arab descent. Furthermore, Said and Zain propose the inclusion of 'Orang Asli' in the definition of 'Malay'.
There are hardly any other scholars apart from Said who discuss the issue of the Malay race under the Malay Reservation Enactment. In the Kelantan case of Hanisah v. Tuan Mat138 the Federal Court declined and had left the substantive issue on whether or not the appellant was a Malay and a native of Kelantan within the meaning of the Kelantan Malay Reservation Enactment and the Kelantan Land Enactment undecided. This may be due to the fact that under s. 13 of the Kelantan Malay Reservation Enactment it is up to His Highness the Sultan in Council to decide whether the appellant is a Malay or not. Such a decision shall not be questioned or revised by any court. To Wong this case has indicated the sort of problems which may arise in the future in determining who is a 'Malay'.139
The case of Zaleha bte Sahri v. Pendaftar Hakmilik Johor140 created a lot of confusion and uncertainty in the application of land law in Malaysia. The main issue in the case was whether Zaleha was a Malaysian Malay who owned a piece of Malay reserve land in Johore Bahru or not. In 1983 she married a Singaporean Malay and became Singaporean. On 24 April 1989, the Johore Government issued a circular PTG No. 1/1989 under s. 22 of the Malay Reservation Enactment which restricted the definition of Malay for purposes of the Malay Reservation Enactment to Malaysian citizenship. As such, she was no longer considered a Malay under the said Enactment and therefore could not own a Malay reserve land. Zaleha applied to the High Court for a declaration to revoke the status of Malay reservation land arguing that she was an aggrieved party who could no longer sell the property to another Singapore Malay and could also no longer bequeath the property in favour of her husband and her children. Abdul Malik J sympathised with her and questioned the State Authority on their decision as to whether it was just and necessary to make Zaleha the victim of the State Authority's inconsiderate ruling.141 Above all according to the learned judge this ruling was clearly absurd and ironical.142
The court strongly believes that the Malays under the definition of the said MRE should include all Malays in the Malay Archipelago.143 According to Abdul Malik J, justice must not only be done but must be seen to be done. Therefore, the only way to assist Zaleha was to revoke the status of Malay reservation land and allow her husband and children to inherit the property. It seems that Abdul Malik J was misdirected in his judgement. To him, it was permissible to allow the limited Malay reservation land to be owned by Malay foreigners. He has thrown open the doors widely by welcoming ownership of Malay reservation land to foreign Malays. He has not taken into consideration the rights of the local Malays who are in need of the land and who are not able to own or buy land in other parts of the world.
Muhammad Said agrees with Abdul Malik J that Malay reservation land can only be owned by all those Malays from the Malay Archipelago, irrespective of their citizenship. It is however acknowledged that the above opinion of Said and Abdul Malik J could be accepted during the British residential rule because of the influx of immigrants from China and India. On the other hand, by holding the same opinion in the present circumstances would be depriving the local Malays from buying and occupying these lands. They now have to compete with foreign Malays. Maybe this protection of the Malays should remain permanently in the future even though Malaysia is moving towards the 'Malaysian Liberalisation Policy.' The State Authority should be more open and flexible to allow Malays from other states to own Malay reservation land rather than allowing the market to be impeached by foreign Malays or non-citizens. According to Shaik Noor Alam:
[...] Another equally absurd provision is the definition of 'Malay', which appears inconsistently in every Enactment. The Malay property market is proportionally related to the economic well being of Malays and as such it is necessarily restrictive both in terms of quantity and quality. By further restricting the class of 'eligible Malays' to own Malay reservations, the Malay property market has placed on itself an enormous, albeit, unnecessarily constraint. A rich Malay resident of Perak cannot own a Malay reserve land in Kelantan and in this important sense he is treated as non-Malay. This particular fallacy of adopting a restrictive and seemingly parochial definition of 'Malay' does not envision and totally disregard the 'Malay Diaspora', which may well be the most fundamental consideration for Malay survival in the next millennium.144
To sum it up, even though there are differences in the definition of Malay between the various State Malay Reservation Enactments, all Malay Reservation Enactments have three characteristics in common:
a. Ownership of individuals of Malay, Malayan or Malaysian race,
b. Habitually speaking of the Malay language or any Malayan language; and
c. Profession of the Muslim religion.145
Article 89(6) of the Federal Constitution left the ultimate right to define the term 'Malay' to the respective States. It also left a wide lacuna by not relating art. 89(6) to art. 160. This might lead to a restrictive definition of Malay according to the State's needs and it may be more restrictive unlike the more embracing definition of Malay under art. 160.146 However, there could also be a possibility that the State for its own purpose unintentionally may abuse the definition of 'Malay'.
The Federated Malay States Malay Reservation Enactment 1933 has defined Malay according to the race unlike the provisions in the Federal Constitution whereas the Laws of the Constitution of Selangor have classified Malays into Royal Malays, Selangor Malays and Malay race.
Reference To The Ruler In Council
The various State Malay Reservation Enactments have inserted a section stipulating that in the event of any doubtful cases, it shall be referred to the Ruler in Council. Ruler in Council has been defined in the case of Hanisah v. Tuan Mat147 to mean 'His Highness acting in accordance with the advice of the State Executive Council.'148 These doubtful situations would include the definition of 'Malay'.
Section 20 of the Federated Malay States Malay Reservation Enactment states that in cases of doubt the matter shall be referred through the Menteri Besar to the Ruler of the State Council. In the Johor Malay Reservation Enactment, however, the matter is referred through the State Secretary to His Highness the Sultan in Council.149 The Kelantan Malay Reservation Enactment, s. 18, merely states that the matter may be referred to His Highness the Sultan in Council without referring to the Menteri Besar first. The similarity between the Federated Malay States and Johor Malay Reservation Enactment is that no person can refer any doubtful matters directly to the Ruler, unlike in other Malay States. The legislators of these States have not clarified or attached any reasons for not allowing the public to address problems directly to the Rulers of the state.
Kedah, Kelantan and Perlis have used the expression 'may be referred' compared to the other states of Federated Malay States, Johor and Trengganu, which have applied the term 'shall be referred.' The Kedah Malay Reservation Enactment has further given a wide unquestionable discretion to the Ruler-in-Council to declare any person of any race or nationality150 as Malay to hold any Malay reservation land.151 To Said, no cases have surfaced so far declaring a human being as 'Malay' for the purpose of s. 19152 of the said Enactment. So far, only companies and corporations have been declared as 'Malay'.153 On the other hand, Gordon argues that the initial objective of incorporating s. 19154 in the Kedah Malay Reservation Enactment was to allow a European wife of a Tunku upon his death to inherit his lands which were held under the Malay Reservations. She was then declared as 'Malay' for the purpose of the Malay Reservation Enactment to inherit the said land.155 It appears that the definition of Malay has been interpreted to suit the needs of interested parties.156 The widow in question avoided giving specific reference as not to cause any embarrassment to the parties concerned.157 M. Hishamudin Yunus J in the case of Sime Bank Bhd. v. Projek Kota Langkawi Sdn Bhd agreed that s. 19 of the Kedah Malay Reservation Enactment refers only to natural persons and not to artificial legal persons.158
It should be noted that the Kelantan Ruler is not empowered to declare any person Malay,159 unlike the Kedah Malay Reservation Enactment which gives a wide discretion to the Ruler-in-Council to declare any person of any race or nationality Malay.160 The Kelantan Malay Reservation Enactment merely allows the person to acquire a right or interest over the land. The Trengganu Malay Reservation Enactment does not declare this bodies also as Malays, it merely grants a right to them to hold the Malay reservation land with the consent of the Sultan-in-Council.
Wan Hamzah J in Asia Commercial Finance (M) Bhd. v. Pemungut Hasil Tanah & Anor.161 and Faiza Thamby Chik J in Zainal Abidin bin Mohd. Taib v. Malaysia National Insurance Sdn. Bhd.162 made an observation that the decision of the Ruler-in-Council shall be final and shall not be questioned or revised by any court.
Natives/Bumiputra
The word 'natives' appears in the Federal Constitution and it refers to the rights or special position of the indigenous people of Sabah and Sarawak.163 Nowhere in the respective States' Malay Reservation Enactment has the word 'native' been stated or referred to, except in Kelantan.164 In Kelantan, no land may be alienated to any person who is not a native of Kelantan, unless there is sanction from the Sultan in Council.165 Native of Kelantan means a person who falls within any of the following classes:
a. any person born on Kelantan whose father was a Malay;
b. any person born in Kelantan whose mother was a Malay and whose father was a Muslim;
c. any person wherever born whose father was a Malay born in Kelantan;
d. any person wherever born both of whose parents were Malays and who has resided at least 15 years in Kelantan;
e. any person who was born in Kelantan and whose father was also born in Kelantan.166
Therefore, the term 'Malay' in Kelantan has a 'restrictive meaning.'167 It should be read together with the Kelantan Land Enactment 1938 as 'Native Malay of Kelantan.' The issue is could any person under s. 2(e) of the Kelantan Land Enactment apply for Malay reservation land on the basis that he is native of Kelantan? The answer, seems to be 'no' as by virtue of s. 1(iii) of the Kelantan Land Enactment 1938, the provisions of Kelantan Land Enactment shall not prevail over the provisions of Kelantan Malay Reservation Enactment. Therefore, even though the person is a native of Kelantan, if he is not Malay, he is not capable to apply or own a Malay reservation land. Furthermore in s. 6 of the Kelantan Malay Reservation Enactment, Malay reservation land can only be disposed to a Malay. And by reading s. 6 of the Kelantan Malay Reservation Enactment together with s. 2 of Kelantan Land Enactment 1938, it means Malay reservation land can only be disposed to a native Malay.
On the other hand, Nik Abdul Rashid argues that a Non-Malay else where may be treated as Malay in Kelantan by virtue of s. 2(e) of Kelantan Land Enactment 1938.168 It is true that those persons under that sub-section may own land in Kelantan. However, they cannot own Malay reservation land. Above all it is not stated anywhere that a native of Kelantan is deemed to be Malay.
As has been noticed, there is a lot of confusion over the word 'native', especially since the Federal Constitution does not define the word. To make matters worse, the respective State Malay Reservation Enactments also make no reference to that word. The Kelantan Malay Reservation Enactment should have been more precise and clear without leaving any ambiguity by stating that the term 'Malay' is restricted in its definition as it only applies to the native Malays of Kelantan.
Meaning Of 'Is Treated As Malay'
It is worthwhile to note that the phrase 'is treated as a Malay' under art. 89(6) of the Federal Constitution supports in form and substance the discretionary power which is granted to the Ruler-in-Council to declare any person, company or corporation as Malay. For instance in the Third Schedule169 of Federated Malay States Malay Reservation Enactment, Oriental Bank is recognised as capable of dealing with Malay reserved lands in the States of Perak, Selangor and Negeri Sembilan. However, in the states of Pahang and Wilayah Persekutuan the Oriental Bank is not permitted to deal with Malay reserved land as they have not applied to the State for approval to deal with the land. Furthermore, only Pahang recognises PETRONAS as authorised to deal with Malay reserved land. This is simply because only the institutions who apply to be permitted to deal with Malay reserved land will upon getting approval from the respective State Authority will be allowed to deal with the Malay reserved land.
In Nik Abdul Rashid's opinion, in the Kedah and Perlis Malay Reservation Enactments, a person of Siamese origin is treated as Malay.170 On the other hand, neither Kedah nor Perlis Malay Reservation Enactment has expressly or impliedly stated that Siamese are treated as Malays for Malay reservation purposes. They merely allow Siamese agriculturists permanently resident in the State, with a certification in writing from the Director to occupy and own Malay reservation land in that State just like the Malays.
Definition Of Malay In Statutes Regulating Customary Land Tenure
This paragraph will be examining the definition of Malay as provided in some statutes seeking to regulate certain Malay customary land rights.
Malay Agricultural Settlement (Kuala Lumpur) Rules 1950
The Rules maintains that only Malays could occupy the Settlement, and 'Malay' means a person belonging to any Malay race who habitually speaks the Malay language, professes the Muslim religion and practices Malay customs and a person approved by the Board as a Malay.
The National Land Code (Penang and Malacca Titles) Act 1963
Section 94 of the National Land Code (Penang and Malacca Titles) Act 1963, defines 'Malay' as Malay who was born in the State of Malacca or one of whose parents or grandparents was born in the State.
The Kelantan Sultanate Lands Enactment 1934
Section 2 of the Kelantan Sultanate Lands Enactment 1934 defines Malay to mean a person belonging to any Malayan race who habitually speaks the Malay language and professes the Moslem religion, and every Malay born within the State shall be deemed to be a subject of the Ruler of the State.
The Pahang Sultanate Lands Enactment 1919
Section 2 of the Pahang Sultanate Lands Enactment 1919 defines Malay to mean a person belonging to any Malayan race who habitually speaks the Malay language or any Malayan language and professes the Moslem religion and every Malay born within the State shall be deemed to be a subject of the Ruler of the State.
The Customary Tenure Enactment 1926
The fundamental principle of this customary land tenure is that it is a matriarchal system or adat pepatih and applicable in the districts of Kuala Pilah, Rembau, Jelebu and Tampin of Negeri Sembilan.171 In 1909,172 a Customary Tenure Ordinance was passed and enforced in the four districts above. The objective of the Ordinance was 'to provide for the preservation of Customary Rights over certain lands.'173 This Enactment was later repealed and replaced by a new Enactment in 1926.174 The purpose of this Enactment was 'to prevent the passing of the Malay landholding into the possession of the foreigners.'175 The said Enactment does not define Malay, yet these customary lands can only be owned by specific Malays belonging to a particular tribe. The name of the tribe is stamped or written in left hand corner of the title.
The Customary Tenure (Lengkongan Lands) Enactment 1960
The purpose of this Enactment was 'to secure the maintenance and observance of Lengkongan Custom in the District of Kuala Pilah, Negeri Sembilan in regard to dealings in Lengkongan land.'176 Lengkongan Custom is defined as customary land of Malays resident in the District of Kuala Pilah who are members of one of the tribes having tribal chiefs. Lengkongan Land means land held under the Entry in the Mukim Register registered in the names of Malays who are members of one of the tribes.
The discussion above highlights that the definition in statutes regulating customary land tenure is also not uniform and the definition is influenced by the custom of the people. There are incompatibilities between the term Malay used in all the different legislation. It is indeed timely for the Malaysian legislators to seriously consider formulating one simple and precise meaning to correspond to the term Malay for purposes of preventing anomalies in its application.
Proposal For Re-defining The Term "Malay"
The Malaysian legislators must re-look at the definition of Malay as the prevailing definition is the creation of the British colonial masters as early as 1913. The definition of Malay is very old and unclear and surrounded by ambiguities. The British introduced the Malay Reserve Land institution purportedly to protect Malay proprietary rights. The Government of the Federated Malay States noted in 1912 that it had been caused grave anxiety and apprehension by the fact that our Malay subjects, deluded by visions of all but transitory wealth, have been divesting themselves of their homestead and family lands to anyone willing to pay in cash for them. The rulers of the Federated Malay States and their Advisers conclusively feel that unless a better judgment is exercised on their behalf, the result will be the extinction of the Malay yeoman peasantry.177
The British's perception of the Malays is not a very nice one. Frank Swettenham remarked that for the well-being of the Malays, it was better for them to be kept or shut away from the influence of civilization.178 His perception of the Malay is as follows:
... his manners are polite and easy ... . He is courageous and trustworthy in the discharge of undertaking; but he is extravagant, fond of borrowing money, and very slow in repaying it. He is a good talker, speaks in parables, quotes proverbs and wise saws, has a strong sense of humour, and is very fond of good jokes. He takes an interest in the affairs of his neighbours and is consequently a gossip. He is a Muhammad and a fatalist, but he is also very superstitious ... he is conservative. is proud and fond of his country and people, venerates his ancient customs and traditions, fears his Rajas, he is a good imitative learner. makes a good mechanic. He is, however, lazy ... considers time as of no importance.179
These measures were aimed at ensuring that the Malays used the lands reserved to them to grow rice, and did not use them to set up smallholdings in rubber. Colonial policy went further than this, and aimed directly at preventing rubber cultivation by Malays in smallholdings from competing with plantation rubber.180 The principal means to this end was through the manipulation of land policy. By the time the Malay Reservations Act was passed in 1913, Malays had been growing rubber for some years on the land to which they had acquired tenure through custom, but also on land they had managed to buy. These smallholdings were usually worked by family, often worked only from time to time. They were, according to the Government, poorly cared for and a source of weeds and plant diseases, which would infest the plantations and involve their owners in considerable expense.
The land offices of the Federated Malay States discouraged the Malays from acquiring land for rubber production, and discriminated against them. They reserved virgin land close to railways and main roads for purchase by non-Malays, and in 1915, 1916 and 1917 refused to sell any land at all to Malays for the purpose of rubber planting.181 Malayan land policy in the years of the great expansion of the rubber plantation industry, offered land to foreign investors, and especially British foreign investors, on extremely attractive terms. Besides that, for a time, the Government offered loans on very easy terms to intending British purchasers, and discriminated in their favour against native Malays in choice of sites.182 The policy of confining as far as possible land use by Malays to the cultivation of food crops also helped reduce the danger of over-supply of Malayan rubber for sale on the world market.
Movement of settlers of Malay stock, many of them originally immigrants from Sumatra, flowed on to the land as it became available and so proved that rice cultivation could be increased when good crops were assured.183 Thus, the definition of Malay naturally was extended to include the settlers from Sumatera who are also Malays from the Malay Archipelago.
The definition in the Federal Constitution of Malaysia 1957 should be reformulated to read as follows, "a Malay must be a Muslim, habitually speak the Malay language, conform to Malay custom and be born in the Federation [belonging to the Malay race].184
The addition of the phrase "belonging to the Malay race" will be able to provide a clearer meaning to the terminology and avoid all ambiguities that has surrounded the term since it was first formulated in 1913.
Conclusion
The discussion above highlights the continuing confusion surrounding the definition of the term 'Malay'. It is interesting to note that in the States which have official rulers, it is the duty of the Rulers to safeguard the interests of the Malays. It would be beneficial if the legislators could formulate a uniform and precise definition of the term 'Malay' to avoid further confusion in handling the Malay privileges which are meant to be reserved for the benefit of the Malays.
Endnotes
1. 'Bumiputra' (native people) is a term specifically designed to describe the Malays, Indian Muslims, Pakistanis, Chinese Muslims and the Portuguese of Malacca as one exclusive group entitled to apply for government created benefits or incentives. In the Federal Constitution, it refers only to the natives of Sabah and Sarawak and not to the Malays, Indian Muslims or the Portuguese of Malacca. Interestingly, unlike the other two races, where there exists an implied link between race and religion (Islam), the Portuguese of Malacca need not be Muslims.
2. "Meaning of Malay," Britannica Concise Encyclopedia. 2006 accessed via Internet at http://www.answers.com/topic/malay.
3. Stamford Raffles, "On the Malayu Nation," Asiatice Researches, 12 (1816):103.
4. Federal Constitution, art. 160.
5. See Robert K. Dentan, Identity And Ethnic Contact: Perak Malaysia, (Southeast Asia, 1963). The author at p. 83 said that the Semai adat is influenced by the matrilineal Minangkabau Malays and speaks Malay language habitually.
6. Lewis Caroll, 'Through the Looking - Glass', in Robert Knox Dentan, Kirk Endicott, Alberto G.Gomes & M.B.Hooker, Malaysia and 'The Original People: A Case Study of the Impact of Development on Indigenous Peoples (USA: Allyn and Bacon, 1997) p. 19.
7. Allott, Antony, 'Popular law making in western society.' in Antony Allott and Gordon R. Woodman (eds.), People's Law and State Law: The Bellagio Papers. (Dordrecht: Foris. 1985) pp. 21-34 at p. 22.
8. See Othman Mohd. Yatim, 'Orang-orang Melayu Di Jajahan Dinding (Perak): Satu Tinjauan tentang asal-usul dan corak penghidupan mereka', Malaysia in History, Vol. 20, No. 1, Jun 1977, p. 8.
9. E.H. Dance and G.P. Dartford, Malayan And World History Book, Longman: Hong Kong, 1961, pp. 311 & 313.
10. P.75/1963, 'Agreement Concluded Between the Federation of Malaya, United Kingdom of Great Britain and Northern Ireland, North Borneo, Sarawak and Singapore.' See art. 1 of the said Agreement. See also Malaysia Act 1963, s. 4. See also E.H. Dance and G.P. Dartford, Malayan And World History Book, pp. 311 & 313.
11. Federal Constitution, art. 160. The earlier part of the definition is taken from the Nationality Enactment of the Malay States passed in 1952 to supplement the citizenship provision in the Federation of Malaya Agreement 1948. See 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, Petaling Jaya: Penerbit Fajar Bakti, p. 16, fn. 28.
12. Mohd Ridzuan Awang, Tanah Simpanan Melayu Analisa Sosioekonomi Dan Perundangan, Kuala Lumpur, Rich'me 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.
13. I. Talaog Davies, 'Malay', Intisari, Vol. 1, No. 2 (1963) p. 27; in Muhammad Said Abd Kadir Al-Haj, Undang-Undang Tanah Rizab Melayu Siapakah Melayu? 2nd ed., Kuala Lumpur: Kementerian Tanah dan Pembangunan Koperasi, 1992, p. 16.
14. Emphasis is ours to indicate the legal term.
15. See Constitutional Proposals For Malaya: Report of the Constitutional Committee together with Proceedings of Six Public Meetings, a Summary of Representations Made and Letters and Memorandum Considered By The Committee, 20 February 1947, pp. 39-41.
16. Khoo Kay Kim, 'Origin of Malays' New Straits Times, Monday, 25 September 2000, p. 2.
17. Proceedings of the Federal Council of the Federated Malay States For The year 1913 at B 24.
18. 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.
19. 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.
20. 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.
21. S.M. Naquib Al-Attas, Islam Dalam Sejarah Dan Kebudayaan Melayu, Kuala Lumpur, University Kebangsaan Malayisa, 1972, p. 20.
22. Norhashimah Mohd.Yassin, Islamisation/Malaynisation? A Study On The Role of Islamic law in The Economic Development of Malaysia; 1969-1993, Unpublished Dissertation For Ph. D, University of Warwick, 1994, p. 31.
23. Ibid.
24. Proceedings of the Federal Council of the Federated Malay States For The year 1913 at B 25.
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 1891 Makes representations to the 'Muhammadan' populations.
26. Malay Reservation Enactment s. 2
27. 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.
28. Berita Harian, 24 April 2003.
29. Act 388.
30. 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.
31. 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.
32. [1982] 2 MLJ 243.
33. Ibid.
34. 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.
35. Collins English Dictionary.
36. Low Bee Hoe (w) v. Morsalim and Goh Tien Lim v. Lee Ang Chin [1947] MLJ 3 at p. 6.
37. Haji Saemah v. Haji Sulaiman [1948] MLJ 108.
38. Kok Heng Chow v. Lay Mee Yin (f)[1948] MLJ 157 at 160.
39. P.S. Atchuthen, Jurisprudence and Legal Theory, London, 1985, p. 104.
40. P.K. Bandyopadhyay, Customary Laws of the Santal and the Mahali in the State of West Bengal A 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.
41. Laws of the Constitution of Johore, Second Part, Article 1.
42. Letter from M.B. Hooker, dated 13 May 1973 from University of Kent At Canterbury to M.C.FF.S. entitled "An Introduction to The Comparative Study of Adat Law in Malaysia And Indonesia' No. SPR: 2001/ 00845 (Arkib Negara) p. 6
43. Letter 41, The Perak Chinese Chamber of Commerce, 5 March 1947 in Federation of Malaya, 'Summary of Revised Constitutional Proposals Accepted by His Majesty Government, 24 July 1947'
44. See Constitutional Proposals For Malaya: Report of the Constitutional Committee together with Proceedings of Six Public Meetings, a Summary of Representations Made and Letters and Memorandum Considered By The Committee, 20 February 1947, pp. 39-41. In Malacca and Kelantan, there were already cases where the Chinese and Indians had married Malay women, stayed in the kampungs, fluently spoke Malay and professed the Muslim religion.
45. See ibid, p. 39.
46. See ibid., statement made by Colonel H.S. Lee.
47. [1998] 2 CLJ 559 FC.
48. Ibid. p. 562.
49. 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 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.
50. The British were well versed with the Malay structure of living. This knowledge allowed them to use indirect rule in Malaya by making use of the ruling class to gain control over Malay society as a whole. To the Malays, the Sultan is sacred. According to Swettenham, the Malays will blindly obey the orders of their rulers. They were actually sold to the British and their Sultans enjoyed penchants, luxurious trips to Europe, and expensive British education, while their people were deprived of everything. See Frank Swettenham, Malay Sketches, Singapore: Graham Brash (Pte) Ltd., 1984, pp. 1-11, 161-178.
51. Gopalakrishnan K. Sundram, Prospects for Constitutional Government in Malaysia: A Preliminary Study of Constitutionalism and Malay Political Culture. Unpublished Thesis for Bachelor Of laws (LL.B Hons.), University of Malaya, 1981, p. 175.
52. 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.
53. Chandra Muzaffar, Protector?, Penang: Aliran, 1979, p. 9; see also the Hikayat of Hang Tuah who demonstrated his undivided loyalty to his ruler by murdering his best friend Hang Jebat, even though the latter had protected Hang Tuah from the ruler's tyranny.
54. The National Operations Council, The 13 May Tradegy A Report (Kuala Lumpur: 1969) p. 5.
55. Laws of the Constitution of Kedah, art. 23.
56. [1966] 1 MLJ 63.
57. Stewart Wavell, The Lost World of the East: An Adventurous Quest in the Malayan Hinterland, Souvenir Press, London 1958, p. 126
58. Take note of the spelling of 'Muzahab'
59. Take note on the spelling of 'Menteri Besar' and compare to the spelling of other States.
60. Take note that unlike arts. 35 and 59 of the said Constitution, this article expressly provides that in matters of Malay language, reference needs to be made to the provisions of the Federal Constitution.
61. See Laws of the Constitution of Selangor 1959, arts. 9A(1), & (2).
62. See art. 23.
63. See art. 38.
64. Id., art. 40.
65. Articles 4(1) & 24
66. See art. 24A.
67. Unlike other provisions the letter 'r' in religion is a small capital letter. The marriage of the Sovereign and the Tengku Ampuan shall be in accordance with the Hukum Syara' and the Laws in force at the time of such marriage. We believe the law here refers to the written Islamic Law, ie, the legislation. We do not find the relevancy of citing the Laws as it implies that in cases of marriages there are two sets of laws applicable in Pahang. We do not get similar provisions in other States.
68. Hukum Shara in art. 12A(1) is spelled as 'Syara'.
69. Take note that 'r' in Religion is a small capital letter.
70. See Laws of the Constitution of Pahang, art. 24.
71. See art. 28.
72. Article 36.
73. In Laws Constitution of Perak, the spelling of Mentri Besar differs from other States.
74. Laws of the Constitution of Perak, art. 6(1).
75. Laws of the Constitution of Perak, Part 2, art. 4.
76. Ibid, art. 4.
77. Id., art. 10.
78. Id., art. 25.
79. Id., art. 30.
80. Id., arts. 37, 38 & 47.
81. Id., art. 41.
82. Id., art. 55.
83. Laws of the Constitution of Negeri Sembilan 1959, art. 6(1).
84. Laws of the Constitution of Negeri Sembilan 1959, art. 15(1).
85. Ibid, art. 16(1).
86. Id., art. 16(3).
87. Id., art. 7(2).
88. Id., art. 14(1).
89. Laws of the Constitution of Kelantan, art. 6(1).
90. Laws of the Constitution of Perlis, art. 6(1).
91. Ibid, art. 25.
92. Id., art. 32.
93. Id., art. 34.
94. Take note the spelling of Mentri Besar is similar to the Perak Constitution.
95. Laws of the Constitution of Trengganu, art. 4(1).
96. Ibid, art. 6(1).
97. Id., art. 31
98. The Ruler may in his discretion appoint any person as Menteri Besar.
99. Laws of the Constitution of Johore, First Second and Third Schedules'.
100. Ibid, art. 24.
101. Id., art. 58.
102. Constitution of the State of Penang, art. 5(2).
103. Constitution of the State of Malacca, art. 5(1).
104. Constitution of State of Sabah, art. 5B(1).
105. Hashim bin Awang A.R., 'Masalah Mengklasifikasi Penduduk Bumiputra Sarawak: Satu Catatan Ringkas', Malaysia Dari Segi Sejarah, No. 10, 1981, p. 29.
106. 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. 7.
107. Constitution of the State of Sarawak, art. 4A(1).
108. Wan Hashim, A Malay Peasant Community in Upper Perak, Integration And Transformations, Bangi: Penerbit University Kebangsaan Malaysia, 1978, p. 18-21; 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 the Context of Southeast Asia, Kuala Lumpur: The Malaysian Society of Orientalists, p. 68. According to S. Husin Ali, they actually belong to different ethnic backgrounds despite coming from the same racial stock. They brought in their own ways, customs and languages.
109. The term Malay included a wide category of people. It was not confined to the boundaries of the Malay Peninsula but extended to a large area often referred to as Nusantara. See S. Husin Ali, 'A Note on Malay Society and Culture' in S Takdir Alisjahbana, Xavier S. Thani Nayagam, Wong Gangwu (eds.), The Cultural Problems of Malaysia in the Context of Southeast Asia, pp. 65-66. The present Malays in Malaysia are a mixture of several different races and cultures (Indian, Chinese or/and Arab).
110. D.S.Y. Wong, Tenure and Land Dealings in the Malay States, Singapore, Singapore University Press, 1975, p. 71.
111. International Bank for Reconstruction and Development, The Economic Development of Malaya, London, the John Hopkins Press, 1955, pat 11; S. Takdir Alisjahbana, 'Confluence and Conflict of Culture in Malaysia in World Perspective', in S.T. Alisjahbana, X.S. Thani Nayagam, and W. Gongwu (eds.), The Cultural Problems of Malaysia in the Context of Southeast Asia, pp. 36-37.
112. D.S.Y. Wong, Tenure and Land Dealings in the Malay States, p. 74; See also SS BA Office (1875-1955) File No. 294/1891, 'Minute by Attorney General J.W. Bonser, April 28th1891 on Acting BR Selangor to Colonial Secretary' in L.T. Ghee, Peasants and Their Agricultural Economy in Colonial Malaya 1874-1897, Kuala Lumpur, Oxford University Press, 1977, p. 18. It was said that 'Everything should be done to prevent their mortgaging their holdings and then in default of payment being ejected and their places taken by Chinese, Chettiars and others. The result might be that the inhabitants of Selangor for whose benefit the British protection is primarily designed might become a class of vagrants in their own country.'
113. SP 12/46, File No. 79, 'Minute by the British Resident, Perak on the subject of the Land Code and Appendix." Swettenham admitted that there was a personal controversy between him and Maxwell and alleges that Maxwell was anxious to appear as the apostle of 'Muhammedan law' for the Malays. Swettenham further claimed that 'Muhammedan law' dealt only with private matters, not land law. Moreover, the Sultan of Perak also rejected the application of Muslim land tenure in Perak. Swettenham questioned Maxwell whether the Sultan of Selangor was consulted on the Selangor Land Code 1891. The Sultan of Selangor was considered a 'quantité négligeable and was perfectly satisfied with what was done so long he was not troubled about it.'
114. U.L.Lds 1342/10, 17 October 1911 cited in Muhammad Said Abd Kadir Al-Haj, Undang-Undang Tanah Rizab Melayu Siapakah Melayu? 2nd.edn, Kula Lumpur: Kementerian Tanah dan Pembangunan Koperasi, 1992, p. 6.
115. G. Maxwell, 'The Malays and Malayans', S.P.11
116. U.L.Lds 1342/10, 17 October 1911 cited in Muhammad Said, above n 106, 'Remarks made by the Chairman Mr. H.R. Cheeseman C.M.G. and Mr. V.E. Dias'.
117. M.R. Hassan, Malay Reservation, Its Development Potentials And Credit Facilities in Kelantan (A Project Paper submitted as partial fulfilment of the requirements for degree of Bachelor of Laws with Honours, Faculty of Law, University of Malaya, 1979/80), p. 28.
118. Raja Mohar B.R. Badiozaman, 'Malay Land Reservation And Alienation,' Intisari, Vol. 2, 1963, p. 22.
119. Malay Reservation Enactment 1913 s. 2
120. Selangor Secretariat. B.A. office 1910; SSF 3170/1910 letter from the Office of Secretary to the Resident, Selangor, 8 December 1911.
121. Proceedings of the Federal Council of the Federated Malay States, 1913, p. B 25.
122. Ibid p. B 24-25.
123. Ibid p. B 24
124. Muhammad Said, above n 64 p. 8
i. Definition s. 2 of FMS MRE, s. 3 of Kelantan MRE, s. 2 of Kedah MRE, s. 2 of Perlis, MRE, s. 2 of Johor MRE, s. 2 of Trengganu MRE.
ii. Declaration s. 19 of Kedah MRE.
iii. Characterization s. 2, 18 of FMS MRE, s. 2, 19 of Johor MRE, s. 2, 20 of Trengganu MRE, s. 15A of Kedah MRE
iv. Recognition s. 17A of Perlis MRE.
125. Shaik Md. Noor Alam bin S.M. Hussein, 'Malay Reservations: Meeting The Challenges Of The Millennium', PETA Seminar on Repositioning of Agriculture in the Next Millennium, 13 July 1999 p. 5.
126. David S.Y. Wong, Tenure and Land Dealings in the Malay States (Singapore: Singapore University Press, 1975) p. 513.
127. C.L.& M. Circular No.9 of 1956, Malay Reservations: Racial Qualification, Johore Bahru, 4 June 1956, cited in M.S. Abd Kadir, Undang-Undang Tanah Rizab Melayu Siapakah Melayu? 2nd. ed, Kula Lumpur: Kementerian Tanah dan Pembangunan Koperasi, 1992, p. 69.
128. M. Zahir, 'Land Laws in the Unfederated Malay States to 1966' in A. Ibrahim & J. Sihombing (eds.), The Centenary of the Torrens System in Malaysia, Kuala Lumpur: Malayan Law Journal, 1989, p. 49.
129. 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.
130. Perlis MRE s. 2.
131. Ibid, s. 7(1).
132. Kedah MRE s. 2.
133. M. Said Abd Kadir, Undang-Undang Tanah Rizab Melayu- Siapakah Melayu?, p. 12.
134. Ibid, p. 12
135. Ibid.
136. H. Hussain, Rizab Melayu: Indah Khabar Dari Rupa, Kuala Lumpur: Helmi Consultancy Services, 1999, pp. 24-25.
137. M. Said Abd Kadir, Undang-Undang Tanah Rizab Melayu- Siapakah Melayu?, pp. 6-10.
138. [1970] 1 MLJ 213.
139. David S.Y. Wong, Tenure and Land Dealings in the Malay States (Singapore: Singapore University Press, 1975) p. 513.
140. [1996] 2 CLJ 147.
141. Ibid, p. 149.
142. Ibid.
143. Ibid, p. 152
144. S.M. Noor Alam Hussein, 'Malay Reservations: Meeting The Challenges Of The Millennium', PETA Seminar on Repositioning of Agriculture in the Next Millennium, 13 July 1999, p. 5.
145. See M. Said Abd. Kadir, Enakmen-Enakmen Rizab Melayu, Satu Kajian Perbandingan, Selangor, 1987, p. 10.
146. S.M. Noor Alam Hussein, 'Malay Reservations: Meeting The Challenges Of The Millennium', p. 5.
147. [1970] 1 MLJ 213.
148. Ibid, at p. 214, judgment by Suffian FJ.
149. Johor MRE s. 22.
150. Emphasis added.
151. Kedah MRE s. 19.
152. Muhammad Said, Undang-Undang Rezab Melayu-Siapakah Melayu? 2nd edn., Kuala Lumpur: Kementerian Tanah Dan Pembangunan Koperasi, 1992, pp. 36-37.
153. Ibid p. 36. He cited 166 companies that are found in the Kedah MRE Schedule.
154. Section 19 was incorporated after 10 years of the implementation of the Kedah MRE.
155. S. Gordon, 'Contradictions', Intisari, Vol. 1, No. 2 p. 37.
156. Ibid.
157. Id., fn. 24
158. [1999] 1 CLJ 307.
159. M. Said, Undang-Undang Rezab Melayu-Siapakah Melayu? 2nd edn., p. 46.
160. Kedah MRE s. 19.
161. [1983] CLJ 86, 87.
162. [1994] 3 CLJ 731.
163. Federal Constitution, arts. 153, 161A, Ninth Schedule List 2.
164. By virtue of s. 14 of the Kelantan Malay Reservation Enactment, all land matters shall be referred to the Kelantan Land Enactment 1938.
165. Land Enactment 1938, s. 9.
166. Kelantan Land Enactment 1938, s. 2.
167. N. Abdul Rashid, Land Law and Land Administration, University of Malaya, Kuala Lumpur, 1971, p. 147.
168. Ibid.
169. FMS MRE s. 7.
170. N.Abdul Rashid, Land Law and Land Administration, University of Malaya, Kuala Lumpur, 1971, p. 147.
171. E.N. Taylor, 'Customary law of Rembau.' 1929, JMBRAS 7: 49 where the author discussed the principles of customary law in Malaya. The customary tenure has four cardinal rules, that are, all property vests in the tribe, not in the individual; acquired property, not inherited, becomes ancestral; all ancestral property vests in the female members of the tribe; and all ancestral property is strictly entailed in the female line.
172. No. 17 of 1909.
173. See Negeri Sembilan. Secretariat 1909, p. 1
174. Chapter 215, No. 1 of 1926. Came into force on 1 December 1926.
175. J.R. Innes, A Short Treatise on Registration of Title in the Federated Malay State with Reports of Cases Decided in the Supreme Court under the Land and Mining Laws, From 1907 to 1913, Kuala Lumpur, Government Printing, 1913, p. 70.
176. See the preamble of The Customary Tenure (Lengkongan Lands) Enactment 1960.
177. J. Thomas Lindblad, Foreign Investment in Southeast Asia in the Twentieth Century, Macmillan, London, 1998, p. 47.
178. Jim Baker, Crossroads: A Popular History of Malaysia & Singapore, Singapore: Times Books International, 1999, 196.
179. Frank Swettenham, Malay Sketches, Singapore: Graham Brash Pte. Ltd., 1984, 2-4. In the BBC English Dictionary it is stated on page 1178 that 'the Malays must learn how to manage and be thrifty.' This view was intentionally created to give the impression of the inferior character of the Malays.
180. Jim Hagan and Andrew Wells, "The British and rubber in Malaya, c 1890-1940", 2005 by Australian Society for the Study of Labour History. Internet edition accessed on 15 September 2008 at
http://www.historycooperative.org/proceedings/asslh/hagan.html.
181. J.C. Jackson, Planters and Speculators, Oxford University Press, Oxford, 1968, pp. 235-37.
182. Ibid., pp. 235, 237.
183. Lennox A. Mills, "British Rule in Eastern Asia: A Study of Contemporary Government and Economic Development in British Malaya and Hong Kong" Oxford University Press: London, 1942. p. 250.
184. Federal Constitution, Article 160. The earlier part of the definition is taken from the Nationality Enactment of the Malay States passed in 1952 to supplement the citizenship provision in the Federation of Malaya Agreement 1948. See 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, Petaling Jaya: Penerbit Fajar Bakti, p. 16, fn. 28.

7 comments:

  1. how come this entry not in Malay?\
    :p

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  2. heheheee...bcz i just copy n paste this article frm clj...huuhuuuu -:p

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  3. ambek kat clj? tolong berikan reference tepatnya ape?

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  4. kalau tak kena tuduh melanun! hehehe

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  5. boleh jew...heheee...saya tak tulis sebab budak2 law biasanya dah tahu pasal clj n mlj iaitu rujukan utama bagi kes2 di malaysia...http://www.cljlaw.com...tapi alamat yang tepat untuk tulisan ni saya dah luap nantilah saya cari balik...insyaAllah

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  6. A very interesting analysis! However, one glaring weakness in this analysis is that absolutely no attempt has been made to link with Islam's teachings. Can one profess to be a Muslim without heeding the teachings of Islam and the Prophet who said in his Last Sermon: "All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab; also a white has no superiority over black nor a black has any superiority over white except by piety and good action."

    Islam established equality for the entire human race and struck at the very root of all distinctions, based on color, race, language or nationality. According to Islam, Allah has given man this right of equality as a birthright. Therefore no man should be discriminated against on the ground of the color of his skin, his place of birth, the race, or the nation in which he was born.

    And if Ketuanan Melayu is haram di sisi Islam, then does it matter anymore whether you are a Malay or not? Conversely, does it then mean that there are no Malays in Malaysia because they fail to meet one of the four criteria specified in Article 160 of the Constitution of Malaysia, i.e. they do not obey one of the most fundamental principles of Islam for which the Prophet took the trouble to remind all Muslims in his Last Sermon? Can any Muslim who eat pork call himself a Muslim? So why should anyone be called a Muslim if he doesn't heed the Prophet's last reminder which he did not even bother to mention about eating pork, possibly because that is considered not as important as those things that he had to say.

    http://www.islamicity.com/Mosque/lastserm.HTM

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