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Contextualizing constitutional
Islam: The Malayan experience
Kristen Stilt*
The incorporation of references to Islam and Islamic law (such as the establishment of Islam
as the state religion, or the “establishment clause”) in modern constitutions is now a recognized phenomenon. The scholarship on these clauses has been focused on an examination of
their judicial interpretations, with some attention to the historical contexts of their adoptions. A deeper contextual inquiry into the adoption, or rejection, of these clauses promises
a more meaningful understanding of the phenomenon of constitutional Islam—in historical and contemporary settings—than has yet been achieved. This article proposes a contextual approach to constitutional Islam and uses it to examine the making of the Federation
of Malaya independence Constitution of 1957. In examining both the dynamics within the
country and the international context in which the constitutional drafting process took place,
this article shows that the establishment clause was attached to debates about many other
constitutional issues and that its adoption was ultimately an attempt to provide another avenue of constitutional advantage for ethnic Malays.
1. Introduction
The incorporation of references to Islam and Islamic law in modern constitutions is
now a recognized phenomenon. More than thirty nations provide that Islam is the
religion of the state (what I call the Islamic establishment clause), a few less declare
that Islamic law or its principles are a source or the main source of legislation (the
source of law clause), even fewer declare that the nation is an “Islamic state” (the
Islamic state clause), and some make explicit the idea that laws that conflict with
Islamic law, however that may be interpreted, are invalid (the repugnancy clause).
* Professor of Law, Harvard Law School (HLS). Email: [email protected]. For helpful comments
on drafts of this article, I would like to thank Erin Delaney in particular along with Tamir Moustafa,
Malika Zeghal, Benjamin Schonthal, Noah Feldman, the George Washington Law School Comparative
Constitutional Roundtable (and David Fontana, Nathan Brown, and Aziz Rana in particular), the
Harvard Law School Faculty Workshop, and the anonymous reviewers of this journal. HLS students
Yaira Dubin and Waqqas Mir provided research assistance and HLS Reference Librarian Aslihan Bulat
assisted in locating sources. The archival research was made possible by the Carnegie Scholars Program.
Funding for a colloquium series at Northwestern Law School at which I presented an earlier version of
this paper was made possible by the Guggenheim Foundation and Northwestern Law School.
I•CON (2015), Vol. 13 No. 2, 407–433doi:10.1093/icon/mov031
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I•CON 13 (2015), 407–433
These clauses, or scripts, of constitutional Islam have become a global phenomenon, and they move across time and place in complex and significant ways. Due to
their prevalence, countries that have a substantial Muslim population and write a constitution (or, in some cases, undertake amendments) have to confront these clauses,
deciding whether to include or reject them.1 The reasons for accepting or rejecting the
clauses, and their anticipated meaning in the domestic environment, are based not
upon some standard and clearly understood global meaning, but rather upon local
hopes and ambitions. But appealing to a widespread phenomenon can serve to put
the burden of justification on those who reject a place for Islam in the constitution
and also allow proponents to avoid discussing how they hope and intend the clauses
to operate in practice.2 Once the constitution is promulgated, new sets of interests and
expectations form around the clauses and they enter a new phase, both attached to
their historical development and available to take on—and be assigned—meanings by
new individual and institutional actors within that country and beyond.
A substantial amount of scholarship has studied the judicial interpretations of
these clauses, most commonly in single-country studies, to some extent regionally,
and, more recently, in a broader comparative sense.3 This line of scholarship takes
the existence of the constitutional language as its starting point or provides some historical context to the adoption of the constitution or amendment that contains the
relevant clause. A deeper contextual inquiry into the adoption, or rejection, of these
clauses promises a more meaningful understanding of the phenomenon of constitutional Islam—in historical and contemporary settings—than has yet been achieved.
A contextual approach to constitutional Islam, as proposed in this article, involves
examining both the dynamics within the country and the international context in
which the constitutional process takes place.
First, a focus on the internal dynamics asks why drafters adopt clauses of constitutional Islam and what other issues are connected to that decision. When the art­
icles dealing with Islam are treated independently of other constitutional language
or country-specific issues, it is easy to conclude that constitutional drafters aimed to
achieve some particular vision of Islam in the state or even a particular substantive
doctrinal result. These clauses, however, are part of larger debates and power struggles, and decisions about their inclusion are often intertwined with legal, political,
economic, social, and cultural issues such as federalism, the location of the power
to decide religious questions, nationalism, notions of the rule of law, anti-colonial
As Kim Lane Scheppele has noted, “rejecting a constitutional option may be in some ways more crucial
to the development of a constitutional sensibility than positively adopting a particular institutional
design or constitutional clause” (original emphases). Kim Lane Scheppele, Aspirational and Aversive
Constitutionalism: The Case of Studying Cross-Constitutional Influence Through Negative Models, 1 Int’l J.
Const. L. 296, 298 (2003).
2
There are very few cases to date in which constitutional Islam has been removed from a constitution.
Most prominently, Turkey removed the establishment clause, which had been in art. 2, with an amendment to the Constitution in 1928. See Law Modifying the Constitution of the Republic of Turkey, Apr. 10,
1928.
3
See, e.g., Nathan Brown, Constitutions in a Nonconstitutional World (2002); Ran Hirschl, Constitutional
Theocracy (2010); Constitutionalism in Islamic Countries (Rainer Grote & Tilmann J. Röder eds., 2012).
1
Contextualizing constitutional Islam: The Malayan experience
409
sentiment, monarchical privilege, national security, ethnic privileging, and other context-specific concerns. Constitutional Islam functions as available language that can
be harnessed in favor of the particular needs and goals of drafters or society at large. It
can stand in for, or reinforce, other language and ideas. A contextual approach brings
these linkages to the surface, showing that constitutional Islam does not operate as a
single issue independent of other constitutional considerations. And an understanding of these historical linkages will do more than explain the dynamics at the time of
the constitution’s or article’s drafting; it can also suggest new approaches to studying
contemporary constitutional practice since these founding debates do not neatly dissolve with the adoption of the clause.
Second, examining the international context shows how one country’s drafting
process relates to the larger world of constitutional Islam at that point in time. These
clauses were not scripted anew in each national setting, but rather migrate from one
context to the next, with or without modification.4 The establishment clause appears
in basically the same form in the many constitutions that contain it and while there
is more variation in the source of law and repugnancy clauses, they are recognizable
by the same basic phrasing. These scripts are a part of a global trend, and once in
existence, they become readily available for use—or non-use or explicit rejection—
by drafters in other nations. The choices made in one constitution, and the perceived
reasons for those choices, can influence the drafters and the public at large in the next
context.
This article uses this two-part contextual approach to study the making of the
Constitution of the Federation of Malaya,5 and also encourages its use in the study of
other constitutional processes. As adopted, Malaya’s Constitution contained an establishment clause in article 3, which reads, in part, that “Islam is the religion of the
Federation; but other religions may be practiced in peace and harmony in any part
of the Federation.”6 The making of the Malayan Constitution as part of its independ­
ence from Britain in 1957 is a compelling story of the complex calculations behind
the inclusion of the establishment and related clauses.7 Both domestic and international dynamics affected the drafting process, and the Malayan case offers an import­
ant and observable moment in the globalization of constitutional Islam. Members of
For a discussion of the concept of constitutional migration, see Sujit Choudhry, Migration as a New
Metaphor in Comparative Constitutional Law, in The Migration of Constitutional Ideas 1 (Sujit Choudhry ed.,
2006).
5
At the time of its independence in 1957 the official name was the Federation of Malaya; in 1963, when
the northern Borneo states of Sabah and Sarawak joined along with Singapore, the official name changed
to the Federation of Malaysia.
6
The remainder of art. 3 specifies that the rulers of the states are the head of the religion of Islam in the
states and explains who fills that role in the states that do not have rulers and in the federal territories.
This recognition of the rulers’ authority is tied directly to the establishment clause of art. 3, and was part
of a larger constitutional compromise, as discussed below.
7
For a general history of the constitutional process, see Joseph M. Fernando, The Making of the Malayan
Constitution (2002). In a related article, Fernando seeks to prove, based on archival sources, that the
drafters intended to create a “secular” state and not a “theocratic state or a quasi-theocratic state.” See
Joseph M. Fernando, The Position of Islam in the Constitution of Malaysia, 37(2) J. Southeast Asia Stud. 249,
265 (2006).
4
410
I•CON 13 (2015), 407–433
a multinational drafting commission, the Reid Commission, had participated in the
drafting of constitutions of other former British territories, making the Malayan experience explicitly comparative and international.8
There were many types of domestic pressure on the Reid Commission with regard to
an establishment clause, and they centered on the issues of federalism, ethnic Malay
advantages, and, to a far lesser extent, religious practice. The United Malays National
Organization (UMNO), one of the new political parties operating on the federal level
and the main constituent of the three-party Alliance (along with the Malayan Chinese
Association and the Malayan Indian Congress), was concerned about the precarious
demographic situation of ethnic Malays on the eve of independence—they were slightly
less than 50 percent of the population, and projections estimated that their numbers
would soon be overwhelmed by the Indian and Chinese population. (“Malay” refers
to ethnicity, while “Malayan” refers to the place of the peninsula of Malaya.) UMNO
sought the inclusion of the establishment clause as part of a larger package of demands
that included a stringent path to citizenship for immigrants, the exclusive official use of
Malay language, and Malay special privileges and quotas. Since Malays were constitutionally also Muslims, the establishment clause provided extra insurance that these and
other guarantees and privileges would be made meaningful. The establishment clause
was, essentially, a constitutional “wild card” for Malay protections and privileges.
Many non-Malays resisted the establishment clause, just as they tried to achieve
official recognition of their languages (Chinese and Tamil in particular), easier paths
to citizenship, and equal opportunities with the Malays. Non-Malays who rejected the
establishment clause initially found unlikely allies in the Muslim Sultans of Malaya,
the hereditary rulers of the states that formed the Federation. The Sultans had jurisdiction over Islam in their states, as memorialized in their state constitutions, which
contained the establishment clause. Their concerns were of federalism: they did not
want to lose any power to new federal institutions, which they anticipated would happen if the constitution attached religion to the new federation. The state of emergency
in Malaya gave further weight to the Sultan’s preferences, and the Sultans testified to
the Reid Commission that their close relations with their Malay—and thus Muslim—
subjects had kept them from straying into communism. Jeopardizing the Sultans’
claim to religious authority could, the Sultans argued, make Malays susceptible to
dangerous ideas.
The existing world of constitutional Islam beyond Malaya also influenced the process
and prompted a different set of arguments. Two new countries with a British colonial
past stood as potential models for the new Malaya: India and Pakistan. Popular discussions attempted to frame the Malayan choice as between “secular India” and “Islamic
Pakistan,” although it soon became clear that the new Federation would fall in a grey
8
The Reid Commission kept meticulous records of the entire process, now housed in the British National
Archives (BNA) in London, and one of its members, Sir Ivor Jennings, kept his own personal archive,
now housed in the Institute of Commonwealth Studies, School of Advanced Study, University of London
(SIJ). Sir Ivor Jennings kept copies of some documents produced by the Reid Commission in his personal
archive in addition to his own personal notes. In this article, I cite to the BNA for all Reid Commission
documents and cite to SIJ only for his personal notes not available elsewhere.
Contextualizing constitutional Islam: The Malayan experience
411
area in the middle, following neither Pakistan nor India. The composition of the Reid
Commission further ensured that the experiences of other countries, and those two in
particular, would influence events: Justice Abdul Hamid of Pakistan and Justice Malik
of India were members. It was Justice Abdul Hamid who championed the establishment clause at the last minute, and he was the sole dissenting voice within the Reid
Commission because its draft did not include the establishment clause. Abdul Hamid
argued that since the establishment clause was gaining popularity around the world,
and was already included in the Malayan state constitutions, the Muslims of the new
Federation of Malaya were justified in demanding it. His dissent was overtly comparative, and thus marked a crucial moment in the development of constitutional Islam.
This article is organized according to the stages of the constitutional drafting process. At each stage, certain issues, domestic or international, were most prominent
and different actors and motivations emerged as most powerful. Section 2 briefly covers the conditions in Malaya on the eve of the constitutional process and then focuses
on the formation of the Reid Commission and its evidence-gathering phase in Malaya.
Constitutional Islam emerged as linked to citizenship, language, and Malay privileges
during this time. The Commission then moved to Rome to draft the constitution,
addressed in Section 3. At this stage, drafter Justice Abdul Hamid added an explicitly
comparative dimension in his insistence that constitutional Islam be included in the
constitution. Once the Commission had completed its work, a new configuration of
actors took over the process: a Working Party, made up of the Alliance, the Sultans,
and the British government, considered the draft back in Malaya and refocused the
debate around constitutional Islam as linked to citizenship, language, and Malay privileges, and made some crucial amendments before it was adopted by the UK parliament
in the Federation of Malaya Independence Bill. This final amendment and approval
process is covered in Section 4. The article’s conclusions in Section 5 return to an
assessment of what this contextual approach has shown about constitutional Islam
in Malaysia and what it can offer the study of constitutional Islam and comparative
constitutional law more generally.
2. First steps toward a new constitution
2.1. Malaya on the road to independence
The Constitution of the Federation of Malaya came into force on August 31, 1957, at
the time of the country’s independence from Britain. Each state that became part of
the independent Federation of Malaya had its own unique constitutional background,
but some general characteristics were common among them. Except for Melaka and
Penang, due to Britain’s direct rule, the other nine states were governed by hereditary
Sultans.9 Through these Sultans, Britain had developed a system of indirect rule that
grew increasingly direct over time. A treaty between each Sultan and Britain governed
9
See Farid Shuaib, The Islamic Legal System in Malaysia, 21 Pac. Rim. L. & Pol’y J. 85, 88 n.11 (2012) (listing
the states that had Sultans).
412
I•CON 13 (2015), 407–433
the relationships, which, beginning about 1874, typically also involved the imposition of a British Resident, or Governor.10 Per the individual treaties, the advice of the
Resident was considered binding on all matters except those relating to Malay religion
and custom.11 Preserving their own shrinking power and status meant that the Sultans
had to fortify and defend this limited jurisdiction from further encroachment.12
Alongside the treaties, some Sultans also promulgated their own constitutions, and
these constitutions proved relevant in the federal constitutional process. The first such
constitutional document was in the state of Johor, and Sultan Abu Bakar of Johor had
it prepared in 1895 by his ministers and his Singapore-based English legal advisors.13
Article 57 of the 1895 Constitution of Johor provided that:
What is called the ‘Religion of the State’ for this Territory and State of Johore is the Muslim
Religion, and such being the case, the Muslim Religion shall continuously and forever be, and
be acknowledged to be, and spoken of as, the ‘State Religion’; that is to say, on no account may
another religion be made or spoken of as the religion of the country.14 The expression of “what is called the ‘Religion of the State’” indicates that the drafters of Johor’s constitution understood that the concept of a state religion already
existed in the realm of constitutional law and that they believed that they likewise
needed to include such language. This reference must be to the Ottoman Constitution
of 1876, which contained the first Islamic establishment clause.15 By the time of the
1957 Federation of Malaya Constitution, all of the constitutions of the Malayan states
included establishment clauses, a fact that proved significant in the drafting process.
Early British interest in the Malayan peninsula was largely commercial. Traders
and investors discovered extensive tin reserves, launching large mining operations
that were financed mainly by foreigners.16 The second main export product was rubber, which developed as a major industry after the seeds of the rubber-producing tree
were successfully planted on the peninsula.17 These two industries—tin and rubber—
were a significant cause of the arrival of foreign labor, creating issues of citizenship,
See Barbara Watson Andaya & Leonard Y. Andaya, A History of Malaysia 161–162 (1996). The Pangkor
Treaty of 1874 between Britain and the state of Perak is typically considered the beginning of Malaya’s
colonial period. Id. at 160.
11
Id. at 158.
12
See Iza Hussin, The Politics of Islamic Law 72 (2008) (unpublished Ph.D. dissertation, University of
Washington) (on file with author) (“In dividing territories of governance among themselves and the
Malay rulers, however, religious and racial identity, not previously a major part of Malay elite legitimacy
or discourse, became the center of the Malay elite domain and the key to their survival.”).
13
Id. at 208.
14
Constitution of the State of Johore 1895. The clause also provided that “although all other religions are
allowed, and are always understood as proper to be allowed, to be practiced in peace and harmony by the
people professing them in all and every part of the Territory and Dependencies of the State of Johore.” Id.
15
M. Sükrü Hanioğlu, A Brief History of the Late Ottoman Empire 117 (2008). It contained a similar but more
restrictive right of practice for other religions. The Sultan of Johor looked to the Ottoman Empire as a
source of reference regarding law generally and in 1893 adopted the Ottoman codification of mainly
commercial law (the Majalla) for use in Johor. See Hussin, supra note 12, at 209. This use of the Ottoman
commercial law two years earlier suggests that the Ottoman Constitution was also a model for Johor.
16
Andaya & Andaya, supra note 10, at 214.
17
Id. at 217–219.
10
Contextualizing constitutional Islam: The Malayan experience
413
language, and loyalty that were prominent in the 1957 Constitution. Migrants from
India had been travelling to the peninsula for generations, and Indian Muslims in
particular were a major cause of the conversion of the peninsula’s inhabitants to
Islam in the thirteenth century.18 But the influx of foreign labor for the tin and rubber
industries was of a much higher magnitude than ever before, with immigration both
encouraged and unrestricted between 1911and 1931.19 When the global depression
reduced demand for these products, some workers returned home, but many stayed,
and the Malayan Communist Party, founded in 1930, was able to gain members
among Chinese laborers as a result.20 The degree of integration into Malay society
depended mainly on economic status: privileged Chinese, Indian, and Malay students
attended the same elite English-language schools while most Chinese and Indian students attended schools sponsored by the Chinese or Indian communities and typically
studied in their own languages with imported textbooks and materials.21
The main legal relationship was between Britain and the Sultans of the states until
the last decade of the pre-independence years, when national political parties formed
and became the third significant stakeholder in the constitutional and independence
process. Britain attempted to force the states into a unitary union, the Malayan Union,
in 1946, and met substantial Malay opposition as a result, and the Malays formed
the United Malays National Organization to successfully resist it.22 The Indian community formed its equivalent, the Malayan Indian Congress (MIC), that same year.23
The Chinese not affiliated with the Malayan Communist Party then formed their own
group, the Malayan Chinese Association (MCA), in 1949.24
In the first major pre-independence elections, the Kuala Lumpur municipal elections of 1952, UMNO and MCA contested them as an alliance and were very successful; MIC then joined what became known as the nationwide “Alliance” with the goal of
focusing on independence and deflecting attention from areas of communal tension.25
In the first federal legislative council elections in July 1955, the three-party Alliance
won 51 of the 52 contested seats, an endorsement of the Alliance’s independence
platform.26 While Malays were slightly less than half the population, they dominated
the electorate, and UMNO demanded that its power within the Alliance reflect this
fact.27 The MCA was a close second, and the existence of the Malayan Communist
Party, most of whose members were Chinese, gave UMNO added incentive to work
with the moderate Chinese in the MCA. The MIC had substantially less influence in the
Alliance. The formation of these parties set Malayan politics on a communal-based
20
21
22
23
24
25
26
27
18
19
Id. at 54.
Id. at 213.
Id. at 213; 243–244.
Id. at 226–231.
Id. at 267.
Id.
Fernando, The Making of the Malayan Constitution, supra note 7, at 13.
Id. at 29.
Id. at 61, 63.
Id. at 59.
414
I•CON 13 (2015), 407–433
course and despite the existence of some non-communal parties the modern political
system is still largely based on ethnic (and, relatedly, religious) affiliation.
2.2. The formation of the Constitutional Drafting Commission
The Alliance preferred a constitutional drafting commission comprised entirely of
non-residents of Malaya, in the belief that they would not have local allegiances and
would be able to work with complete neutrality. The Alliance also wanted to ensure that
drafters who had expertise with federal systems, and in particular in Commonwealth
countries, would be included.28 This was an unusual position for a group of local
elites; in other post-colonial contexts, foreign involvement was limited or rejected.29 In
contrast, the Sultans did not think that foreigners could understand the unique local
circumstances, and the particular status of the Malays, and argued for a commission drawn from the peninsula.30 High Commissioner MacGillivray agreed with the
Alliance, and the Colonial Office deferred to their judgment.31 Once that preliminary
point was settled, the three parties—Britain, the Sultans, and the Alliance—agreed
that Britain would appoint the chairperson and one more member and the British
High Commissioners in Australia, Canada, India, and Pakistan would each be asked
to nominate one drafter. The Colonial Office would share with the Alliance and the
Sultans the names of the nominees for their approval.32
Britain appointed Appeal Court Judge Lord Reid as chairman, and the commission
was then known by his name. The second British member, Sir Ivor Jennings, Master
of Trinity Hall at Cambridge, was chosen due to his experience with Commonwealth
constitutions; he had participated in the drafting of the constitutions of Ceylon and
Pakistan.33 The Indian member, Justice Malik, was a former chief justice in Allahabad
with extensive experience with Indian constitutional law, and one of his contributions
to the drafting process was the section on fundamental liberties, which were based on
the Indian Constitution.34 The Pakistani nominee, Justice Abdul Hamid of Pakistan,
was unknown to the Colonial Office, but Jennings knew him from their time together
working on the Pakistani Constitution and endorsed him. Sir William McKell represented Australia, and the commission proceeded without a Canadian representative
when the nominee was delayed indefinitely due to health reasons.35
The Reid Commission’s specific mission was contained in its terms of reference,
which included “the establishment of a strong central government with the States
and Settlements enjoying a measure of autonomy”; “the safeguarding of the position and prestige of Their Highnesses as constitutional Rulers of their respective
30
31
32
33
Id. at 103.
Id. at 100, 103.
Id. at 103.
Id. at 103–104.
Id. at 104.
Id. at 104–106. The head of UMNO, Tunku Abdul Rahman, supported the nomination of Jennings in
part because they had been students together in Cambridge. Id. at 105.
34
Id. at 106, 112.
35
Id. at 106–107.
28
29
Contextualizing constitutional Islam: The Malayan experience
415
States”; a constitutional monarch for the Federation “to be chosen from among Their
Highnesses the Rulers”; a single nationality; and “the safeguarding of the special position of the Malays and the legitimate interests of other communities.”36 While the
terms of reference did not specifically mention religion, the issues of the status of the
Sultans, nationality, and the special position of the Malays were so linked to questions
of religion and the state that religion in the broad sense would have to be a significant
issue in the drafting process.
2.3. Evidence gathering in Malaya
The Reid Commission convened in Malaya in June 1956, at a time when the peninsula was still under a state of emergency due to the threat from Communists. The
Commission began by inviting written submissions from individuals and organizations, receiving 131 written reports. The Commission’s members visited each state
and the Settlements and met the Sultans, their officials, and British representatives,
and held meetings across the peninsula to hear comments by individuals and representatives of parties and organizations. In addition, the Commission held numerous
internal meetings to review evidence and draft parts of the constitution, although it
was not formally prepared until the Commission moved to Rome after completing its
mission in Malaya.37 Many arguments were made to the Commission explicitly regarding the issue of religion and the state, ranging from local issues of federalism and religious freedom to international issues of the place of the new Federation in the Muslim
world. In addition, other issues began to emerge as connected to the religion of the
state debate, namely citizenship, language, and Malay privileges.
The Sultans opposed the establishment clause on federalism grounds: they feared
that they would lose their own power as the arbiters of all matters relating to Islam.
They hired a British spokesman, Q.C. Neil Lawson, who presented their views orally to
the Commission:
It is Their Highnesses’ considered view that it would not be desirable to insert some declaration
such as has been suggested that the Muslim Faith or Islamic Faith be the established religion of
the Federation. Their Highnesses are not in favour of such a declaration being inserted and that
is a matter of specific instruction in which I myself have played very little part.38
If Islam were made the religion of the Federation, the Sultans worried that jurisdiction
over matters of Islam would formally or informally shift from their territories to that of
new federal institutions. Later in the discussion, Mr. Lawson emphasized that religion
is a “State matter and much better left as a State matter.”39 Related, Mr. Lawson also
conveyed the Sultans’ emphatic rejection of the ability of non-Muslims to propagate
their religions within the Sultans’ states.40
Lord Reid et al., Report of the Federation of Malaya Constitutional Commission 6 (1957).
Id. at 7–8.
38
Federation of Malaya Constitutional Commission, Hearing of Counsel on Behalf of Their Highnesses the
Rulers, Sept. 14–15, 1956, BNA, C.O. 889/7, C.C. 2014, at 81.
39
Id. at 92.
40
Id.
36
37
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I•CON 13 (2015), 407–433
The Sultans also connected the issue of their power over religion to a matter they
knew would capture the Commission’s attention: the state of emergency in the peninsula. In the Sultans’ written proposals to the Commission, they emphasized that
according to the state constitutions the “Muslim Faith is a matter referred to the
States, the Rulers of which exercise the temporal powers of the faith in Their respective territories. . . . Their Highnesses would point out that one of the results of the
constitutional position has been that the loyalty of the overwhelming majority of their
Malay subjects has been retained in the face of strenuous efforts to disaffect them in
the interests of communism.”41 They further argued that “any interference with the
present constitutional established position of the Muslim Faith would, at the present
time, be fraught with danger to the internal security of the Federation and to the success of the campaign against subversive elements.”42 Drafter Ivor Jennings was apparently persuaded by the Sultans’ argument. On his own copy of their proposals, right
after this statement of warning, he added a handwritten note: “Islam will not become
religion of Federation.”43 This view had already been recognized within the British
intelligence and security agencies, as reflected in a “top secret” internal memorandum
written before the constitutional process began: “No Malay under-privileged peasantry
are likely to fall victim to Chinese Communist blandishments, owing to their Islamic
faith and their traditional loyalty to the Rulers and established Malay leaders.”44
The Alliance wanted the new constitution to include an establishment clause,
and simply asserted this position without justification. The “Political Testament of
the Alliance,” which was submitted to the Commission, stated that “the religion of
Malaysia shall be Islam. The observance of this principle shall not impose any disability on non-Muslim nationals professing and practicing their own religions, and shall
not imply that the State is not a secular state.”45 This language only indicates what the
Alliance thought an establishment clause would not mean but does not specify what
substantive results or goals it hoped to achieve by it. In fact, there is no evidence that
the Alliance intended to achieve substantive legal outcomes of religious law through
the establishment clause, which is supported by its ambiguous assertion that Malaya
would still be a secular state. But much more was at stake in its call for the establishment clause, which was implicitly connected to the crucial issues of language, citizenship, and Malay privilege. While the Alliance never explicitly linked these four issues
before the Reid Commission, their interconnectedness was clear in submissions by
other parties throughout the evidence gathering phase and then became central in
Abdul Hamid’s dissent in Rome and in the final stage of the Working Party back in
Malaya, as will be seen below.
Proposals of Their Highnesses the Rulers Made to the Constitutional Commission, Sept. 1956, BNA, C.O.
889/7, at 51.
42
Id.
43
Proposals of Their Highnesses the Rulers Made to the Constitutional Commission, Sept. 1956, SIJ,
B/10/4/1, at 51.
44
The Threat to the Internal Security of an Independent Federation, Problems of Intelligence Organization
in the Federation of Malaya in Connection with Constitutional Development, n.d., BNA, C.O. 1035/6,
at 1.
45
Political Testament of the Alliance, n.d., BNA, C.O. 889/6, at 19.
41
Contextualizing constitutional Islam: The Malayan experience
417
The submission by the Malayan Christian Council and the Council’s subsequent
meeting with the Reid Commission shows the link between the establishment clause
and language, citizenship, and Malay privilege. It also indicates the relevance of the
domestic state constitutions and their establishment clauses and the relevance of the
international context to the federal constitutional process. The following exchange
between the representatives of the Council and the Reid Commission provides significant insight into these issues, and is thus quoted in full:
Dr. Ho [Chairman of the Malayan Christian Council] then referred to the implications of the
request of some people that the Muslim religion should be the new State religion. He suggested
that it would be proper in a community of so many different races if the new independent State
were to be a secular one giving no particular favours or privileges to any one religion, as in
the case of India. [The Reid Commission member from Pakistan] Mr. Hamid said that such a
provision by itself would not prevent the legislative body enacting any law on the subject it saw
fit to introduce. Archdeacon Woods [of the Christian Council] said that in the case of Pakistan
where Islam was the State religion 85% of the population were Muslim. In the case of Malaya
only 48% were Muslim, and a provision in the constitution making Muslim [sic] the State religion would operate to the detriment of a majority of the people of the country. Mr. Hamid asked
whether the fact that such a provision was present in the [Malayan] State Constitutions had
done any harm or created any obstacles. Mr. Woods emphasized that in the case of countries
where the population was predominantly Muslim, it was a different matter, but this was not
the case in Malaya. The Chairman [Reid] pointed out, however, that in many of the States in
the Federation the population was predominantly Muslim, and that, up to date, religion had
always been a State subject. Did they wish all reference to the Muslim religion to be written
out of the State constitutions? Archdeacon Woods replied that they were only thinking of the
future constitution of the Federation.46
It is evident from the exchange that there was already a vigorous debate about the idea
of including an establishment clause and that India and Pakistan were points of reference in some of these conversations. The Christian Council referred to secular India
as a relevant model due to the “many different races” of Malaya, making it clear that
race and ethnicity were used interchangeably with religion. The Christian Council
representatives were familiar with the religious demographics in Pakistan and saw it,
and its Constitution, as an inappropriate model regarding religion since Muslims were
not a majority in Malaya. (The 1956 Constitution of the Islamic Republic of Pakistan
contained many references to Islam, including a repugnancy clause, but not an establishment clause.)47 Abdul Hamid argued that the mere fact that the Federation might
be declared secular would not constrain legislation in any way, and Dr. Ho apparently
was not sufficiently familiar with constitutional law in order to be able to respond.
Abdul Hamid and then Lord Reid raised the example of the state constitutions,
which at that time all declared Islam as the religion of the state. Abdul Hamid asked
Federation of Malaya Constitutional Commission, Malayan Christian Council Summary Record of
Meeting, Aug. 23, 1956, BNA, C.O. 889/5, C.C. 2067, at 2.
47
The repugnancy clause provided: “No law shall be enacted which is repugnant to the injunctions of Islam
as laid down in the Holy Quran and Sunna, hereinafter referred to as the Injunctions of Islam, and existing law shall be brought into conformity with such Injunctions.” See Constitution of the Islamic Republic of
Pakistan 1956, art. 198(1).
46
418
I•CON 13 (2015), 407–433
if the Christian community had been harmed in any way by these state clauses and
Archdeacon Woods did not have a good answer other than to repeat that they were
concerned with the Federation Constitution and that Malaya overall was not majority Muslim. But Lord Reid pointed out that some of the Malayan states were indeed
majority Muslim and that religion had always been a state matter—did the Christian
Council object to those constitutions? As a practical matter, the state constitutions
were promulgated by the Sultans with little input from their Malay subjects, let alone
non-Muslims, so the Christian Council was basically stating that it was acting where
it had a chance of being heard. While many states contained a majority of Muslims,
overall at the federal level Muslims were at best half of the population. More significantly, the Christian Council was trying to articulate that there was something substantively different about an establishment clause at the federal level. The states and
their legal systems developed in particular historical circumstances. The federation
was new, far larger and more diverse than any one state, and forming at a time of
worldwide de-colonization when old hierarchies were supposed to give way to equal
treatment among individuals, especially in a religiously pluralistic society.
The Islamic Association of Malaya (Persatuan Islam Sa-Malaya, or PAS, which
became the main Islamist party) clearly linked the four issues of religion, citizenship,
language, and Malay privilege. Its submission to the Commission begins with the
statement that “this country is a Malay country” and that “the Malays have only one
position in this country and that is they own this country and their sovereignty is the
absolute sovereignty of the country.”48 The submission criticizes the role of Britain
and claims that “had the Malays been strong in their economy and education there
would have been no political complications which call for the service of the [Reid]
Commission to this country.”49 The open door policy has meant that the “number of
the aliens and their position in this country in all respects become [sic] more than
that of the Malays who are the sons of the soil.”50 Thus, “the demands submitted by
other communities for the rights of citizenship, be it in the form of Jus Soli or that of
introducing relaxations in the conditions for the citizenship, are clearly not founded
on any difficulty of living peacefully and prosperously, which has been experienced by
them, but they are motivated by their sheer desire for the political power which they
have already reasonably enjoyed.”51
Before granting any further citizenship rights to non-Malays, the Islamic
Association of Malaya argued, the country needs to be sure of their “undivided loyalty
and full responsibility to this country,” which “should not only be political, but also
social, cultural and educational.”52 But, “this qualification is yet to be acquired by the
aliens, even those who were born in Malaya.”53 If any kind of automatic citizenship
Islamic Association of Malaya, Memorandum to the Constitutional Commission, July 14, 1956, BNA,
C.O. 889/5, at 1 (any grammatical errors in quotations from the text are in the original).
49
Id. at 2.
50
Id. at 2–3.
51
Id. at 3.
52
Id. at 4.
53
Id.
48
Contextualizing constitutional Islam: The Malayan experience
419
is adopted, “this country will become a country which is liable to treason which will
endanger its independence.”54
The Islamic Association of Malaya rejected the very concept of “safeguarding the
special position of the Malays” as weak phrasing inconsistent with their fundamental position in the country: “it is a clear and absolute [sic] that the sovereignty of
this country lies in the hand of the Malays and THAT IS THEIR SPECIAL POSITION
WHICH MUST BE RESPECTED AND PERPETUATED.”55 The educational system
should thus center on Malay culture with Malay as the language of instruction at all
levels. And further in terms of language, “Malay should be the official and national
language” and “English should no longer be treated as [the] official language, but it
is only as a secondary language to be maintained for a certain length of time which
should not exceed five years.”56 Then, building up to the religion of the state question,
the Islamic Association of Malay’s submission stated that “one of the implication [sic]
of the Malay culture and Malay education is that ISLAM should be the official religion
in this country” and that the “precepts of Islam are capable of guiding the progress of
this country in its future political evolution.”57
The Reid Commission heard a wide range of views on the topic of a religion of the
state. On September 3, 1956, Abdul Hamid drafted a memorandum for his colleagues
entitled “Notes on the List of Points to be Argued on Behalf of Their Highnesses the
Rulers” in which he agreed with the Sultans’ rejection of an official religion for the
new Federation. He wrote:
There should be a chapter in the draft on constitutional guarantees ensuring freedom of worship and freedom to profess, practise and propagate any religion. It would serve no purpose if
mention is made of any religion as the State religion; but if a mention is to be made at all of any
religion as the State religion, that should not affect the profession, practise and propagation of
any other religion.58
Sometime within the following month, Sir Ivor Jennings drafted a short document of
proposed “Fundamental Liberties” and included an article 6 on “freedom of religion”
that recognized the place of Islam although not as a religion of the Federation.59 The
first clause of the proposed article read: “The special position of Islam as the religion
of the Malays is recognized, but without prejudice to the recognition of other religions
professed by other sections of the population.”60 In the accompanying drafting notes,
Jennings indicated that this clause was adapted from article 44 of the Constitution
56
57
58
Id. at 5.
Id. at 8–9 (emphasis in the original).
Id. at 6.
Id.
Abdul Hamid, Notes on the List of Points to be Argued on Behalf of Their Highnesses the Rulers, Sept. 3,
1956, BNA, C.O. 889/7, at 5.
59
For a discussion of the idea of including a bill of rights in the Malayan and other post-colonial constitutions, see Charles O.H. Parkinson, Bills of Rights and Decolonization (2007).
60
Federation of Malaya Constitutional Commission, Fundamental Liberties, etc., Tentative Drafts, n.d.
(handwritten note states that it was distributed Sept. 28), BNA, C.O. 889/2, C.C. 2000/26, at 3 [hereinafter Tentative Drafts].
54
55
420
I•CON 13 (2015), 407–433
of Ireland and article 21 of the Constitution of Burma as a “reasonable compromise
between the recognition of a ‘State religion’ and secularism.”61
However, this draft provision recognizing the “special position of Islam” was short
lived. This proposed clause of article 6 was crossed out in pencil on the archival document, whereas other clauses that were included had a check mark next to them.62 In
an internal meeting held on October 9, 1956, the Commission reviewed Jennings’s
draft of the proposed “Fundamental Liberties” and next to the heading of this proposed clause is the notation “to be omitted.”63 The Commission concluded its work
in Malaya in the course of October 1956, and this October 9 memo indicates that at
the time of its departure the Commission did not intend to include the establishment
clause, nor did it intend to include a statement of secularism. Many parties involved
in the evidence-gathering stage indicated an awareness of the international context
of constitutional Islam, but the discussions about the establishment clause during this
period were mainly linked to the particularities of demographics and politics within
Malaya. It was not until the next stage that the establishment clause became explicitly
internationalized.
3. Drafting in Rome: the internationalization of Malayan
constitutional Islam
After the completion of the evidence-gathering stage, the Reid Commission reconvened in Rome in December 1956 to prepare the draft constitution and an accom­
panying explanatory final report. The members did not want to stay in Malaya for the
drafting and yet they did not want to return to the United Kingdom since they considered themselves an independent commission. During the drafting process in Rome,
all of the members agreed that the constitution should not include the establishment
clause, but Abdul Hamid changed his mind, to the great surprise of his Commission
colleagues, as soon as the drafting was completed. He offered no explanation for his
change of position at that particular point in time, but he did provide an extensive
explanation for his new stance, explicitly positioning the establishment clause in a
comparative context while also championing the Malays’ concerns about citizenship
and Malay privileges.
The Commission explained these developments in its final report:
We have considered the question whether there should be any statement in the Constitution
to the effect that Islam should be the State religion. There was universal agreement that if any
such provision were inserted it must be made clear that it would not in any way affect the civil
rights of non-Muslims. In the memorandum submitted by the Alliance it was stated—“the religion of Malaysia shall be Islam. The observance of this principle shall not impose any disability
Federation of Malaya Constitutional Commission, Fundamental Liberties, etc., Comments on the Drafts,
n.d. (handwritten note states that it was distributed Sept. 28), BNA, C.O. 889/2, C.C. 2000/26, at 2.
62
Tentative Drafts, supra note 60, at 3.
63
Federation of Malaya Constitutional Commission, Summary Record of the 45th Meeting, Oct. 9, 1956,
BNA, C.O. 889/2, C.C. 1000. These notes specify that the Commission was reviewing Sir Ivor Jennings’s
draft (C.C. 2000/26) on Fundamental Liberties.
61
Contextualizing constitutional Islam: The Malayan experience
421
on non-Muslim nationals professing and practicing their own religions and shall not imply that
the State is not a secular state.” There is nothing in the draft Constitution to affect the continuance of the present position in the States with regard to recognition of Islam or to prevent the
recognition of Islam in the Federation by legislation or otherwise in any respect which does not
prejudice the civil rights of individual non-Muslims. The majority of us think that it is best to
leave the matter on this basis, looking to the fact that Counsel for the Rulers [did not support
a clause for the reasons stated in their submission]. Mr. Justice Abdul Hamid is of the opinion
that a declaration should be inserted in the Constitution as suggested by the Alliance and his
views are set out in the note appended to this Report.64
Abdul Hamid prefaced his dissenting remarks with the statement that “it is with great
regret that I am recording this note, but the matters in controversy are extremely
important and I feel that I am under a duty to place them on record so that they may
be available for the consideration of those to whom it may fall to examine the Report
and the draft Constitution.”65 His main complaint was that the position of the Alliance
should have been adopted without any variation, but the Commission did not do so on
matters of citizenship, the special position of the Malays, and the state religion, about
which he commented:
It has been recommended by the Alliance that the Constitution should contain a provision
declaring Islam to be the religion of the State. It was also recommended that it should be made
clear in that provision that a declaration to the above effect will not impose any disability on
non-Muslim citizens in professing, propagating and practicing their religion, and will not prevent the State from being a secular State. As on this matter the recommendation of the Alliance
was unanimous their recommendation should be accepted and a provision to the following
effect should be inserted in the Constitution . . .: “Islam shall be the religion of the State in
Malaya, but nothing in this article shall prevent any citizen professing any religion other than
Islam to profess, practice and propagate that religion, nor shall any citizen be under any disability by reason of his not being a Muslim.”66
Abdul Hamid went on to say that the establishment clause is “innocuous” and then
surveyed similar clauses worldwide, marking a key moment in the development of
constitutional Islam.67 He argued that at least fifteen countries had an establishment
clause at that time, including the “Christian countries” of Ireland, Norway, Denmark,
Spain, Argentina, Bolivia, Panama, and Paraguay. He also identified Afghanistan,
Iran, Iraq, Jordan, Saudi Arabia, and Syria as having an establishment clause, along
with Thailand as the sole example of constitutional Buddhism. “If in these countries a
religion has been declared to be the religion of the State and that declaration has not
been found to have caused hardships to anybody, no harm will ensue if such a declaration is included in the Constitution of Malaya,” he asserted.68 However, he offered
no evidence that such clauses had indeed caused no hardships to adherents of nonofficial religions in those countries. Repeating the point he made with the Malayan
Reid et al., supra note 36, at 73.
Mr. Justice Abdul Hamid, Note of Dissent, in Report of the Federation of Malaya Constitutional Commission 95
(1957).
66
Id. at 99.
67
Id.
68
Id.
64
65
422
I•CON 13 (2015), 407–433
Christian Council, he continued: “In fact, in all the Constitutions of Malayan States a
provision of this type already exists. All that is required to be done is to transplant it
from the State Constitutions and to embed it in the Federal.”69
In his other criticisms of the draft, Abdul Hamid focused on citizenship and Malay
privileges. In terms of citizenship, one of his main goals was to make it more difficult for a person who was not born in the Federation but was resident on the date of
independence to become a citizen than was provided in the Reid Commission’s draft
constitution. As drafted, such a person per article 17 was entitled to be registered as a
citizen by submitting an application and showing that he is at least eighteen years of
age; that he is of good character; that during the twelve years preceding the date of his
application he resided in the Federation for at least eight years total; that he intends
to reside permanently in the Federation; and that he has an elementary knowledge of
the Malay language. The language test would be waived if the person applies within
one year of independence and is at least forty-five years old. Abdul Hamid argued that
citizenship for such people should be at the discretion of the federal government and
not as of right.70 He did not need to add the further obvious point that such people are
typically Chinese, Indian, and other ethnicities (but not Malays, who would have been
born in the Federation).
Finally, Abdul Hamid objected to the way that the special position of the Malays was
provided for in the draft. He did not want to vest the power in the legislature to reconsider quotas benefitting Malays without some kind of super-majority requirement. He
was clearly worried that Malays would not have enough members in the federal and
state legislatures to resist the removal of their special privileges if it only required a
simple majority vote. Believing legislatures to be unreliable even with these added protections, though, his preference was for the new position of the federal constitutional
monarch, who would be elected from among the Sultans, to be responsible for quotarelated federal matters and the individual Sultans for similar state matters.71
The other members of the Commission were very disappointed with Abdul Hamid’s
dissent, which he announced only after they all believed that they had reached a consensus on the final draft. In his own unpublished private notes, Ivor Jennings was
forthright with his frustration with Abdul Hamid’s change in views, calling his dissent a “shocker.”72 As he recounted the events, “the Alliance proposal that Islam be
the state religion . . . was rejected for reasons given in the Report and Mr. Justice Abdul
Hamid expressly stated his agreement with the decision. The question was not raised
on any of the Drafts written by him or by any other member of the Commission, until
Mr. Justice Abdul Hamid’s written circulation.”73 Jennings criticized Abdul Hamid for
representing that he was not able to convince his colleagues of his views; “he never
tried,” Jennings corrected.74
71
72
73
74
69
70
Id. at 99.
Id. at 96–97. The draft Constitution was attached to the Report as Appendix II.
Id. at 97–98.
Sir Ivor Jennings, Handwritten unpublished notes, Feb. 2, 1957, SIJ, B/x/7/i.
Sir Ivor Jennings, Handwritten unpublished notes, n.d., SIJ, B/x/6.
Id.
Contextualizing constitutional Islam: The Malayan experience
423
Abdul Hamid’s sudden change of position was particularly upsetting to Jennings
because he had had a good working relationship with him, extending back to their
work together on the Pakistani Constitution. Jennings wrote in his notes that Abdul
Hamid had come to view himself as a “hero and a martyr in the interest of the poor
Malays,” but at the end used “crooked” methods to achieve his goals.75 In trying to
explain Abdul Hamid’s behavior, Jennings also wrote that Abdul Hamid thought that
his principal opponent in the Malayan constitutional process was Justice Malik for
being “against Pakistan politically.”76
Abdul Hamid might have angered his colleagues on the Reid Commission with his
dissent, but his intended audience was not those colleagues, whose work was completed, but rather “those to whom it may fall to examine the Report and the draft
Constitution” at the next stage of the process.77 He was essentially putting these matters back into the hands of the Alliance and the Sultans, along with the British representative, the High Commissioner, for consideration at the next stage of the process.
With his dissent, he rekindled the debate over the establishment clause by situating
it in an explicitly international context, while at the same time implicitly recognizing
it as part of a package of very local concerns that revolved around protecting and
enhancing the status of the Malays in the new Federation.
4. Finalizing the draft: Malayan constitutional Islam as
citizenship, language, and privilege
After the Reid Report was released on February 20, 1957, a Working Party, consisting of the Alliance, the Sultans, and the British government, convened in Malaya to
review it. Such a step had not been intended from the outset of the constitutional
process, but the Colonial Office realized that some kind of process between the
release of the report and its consideration in the British parliament as part of the
independence bill was needed. Otherwise, Malayans might protest that they had no
opportunity to discuss and comment on their own constitution before its promulgation, since the constitution was not subject to vote in a public referendum.78 Abdul
Hamid’s dissent that appealed to the world of constitutional Islam beyond Malaya
also gave new life to the issue within Malaya alongside the related issues of citizenship, language, and Malay privileges, and they became a package that the Alliance,
and UMNO in particular as the strongest component of the Alliance, would not
abandon.
UMNO objected to four aspects of the draft constitution in particular. First, it
rejected dual citizenship of any kind, not even for the British subjects of Penang and
Melaka. As drafted, an individual who otherwise met the criteria could obtain Malayan
Sir Ivor Jennings, Handwritten unpublished notes, Feb. 2, 1957, SIJ, B/x/7/i.
Sir Ivor Jennings, Handwritten unpublished notes, Feb. 11, 1957, SIJ, B/x/7/i.
77
Hamid, supra note 65, at 95.
78
See Fernando, The Making of the Malayan Constitution, supra note 7, at 146–149 (noting that the main
function of the Working Party was to make sure that the constitution was acceptable to Malayans).
75
76
424
I•CON 13 (2015), 407–433
citizenship without having to renounce his other citizenship; however, he may not
attempt to claim the privileges of that other citizenship. Second, UMNO insisted that
Islam be declared the religion of the Federation, Third, UMNO rejected the idea that
the special privileges given to Malays would be reviewed in fifteen years, and wanted
the privileges to be subject to no time limitations. Finally, UMNO insisted that Malay
should be the only national and official language, allowing English to also be used for
official purposes only for ten years. The draft constitution had made allowances for the
use of Chinese and Tamil in the legislatures for a limited time after independence and
in limited circumstances.79
The Sultans initially held to their position in opposition to a religion of the Federation
clause, and issued a statement of clarification following the publication of the draft
constitution:
It appears that misunderstandings have arisen concerning Their Highnesses the Rulers attitude to the question of establishing the Muslim religion as the state religion of the Federation
under the new constitution. It must, therefore, be made clear that their Highnesses’ view that
this should not be done, is based on two matters—firstly that they are the respective heads of
the Muslim faith in their States in which the faith is constitutionally established—secondly that
under the present and proposed constitutional arrangements, Muslim faith is a matter which
is preserved to the State. It is Their Highnesses’ view that to declare that the faith is the established religion of the Federation would then prejudice their own position as heads of the faith
in their respective States, and would also seriously encroach upon rights of States and their
governments solely to deal with the question of the Muslim faith.80
At the first meeting of the Working Party, February 22, 1957, the Alliance represent­
atives “said that they wished a statement to be inserted in the Constitution to the
effect that although the State should be a secular State the official religion would be
the Islam religion.”81 Viewing the disagreement as one between the Alliance and the
Sultans over the division of authority on matters of Islam, the Working Party agreed
that the Alliance would draft such a clause for discussion with the Sultans to see if
some kind of compromise could be reached.82
In drafting the new clause, the Alliance sought to constitutionally assure the
Sultans that their positions as the heads of religion in their states would remain unaffected and that in the jurisdictional lists, that would be included as an appendix to
the constitution, Islam would be listed as a state matter. One draft of the new article
circulated within the Working Party focused on this angle: “Islam shall be the Religion
of the Federation provided that power and authority on all matters affecting the
Muslim Religion shall remain vested in the Ruler of each State (other than the States
of Penang and Malacca).”83 In this draft article, the tension was presented as between
Inward Telegram to the Secretary of State for the Colonies from High Commissioner Sir MacGillivray, Apr.
8, 1957, Malay Reactions to the Reid Report, BNA, C.O. 1030/524, 36/591/012.
80
Inward Telegram to the Secretary of State for the Colonies from High Commissioner Sir MacGillivray, Feb.
21, 1957, BNA, C.O. 1030, 36/591/010.
81
Minutes of the First Meeting of the Working Party, Feb. 22, 1957, BNA, C.O. 941/85, at 4.
82
Id.
83
Untitled document (“the following redrafted and additional clauses are submitted for consideration”),
n.d., BNA, C.O. 941/85.
79
Contextualizing constitutional Islam: The Malayan experience
425
Islam on the federal and state levels and not between the rights or interests of Muslims
and non-Muslims.
The Sultans were particularly concerned about the establishment of religious
institutions on the federal level, such as a Department of Religious Affairs, not only
because they believed that Islam should remain a state matter but also “because such
a department would be under the control of a Ministry which might be headed by
a non-Muslim.”84 The Working Party agreed that “if a Department was required for
purposes of liaison and co-ordination between the Federation Government and the
State Governments the Department would be set up as part of the establishment of
the Yang di-Pertuan Agong” (the constitutional monarch, who would be elected from
among the Sultans for five year terms).85 Even with this assurance, the Sultans were
still concerned that the proposed new constitutional article providing for a religion of
the Federation “might be misinterpreted” but were reassured by the Alliance that “the
whole Constitution was framed on the basis that the Federation would be a secular
State.” Amended article 11 on religious freedom was specifically referred to as an indication that the Federation would be secular.86
The Sultans did not want a secular society but wanted the Federation to leave religion to them as a state matter. The Alliance insisting that the Federation would be
secular was clearly intended to reassure the Sultans that the Federation would not
interfere with matters of Islam and the domain of the Sultans would remain intact.
But this reassurance used the very same language about the possibility of a state
being both secular and having an official religion that had initially been included in
the Alliance proposal, again without offering (or being requested to offer) any specifics
about how an establishment clause and secularism would operate together in practice.
In reporting back to the Secretary of State for the Colonies, High Commissioner
MacGillivray noted that an official religion of the Federation clause would be convenient because then the constitutional monarch, whom the Sultans would elect from
among themselves to function as their representative on the level of the Federation,
could also serve as the head of Islam in Penang and Melaka, the two states that Britain
had ruled directly and that did not, as a result, have Sultans. There is no reason why
this could not have been accomplished in the absence of the establishment of a religion of the Federation, but MacGillivray seems to have been seeking a positive way to
present the development, perhaps in the belief that UMNO would prevail in the end on
this point.87
The Sultans eventually agreed to an establishment clause that also guaranteed their positions as the head of religion in their states, and the Working Party
thus accepted a new article accordingly. The Working Party also accepted an
amendment to the process of reviewing Malay special privileges, changing the
Minutes of the Nineteenth Meeting of the Working Party, Apr. 17, 1957, Minutes of the Working Party
of the Constitution of the Federation, BNA, C.O. 941/87, at 4.
85
Id.
86
Id.
87
Inward Telegram to the Secretary of State for the Colonies from Sir D. MacGillivray, Feb. 25, 1957, BNA,
C.O. 1030/524.
84
426
I•CON 13 (2015), 407–433
fifteen-year period to the more ambiguous statement that the privileges should be
reviewed from “time to time.” The Working Party also removed Chinese and Tamil
as temporarily permissible languages in legislatures and provided instead merely
that they could be used informally and taught in schools. Finally, the Working
Party noted UMNO’s insistent rejection of dual citizenship; this, however, was an
issue that Britain had demanded and so resolving it was beyond the reach of the
Working Party.88
At the same time as these vigorous debates were taking place within the
Working Party and in Malaya generally, the disagreement over the establishment clause, and Abdul Hamid’s position in particular, had reached his home
country of Pakistan, as the following report produced by the Colonial Office
indicates:
3. Echoes of this controversy have arisen in the Pakistan press where there have been allegations that the refusal of the Commission to recognize Islam as the established religion is a
bad thing and that there is an Indo-British conspiracy to “impose” on the Malay people a
constitution which will place the Malays in a permanent ineffective minority in their own
country.
4. We have furnished Sir A. Symon [the High Commissioner in Pakistan] with material to
answer these allegations; it is nonsense to speak of the constitution as being imposed as it
has yet to be agreed with the Malays and the Reid Commission was completely independent.
5. It thus becomes of importance to be able to demonstrate in due course to the Pakistanis
that the Malays have fully accepted whatever the upshot of the forthcoming conference
may be.89
This report on perceptions of the Malayan process in Pakistan shows that even beyond
Malaya, there was the perception that the establishment clause was tied to the status
of Malays. The report refers to the clause’s rejection alongside the allegation that the
British were intending to place Malays in a “permanent ineffective minority in their
own country.” By giving non-Malay residents of Malaya citizenship with minimal
administrative procedures, Malays were worried that they would immediately or soon
become a minority in their “own” country.
In light of this anticipated problem, the establishment clause would enshrine
a privileged place for Muslims (read “Malays”) that they could not achieve demographically and perhaps not even democratically. What tangible benefits this constitutional privilege might bring may not have been anticipated at the time and was
not discussed publicly. But without doubt, the link between ethnicity and religion
was perfectly clear in Malaya and it was enshrined in the new Constitution: repeating language that had been used in official documents previously, the Constitution
in article 160 provided a definition of Malay: “a person who professes the Muslim
religion, habitually speaks the Malay language, conforms to Malay custom, and (a)
was before [independence] born in the Federation or born of parents one of whom
See Fernando, The Making of the Malayan Constitution, supra note 7, at 160–165 (summarizing the conclusions of the Working Party).
89
Pakistan and the Reid Commission Report, May 10, 1956 (handwritten date), BNA, D.O. 35/6278.
88
Contextualizing constitutional Islam: The Malayan experience
427
was born in the Federation, or is on that day domiciled in the Federation; or (b) is the
issue of such a person.”90
UMNO was able to push its heightened demands regarding language and Malay
special privileges through the Alliance while also maintaining support for the establishment clause and the rejection of dual citizenship. The MCA and MIC had come to
the realization that they had dwindling room to negotiate within the Alliance. The
Working Party met from February 22 to April 27, 1957, and Britain had promised that
Malaya would become independent on August 31, 1957. Britain would not be able
to back down on the independence date without substantial local resistance; Malaya
was going to become independent, with or without a constitution. Malay opposition
parties outside UMNO and a growing faction within UMNO that was far less willing
to compromise with the MCA and MIC insisted on a stronger pro-Malay position than
UMNO had in the past. If the constitution was not completed by independence, its
drafting might begin anew by a different set of local powers with an even stronger proMalay outlook.91 As preparations for independence began, it became clear throughout
the peninsula that while most Malays were enthusiastic, the Chinese were far less so
and opposition Malay parties were even asking their followers to boycott the independence celebrations.92
On the British side, a memo prepared by the Colonial Secretary reported on the
progress of the Working Party. After noting that “a number of comparatively detailed
changes have been agreed upon and others have been suggested and are still to be
agreed” regarding the Reid Commission draft under discussion, the Secretary wrote:
in general none of these raise major issues of policy or immediate concern to H.M.G., though
the decision that Islam should be the state religion, with certain safeguards for other religions, has attracted publicity. For the reasons I have explained, I do not think it necessary that
H.M.G. should seek to dispute arrangements for the future which have been agreed locally
unless they concern the particular points in which H.M.G. have a direct interest.
These points of particular concern were identified as the selection of the first governors of the Penang and Melaka (which were under direct British control); appeals from
Malayan courts to the Judicial Committee of the Privy Council; and dual citizenship with
the Commonwealth.93 An establishment clause did not rise to the same level of concern.
Supporting this limited prioritization was the fact that Britain, too, was worried
about the ramifications of failing to have a constitution in place by independence,
and UMNO used that fear to its advantage. During the Working Party meetings, High
Commissioner MacGillivray wrote to back to the Colonial Office in London:
Constitution of the Federation of Malaysia, 1957.
See Fernando, The Making of the Malayan Constitution, supra note 7, at 154–155 (“It was quite clear to the
MCA and MIC that there was little they could do to alter UMNO’s proposals in view of the likely political
implications for their UMNO colleagues and for the future of the Alliance.”)
92
Malaya Monthly Intelligence and Political Report, May 15–June 15, 1957, Malaya Union and
Constitutional Arrangements, BNA, CAB 21/2883, at 3.
93
Report of the Constitutional Commission for Malaya Memorandum by Colonial Secretary, May 1957,
BNA, C.O. 1030, 36/591/010.
90
91
428
I•CON 13 (2015), 407–433
The UMNO meeting at the end of last week was critical. The real danger was that one
didn’t know for certain in advance what line the Tunku [Abdul Rahman] might take.
There had been signs that, if faced with a serious threat of revolt [from Malays who did
not like terms in the Reid Commission’s draft constitution], he would have been ready to
fall in with the idea that [independence] should come first and consideration of the Reid
Commission Report later. He has remarked more than once that Pakistan managed to
get on quite well without a constitution for eight years. However, I think he realised that
H.M.G. held the whip hand on this and would not be prepared to agree to [independence]
on the 31st August unless certain essential matters were settled first—the key issue being
citizenship.94
The MCA and MIC, however, did not carry the same bargaining power, except to the
extent that the British were concerned about the “Queen’s Chinese”—those British
citizens of Penang and Melaka for whom Britain wanted the Federation to allow dual
citizenship.
Once the Working Party had completed its amendments, including the addition of
the establishment clause, the remainder of the constitutional process was fairly quick
and involved minimal substantive changes to the document. The London Conference,
held by the Secretary of State in London from May 13 to 21, 1957, was intended to
resolve any outstanding substantive issues and to finalize technical drafting changes.
With the date for Malayan independence fast approaching and the Secretary of State’s
attention divided among several constitutional talks, including those of Singapore
and Nigeria, the London Conference was a rushed affair. The outstanding substantive
issue of dual citizenship was resolved very quickly with a compromise that offered
some protection to those individuals in Penang and Melaka currently holding UK
citizenship.95
At the end of the London Conference, article 3 was finalized as follows:
1. Islam is the religion of the Federation; but other religions may be practiced in peace and
harmony in any part of the Federation.
2. In every state other than Malacca and Penang the position of the Ruler as the Head of the
Muslim religion in his State and in the manner and to the extent acknowledged and declared
by the Constitution of that State, and, subject to the Constitution, all rights, privileges, prerogatives and powers enjoyed by him as Head of that religion, are unaffected and unimpaired; but in any acts, observances or ceremonies with respect to which the Conference of
Rulers has agreed that they should extend to the Federation as a whole each of the other
Rulers shall in his capacity of Head of the Muslim religion authorise the Yang di-Pertuan
Agong [constitutional monarch] to represent him.
3. The Constitution of the States of Malacca and Penang shall each make provision for conferring on the Yang di-Pertuan Agong [constitutional monarch] the position of Head of the
Muslim religion in that State.
4. Nothing in this Article derogates from any other provision of this Constitution.96
Letter from MacGillivray to J.B. Johnston, The Colonial Office, Apr. 1, 1957, BNA, C.O. 1030/524,
36/591/012.
95
See Fernando, The Making of the Malayan Constitution, supra note 7, at 175–179 (summarizing the changes
to the constitution as a result of the London Conference).
96
Colonial Office, Constitutional Proposals for the Federation of Malaya, Annex 1, Proposed Constitution of
Federation of Malaysia 33 (1957)
94
Contextualizing constitutional Islam: The Malayan experience
429
In the White Paper issued by the Colonial Office explaining the changes made by the
Working Party, this new language was explained simply:
This will in no way affect the present position of the Federation as a secular State, and every
person will have the right to profess and practice his own religion and the right to propagate his
religion, though this last right is subject to any restrictions imposed by State law relating to the
propagation of any religious doctrine or belief among persons professing the Muslim religion.97
Parliamentary debates were then held from July 9 to 29 as part of consideration
of the Federation of Malaya Independence Act. Members of both houses discussed the addition of the establishment clause, noting that it was not included
in the Reid Commission’s draft. In the House of Commons, Joan Vickers, who had
worked in parts of Malaya as a “welfare officer,” spoke and recognized the contributions of the Chinese, Indians, “Portuguese Eurasians,” and indigenous people
(“Orang Bukit”) to the development of Malaya.98 She then focused on her concerns about religion and citizenship in the draft constitution and said that “we
should have some equality between races, and that is something which, I fear,
will not happen if the Constitution remains as it is.”99 An amendment was proposed to “provide that the Federal Constitution shall not contain any provision
in any respect contrary to the Universal Declaration of Human Rights.”100 G.B.
Grayson commented that:
The Declaration of Human Rights is one of the international obligations of the new type
now recognised as morally binding. If Great Britain is not prepared to accept these obligations in relation to the Chinese and Indians in Malaya, I am told that the effect throughout Asia will be to make people doubt the sincerity of this country’s adherence to the
Declaration.101
Secretary of State for the Colonies Alan Lennox-Boyd deflected these concerns by
stressing that such an amendment would “jettison the patient work of the last year
and reopen all the issues upon which agreement has been reached,” hinting that they
simply did not have time to consider the concerns of the speakers.102 He also questioned the Universal Declaration of Human Rights “as a source of accurate constitutional guidance.”103 The amendment was not accepted, and the Federation of Malaya
Independence Act was then adopted on July 31, 1957.104
5. Conclusions
Constitutional Islam had become global by the time of the making of the Malayan
Constitution, and in the twentieth-century it increasingly took on new meanings
Colonial Office, Constitutional Proposals for the Federation of Malaya 20 (1957).
12 July 1957, Parl. Deb., H.C. (1957) 633–715 (U.K.).
99
19 July 1957, Parl. Deb., H.C. (1957) 1581–1602 (U.K.).
100
Id.
101
Id.
102
Id.
103
Id.
104
Federation of Malaya Independence Act, ch. 60 (July 31, 1957).
97
98
430
I•CON 13 (2015), 407–433
in new contexts, such as in the countries with the establishment clause that Abdul
Hamid referred to in his dissent to the draft of the constitution. The existence of the
clauses in those countries served to bolster the claim that Malaya too deserved such
a clause—why should Malaya be left out of a growing trend, Abdul Hamid implicitly
asked. While the script of the establishment clause may have come from the Malayan
states, those states were not relevant models for the new Federation. On the global
level, Pakistan and India took very different paths for countries with substantial
Muslim populations, and while those models were points of reference in the Malayan
process, neither was deemed appropriate for Malaya. Once the constitution of Malaya
was completed, it too took its own place in the landscape of constitutional Islam.
On the domestic level, the establishment clause was very important to UMNO and
to Malays generally, but there is no indication that UMNO had a particular vision of
substantive law to be imposed upon the Federation nor is there any indication that
it objected to matters of Islamic law remaining within the jurisdiction of the states.
No evidence indicates that UMNO rejected or found problematic how Islamic law was
determined and applied in the states at the time. Nor does UMNO seem to have planned
to establish federal institutions to determine the content of Islamic law, either for some
federal purpose or with the goal of attempting to impose it on the states.
The establishment clause was not the only issue that UMNO fought for vigorously,
but rather was part of a package that connected religion to privilege, language,
and citizenship. And these four issues were ultimately about loyalty and belonging: absolute loyalty to the new nation created the right to belong, and only the
loyalty of those who had no other homeland could be known with certainty. And
yet those in this category of loyalty—the Malays—were at best only 50 percent of
the population, creating a delicate, and dangerous, situation. Recognizing—and
even giving citizenship to—Chinese, Indians, and others created the possibility that
Malays would soon be outnumbered in society and in parliaments. UMNO tried to
protect the fragile status of the Malays in the Constitution in several ways, including instituting near-permanent quotas and special privileges for Malays; eliminating Chinese and Tamil as official languages; and making the citizenship process
more burdensome.
UMNO won these tangible benefits for Malays in the end; alongside them, the establishment clause seems vague and without real purpose. But it was actually a very
powerful way of emphasizing and restating all of these other benefits. Since Malays
were constitutionally also Muslims, the establishment clause provided extra insurance
that these and other guarantees and privileges would be made meaningful. UMNO
did not seek to include the establishment clause as an expression of the religion of
the majority of the citizenry, but rather UMNO and Malays in general sought it so
desperately because they were not the majority, at least not a comfortable majority,
and feared what the democratic process might bring in the future. UMNO assured the
MCA and MIC that it would not affect their rights to freely practice their own religion,
and indeed UMNO might have intended that to be the case. But no one knew what a
religion of the Federation clause would mean in courts after independence, nor how
politicians would use it to their own rhetorical, and tangible, ends, nor how the world
Contextualizing constitutional Islam: The Malayan experience
431
of constitutional Islam—and, relatedly, political Islam—would develop in the coming
decades.
As the case of Malaya indicates, this contextual approach to the study of constitutional Islam promises to significantly deepen our understanding, in two particular ways. First, focusing on the internal dynamics asks why drafters adopt clauses
of constitutional Islam and what other issues are connected to that decision. Doing
so prompts us to widen the analytical lens beyond religion narrowly defined and to
look for linkages beneath the surface of the text itself. To provide just a few examples,
constitutional Islam may be tied to issues of federalism, institutional power, nationalism, the rule of law, anti-colonial sentiment, monarchical privilege, national security,
ethnic privileges, and other context-specific concerns. In Malaya, constitutional Islam
was linked to citizenship, language, and Malay privileges, but the connections will differ depending on the context.
For example, when Sadat became president in Egypt in 1970 following the death
of Nasser, he launched a constitutional drafting process that was driven by his own
demands as a new leader seeking to consolidate tenuous power and establish a certain
distance from his predecessor. He emphasized the importance of “belief ” as part of
a strategy to garner support among the religious sectors of society, and the Muslim
Brotherhood in particular, that had suffered from persecution under Nasser. Sadat
also promised to respect the rule of law, hinting at the many abuses that had taken
place under his predecessor. Egyptians who came to “town hall” meetings to express
their views about the new constitution suggested linkages between Islam and the
rule of law, perhaps echoing Sadat’s message. These participants frequently asked
for Islam to be the religion of the state, which had already been included in previous
Egyptian constitutions, and sometimes requested further language that would make
Islamic law a source or the main source of legislation. The issues of Islam and the
rule of law were often presented together in a way that suggested that Islam requires
or perhaps even guarantees justice, with the implication that greater fidelity to Islam
by Nasser could have prevented the many abuses that the town hall participants suffered under his tenure.105 A contextual approach to the 1971 Constitution raises and
charts a research path for answering an important historical question: Was this an
intentional effort by Sadat to simultaneously court two important sets of constituents
and assert that he not only intended to meet both demands but that they were mutually compatible?106
An understanding of linkages can do more than inform about dynamics at the
time of the constitution’s or the specific article’s drafting; it can also raise new questions about contemporary constitutional practice since these founding debates do not
Kristen Stilt, Constitutions in Authoritarian Regimes: The Egyptian Constitution of 1971, in Constitutions in
Authoritarian Regimes 111, 118 n. 25 (Tom Ginsburg & Alberto Simpser eds., 2014).
106
The relationship between provisions of constitutional Islam and human rights presents an important
empirical question. See generally Dawood Ahmed & Tom Ginsburg, Constitutional Islamization and Human
Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions, 54 Va. J. Int’l L. 615, 625
(showing that “constitutions which incorporated Islamic supremacy clauses were accompanied by more
human rights . . . when compared to constitutions of other comparable jurisdictions which did not incorporate these clauses”).
105
432
I•CON 13 (2015), 407–433
disappear with the adoption of the clause. For example, the internal tensions have
shifted in Malaysia such that religion is now an equally if not more important form
of identification and affiliation as ethnicity, but the two categories are still tightly
linked.107 Malays are approximately 50 percent of the population while Muslims are
approximately 60 percent, since some Muslims are not Malay, which was also the case
at independence.
Today, the establishment clause figures most prominently in contemporary constitutional jurisprudence in conjunction with article 121(1A), which as amended
in 1988 attempts to neatly delineate the jurisdictional lines between the civil courts,
accessible to all in Malaysia, and the Sharia courts, accessible only to Muslims. Per
the amendment, civil courts no longer have appellate jurisdiction over Sharia courts.
Procedurally, the high profile article 121(A) cases are about jurisdiction, but in substance, many involve conversion, either into or out of Islam. The jurisdictional rules
mean that Malaysians who convert to Islam are protected by the Sharia courts, such as
from a non-converting spouse. The same Sharia courts also serve to keep Malaysians
in Islam, since they will rarely issue the conversion certificate that a former Muslim
needs to establish a new life as a non-Muslim and no appeals court can review the
decision.108 Why are so many of these cases about conversion? And why do conversion cases attract such public attention in Malaysia? Understanding that the inclusion
of the establishment clause in the independence Constitution of 1957 was driven by
Malayan demographic anxieties about becoming a minority—concerns that still exist
today—suggests a new way of framing questions about these contemporary cases.
Second, examining the comparative context shows how one country’s drafting process relates to the larger world of constitutional Islam at that point in time. Malaya’s
process in 1956–57 was situated in comparison to the domestic (the Malay states)
and the rest of the world (initially India and Pakistan, and then with Abdul Hamid’s
dissent, constitutional Islam everywhere as well as constitutional Christianity and
Buddhism more generally). Comparisons help to make sense of the scripts of constitutional Islam, which are best understood not in some abstract sense (which would
ask what does an establishment clause inherently mean?) but rather in comparison,
both between clauses (what does adopting the establishment clause and rejecting the
source of law clause signal about a country’s intentions?) and between and among
countries. There is remarkable consistency in the phrasing of constitutional Islam,
and some tacit sense that these scripts form a ladder of increasing levels of Islam in the
state, beginning with the establishment clause. And yet even with an implicit sense of
hierarchy, there is no sense that these clauses have an agreed-upon meaning.
For example, in the recent debates in Tunisia during the constitutional drafting process, the discussion in both the National Constituent Assembly and among society
See Tamir Moustafa, Liberal Right versus Islamic Law? The Construction of a Binary in Malaysian Politics,
47 Law & Soc’y Rev. 771, 798 (2013) (“Malaysian politics, long defined by Malay, Chinese, and Indian
parties, became increasingly polarized among its main religious cleavage, between its Muslim and nonMuslim communities.”).
108
See generally id. (explaining the background to the adoption of art. 121(A) and discussing some of the
most prominent cases decided on the basis of the article).
107
Contextualizing constitutional Islam: The Malayan experience
433
at large centered on whether to add a source of law clause. The previous Tunisian
Constitution, from 1959, contained the establishment clause and in the process leading up to the 2014 Constitution, almost no one suggested that it be removed. The question was whether constitutional Islam would be intensified, and a source of law clause
arose immediately as the possible next step.109 Was the idea of a hierarchy of constitutional Islam so firmly entrenched in the public imagination that both the drafters and
the public at large began talking about a source of law clause without even questioning why it would be the obvious language to include in order to intensify the place of
Islam in the constitution? Did the experience of Egypt, which added a source of law
clause to its establishment clause in 1971 and then intensified it in 1980 by making
the principles of the Islamic Sharia “the main source of legislation,” influence the way
Tunisians thought about their own process?110 And if so, what aspect of the Egyptian
experience resonated with Tunisians?
The contextual approach proposed in this article raises new questions about constitutional Islam and suggests ways for researchers to pursue them. The dynamics in
each country, and at each stage of constitutional history, will differ, but these two
guiding lines of inquiry promise a much deeper and more meaningful understanding of the many facets of constitutional Islam in historical and contemporary societies. With more work in this path, we will begin to see more clearly the many ways
in which constitutional Islam is linked with, and mutually reinforces, other issues.
And with each new jurisdiction studied, the patterns of migration of constitutional
Islam will become clearer, and eventually a thorough and compelling account of the
development of constitutional Islam across time and place will emerge. Going beyond
separate national accounts, a contextual approach will lead to a dynamic sense of the
movement of constitutional Islam.
See Karim Fahim, Tunisia Says Constitution Will Not Cite Islamic Law, N.Y. Times (Mar. 26, 2012), http://
www.nytimes.com/2012/03/27/world/africa/tunisia-says-constitution-will-not-cite-islamic-law.html
(explaining that Enahhda decided not to pursue a source of law clause “as a bid to unify the country’s
disparate political factions”).
110
Stilt, supra note 105, at 120.
109