hanisah binte abdullah sani · 2019. 4. 23. · hanisah binte abdullah sani 2 puzzling when at the...

Hanisah Binte Abdullah Sani

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Decentered despots: power and the making of the religious subject in the colonial state1

Abstract

Indirect rule singularly accounted for the massive expansion of British administration across Asia and Africa from the late 19th century. However, this took a sharp turn several decades later as the colonial administration grew more intrusive and heavy-handed over state matters. Most significantly, the colonial state intensified the management and surveillance of religion on the native states and debated over who qualified as a religious subject. Current explanations attribute this to external pressures including a growing pan-Islamic and anti-colonial movement across the colonies. This paper argues that surveillance on religion intensified in the early 20th century because of stresses on the system of indirect rule characteristic of the principal and agent problem. Using administrative reports, case files, and personal correspondences, this paper examines the less considered paradox of indirect rule and how even as it accounted for imperial expansion in late colonialism, it radically transformed the constitution of the native state by decentering the native despot from his seat of traditional authority to eventually unravel indirect rule from within.

1. Introduction

The study of state formation asks how to amass state power and maintain legitimate rule

(Herbst 2000, Adams 2002, Gorski 2003, Goldstone 2008, Mann 2012). This is especially so in

the context of the colonial state when rule is imposed from outside and from above often through

brute military might, which can then become too fragile and too costly to maintain for the long

run (Go 2009, Vu 2010, Steinmetz 2014, Wrytzen 2015). At its height, the British Empire was

the single largest empire in history comprising a quarter of the world’s population. Much of this

expansion from the late 19th century into the 20th century across Asia and Africa was attributed to

indirect rule (Fisher 1984, Robinson 1999). This was a form of governance where key features of

the native state such as its laws, religions, and customs were retained along with a co-opted

native leadership. Indirect rule, an inexpensive organizational solution was a most supreme

political innovation that solved the problem of legitimate rule in the colonial state. It is then

1 This is a draft of a working paper. Please do not circulate without permission. J


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puzzling when at the height of empire the administration reversed this long-standing policy. If

before, colonial administration on the Malay states minimally intervened in native affairs, it grew

more intrusive and heavy-handed over time. At the turn of the century, native affairs were no

longer safeguarded as the domain of traditional elites, following an unprecedented number of

administrative reports on religion and customs. These included reports on the importation of

publication material, legislation concerning religious teachings, and the propagation of religion.

Most conspicuously within this class of documents were reports on religious conversions. This

puzzle prompts a question for the colonial state formation literature: Why and how does the

compact of power and legitimacy in an indirectly ruled state breakdown?

Current explanations suggest that the empire had reached a critical point of organizational

mass during the early 20th century and so heaved under the weight of internal stresses. Further

compounded by the Great War (1914-18), the empire absorbed significant pressures both at

home and abroad, which undermined control over its extensive colonies. Others suggest that

native states grew increasingly belligerent due to a widespread anti-colonial sentiment at the turn

of the century, one that was distinctly religious in fervor that is the pan-Islamic movement across

the majority Muslim colonies (Lee 1942, Aydin 2007, Low 2008)2. Against explanations that

either focus on rot from within the empire or empowerment from across the colonies, I build on

literature on state formation to argue that the compact of power and legitimacy in the colonial

state broke down due to the principal and agent problem of parceling legitimate authority. In the

indirectly ruled state, labor required to sustain legitimate authority is categorically divided

between colonial administrators and native rulers3. Originally conceived to solve the problem of

2 Scholars disagree if there was indeed a concerted effort and real threat of pan-Islamic mobilization

or that it was imagined to be the case by an increasingly paranoid British empire. 3Here I follow Weber’s typology of authority. Accordingly, there are three types of legitimate

authority that is legal-rational, traditional, and charismatic. I discuss these in greater detail in the


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alien control on native land, the delegation of native rulers to circumscribed domains of religion

and customs challenged the indivisible nature of traditional authority to undermine the structure

of the patrimonial state. This weakened the relationship between the ruler and his subjects to

ultimately unravel indirect rule from within. Because of this, the colonial administration sought

to fortify the patrimonial structure of traditional rule by reinforcing the bind between the native

ruler and his subjects through legal and rational means, including the codification of religious

laws and the systematization of the courts that administer them. This paper, which is an effort in

theory-building rather than theory-testing, aims to clarify indirect rule as a particular variant of

the principal and agent problem, which is that of parceling state power and types of legitimate

authority.

First, I show why the paradox of indirect rule is a theoretical problem for literature on

colonial state formation because of its controversial legacies on postcolonial state development

(Acemoglu, Johnson, and Robinson 2002; Lange, Mahoney and Hau 2006; Gerring, Ziblatt and

van Gorp 2011). I discuss institutional literature on the legacies of colonial rule that suggest

indirect rule led to a politically fragmented state in the long run as evidenced in the plural legal

system and customary courts on postcolonial states (Lange 2004, 2006, 2009). Using the imagery

of the decentered despot, I theorize the paradox of power in indirect rule and consider how

colonial state power while successfully brokered through a network of principal and agents in the

short term, effectively undermined the indivisible nature of traditional authority to corrode the

structure of the patrimonial state and unravel indirect rule in the long run. I build this theory by

examining the case of the unfederated Malay states, and of Kelantan in particular, from 1903 to

1938 in three chronological sections so as to trace British administration from the heyday of

following sections.


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indirect rule, to the crisis of its administration, and finally to how it clamored to regain control on

native affairs. Finally, I discuss four cases of religious conversions in the colonial records to

illustrate how each case led to further legal and institutional reforms.

2. Decentered despots: the paradox of power in indirect rule

Indirect rule is a key feature of governance in late colonialism from the late 19th to the mid

20th centuries. Also referred to variably as hybrid rule, bifurcated state, rule by association,

institutional segregation4 or decentralized despotism5, it was a solution to the political problem of

governance in native states where centralized forms of traditional authority6 already exists7. By

the turn of the 20th century, territorial expansion on the British Empire in India, Malaya, Borneo,

and across Africa was attributed to indirect rule (Fisher 1984). In his seminal work, Mamdani

(1996) argued that shared governance of indirect rule produced the structure of mediated or

decentralized despotism. This was a system where native communities were reproduced within

the context of a spatial and institutional autonomy led by a native ruler who was either

selectively reconstituted or imposed on the hierarchy of the local state (17). In this case, natives

were subjected to a different system of laws that organized relations of labor, land, and loyalty

bound to native elites8. Indirect rule was devised as a political solution to the “native question”,

4 Both institutional segregation and rule by association were used in the French context of

colonialism. 5 Both bifurcated state and decentralized despotism were terms coined by Mamdani (1996) in the case

of British rule in Africa. 6 Gerring, Ziblatt, van Gorp and Arevalo (2011) suggest that indirect rule is the preferred form of

administration where the native state has a high level of “stateness”. This means when a state has high measure of political centralization to include sovereignty, state capacity, infrastructural capacity, political development, and institutionalization.

7 The architect of indirect rule was Frederick Lugard who applied this system of governance first on the states of West Africa, and later expanded to other regions in Africa, in India and Malaya.

8 A system of decentralized despotism is contrasted with the centralized despotism of direct rule, which is a feature of settler colonialism where natives were reintegrated and dominated in a semi-servile and semi-capitalist agrarian relations (Mamdani 1996:17).


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which sought to stabilize alien rule in the colonies (Mamdani 1996, 2000; Herbst 2000).

And yet, as much as decentralized despotism was panacea to alien rule on the native state, it

presented a problem to the organization of political power, one that is less considered within the

literature. By his nature, the despot seeks complete domination and exercises indiscriminate will

over his subjects who were bound to him indefinitely. More often than not, this domination is

achieved through physical and ideological coercion so as to maintain a dependent and servile

subject class. What the system of decentralized despotism does is to disrupt this constitution of

patrimonial rule by restricting the otherwise unfettered power of the despot. This corrodes the

basis of his power to eventually transform the relationship between him and his subjects. As

despotic rule is decentralized in the colonial state, even more crucially it decenters the despot

from his seat of authority to gradually transform the hold he has over his subjects thus eroding

the basis of power and legitimacy in the traditional patrimonial polity. Over time, this gradual

corrosion of native power presents a serious problem for the colonial state since decentralized

despotism is only as successful as the strength of native rule.

This aspect of colonial rule that is the paradox of indirect rule presents a gap in our

understanding of colonial state formation during late colonialism. This affects how we assess the

ever-controversial legacy of colonial rule on postcolonial state development9, specifically what

remains of state politics following colonial rule (Subrahmanyam 2006, Staniland and

Naseemulah 2016). Institutional literature on the legacies of colonial rule argues that type of rule

that is direct or indirect depends on the strength of the precolonial polity (Acemoglu, Johnson

and Robinson 2002; Lange 2004, 2007; Mahoney, Lange and vom Hau 2006; Gerring, Ziblatt,

9 There is a lot of controversy on the topic of the legacies of the colonial state, which have recently become a matter of heated discussion. Apologists of empire including Niall Ferguson (2003) and Deepak Lal (2004) argue that the colonial experience brought great development into the colony. Others including Acemoglu et.al (2002) argue that colonialism brought a “reversal of fortune” where rich precolonial states became worse off and poor precolonial states became better off.


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van Gorp and Arevalo 2011). Where the measure of “stateness”, that is its degree of political

organization is high in the precolonial polity, the colonial administration will apply indirect rule.

This results in a politically fragmented state as evidenced in the measure of customary courts on

the state (Lange 2004, 2009)10. However, fragmented political authority in the indirectly ruled

state is yet under theorized. Specifically, the institutional outcomes that persist into the

postcolonial state and their controversial legacies, in this case the customary courts require

keener assessment.

2.1. The principal and agent problem of indirect rule

To theorize the paradox of power in indirect rule and the decentered despot, I make two

moves with the literature. Literature on state formation are in different ways addressing the

“agency problem”, that is how to keep state agents and other elites in line and how to structure

various incentives to do so. This is so since the accumulation of state power depends to a large

degree on the successful constitution and performance of state legitimacy (Reed 2019). At the

root of it, indirect rule is an organizational solution to a political problem that is to broker power

where state penetration or full domination is limited. Because of this, indirect rule presents yet

another variant of the principal-agent problem in the organizational literature on state formation

(Adams 1996, 2005). Accordingly, the principal-agent problem is a problem of control where the

agent (state officials) has more information and incentive to act independently of the principal

(ruler). This eventually undermines the structure of patrimonial power when state officials

choose to make decisions that will benefit themselves at the expense of the ruler. One excellent

illustration is the case of the Dutch East India Company (VOC) in Batavia, now Jakarta in

10The reverse is true in the case of a weak precolonial polity. Here, the colonial administration will apply direct rule and organize a politically centralized state without customary courts.


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Indonesia, in the late 17th century. Here, Adams (1996) showed how the VOC through the

Heeren XVII (principal), gradually lost trade monopoly because colonial merchants who

managed the VOC factory (agents) had over time colluded with private and semiprivate traders

who also controlled the English East India Company (EIC) factories. These emergent trade links

eventually diminished the monopoly of the VOC to strengthen the prominence of the EIC in

Batavia. Since Adams, there has been a flurry of scholarship considering how trading empires

structured a system of actors and institutions to manage power in the patrimonial state (Ermakoff

2008, 2011; Norton 2014; Wang 2014; Erikson and Samila 2015). Accordingly, because the

patrimonial organization in trading empires was both a political and economic enterprise, power

in the patrimonial state was multivocal. It was multivocal because it attended to multiple and

interrelated organizational goals of extracting surplus and extending sovereign reach, which

meant that both economic and political goals were conjoined in their daily activities at each node

of the network (Adams 1996:15).

I extend this framework to consider how power is brokered through the patrimonial structure

of indirect rule in the colonial state (Charrad and Adams 2015). An important distinction

between the patrimonial network of Dutch trading empire and British indirect rule is that power

is not multivocal. Rather, power is categorically demarcated between colonial actors and native

rulers with the former taking charge of all state affairs while delegating matters to do with

religion and customs to the latter. At the signing of the Pangkor Treaty in 1874 that officiated

colonial incursion into the Malay States first through Perak and later extended to Selangor,

Pahang and Negeri Sembilan, the British Resident agreed to terms with Sultan Abdullah that the

Resident shall be consulted on all state affairs accept matters to do with religion and customs,

which will be left entirely to the Sultan. This cleaved state affairs into two distinct domains even


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though such a distinction did not exist in the first place. This categorical parceling of political

power in indirect rule solved the problem of multivocality. By relegating to traditional rulers the

domain of religion and customs, they were consequently fenced out of other state affairs

including trade, taxation and labor so as to ensure full autonomy for colonial administration in

matters of state extraction. Unlike the multivocal nature of power between the principal and his

agents in the trading empires, power in indirect rule was categorical.

The colonial administration’s categorical parceling of religion and customs to the native

rulers is so as to preserve but contain in a way that was most manageable the flourishing of

traditional authority between the native ruler and his subjects who make up the masses in the

colonial state. By siphoning traditional authority off to the native agent, colonial administration

figured they solved the problem of state legitimacy and management of the masses under alien

rule. However, the successful performance of traditional authority breaks down as soon as it is

curtailed. Therefore, the structure of indirect rule offered only a short-term solution to amassing

state legitimacy but was not sustainable in the long run.

During the early 20th century, indirect rule in Malaya began to unravel. In 1895, the four

western states signed a treaty of federation to come together under a centralized administration to

bring the state councils together under a federal council, which was established six years later in

1909. The Residents on each state reported to a Resident-General who then reported to the High

Commissioner who was also the Governor of the Straits Settlements. But this arrangement did

not last for very long and eventually broke down less than two decades later in 1927 with the

reorganization of the federal council. In between this time, the British administration pushed the

remaining five unfederated states on Malaya including Johore, Kelantan, Terengganu, Perlis and

Kedah to join the federation to varying successes. To better understand the unraveling of British


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administration in Malaya, I examine the principal and agent relationship that organized indirect

rule. Specifically, how the categorical parsing of legitimate power created the problem of the

decentered despot to eventually unravel the principal and agent relationship that organized

indirect rule in the colonial state.

2.2. The indivisible nature of traditional authority

The next move to make with the literature is to refract the principal and agent framework of

indirect rule through a typology of legitimate authority. Weber (1922) suggests that there are

three types of legitimate authority i.e. traditional, charismatic and legal-rational. While they can

and do co-exist, it is often the case that at any one time one form of authority dominates.

Traditional authority is authority that has been accepted for the longest time and is typically

characteristic of the feudal state. Charismatic authority is wielded by a powerful personality and

often features in all state forms. Legal-rational authority is characteristic of the modern state

where individuals are bound by a system of rules and regulations. Under indirect rule, power is

categorically parcelized to ensure that there will not be overlaps in state affairs. This functional

differentiation and specialization is to solve the problem of multivocality. Most classical

theorists agree that division of labor will result in more effective governance. However, the

problem arises when this functional differentiation maps onto competing forms of authority, as is

the case with the traditional ruler in the colonial state. The parceling of state affairs and the

relegation of religion and customs to the traditional ruler both circumscribes and restricts his

power to eventually undermine the basis of his legitimacy. This highlights the nature of

traditional authority that is distinct from other types of authority. Just as how charismatic

authority depends on the longevity of the powerful individual and legal-rational authority


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depends on a sustained and formalized bureaucracy, traditional authority depends on the

complete and indiscriminate power of the ruler over his subjects. When the ruler ceases to wield

unmitigated power over his subjects, over time his authority will break down.

At the turn of the century, there was an upswell of mass disquiet across the Malay States.

Most notably, the To’ Janggut Rebellion11 on the state of Kelantan in 1915 alerted the colonial

administration to a growing rift between the native rulers and peasants. This was an

unprecedented situation that took the British administration by surprise. Before this, the

administration was supremely confident with the model of shared political power fashioned with

traditional rulers. So long as they secured buy-in among local rulers, they assumed the masses

were surely corralled. But they soon learned that mass rebellions were symptomatic of grassroots

disaffection with local rulers. Consequently, British administration reversed their longstanding

policy on the Malay States. For many decades they left religion and customs entirely to the

traditional rulers but this gradually changed at the turn of the century as the hold of traditional

rulers over their subjects flagged. To counter the unraveling of indirect rule on the Malay states,

the colonial administration conceived to strengthen the bind of the native subject to his

traditional ruler. To do this, they pushed for the rationalization of religious and customary laws

and the formalization of the courts that administer them in a bid to reinforce traditional authority

through legal and rational means.

If indirect rule was conceived to protect the patrimonial structure of the traditional Malay

polity through the categorical parceling of authority on the colonial state so as to maintain the

feudal relationship between the Malay ruler and his subjects, the less considered and unintended

consequence was that this system gradually eroded the very political structure it sought to 11 To’ is a Kelantanese honorific for an elder man and janggut is Malay for beard. The religious symbolism of this rebel rouser, since the long beard often denotes male Muslim piety, is not lost to the administration.


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maintain because of the indivisible nature of traditional authority. Once this traditional

legitimacy is broken it cannot be reconstituted, and so what fragments left of it were reinforced

by the colonial state through legal and rational means. The result is that religion and customs

once entirely left to the domain of the traditional elites went through a rationalization and

systematization process and demarcated and formalized into personal law. Towards the mid 20th

century the formalization of the courts system across the Malay states was well underway. The

unfederated states followed in the model of the federated states and passed the Courts Enactment

of 1930. This process of institutional isomorphism across the Malay states inevitably pivot on the

classification and reification of the traditional native subject now doubly bound to symbolic

traditional authority and the coercive force of legal and rational authority.

3. Data and methods

The period in the history of the unfederated states beginning from the appointment of the first

British Advisor to the state of Kelantan in 1903 until eight years after the first Courts Enactment

was passed in 1930 to regularize the courts system is a promising site for building theory on the

crisis of state legitimacy and indirect rule in several ways. One, the unfederated states

approximate closest to the ideal-typical model of indirect rule during late colonialism. As such,

they make for a good case to trace the development of colonial state administration and how it

transformed during the early 20th century. Two, among the unfederated states, the administration

of Kelantan in particular overlaps with important developments on the federated states, which

provides an implicit comparison between the two. Most notably, the same year when Kelantan

was formalized as a British protected state in 1909, the Federal Council was formed for the

centralization of the federated states. This overlap binds administrative developments on the


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unfederated states to their federated counterparts to place the case of Kelantan within a broader

context of colonial expansion and centralization across the Malay states. Three, the development

of the religious institutions, specifically the constitution of the religious courts and council on

Kelantan would eventually trickle down to influence similar processes on the other Malay states.

In this case the formation of the Majlis Agama dan Adat Istiadat Melayu12 first on Kelantan in

1915 was gradually imitated on other Malay states (Roff 1974).

In what follows, I use both secondary and primary data to trace the development of the

colonial administration on Kelantan in three chronological sections. Each section corresponds to

a historical period that is distinguished from the next by variations in the administration of

indirect rule. The first section from 1903 to 1909 marked the coming of British administration to

the state of Kelantan, from the assignment of the first British Advisor to the formalization of

Kelantan as a British Protected State. This period was marked by minimal intervention to the

legal system on the native states. The second section from 1909 to 1927 considers the crisis of

indirect rule on the native states and peasant insurrections across Malaya especially the To’

Janggut Rebellion on Kelantan in 1915. This section ends with the year 1927 when the Federal

Council of the Federated Malay States underwent massive reorganization so as to loosen their

centralized control over the western states and to afford native rulers more autonomy.

The third and final section of this historical time period starts from 1927 to 1938. This is the

period where the colonial administration recorded a spike in cases related to religious

conversions. I discuss four cases of religious conversions recorded in the administrative files in

the Malaysian State Secretariat Office. While most files are digitized and recorded in a central

online repository, there is yet a substantial number of files not online and can be perused

manually at the state archives. The cases I discuss in this paper are found in the central online

12 The Council of Religion and Malay Customs.


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repository. This is also to say that they do not cover the entire universe of cases available on

religious conversions. Rather, they are selected following a comparative methodology of in-

depth case studies that sample on type of religious conversions (Gerring 2007, Ragin and Becker

1992, Lieberson 1991). Accordingly, two cases consider conversions into Islam, while the other

two cases consider conversions out of Islam. This comparative matrix of case selection, one that

samples on type of conversion, is motivated to test the extant hypothesis that the British

administration’s concern with religious conversion is situated within wider anxieties regarding

the growth of pan-Islamism and anti-colonial movements. If this hypothesis were true, we would

reasonably see that there would be variation to the treatment and the outcome of cases of

conversion into Islam on the one hand, and out of Islam on the other. We would expect

conversions into Islam to receive greater scrutiny, or even censure, as opposed to conversions out

of Islam. That this was not the case compels other explanations for the heightened interest in

religious conversions. Additionally, I show how each case subsequently shaped the organization

and further systematization of religious laws and the religious courts that administer them on

Kelantan.

4. Analysis

4.1. 1903-1909: early British administration in Kelantan

Unlike the Malay States on the west and south of the Peninsula, British involvement with

Kelantan, and several other northern states including Perlis, Kedah and Terengganu, was only

much later in the early 20th century. Located on the eastern coast of the peninsula, Kelantan

shares a northern border with Siam, modern day Thailand, specifically with the southern Thai

province of Pattani. Historically, the Pattani province was the seat of the Malay Sultanate of


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Patani, and up till today it is Thailand’s most populated Muslim region consisting both ethnic

Malays and Thais. Kelantan’s political history tells the common fate of most small states

surrounded by bigger regional powers. In the 15th century, it was a vassal state to the Malay

Sultanate of Melaka. Following the fall of Melaka to the Portuguese, Kelantan broke up into

smaller territories led by petty chiefs who paid tribute to the Sultanate of Patani in the north. This

continued up to the 17th century, when smaller territories in Kelantan were unified to establish an

alliance with Terengganu, east of its border. By the 18th century, the ruler of Terengganu was a

member of the Johore Malay ruling class. Even so, throughout this time, Kelantan, Patani, and

Terengganu came under the vassalage of the Siamese kingdom. Every year, these Malay states

would send a tribute, bunga mas, to the Siamese court in recognition of this vassalage.

This is all to say that for at least over three centuries, northern Malay States, including

Kelantan, were historically, politically, and culturally distinct from the rest of the Malay States

on the western and southern coasts of the peninsula. Kelantan is ethnically and linguistically

different from the other Malay States, and speak a dialect different from standard Malay. Despite

these variations, they were Muslim. In fact, one of the most celebrated Malay Sufi patronized by

the Acehnese courts, Hamzah Fansuri, hailed from Patani. Additionally, one of the earliest

archaeological artifacts claiming the presence of Islam on the peninsula, the Batu Bersurat (lit.

inscription stone), written in Jawi was found in Terengganu in the early 14th century. Indeed, the

northern states of the Malay peninsula were notable traditional centers of Islam, which bound

them to the regional Muslim kingdoms and set them apart from the Hindu-Buddhist Siamese

empire. Kelantan, like other northern Malay states, occupied a historically fascinating liminal

category within the political and social cartography of the region, a distinction that carries its

echoes even today.


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Unlike the Federated Malay States that came under British administration late in the 19th

century and consolidated soon after under a centralized administration, British incursions into the

remaining five states on the peninsula that is Perlis, Kedah, Johore, Terengganu and Kelantan,

collectively referred to as the Unfederated Malay States were rather disparate. Kelantan, because

of its prior history as a vassal state of Siam, only received a British Advisor in 1903. During this

time, Siam still exercised control over Kelantan, even though the growing dominance of the

British in the region foretold the inevitable venture of the British into the northern Malay states.

With the introduction of the British Advisor, W. A. Graham, into the state of Kelantan, he first

and foremost established terms with the sultan similar to that on the other Malay states, which is

that the British Advisor can preside over all state matters but will stay out of religion and

customs left entirely to the jurisdiction of the native ruler. Between then and the signing of the

Anglo-Siamese Treaty of 1909, thus formally signing over the northern Malay states to the

British and designating Kelantan as a British Protected State, Graham endeavored to push for

reform on the native state of Kelantan but they were slow and limited due to the restricted clause

on religion and customs.

Even with these limitations, Graham managed to push for small reforms, and much of these

through onerous negotiations with the native elites including the sultan, religious elites (ulama)

and aristocratic members of the ruling class. And even then most of his interventions centered on

criminal laws derived from a mix of customary and religious prescriptions, which he found

reprehensible13. Despite strident opposition from multiple quarters of the native elite community,

13 This was consistent with the limited application of English laws across the trade settlements and

colonies where the local population was mixed. In a plural legal system, each community followed their own laws under the administration of an appointed headman. This was the case unless there were laws that offended the liberal sensibilities of the colonial administrators in which case English law will supersede. For example, criminal laws that underwent reform include the punishment of fine for murder and the mutilation of the hand for stealing.


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Graham managed to persuade the sultan to introduce several legal reforms and to abolish some

sections of the customs (adat). Graham also pushed for greater formalization of the courts

system, and gradually new courts were set up in Kota Bahru including a High Court, a Central

Court and a Court of Small Cases. Criminal and civil procedures were slowly set up and fees

instituted for the court.

Although Graham pushed for procedural reform, this process was hard going simply because

native elites exercised a great deal of autonomy following the division of state administration in

indirect rule. As a result, despite infrastructural reform these changes were cosmetic and did not

induce real change. Judges ignored new laws and preferred to stick to their old customs and

traditions. The sultan and one of his uncles presided over the High Court, which was also the

Court of Appeal and his uncle also doubled up to administer the Department of Justice. As such,

the High Court was most notorious since the sultan could not master new procedures and had full

authority other than at appeal hearings on the lower court when he had to consult the British

Advisor. In 1905, the British Advisor reported that there were gradual but significant

improvements in the native elites’ mastery of new procedures and systems and legal knowledge.

Within this courts system, there were separate sharia courts of three judges who dealt with

personal matters such as marriage, divorce, inheritance and matters to do with breaches of

morality. For these courts, a judge from Mecca was brought in but he was soon ousted when he

ruled against a nobleman. He was replaced by yet another judge also from Mecca who soon fell

victim to intrigue and whose decisions were disregarded by native elites on the state and so he

repatriated himself shortly after his appointment. During this entire time, Graham did not show

interest much less meddled with the affairs of the religious courts thus retaining the autonomy of

the native elites within this circumscribed area of state legal administration. Upon the formal


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designation of Kelantan as a British Protected State in 1909, there was more effort to regulate the

courts system but even then this was rather minimal and was least intrusive onto the domain of

the traditional rulers.

4.2. 1909-1927: crisis of British administration in Kelantan

The next two decades following the formal designation of Kelantan as a protected state, the

British administration faced multiple crises both globally and locally. The Great War descended

in 1914 and weighed on the administration for the next four years, the effects of which were felt

across the empire including in Malaya. British Residents on the Federated Malay States variously

organized war-funding efforts and staged propaganda campaigns to rally support for British

troops. The situation was especially sensitive in Malaya since they had to manage impressions of

fighting the Ottomans with a large native Muslim base. To this end, they recruited the help of

native elites to organize special prayers in mosques for the protection and victory of British

soldiers. They also organized a fundraiser, named the “Prince of Wales’ Relief Fund” to collect

funds to support the war effort14.

Despite their best efforts, a year after the war two separate rebellion movements broke out in

British Malaya. On the Crown Colony of Singapore, a mutiny resembling the one in India

several decades earlier broke out involving 800 sepoys who killed over 40 British officers,

residents and other local civilians. This rebellion was referred to as the Mutiny of the 5th Light

Infantry or the Singapore Mutiny. In this case, a Muslim Gujerati male was hanged for the crime

of treason. One of the alleged reasons for the mutiny in Singapore was the rumor that the soldiers

were ferried to fight the Ottomans. Up north in the state of Kelantan and in the same year, a

peasant rebellion broke out. It was famously led by a man who sported a long beard, often a

14 CO 439: Selangor Sessional Papers


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symbol of male Muslim piety, and ever since been immortalized in legendary folk tales of the

To’ Janggut Rebellion. Describing this event, the British Resident recounted how the district of

Pasir Puteh was sacked by rebels and forced the District Officer to desperately flee with the

contents of the State Treasury. It was reported that anarchy reigned until the arrival of the Malay

States Guides, a majority non-Muslim force from Singapore to quell the rebellion.

Native rulers on the Malay States were instrumental in corralling the Muslim masses

accordingly and to dissipate ill will should there be any. However, the presumed hold that the

rulers had over the masses was shockingly disrupted by the peasant rebellion. The administration

had been until then supremely confident with the model of shared political power they had

fashioned. It clued the administrators in to the upswell of mass disquiet ready to rise against

native rulers. They quickly diagnosed the rebellion as symptomatic of grassroots disaffection. In

a rather telling statement reported by the District Officer of Pasir Puteh a year later, he implied

that the relationship between the ruler and the masses was concerning, “Seeing the place en fete

which a year before had been a scene of anarchy, it was impossible not to reflect that had a few

such visits occurred in the past, the dismal story of the Pasir Puteh riot might never have had to

be written”15.

Scholars have written extensively on the events of the rebellion (Kheng 1999, 2006; Hamid

2007) and peasant mobilization at the turn of the century (S. Husin Ali 1975, Kratoska 1984,

Shamsul A.B. 1986, Nonini 1992), pointing to the growing rift between the peasants and the

rulers on the Malay states as the native rulers were incorporated into the colonial bureaucracy

and corroded some of the essential features of traditional rule. Shamsul A.B. (1986) showed how

peasant agitation called for alternative leadership and to replace the “leader of the peasants” who

was seen as an administrative stooge of the colonial state for the “peasant leader” who will truly

15 CO 827: Kelantan Sessional Papers


19

champion their interests.

4.3. 1927-1938: regaining control in Kelantan

If colonial administrators on Kelantan had previously only lightly intervened in matters of

state administration, and even when they did intervene they did this through persuasion and mild

suggestions while giving as much room to the native ruler to decide if he wanted to take them on

or not, after 1927 colonial administrators changed tack. The Kelantan Sessional Papers, a series

of annual administrative records filed by the advisor to report on state affairs reflected this

change. There were more reports on domestic matters, and most significantly there was a flurry

of reports regarding activities in mosques, and in other places of religious learning. There were

also keener accounts on the religious personnel in the mosques, including the imams and bilals16

and what they did. In addition to the Kelantan Sessional Papers, there were a great deal more

correspondences among members of the colonial administration and the native elites recorded in

the files of the State Secretariat Office regarding matters of religious practice. This included

religious publications, the invitation of religious personalities from abroad and religious

schooling. Most significantly within this class of documents were records on religious

conversions.

4.3.1. Cases of religious conversions and legal reforms

The four case files I discuss are spread throughout this final decade of my analysis. While

these cases arise out of very different sets of circumstances related to specific personal matters,

they were flagged for attention and intervention at the state level. I show in these cases that

16Both are religious functionaries. Imams lead prayers and bilals sound the call to prayer.


20

regardless of the case parameters, the outcome was singular. In all of these cases, the petition

resulted in more conservative laws related to conversion including the determination of age and

gender to exercise right to conversion, to a religious ruling or fatwa on apostasy. They also

established the rightful jurisdiction of religious courts and local headmen over subjects, that is

who constituted as a native subject and so bound to religious laws, and who were not. It is

consequential that cases from the unfederated states went on to majorly influence policy on

religious law and religious courts on the Malay states. Most significantly, these cases became

pivotal to the process of court reform.

Despite the varying statuses of these petitioners, common among them is that they result out

of irresolvable grievances. These grievances over religious conversions implicate other matters

such as the dissolution of marriage, marriage under duress, and absconding from the family

home. Accordingly, these cases refer to exceptionally private issues, which on its most basic

level involved two aggrieved parties. And yet, they have escalated beyond these individuals and

flagged for a variety actions ranging from legal clarification, court intervention, to active

policing.

4.3.1.1. Determining fatwa on apostasy17

In July 1927, a Peranakan18 woman who signed off as Mrs Mek Wok from Kota Bahru,

Kelantan, addressed a letter to the British advisor. She identified herself as an “Islam Malay

woman belongs (sic) to Trengganu state”. She indicated that she was born Muslim and to

Muslim parents, but wanted to embrace Buddhism. She wanted clarification on the legal

regulation on the matter. Upon receipt of the letter, the British advisor of Kelantan, G. E. Shaw,

17File no.: 1957/0509822 KELANTAN 1080192718 Peranakan in this case denotes the ethnic mix of the native Malay and the Straits-born Chinese.


21

sent a note to the chief minister of Kelantan to investigate the issue who then referred it to the

mufti. The mufti replied that according to sharia law it is entirely forbidden for Muslims to

convert out of Islam, and that it is a great sin onto anyone who abets it. The chief minister asked

further regarding the consequences if this was followed through with, and the mufti replied that

the sentence onto one who would forsake his religion was apostasy and his punishment is death

under the Shafiee school of law and imprisonment under the Hanafi school of law.

The topic of apostasy, in the Arabic irtidad from the root ridda, is a controversial topic in

Islam with disagreements among medieval scholars on the issue, some claiming that it is law

from scripture thus falling into the category of hudud law, while others disagree. Even what

constitutes an apostate or a murtad, in the first place can vary from one scholar to another. The

relevance of a medieval ruling on contemporary jurisprudence is yet another issue of contention

with enormous relevance on this matter well into the 20th century. And yet, the diversity of

opinions on the matter did not feature in this declaration over which the mufti as the sole person

and final arbiter of Islamic law on the state had the final say. Indeed, the gravity of a formal

inquiry and subsequent declaration of a religious ruling or fatwa by the mufti conventionally sets

a moral precedent for future cases of a similar nature, and in this instance it was with entirely

grave consequences.

4.3.1.2. Determining age and gender to right of conversion19

In November 1929, the Protector of Chinese in the Sungai Petani district in Kedah wrote to

the British Adviser for a request to place a Chinese woman Tan Seng Lee under house arrest. It

was reported that she was 27 years of age and that she had run away from her husband to convert

to Islam. The Protector of Chinese contended that she was placed under duress to convert to

19 File no.: 1957/0408261 (incomplete entry)


22

Islam and so she had to be protected against her own actions. Her parents also corroborated this

claim and addressed a letter to the British advisor to confirm their suspicion that she was indeed

held under duress. This case was discussed at the state council meetings and subsequently raised

to the mufti. The mufti contended, presumably following his own investigations on the matter,

that Tan Seng Lee’s wish to convert to Islam was not under any duress as suggested by the

Protector of Chinese. The mufti also added that there were ready provisions for the process of

conversion into Islam. One of the rules stated that it is required for the convert to come under the

custody of the religious council (majlis) for one month to ensure that she transitions smoothly

into the religion.

This case received inordinate attention and involved several members of the state council

including the legal advisor. The records show that there was a series of exchanges between the

British Advisor and the Legal Advisor on the matter. However, of concern to the both of them

was not so much the fate of Tan Seng Lee caught between the Protector of the Chinese and the

mufti, but regarding the existing Mohammadan Laws on the matter. It would appear that the

administration was confronting a situation that could become very contentious with both sides of

the native leadership laying claims onto the subject. The final determination was that Tan Seng

Lee was not placed under duress to convert to Islam, and that she was well within the age to

exercise her right to convert. This case then determined that in any professed case of conversion

into Islam, the subject would be placed under the jurisdiction of the majlis and the mufti who

would preside over the matter. It settled that religious conversion would in fact abrogate the

ethnicity of the subject and place the subject onto the jurisdiction of the mufti and the majlis.

Also arising from this was the determination of the legal age of the right to conversion at 18.

Yet another case was cited as a case precedent. In this case a Chinese male under the age of


23

18 had reportedly run away from home. He left his parents to live in a Malay village and he

expressed a desire to convert to Islam. The point of contention was the age of the boy and if he

could make this decision to convert by himself or if he required the consent of a guardian or the

state. Like the earlier case, this case went into great lengths to record the context surrounding his

conversion. It was reported that he had run away from home because his parents abused him. His

parents denied this claim and suggested that his behavior was out of the ordinary implying that

he was under coercion or undue influence to convert. They cited his age, seeing that he was a

minor, as the basis upon which they could still lay claim over him as his rightful guardians.

Following this case, further refinements to the laws on conversion were determined including

provisions for the conversion of those below the age of consent. The Legal Advisor and mufti

drew up draft rules detailing the process for the conversion of a minor between the ages of 15

and 18, including the requirement for a written statement from the District Officer.

A year following this, the Courts Enactment of 1930 was passed in Kelantan. This

regularized the courts system into six levels and further circumscribed the powers of the native

ruler. Accordingly, the six levels were: (i) Court of Revision with the sultan at the helm but even

so he had to consult the British Advisor before making a decision; (ii) Court of the Senior

Magistrate with unlimited jurisdiction in criminal probate and civil matters. This court also

served as a court of appeal where the mufti sat as adviser in Muslim criminal cases and Islamic

law; (iii) Courts of Magistrates of the First and Second Class; (iv) Court of Penggawa20 where he

was the head of the district and he could try petty offenses in the court with appeals directed to

the Courts of First Class; (v) Court of Chief Kathi with jurisdiction on civil matters according to

Islamic law and Malay customs and where criminal jurisdiction was confined to domestic cases

20 Penggawa is the village headmen. On the western Malay states he is referred to as the penghulu.


24

of assault. Appeals over decisions on the court will be referred to the Sultan; and finally the (iv)

Court of District Kathi and appeals over decisions at this court were referred to the mufti and to

the majlis.

4.3.1.3. Determining the limits of religious courts21

In June 1937, it was reported that a Chinese woman named Lai Chi from Kota Bahru,

Kelantan, had converted into Islam professedly out of her own accord and took on the name Che

Zainab. In November of the same year, she married a Muslim man, Ahmad Al-Mubarak. Two

months later, her husband lodged a report to the Syariah Court that his wife had run away. He

appealed for the court to intervene in the matter and to return her back to him. This woman was

reported to have run off to Singapore but had returned to Kelantan in February 1938 only not

back to her husband. Instead, she claimed that she had reverted to her old religion and was now

living with her uncle. Another letter reports that they were able to trace his uncle, Chang Theng

Chiang. Chang confirmed through the aid of an interpreter that although he was not Lai Chi’s

kin, he resided in the same village as her back in China. At the time of writing in March 1938, he

confirmed that she had left his residence 20 days earlier, and that he had not seen her since or

knew of her whereabouts.

A year following, more changes were introduced to the courts system. For now, the sultan

was given the power to appoint all judicial office-bearers that is the chief kathis, kathis and

penggawas within and for the areas specified in the deed (tauliah) granted by the sultan. Most

significantly, in reference to this case, it was determined that the courts of kathis will not have

jurisdiction over non-Muslims and could only preside over cases where both parties were

Muslims. This was a clear delineation of the powers of the kathi courts to further circumscribe

21File no.: 957/0524627 KELANTAN 283/1938


25

his jurisdiction only over Muslim subjects and not others. Unlike other Malay states, Kelantan

specified in detail the authority of the kathi courts that is matters to do with marriage and

divorce, dissolution of marriage, maintenance of wives and children, division of property of

husband and wife before and after divorce, share of inheritance and other matters. When the

value of disputed property exceeded $500, the case had to be heard by the judicial governor

sitting with the chief kathi or mufti, whose advise was sought in settling any questions related to

Islamic law. Appeals from a decision of the court of kathi or chief kathi went to the sultan in

person and not to the council and his decision was final. Further, any court confronted with the

question of Islamic law had to refer it to the mufti for his opinion.

5. Discussion

I have argued that the compact of indirect rule characteristic of late colonialism such as in the

case of the unfederated Malay states eventually broke down because of the less considered

paradox of indirect rule. To solve the problem of state legitimacy in alien rule, the colonial

administration co-opted the traditional authority of native elites but also curtailed the exercise of

his authority to the domain of religion and customs. This categorical parceling of state legitimacy

undermined the nature of traditional authority and the relationship between the ruler and his

subjects. A decentered despot loses his seat of sovereignty to unravel indirect rule from within.

When this happened the colonial administration reversed its policy of non-intervention in native

affairs namely religion and customs to become more heavy-handed in these matters. I show the

transformation of indirect rule on the unfederated Malay states and especially on the state of

Kelantan recounting almost three decades of rule to trace how the administration moved from

light intervention on native affairs, to the crisis of its administration, and to heavy-handed


26

intervention on native affairs. I show how cases of religious conversions that were discussed in

the colonial files led to gradual reform of religious laws and the courts that administer them and

towards further reifying the native and religious subject.

Why does the paradox of indirect rule matter for building theory on colonial state formation?

For one, it pushes theories on state formation to consider more keenly the organization of state

power as well as the multiple sources of state legitimacy so as to better understand conditions

under which they breakdown and result in state failure. Two, it stretches the “agency problem”

of state formation organized as a network of principal and agents to consider that agents do not

only get the better of their principal and splinter the network but that agents may also atrophy

over time to unravel the network from within, thus requiring reinforcements via other means.

Three, it supplements legacy arguments on indirect rule in the colonial state to consider why

indirectly ruled states become politically fragmented in the long run and how this manifests

through the plural legal system and the customary courts. Finally and beyond the colonial state,

the paradox of indirect rule can be extended within broader literature on state formation to

consider how state legitimacy is constituted in a (de)centralized system of governance such as in

a federal state system.


27

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