Religious revival and its contestation against the modern constitutionalism1
宗教の復興と近代立憲主義の揺らぎ：マレーシア憲法制定史から
Naoko KUWAHARA
桑原 尚子
Institute of Comparative Law, Waseda University, Visiting Research Fellow
早稲田大学比較法研究所招聘研究員
I.

RESEARCH OBJECTIVES AND SCHOLARSHIP DISCUSSIONSThis research explains how the very western idea of modern constitutionalism

has transformed an indigenous concept of sovereignty and traditional relations
between politics and religion, refocusing attention on language, ethnicity,religion and monarchy used for creating “imagined community” and “nations” inthe multi religious-ethnic Malaysian society. The research explores historicalroots of the recent challenges against the western constitutionalism in general,and constitutional monarchy in particular, contested by the religious revival. It
also discusses how persons who were involved in the Constitutional drafting had
understood and interpreted the new and unfamiliar idea of Western modern
constitutionalism, and transferred it into the constitutions.
Religion is back in the public sphere although the major social science’s
paradigm for interpreting the place of religion in modernity used to be the theoryof secularization under which religious beliefs decline resulted from therationalization of world views. At the same time, the world has witnessed the riseof constitutionalism2, in general, and judicial review, in particular, after the endof the cold war. With newly acquired judicial review procedures, national higher
courts worldwide such as constitutional courts or supreme courts have beenasked to resolve a wide range of issues from elections, human rights including
the scope of freedom of expressions and religion, equality, or privacy, to highly
political matters. This phenomenon is featured as “judicialization of politics”
which is “ever-accelerating reliance on courts and judicial means for addressing
core moral predicaments, public policy questions, and political controversies.”3This research conducts with generous financial support from the JFE 21st Century
Foundation.
2 Ackerman, Bruce, “The Rise of World Constitutionalism”, 83 Virginia Law Review 771,
1997.
3 Hirschl, Ran, “The New Constitutionalism and the Judicialization of Pure Politics
Worldwide”, 75 Fordham Law Review 721, 2006.
1－ 51 －Hirschl (2010) raises attention on the recent emerging of “constitutionaltheocracy” under which we witness “the tremendous increase of popular support
forprinciples

oftheocratic

governanceandtheglobal

spreadofconstitutionalism”, and, in fact, a billion people live. According to Hirschl,
constitutional theocracy is differed from a pure theocracy in which the supreme
religious leader is also the highest political leader, and rather it requires politicalfigures to operate in accordance with constitution (Hirshl: Chapter1). On theother hand, “constitutional theocracy” protests against the strict separation ofreligion and state like France and the United States, and not only approves statereligion but also ensure state religion as a source or the source of legislation andjudicial interpretation (Hirshl: Chapter1). The phenomenon of “constitutionaltheocracy”, fundamentally differed from modern constitutionalism originatedfrom the Western idea and based on secularism, seemingly contests against orproposes re-consideration modern constitutionalism. However, few havediscussed legal questions regarding the phenomena of “constitutional theocracy”
such as any relations between constitutionalism, theocracy and religious law
because it seems that the legal scholarship has regarded theocracy and religious
law as premodern and backward.
In this report, I have special focus on the transformation of the indigenous
concept of kingship or “kerajaan” towards constitutional monarchy under theBritish colonialism and by transfer of the western modern constitutionalism toMalaysia among the research issues of discussion, rethinking significant factors
to create “nations” in multi-ethnic society such as religion and kingship.
II.

THE CURRENT PHENOMENA ON MONARCHY IN MALAYSIA
While tens of thousands of people gathered in downtown in Kuala Lumpur andshouted “bersih (clean)” to protest against the government at the end of August in2015, a few number of protesters chanted a different slogan, “Daulat Tuanku(Power to the Ruler)”, and waved Johor state flags. Prior to the massdemonstrations against the federal government, political tensions having arisenover a financial scandal implicated Prime Minister Najib Razak, Sultan of Johormade a public statement advising the government to address the current politicaland economic unstable situation, and said that:
I am aware of the grievances and complaints of my people. Indeed, in mypositions as the ruler, I cannot interfere in the political affairs, but as the－ 52 －

ruler, it is my responsibility to ascertain the living condition of the people isgood and prosperous4.
The Sultanate or Rulership is one of the traditional elements, like theIslamic religion and the Malay language, of the Malaysian Constitution in the sensethat these elements have been practiced long before the British colonial rule [Mohd.
Salleh ]5.
Monarchy has received little attention from the constitutional law scholars,and even it has been regarded as an obsolete topic of constitutional discussion. InMalaysia, however, monarchies become in recent years more powerful than they
have been at any time since independence from the Britain in 1957. A newgeneration of Rulers and princes, including the royals of the States of Perak andJohor, publicly emphasize their roles as enlightened guardians of people and theConstitution, and are vocal over political, economic and social affairs [Harding2012].
Supposed that the concept of Malay sultanate (kerajaan) or monarchy hadbeen transformed into the Westminster-style constitutional monarchy during theBritish colonial period and then the existing Federal Constitution, the current
Malaysian phenomenon in terms of monarchy presents a twofold question: howrecipients have re/interpreted modern constitutionalism and its elements such as
human rights, the relationship of state and religion, state neutrality, the distinction
between the public and private sphere, and the individualistic concept of rights
transferred from the West, in this case, constitutional monarchy; and what politicaland social conditions or factors have affected this re/interpretation of modern
constitutionalism in a local context. The following discussion focuses on the firstquestion with special reference to monarchy.
III. LAW, POWER, AND AGENCY IN THE BRITISH COLONIAL CONTEXT
Broadly speaking, as Kolsky [2010] shows, there are two primary
approaches to the study of law and empire: the first approach regards law as an
instrument of colonial rule from the perspective of subaltern study [e.g. Guha: 1987],
and the second approach emphasizes on the relationship between law, power andagency of indigenous people. The second approach proposes that “colonial law
4“Address current political and economical situation: Johor sultan”, The Sun Daily, 25 August
2015.
5 He also included Malay privilege in the traditional elements.

－ 53 －

sometimes constrained the very forms of power it made possible and provided
avenues for resistance and maneuver” [Kolsky 2010: 974], and therefore, its study
tends to focus on agency. Sharafi [2010] showed that, in the British India, the very
British colonial product of personal law system6 created a room for Indians to beable to maneuver colonial law on the basis on forum shopping, examining the acts ofagency, i.e. litigants.
In the similar vein of the second approach, Hussin [2016] regards colonial
law and institutions are “the product of negotiations” among colonial and local elites
with varied motivation and unequal resources. Local elites maneuvered legal
change in the British colonial period to expand or strengthen their powers andauthorities, and realized their visions of new state [Hussin 2016]. One of the local
elites was the Sultan of Johor Abu Bakar (1833-1895) who took advantage of theBritish colonial rule to centralize powers in his hands and legitimate his authority
under the name of Islam and through “constitutionalism” in the late nineteenth
century. Faced with both the increase of British colonial power and the domestic
concern over royal succession, the Sultan of Johor adopted a constitution(undang-undang tuboh kerajaan) in 1895 which was the first constitution
introduced to Southeast Asia. The constitution was regarded as a model ofmodernization or westernization of traditional governance for other states in theMalay Peninsula to partly avoid further intervention by British colonial power, and“an important precursor for constitutional monarchy in Malaysia” [Hussin 2016:
chapter 5]. The Johor’s response to the increase of imperial pressure represented acommon pathway that local elites institutionalize Islam in the late nineteenth andtwentieth centuries [Hussin 2016: chapter 5]. In fact, the state of Terengganu
adopted a constitution in 1911 which modelled the constitution of Johor withmodification.
The British colonial rule in Malay states brought ambivalent effects on
Malay ruler’s powers and authorities: on the one hand, the British authority tookjurisdiction over revenue, tax, police, commercial affairs and general administration,and left jurisdiction over “matters of religion and customs of Malay” to the Malay
The personal law refers to law which applies to “certain defined classes of people, defined either
upon racial grounds” or “upon religious grounds”, or “occasionally upon both” [Hooker 1976: 1].
The personal law system, which the British introduced to Malaya, was established by India’s firstgovernor-general, Warren Hastings in India [Kolsky 2010: 975]. Under Hasting’s plan for theadministration for justice (1772), the theory was that “Indians should be governed by Indian
principles, particularly in relation to law” [Cohn 1996: 26]. The Hasting’s plan created plural legal
system in the personal law sphere including family law and inheritance, and plural judicial systemfor dissolution of disputes relating to personal laws.
6－ 54 －

rulers; on the other hand, it resulted in reinforcing Malay ruler to allow enjoying
more autonomous powers over “matters of religion and customs of Malay” than thepre-colonial period. In the pre-colonial period, local chiefs, in practice, dealt with“legal” cases in accordance with a combination of adat, maritime and trading rules,
and legal codes whose parts of sources were shari’ah [Hussin 2015: 156] although
Malay rulers technically enjoyed undifferentiated authority over judicial, legislative
and administrative matters. Authority of Malay rulers over Islam became central
part of their authority in the colonial period [Hussin 2016: chapter 3]. The Britishcolonial rule in Malaya, thus, resulted in depriving jurisdictional powers of local
chiefs through the dual-jurisdictional system which conferred “general jurisdiction”
on the British authority and confined jurisdiction over “matters of religion andcustoms of Malay” on Malay rulers7. In the pre-colonial period, more generally
speaking, Malay rulers were far from absolute monarchy, rather they did not enjoy
enforcing their will over kerajaan, and actual power incurred to chiefs [Gullick1988]. Indeed Malay rulers played ceremonial role [Milner 1982: 46]. Gullick
explained the reasons why the powerless Malay rulers had survived: the chiefs
needed Malay rulers to legitimize their rule; and Malay rulers play religious
function and they became “invested with an aura of sanctity and supernaturalpower” [Gullick 1988: 44-48].
IV. BRITISH EMPIRE AND LAW: CREATION OF “IMAGINED COMMUNITY”

Kerajaan, which was the pre-colonial Malay polity and literally meant “thecondition of having raja” with Hindu conceptual influence, was a keyword tounderstand how people were governed. Observing writings from the nineteenth
century to and earlier, Milner [1982: 113] concluded the Raja (the Malay ruler) was
the only institution of social control, and his role played in the lives of his subjects
was “as much moral and religious as political” in the pre-colonial Malay states.
Milner put it:
Malays believed service to the ruler offered the opportunity for social andspiritual advancement. They understood that their position in this life and7

In terms of transformation of institution of Malay rulers in Malaya during the British colonial
period, one group of scholars tend to focus on Malay rulers losing their powers [e.g. Emerson 1968],
and another opposes the view to point out that the power enjoyed by Malay ruler had not been
drastically deprived of [e.g. Gullick 1992; Milner 1995]. Gullick [1965], for example, regarded theMalay ruler was the “titular source of rank and authority” but the district chief was the institution
exercised “real power” and owed administrative responsibility.

－ 55 －

the next depended on the Raja; he was the bond holding men together, andthe idiom through which the community experienced the world. Men were
not so much subjects as extensions of the Raja: they were indeed themeasure of his nama [Milner 1982: 113].
The subjects “considered themselves to be living neither in states nor under
governments, but in a kerajaan, in the ‘condition of having a raja’” [Milner 1982:114]. Under such an old ideology of kerajaan, the subject (rakyat) wasconceptualized as a part of the Raja exampled by the maxim saying “the Ruler andsubject can never be divided”, and kerajaan was conceptualized as the personal
relationship between Ruler and subject [Milner 2012: 194, 195].
Malays considered themselves to be living not under shariah but under aparticular Raja which was an institution deeply rooted in the Malay world's
animistic and Indian-influenced past, and their primary object of loyalty was not
Muslim community but their Raja [Milner 1981: 49]. Milner pointed out that “[t]hisMalayo-Muslim polity, the raja-centred, ceremonial, kerajaan, stands in strong
contrast to the image of an Islamic state as a community of faithful governed bysharīa law” [Milner 1981: 50]. Milner referred to continuity of Malay ruler’s position
after the arrival of Islam to Malay Peninsula, which was characterized by theceremonial structure, the titles and the rituals represented the spiritualachievement of Malays with pre-Islamic origins, and by Malay ruler’s suggestion to
his loyal subjects to be rewarded by God which echoed “the Srivijayan ruler’spromises of ‘eternal peace’” [Milner 1981: 51]. He, however, insisted that Malayrulers were attracted to two features of the medieval Muslim world, thePersian-influenced notion of kingship and the mystical concept of Perfect Man, on
the premise that “[t]he medieval Muslim world, however, certainly knew ‘kingship’,and in acquiring titles and formulate from that world which would support theRaja’s position, Malays were not choosing an obscure or heterodox version of Islam”[Milner 1981: 53]. Having followed to the medieval Islamic tradition of kingship,Malay rulers adopted titles and formula from “the Persianized Muslim world” suchas “Sulṭān”, “Shāh”, “God’s Shadow on Earth (ẓill Allāh fī ʹ l-ʿālam)” and “Helper ofthe World and of the Religion (Nāṣir al-dunyā wa ʹ l-dīn)” to describe them [Milner1981: 52].
The British having brought new Western concepts such as “state,government, race, progress, time” into the Malay Peninsula, the royal courts
transplanted the concepts to re-conceptualize kerajaan to constitute territorial state－ 56 －entity [Milner 2012: 196]. The Johor’s constitution adopted in 1985 represented theideological transformation of kerajaan: a new kerajaan referred to the state as anentity independent from the Ruler [Milner 2002: 215-216].
Beside the conceptual transformation of kerajaan represented by theJohor’sconstitution, politicaldebate

in Malaysocietyalso showed thetransformation. In the British colonial period, ideological political debate relating to
Malay society had gone on between the proponents of the traditional monarchy andthe exponents of new ideas heavily influenced by both Islamic resurgent andEuropean enlightenment thought [Milner 2002]. In this context, as Milner put it,
the conception of Malay society had been contested between the monarchical visionof community (kerajaan), the community of Allah (umat), and the community basedon Malay ethnicity (bangsa) [Milner 2002]. Challenged by both religious andrelatively liberal ideologies, kerajaan was reformulated its concept in various
discourses in the Malay literatures such as al-Imam influenced by Egyptian Islamic
reformist journal al-Manal, a Malay newspaper Utusan Malayu [Milner 2002] .
Milner concluded that kerajaan was reformulated to territorial concept from “anextension of rulership”, and a Malay ruler was portrayed primarily as “a governor
or administrator” [Milner 2002: 288].
The well-documented study of Malay rulers for making the MalaysianConstitution by Smith [1995] describes the negotiations and power struggles oftransformation of Malay rulers’ traditional power into “constitutional monarchy”
based on British constitutional monarchy as a model among Malay rules, Malay
political elites and British colonial officials. The Malaysian Federal Constitution as
it exists today provides for Islam as the religion of the Federation (Art, 3 [1]), therulers (sultans) of the former Federated and Unfederated Malay States as the headsof the religion of Islam in each state (Art. 3 [2]), the conference of rulers (Art. 38),
and the states’ jurisdiction over Shariah and the Shariah court (9th schedule, list II)
as so-called “tradition”. This “tradition” had been institutionalized through therelationship between the British colonial authorities, the sultans and local elites
during the British colonial period.
Beside the transformation of traditional sultanate into constitutionalmonarchy, the institutionalization of Islam was characterized by the intertwining of
the sultans and “Malayness”, which is articulated in the present Federal
Constitution. The institutionalization of Shariah was not comprehensive but onlypartial, enacted by statutes and case laws, and the institutionalization of theShariah Court struggled against the secular courts over jurisdiction.

－ 57 －V. Conclusion
The indigenous concept of kingship or “kerajaan” in Malay society wastransformed relational to territorial concept to create nation state or “imaginedcommunity” under the British colonialism. Conceptual transformation of Malay
Sultanate into constitutional monarchy accompanied with the institutionalizationof Islam, as religion, and Shariah, resulting in the current “constitutionaltheocracy”.
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