COLONIALISM, BRITISH LAW, AND THE SECULAR FORMAT

Beginning in the sixteenth century, a succession of European colonial powers seized control of the Straits of Melaka and parts of the Malay Peninsula. Galvanized by a combination of religious and commercial zeal, Portuguese attacked and captured the city of Melaka in 1511, driving the Malay rulers to flee inland.

British colonial rule was extended in a gradual, piecemeal fashion across the Malay Peninsula and in the territories of North Borneo (Sabah), Sarawak, and Brunei in Borneo. Soon after obtaining Melaka, the British organized Singapore, Penang, Wellesley Province (located on the mainland across from the island of Penang), and Melaka into a colony called the Straits Settlement. Over the course of the next six decades, the British extended direct control over three protectorates in Borneo and indirect colonial control over the Malay states of the peninsula. The four Malay states of Perak, Selangor, Negeri Sembilan, and Pahang were organized into the Federated Malay States (FMS) in 1896. Meanwhile, Johor and the four northern states—Kedah, Perlis, Kelantan, and Terengganu—formerly under Siam’s suzerainty, were loosely organized into the Unfederated Malay States (UMS) following a treaty between the British and Siam in 1909.

English law was introduced into the various units of “British Malaya” through several charters and civil law ordinances. The Royal Charters of Justice of 1807, 1826, and 1855 implemented English law and the court system in the Straits Settlements. In addition, the Civil Ordinance of 1878 in the Straits Settlements, the Civil Law Enactment of 1937 for the FMS, and the Civil Law (Extension) Ordinance of 1951 for the UMS consolidated the application of English law. Both of the latter enactments were subsequently replaced by the Civil Law Ordinance of 1956 that was applied to all the states of the Federation of Malaya (formed in 1948). These enactments continued after political independence and were extended to Sabah and Sarawak of postcolonial Malaysia through their incorporation in the Civil Law Act of 1956 (revised in 1972) (Abdul Samat 2003, 98; Kamali 2000, 24–25).

However, the process of displacing and narrowing the application of sharia varied across British Malaya. In the Straits Settlements colony, English law became the general and governing law. Here, British governors directly controlled the kadis (or qaḍis; Muslim judges), appointing and dismissing them and limiting their power. Similarly, in the Borneo protectorates, English law was established as the general public law, with Islamic law considered as one of the native customary laws of indigenous ethnic groups. The Federated Malay States, also legally obligated to receive English law under the “advice” of residents, underwent a gradual process of adopting a system of courts in which religious courts were separated and placed into a lower position within a single hierarchy of courts.

One of the main results of the dominance of English law, even in the east coast states, was the reduction of the scope of sharia laws to Islamic family and personal laws. This reduction stemmed from the British separation of the “public” aspect of sharia from the “private” aspect. The public aspect, covering fields such as criminal law, commercial law, and contract, evidence, procedural, and land law, was replaced by English law. Meanwhile, the private aspect, embracing fields such as matrimonial, divorce, and inheritance laws, was viewed as falling under Islamic law (Kamali 2000, 22–25). Likewise, in reference to Kelantan, “The newly established administration headed by W. A. Graham in 1904 superseded the former system. This resulted in the enforcement of Islamic law within a limited sphere only, namely those concerning personal matrimonial and succession matters. These matters were to [be] dealt with by the Syariah Court. The Syariah Court was later separated from the secular courts, and was soon neglected by the government” (Abdullah Alwi 1996, 15). Within the British secular format, sharia laws were reduced to matters considered “private” or “personal” and subordinated in the court system below the governing English laws. Moreover, British discourse expressed their hegemonic view that their judicial practice was far superior to that of Malay kadis (Peletz 2002, 38–47). Although Islamic law and Muslim jurists were marginalized in the colonial system, Malay sultans continued to play an important role in governance as “heads” of religious and ethnic affairs, including the limited domain of Islamic law (Hussin 2016).

There was Muslim resistance to British colonial rule. Before the emergence of Malay nationalism, some Muslim resistance involved calls for a holy war and evoked the Ottoman Caliphate centered in Istanbul (Andaya and Andaya [1982] 2001, 166, 172; Malhi 2014). Uprisings in Sungai Ujong, Pahang, Kelantan, and Terengganu deployed symbolism conventionally associated with the caliphate, including the Ottoman flag.

Prior to the end of the colonial period, British administrators established a secular format situating the sharia courts outside the federal court system, a pattern that continued in postcolonial Malaysia. Previously, as the court system evolved across British Malaya, the sharia courts were included within a single hierarchy of courts. They were delegated to a lower status and reduced jurisdiction, but still not excluded from the overall court system: “Until 1948 the Courts of the Kathis [kadis] and Assistant Kathis were part of the structure of the courts. However, the Courts Ordinance 1948 established a judicial system for the Federation of Malaya and excluded the syariah courts from the federal court system” (Abdul Samat 2003, 99). This format became a significant feature of the form of secularism institutionalized in postcolonial Malaysia.

Contemporary Malaysians interpret and negotiate the meanings of the colonial era from a variety of perspectives. For instance, Chandra Muzaffar, a scholar in the Islamic human rights network of Sisters in Islam, emphasizes the relationship between colonialism and Muslim religious conservatism:

By challenging Muslim identity and integrity, as it had never been challenged before, Western colonial domination from the 16th century CE onwards also reinforced religious conservatism and habitual political support for any prevailing status quo.

Here, Chandra Muzaffar focuses on the responses of Muslims to colonial domination rather than the devastating impact of colonialism in transforming Muslim societies, including the position of sharia. According to this interpretive framework, Muslim conservatives, especially religious scholars, embrace traditional theological and jurisprudential positions in order to bolster a Muslim identity undermined by colonial domination. These traditional religious scholars are major opponents of the Sisters in Islam project of reforming sharia family laws.

On the other hand, Haji Hassan, an Indian Muslim activist in a network of Islamic NGOs, takes exception to narratives that express nostalgia for a past in which Muslims were less observant of sharia laws and norms:

A lot of people here in this country think that Muslims are becoming more Arabized. They are wrong.... [If a] person... says that, I will see [that he is] wearing some sort of Western dress, invariably.... And I say if they are going on about Arabization, can I go on about Europeanization? But they don’t see it... because it is coming so smoothly and slowly; they evolved into it so they can’t tell.... Please understand what happened in this country. In 1511, the Portuguese came, and whatever this society was evolving stopped, and then they... instituted certain measures and we evolved [on] a different track.... The only courts operating in 1511 would have been sharia courts. They would have stopped those sharia courts from operating. Those sharia courts would have evolved. We have lost over six hundred years of sharia court evolution in Malaysia because of something not of our making. You guys [Chinese and Indian non-Muslim immigrants] came in, and I also came in at a time when they were in control. Who are we to talk about when they became more Arab or we became more European? Point number one: [upon] independence, on this street... at Christmas there would be large lights celebrating Christmas.... I saw that up to 1965–66, and then slowly it faded.... So that was the big festival—why? What was the big presence of Christians here, only ten or eleven percent?... But the culture, the commercialization, all the activities, [were] centered around whites.... The Muslims drank. The Muslim girls wore kebaya [long traditional skirts] with slits up to their thighs. Everybody was, haha hehe, friendly.... The Muslims were not observant, but now they have become more observant. Wouldn’t you, if you had a certain faith tradition, want to be observant about that faith tradition? Why... deny the Muslims what is natural for them? They were not supposed to have slit skirts up to their thighs. The men were not supposed to be topless and in Bermuda shorts and drinking and eating non-halal [permitted] food. They were not supposed to be doing this. You cannot sell integration as the way we were... the good ‘ole days. The good ole days from a religious perspective were the bad ole days.¹⁴

Hassan interprets colonialism as an interruption in the evolution of sharia courts and the beginning of a gradual process of Europeanization. He stresses that colonialism places greater value on the culture and activities of whites, a condition made evident by the way Christian celebrations dominated public spaces. In this colonial context, many Muslims were not observant of sharia. From his pro-sharia perspective, increased observance of sharia laws and norms in contemporary Malaysia are a welcome reversal of the negative influences of colonial domination.