textual trajectories

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TEXTUAL TRAJECTORIESIza HussinPublished online: 10 May 2013.

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Iza Hussin

TEXTUAL TRAJECTORIES

Re-reading the Constitution and Majalah

in 1890s Johor

This article discusses the Undang-undang tubuh negeri Johor of 1895 (the Constitutionof Johor 1895), a document that for many represents the birth of the ‘modern state’ in theMalay Peninsula. It introduces a reading of the Constitution in the context of other textsproduced by and for the state of Johor during Sultan Abu Bakar’s reign, including portraitscommissioned throughout his lifetime, the texts of treaties that changed his status fromTemenggong to Maharajah to Sultan, and the adoption of the Ottoman Majalla as theIslamic civil code in 1893. In light of these texts, the first Constitution of Johor can beread as part of the repertoire available to Malay elites attempting to negotiate, subvertand capitalise upon colonial interventions in the state. Reading texts of law alongsideother texts of the 19th century opens a broader line of inquiry into the interpretation ofconstitutional and founding discourses of the state.

Keywords: constitution; Johor; Islam; law; Ottoman

Introduction

This article discusses various translations of the Undang-undang tubuh negeri Johor of1895, the first Constitution in Malaya, a document that for many represents thebirth of the ‘modern state’ in the Malay Peninsula (Haji Mohd Said 1919; Milner2003). Constitutional scholars and historians of Malaya have tended to treat the intro-duction of this Constitution as an indicator of Sultan Abu Bakar’s anglophilia and pench-ant for reform (Andaya and Andaya 1984: 152–4). However, another interpretationemerges when it is read alongside other texts produced by and for the state of Johorduring Abu Bakar’s reign, including portraits commissioned throughout his lifetime,the texts of treaties that changed his status from Temenggong to Maharajah to Sultan,and other laws adopted in the same period. In particular, the Ottoman Majallaal-Ahkam al-‘Adliyyah (civil code, herewith Ottoman Majalla), adopted in 1893 inJohor in its Arabic form and translated in 1913 into Malay as Undang-undang sivilIslam: Majalah Ahkam Johor (code of Islamic civil law, hereafter Majalah), provides animportant clue to the larger context within which the Constitution was to function.

Indonesia and the Malay World, 2013

Vol. 41, No. 120, pp. 255–272, http://dx.doi.org/10.1080/13639811.2013.798074

# 2013 Editors, Indonesia and the Malay World

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In the context of these other representations of power, legitimacy and authority, the firstconstitution of Johor (i.e. Undang-undang tubuh negeri Johor, hereafter the Constitution)can be read as part of the repertoire available to Malay elites attempting to negotiate,subvert and capitalise upon colonial interventions in the state. After a brief discussionthat situates Majalah and Constitution as mobile and dynamic parts of a global circuitof ideas, agents and institutions, this article will discuss the importance of AbuBakar’s role in placing and translating these global components within the politicalidiom of his time and place. We then move to closer analysis of the text of theselaws themselves, as capturing both the trace of their origins and carrying new politicalimport in the Malay States, and into post-independence Malaysia.

This article aims to contribute a perspective on law, language and politics to thebroad story on Malay world texts, a comparative and cross-regional story in whichglobality and locality are intertwined and mutually productive.1 In this view, moder-nity consists of the ability to harness both universalist and particularist visions of lawin the service of state power; new connections are overlaid onto old networksthrough the deployment of law. This perspective on law at the end of the 19thcentury emphasises a view of empire, state-building and modernity both path-dependent and in rapid transition. These transitions were neither geographicallynor substantively uniform: some legal institutions and ideas travelled far betterthan others, and within the global context some actors, places and times served ascritical nodes in the circulation of law. Johor at the turn of the 19th century wasone of these nodes, and its sultan a key actor in the mobility of two kinds of law– the Majalah and the Constitution.

The Constitution was drafted by English lawyers in consultation with the sultanand his advisors. This legal instrument was itself part of a circulation that alsocarried British officials, missionaries, travellers and merchants, and alongside themunderstandings of monarchy, government, civilisation, law and authority, as well aspolitical, economic and strategic interests. The Majalla was promulgated in 1885within the Ottoman empire as a codification of Hanafi commercial laws. Its adoptionas a code of civil laws in Johor in 1893 could be seen as part of a circulation that alsodrew Muslim traders, pilgrims, students and diplomats between Singapore, Calcutta,Cairo, Mecca and Constantinople, participating in and creating a global circulation ofagents, ideas, relationships and goods. These sites were connected by networks ofpeople, institutions and ideas which made them not independent cases to be compared,but nodes in a worldwide circulation of law. Alongside these networks of people wereother flows: newspapers, letters, textbooks, policy papers, intelligence briefs, invoicesand contracts.

When the Majalah of 1893 and the Constitution of 1895 are re-read to contextualiseeach other, new questions emerge for the study of law and politics in Malaysia. Onlysome of these can be addressed with justice here, but together they provide a broadbasis for further inquiry on the ways in which ideas of representation, lineage, sover-eignty, permanence, time and reform were carried in texts both within the Malayworld and beyond it. As these legal documents became sources for later Malayanlegal developments, understandings of their indigenous or foreign character would con-tinue to be significant. Reading law as text need not diminish their import as law, but

1See Mandal (2013), this issue.

2 5 6 I N D O N E S I A A N D T H E M A L A Y W O R L D

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should widen the analytic possibilities for early legal documents as carriers of not justrules, but also of ideas of authority, sovereignty, legitimacy, and order. Legal textsserve as a valuable archive of the polyphony of voices in which authority was articulatedin the Malay world of this period, and provide traces of the trajectories and networks inwhich these discourses circulated, throughout the Malay archipelago and beyond.2 Notjust symbol and rhetoric, as new and newly binding rules brought into the polity of theMalay world, these laws then helped to construct a new political world. They installedsome as sovereign while sidelining others, articulated some visions of law as code andsilenced others, made roles in the state for some elites and eliminated the institutionalraisons d’etre of older classes of experts, intermediaries and interpreters.

This article takes as touchstones both the work of law and society scholars andscholars of the Indian Ocean world. Thomas Metcalf’s Imperial connections (2007)points out that the organisation of the colonial archive predisposes colonial historyto be written sealed within a classification. For example,‘CO 273’ refers to Malaya,kept separately, as scholars of the archives have found to their frustration, fromtopically and temporally relevant files such as ‘CO Secret’, or the country designationsfor the Straits Settlements, India and Dutch East Indies. These divisions exist in thescholarship such that:

. . . in most accounts of colonialism, each colony is assumed to exist only in itsrelationship to the imperial center. These studies in effect conceive of the BritishEmpire as a set of strings – or better yet, as lines of telegraph wire throughwhich information flows up and policy directives flow down – running fromeach colony to the metropole in London. The history of each colony is thuswritten in isolation from those of its neighbours.

(Metcalf 2007: 6)

Johor, like Calcutta and other critical nodes of commerce, politics and exchangethroughout the Indian Ocean, was a key site for the construction of law and innovativeinstitutional responses to colonialism, a site from which other regional actors borrowedand a model that Malay rulers throughout the peninsula watched closely. The example ofJohor serves to further de-centre the imperial metropole in our understanding of howlaw travels, and raises the importance of nodes beyond British India for the circulation oflaw.

The Indian Ocean perspective also takes into consideration multiple carriers of lawwhose norms, strategies and legal approaches incorporated imperial opportunities andchallenges alongside existing ways of navigating the law. As Engseng Ho (2004: 213)observed, ‘Bernard Cohn once called the imperial point of view the “view from theboat.” There were other boats as well.’ The movement of law through multiple net-works, as part of the repertoire of individuals, families, businesses and empires, requiresa view of law as transformed along many axes, some of them linguistic, some symbolic,some scalar. A view of law as ‘transmitted’ or ‘diffused’ no longer suffices, and so, fol-lowing Boaventura de Sousa Santos (1987: 283), ‘in the analysis of the relations betweenlaw and society we should substitute the complex paradigm of scale/ projection/sym-bolisation for the simple paradigm of correspondence/non-correspondence’. Thinking

2See Ho (2013), this issue.

T E X T U A L T R A J E C T O R I E S 2 5 7

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about the Majalah and the Constitution of Johor together illustrates both the multiplerepertoires of law available to elites in the Malay world at the turn of the 19thcentury, and the ways in which travelling law was transformed and made local uponits arrival in Johor.

Cosmopolitan elites: Sultan Abu Bakar of Johor, 1833–1895

Sultan Abu Bakar of Johor was not unique among Muslim rulers during the colonialperiod who sought to use both symbolic and political means to emphasise theirability to govern, and to engage colonial power on an even playing field. However,he was uncommonly successful; Johor continued to be an independent territory inthe Malay Peninsula, and did not accept having a British Resident until 1914. Thecase of Johor illustrates the multiple ways in which colonialism mattered for theMuslim state. Johor did not properly come under the category of a colonised stateuntil the last decades of British imperialism in Malaya. The Federated States ofMalaya were never direct colonies of the British empire, coming instead under the cat-egory of ‘indirect rule’ and protection. Yet the shadow of British power and influenceloomed large over Johor, hemmed in as it was between the Straits Settlements (coloniesfrom the beginning of the 19th century) and the Federated Malay States (beginning withPerak in 1874).

The Abu Bakar Royal Museum (Muzium Diraja Abu Bakar) in Johor Bahru has onexhibit multiple representations of Abu Bakar at various stages of his career, that showthat like many Muslim rulers during the colonial period, he had as part of his repertoirea number of methods of signalling his identity and, by extension, the identity of his state.Rulers’ portraits such as these have been used by scholars of the colonial period to arguethat rulers were slowly ‘westernised’ through their contacts with, and dependenceupon, colonial power (Streets 2000: 144–6). Indeed, Sultan Abu Bakar was amongthe most westernised of the Malay rulers, if his travels in Europe, social activities andmarriages were any indication.3 However, Abu Bakar’s influence among the Malayrulers, his economic power and diplomatic acumen, indicate that his success was farmore than a measure of his westernisation.

In discussing the portraiture of Mehmet Ali Pasha of Egypt, Emily Weeks (1998)argues against the Saidian vision of Orientalism as a unidirectional relationship featuringthe power of the West to represent the East. Mehmet Ali commissioned his 1841 por-trait by the artist Sir David Wilkie and is known to have made changes and representedhimself in such a way as to ‘project an image of diplomatic authority to both British andEgyptian audiences’ (Weeks 1998: 46). Images of Abu Bakar produced during his life-time, both posed photographs and painted portraits, represent another set of texts thatprojected symbols of power, authority and legitimacy to multiple audiences. In the nextsection, we discuss these visual texts alongside other diplomatic and political instru-ments aimed at consolidating Abu Bakar’s position and the status of Johor as a sovereignstate.

3The Abu Bakar Royal Museum shows portraits of him in white and black tie, and posed with hiswives, one of whom was Circassian, another English, another of Acehnese-Dutch descent.TheSultan passed away in 1895 in London.


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One of the earliest posed photographs of Abu Bakar, part of the collection of theMuzium Negara Malaysia, illustrates a ruler already making use of a varied symbolicrepertoire.4 In his choice of clothing, stance and setting, Abu Bakar combined conven-tions of European portraiture with clothing that carried a variety of Malay world andMuslim signals: kain samping (waistcloth) and ceremonial sword, songkok (cap) withfolded cloth, pants and velvet jacket with braid and trim. The braiding on his jacketand the textiles of his garments were likely imported from India and Britain.5 AbuBakar’s costume signalled his Malay and Islamic allegiance while his stance – upright,hand on sword – echoed western conventions of state portraiture. The Johor sultanateitself was one of the most diversely constituted of the Malay states, comprising multiplefiefdoms on the Malay Peninsula as well as in the Riau and Lingga islands, combiningelements of culture from centres of power in Minangkabau (Sumatra), Bugis (Sulawesi)and Malacca.

In 1868, as Temenggong of Johor, Abu Bakar requested the title Maharajah. Johorwas a trading gateway on the southern tip of the Malay Peninsula crucial to British stra-tegic and economic interests, and although the British were reluctant to grant hisrequest, they did so.6 In August 1878, the Maharajah requested British support for achange in his title to sultan, a change that would place him as equal to the other sover-eign sultans on the Malay Peninsula.7 The Governor of the Straits Settlements’ reply wasswift and unequivocal: ‘most undesirable to recognise Maharajah as Sultan it would be anincendiary to the whole Peninsula and following closely on the question of the Moar suc-cession would greatly complicate our position’.8 However, the Maharajah’s influencecontinued to be so important for British political and economic interests that in1885, he was granted his request. His agreement was needed against Dutch andFrench interests in the Malay world, his own vast landholdings throughout Malayawould supply a route for the Malayan railway, and his influence among the Malayrulers was unparalleled.

Whereas His Highness the Maharajah of Johore has made known to the Governor ofthe Straits Settlements that it is the desire of his chiefs and people that he assume thetitle of Sultan, it is further agreed that, in consideration of the loyal friendship andconstant affection His Highness has shown to the Government of Her Majesty theQueen and Empress, and of the stipulations contained in this Memorandum, he andhis heirs and successors, lawfully succeeding according to Malay custom, shall infuture be acknowledged as His Highness the Sultan of the State and territory ofJohore, and shall be so addressed.9

4Images may be viewed at ,http://home.uchicago.edu/~hussin/abubakar.5Annabel Gallop, personal correspondence 2012; Maxwell (2003: 257–3).6Temenggong (Andaya 1975; Nadarajah 2000). The Maharajah of Johore was formerly known asDato’ Temenggong Abu Bakar, the son of Dato’ Temenggong Daing Ibrahim, to whom thecontrol of Johor was ceded under the terms of a treaty signed in 1855 between the British in Singa-pore and Sultan Ali of Johor.7Straits Settlements (SS): Secret 39 1878, The National Archives (hereafter TNA).8SS, Secret 41 1878, TNA.9CO 882/4/22, 1885, TNA.


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http://home.uchicago.edu/~hussin/abubakar

The wording of the Treaty of 1885 that made the Maharajah a Sultan revealed whatwas at stake for both parties, and the means by which they sought to legitimise theiractions. The Sultan was made so ‘by the desire of his chiefs and people’, consultativelanguage that until then had not been part of the rationale used by Malay rulers to legit-imise their positions, but that now was used to appeal to British ideals of just rule as wellas to key constituents within the state of Johor. The phrase ‘loyal friendship’, and thereference to ‘stipulations’, referred to the economic and strategic considerations ofBritish policy in the Straits – the Sultan ceded the conduct of foreign policy to theBritish, and made promises not to interfere in the Malay States. Finally, ‘he and hisheirs, lawfully succeeding according to Malay custom’, worked to legitimise an actionthat was far from customary, and then to insert it into a chain of ‘tradition’, madeanew by colonial power and elite stratagems.10

Not only was Abu Bakar made Sultan of Johore, his treaty was signed in London,not in Malaya unlike all other treaties with Malay monarchs. He was knighted as SultanSir Abu Bakar, Knight Commander of the Order of St Michael and St George.Appointments to the Order were made in recognition of service in the colonies andin foreign affairs. Part of Abu Bakar’s diplomatic success may be attributable to hiscloseness to members of the British governing elite, and his ability to representhimself as part of the social and symbolic world of that elite, in spite of the contra-dictions this might have involved. A photographic portrait taken after 1885 showsAbu Bakar displaying the eight-pointed Maltese Cross, the central emblem of thisOrder. A similar portrait by Frank Holl of Prince George, Duke of Cambridge, thePatron of the Order at the time of Abu Bakar’s award, shows parallels in militarydress, in stance, in the display of medals and honours. In his portrait, Abu Bakarwore the crescent and star (a symbol of Islam and the Ottoman empire) on thesongkok atop his head and his honours, including the Maltese Cross, on his chest. Atraditional image of the Order is St Michael subduing Satan, often depicted as aMoor (a Muslim).

The last of Abu Bakar’s portraits, which appeared in Vanity Fair in 1891 as ‘HHTunkoo Abubeker Ben Ibrahim, Sultan of Johore’, illustrates the symbolic parallelsof legal and political decisions made by the Sultan in his attempt to balance thereality of British colonial power in the region with his own sovereignty over Johor,as an independent Malay monarch and a Muslim ruler. He wore the Maltese Crossand medals with Victorian evening dress coat, headwear akin to that worn in theOttoman empire and decorated with a crescent and star, and a kain samping at hiswaist.

These portraits represent a source of information on the ways in which authority,legitimacy and authenticity were represented in 19th-century Malaya that allow us toread in a different way how these concepts may have been projected to multiple audi-ences, and how they may have changed over time. They make immediately clear whatreadings of law and memoir may not – that ruling elites were adept at simultaneoustranslation between multiple symbolic languages. As Weeks (1998) argues in discussing

10‘The original settlement with the Malays, based on the conciliation of the ruling class, had a some-what ironic effect of rendering de facto a system of authority which had previously existed de jure’(Muhammad Kamil Awang DBP 1998: 29). The author cites: CO 273/445, Nov 30 1894; CO 273/281, 11 September 1902, CO 273/189, 2 August 1893.


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similar elites (the Ottoman Sultan ‘Abd al-Majid r.1839–1861 and Muhammad Ali ofEgypt, r. 1806–1848), portraiture was a recognised part of international diplomacy anda carefully managed component of the exchange between East and West. As MichaelLaffan (n.d.) states, the translation of political concepts into Malay expanded therange of meanings available to Muslim elites, who chose among multiple registersand genres of text from which to draw their vocabularies. Legal texts representedstate authority and legitimacy to multiple audiences in a similar manner, serving a criti-cal role in the Sultan’s public diplomacy as well as his internal statecraft, and building adiscourse from which many of the Peninsula’s monarchs would draw. The adoption ofthe Ottoman Majalla and the Constitution in the last years of the 19th century illustratepatterns of borrowings, translations and projections. Just as the portraits above wereauthored by their sitter as well as their artist, and draw upon a complex lexicon ofsymbol and effect, the adoption of legal instruments from both ‘Islamic’ and‘Western’ canons helped represent the state of Johor and its monarch as modern, pro-gressive, authoritative and authentic. They also served to cement a new succession andforestall direct British intervention. The institutional ramifications of law, however, hadfar reaching and longer implications for the future of the state of Johor, its ruling elitesand of Malaysia itself.

Legal cosmopolitanism: the Majalah and the Constitution

of Johor

Two years after the last portrait in the series above was commissioned, in 1893, theSultan encouraged the adoption of the Ottoman Majalla. This law was promulgatedin Johor 1913 as the Undang-undang sivil Islam: majalah ahkam Johor (Majalah).11 TheSultan was asked and granted permission for it to be used as one source for theHukum Syara’ (Islamic law of the state), excepting that the Johor Constitution supersededthe Majalah.12 By the time of its second printing, the relationship between the Majalahand Constitution had been clarified to allow ‘all officers, magistrates and judges in thestate of Johor’ to use the Majalah ‘in matters relating to the law of Islam’.13 This latterphrase had, since the Treaty of Pangkor in 1874, a specific connotation tying Islam to

11Borham (2002) traces the Majalla from its compilation by a body chaired by the Ottoman Ministerof Justice Ahmed Jewdet Pasha and overseen by the Shaikh al-Islam, its adoption by the OttomanSultan, then by the Johor Sultan Abu Bakar in 1893, and its translation into Malay by his sonSultan Ibrahim in 1913, making it the formal guide for hukum syara’ in Johor.12Kebenaran ini menurut kecualian yang dinyatakan dalam Undang-Undang Kerajaan Johor fasal yang ke-49(Borham 2002: vi); correspondence between Sultan Ibrahim, the Mufti of Johor (Abdul Qadir binMohsin al-Attas) and Dato Pemangku Setiausaha Kerajaan Johor (Bil. 998/13, 29.11.1913).13Berkenaan dengan Undang-Undang Tubuh Kerajaan Johor Fasal 49 dan 57, Sultan Ibrahim dengan perse-tujuan ahli-ahli jawatan keadilan dan beragama berkenan dan membenarkan Kitab Majalah Ahkam Johorsupaya digunakan oleh sekelian pegawai-pegawai, majistret-majistret dan hakim-hakim di Negeri Johordalam perkara yang berkenaan dengan hukum Islam [In relation to Sections 49 and 57 of the Johor Con-stitution, Sultan Ibrahim with the agreement of judicial and religious personnel approves the MajalahAhkam Johor for use by all officers, magistrates and judges in the state of Johor in matters relating tothe law of Islam], Mufti of Johor, 29 November 1913, cited in Borham (2002: 49).


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matters of culture and religious observance, in contrast to matters of state, finance,administration, etc.

For the Ottomans, the Majalla performed a number of functions – as part of themuch wider programme of changes under the Tanzimat (‘reorganisation’, generallyunderstood to span the period 1839–1876). It represented reform of the law and theEmpire at a time of great civilisational anxiety, and it did so in a way that worked tosatisfy those who wanted Western-style codes and those who wished to maintain thesharia content of the law. Instead of the wholesale adoption of the French civil code,this was a codification of the jurisprudence of the Hanafi school in matters of contract,torts and civil procedure.14 It achieved uniformity and regularity across the Ottomanlegal system by applying to all subjects of the Ottomans regardless of religion(Findley 2012). Importantly, it kept all powers of adjudication, interpretation, jurisdic-tion and application of the law firmly in the hands of the Ottoman central state, affirm-ing the power of the Sultan as it radically altered the state over which he ruled. Bycodifying Islamic jurisprudence and delegating its application to judges and legal officialsuntrained in sharia matters in all areas but that of the family, the Ottoman state erectedan institutional partition around family and inheritance law that soon became more like asubstantive wall:

. . . ‘rationalizing’ market exchanges established other types of property transfers,such as those involved in marriage, inheritance, succession, and adoption, as gov-erned by "irrational" (i.e., emotional or religious) principles. The Ottoman refor-mers who subjected commercial transactions to the requirements of modernity,reason, and law thus unwittingly established family life as a realm governed by tra-dition, sentiment, and biology.

(Collier 1994)

In Johor, the adoption of the Ottoman Majalla in 1893 was part of an overarchingprogramme of reform undertaken by the Sultan, one that included the drafting of a con-stitutional document and the establishment of a hierarchy of state administration withinwhich these laws would be applied. The adoption of the Ottoman Majalla was an expli-citly Islamising move if Johor were to be compared to the Federated Malay States, wherethe only category of law to be left to the sharia was marriage and divorce. Unlike thepractice in other Malay states like Perak, in Johor ‘matters of religion and culture’referred to commercial transactions as well as to marriage, divorce, inheritance, andreligious endowments. Administrative bodies like the Department of Religion and Edu-cation were established that bureaucratised Islam and Muslim life further, and brought itunder the formal purview of the state. As if to underscore further the incorporation ofreligious authority into the State, whereas the Mufti signed himself ‘al-Haqir’ (YangHina; the Base/Humble) in the first document, in the second printing of the Majalah,he signed ‘under Orders’ (dengan perintah.)

While these may be seen as moves by the Sultan to capture Islam and its institutionsfor the state, the inclusion of Islamic institutions and vocabulary into the repertoire of

14A codification of family and inheritance law was planned but not undertaken.


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state administration in documents such as the Majalah and the Constitution constructed anew kind of relationship between state and Islam. Part of the attraction of state appro-priation of Islamic institutions for Islamic legal elites such as the muftis and kadis wasprecisely that even as it placed Islamic legal content within a larger hierarchy ofnon-Islamic legislation, it gave Islamic legal elites a stronger role in the authorising ofstate law.15

The Sultan’s efforts to represent himself and his state as being capable of self-gov-ernment – modern, wealthy, efficient, rational and enlightened – took place in theareas of law and administration in particular. They culminated in 1895, during thelast year of his life, in the promulgation of the Constitution, that detailed Johor’s auton-omy, the duties of Cabinet and Legislative Council, established Islam as the state reli-gion, and placed the Sultan as head of state – in effect, a constitution, the first inMalaya. The document was drafted by the Sultan’s legal advisors in Singapore (C.B.Buckley chief among them, from the firm Rodyk and Davidson) and his ministers(Chief Minister Dato Jaafar bin Haji Mohamad and Dato Abdul Rahman Andak, Setiau-saha Kerajaan [State Secretary].) It comprised four parts: the position and powers of theSultan, the Council of Ministers, the State Council, and matters of justice, nomenclatureand Islam. (Sahari Jantan 1975: 57)

Given the timing of the Constitution (the Sultan died that same year), it can also beseen as an attempt to formalise state structure and the position of the Sultan and hisdescendants, that until then was guaranteed only by treaties signed with the British.While the Constitution was primarily a means towards securing the Sultan’s powerand succession against internal competition, the stability it promised also helpedenhance the state’s ability to assert its sovereignty against external threats.16 A consti-tution had more legitimacy than treaties, and could not easily be revoked or altered,especially by the British, who presented the biggest challenge to Johor state autonomyat this point. The language of the document supports this argument. Part 1.1 of theConstitution states: ‘the Raja rules and owns this State of Johor and all territories inits dominion . . . with the agreement of all the members of Our Council of Ministersand Council of State’. At the same time, the language of the Constitution also leftopen the possibility of interpreting the power of the Sultan to be contingent upon theconsent of the Councils. Part 2.2 though, allows for penalties against those who chal-lenge the position and power of the Sultan, with penalties for treason at the Sultan’sdiscretion.

This particular power arrangement was contingent upon existing power-holders andtheir ability to navigate their new circumstances, and therefore had varied outcomeseven among the states of the Malay Peninsula. In the state of Kedah at the other endof the Malay Peninsula from Johor, the Sultan’s autonomy was hedged on the northernborder by the Siamese (to whom they sent tribute) and the British to the south.

15This was not an experience limited to Johor. In Egypt, for example, the requirement that ‘the rulercould only legislate within the limits set by (1) the precepts and principles that the jurists had ident-ified as universally applicable and (2) the requirement that laws advanced the social benefits that thejurists had recognised as goals of the shariah’, helped legitimise the Ottoman empire (Lombardi 2006:53–4).16Sahari Jantan (1975: 57).


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(Penang had become a British possession in 1786, the first territory in the Malay Penin-sula to come under formal British influence.) Here, Kedah used close relationships withthe British to keep the Siamese at bay and vice versa, but internally, Islamic elites were akey constituency and close to the sultan’s court. Therefore, to a greater extent than wasthe case in Johor, Islamic elements of governance – such as a powerful ulama presence incourts, administration and advisory capacities – continued to be a part of strategies tomaintain state autonomy.17

The example of the Ottoman Constitution of 1876 and its suspension in 1878would have made clear the need to uphold the delicate balance between legitimationand sovereignty, between co-opting local elites and controlling them, between thelanguage of social contract and the need to maintain authority.18 The Sultan ofJohor’s efforts to maintain the independence of his state from British encroachmentinvolved judicial and administrative reforms, including a constitution that defined andlegitimated his position, but also limited its scope to functioning in tandem with astate government and its officers. In the decades that followed, these measures resultedin changes in the relationship between sultans and the other elites – like the mufti – inthe state. So, while it is insufficient to equate reform with westernisation and modern-isation – these steps were often taken to preserve the power of local elites and maintainthe position of pre-colonial laws – it is also inadequate to see them as purely conser-vative measures. They may have been intended to consolidate the Sultan’s power, butthey also made possible the re-entry of elites who had previously been excludedfrom the sultans’ compacts with the British.

Constitutional texts: the significance of translation

A significant part of the discussion of colonisation and Muslim states revolves around ques-tions of intent and meaning – in the section above, both the adoption of particular legaltexts and the symbolic language of portraiture have been taken as representations by rulingelites to their varied audiences. The fact that legal texts underwent multiple translationsadds another level of complexity to the analysis of documents such as the Johor Consti-tution and the Majalah. There are multiple versions of the 1895 Constitution of Johorin English and in Malay. While it may be understood that only one of these texts hadlegal force, the circulation of at least three identifiably different texts in archives (twoin English and one in Malay) as the 1895 Constitution raises two questions here.Firstly, what should the differences between these translations be taken to mean? Sec-ondly, given that the Johor Constitution did not appear to be a major source of law forthe courts of Johor until after 1957, but did serve as a key document for the text ofthe post-colonial Malaysian constitution, how should its significance be assessed?

The multiple versions of the Constitution in historical records reflect the multiplicityof its authorship – Sultan, nobles of his court and council, British lawyers, and colonialofficials – and their differing emphases in, and interpretations of, this experiment in

17See Roff on the Kaum Muda movement (1967, 1985). In a Penang paper called al-Ikhwan [Thebrotherhood], Sheikh Tahir Jalaluddin wrote that the weakness of Islam in administration causedBritish officers to interfere in the administration of the state (Arkib Negara Kedah).18The Constitution was suspended until its reinstatement in 1908 by the Young Turks.


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constitutionalism. Further, the promulgation of one version into law in Johor did notprevent these multiple versions from continuing to exist and exert influence as sourcesof law for the Federal Constitution of Malaya. There is not much evidence to suggestwhich translation of the many available versions of the Johore Constitution were consultedby Malay rulers and elites, in which language, and through which interpretive lens, but theexistence of multiple copies of this text in archives and in law texts between the late 1890sand mid 20th century indicate that these elites had a variety from which they could havechosen. At the very least, this knowledge destabilises the idea of one uniform and sacro-sanct constitutional text; taken further, the polyphony of these texts suggests an ongoingand iterated process of translation as Johor entered the 20th century and began to exertmore influence on the Malay States.

An examination of versions of the Johor Constitution available in archives and text-books between 1895 and 1961 makes clear the extent of this polyphony. The two mostcommon English versions of the 1895 text are: (Version A) the official text, the Law ofthe Constitution of 1895, printed by the Johor government printer with amendments upto 1961; and Version B, a similar but not identical text that appears in a number of publi-cations and reports, including in a 1900 Colonial Office report to J.A. Swettenham and theJohor Advisory Board (Allen et al. 1981). They differ rhetorically from the surviving Malaytext (Version C) attributed to Abdul Rahman Andak, State Secretary at the time of promul-gation, and dated 1898 (Ahmad Fawzi Basri 1988: 153). The 1895 printed Jawi document(Version D) in the Johor State Archives is the earliest Malay language text available. VersionD would presumably have been the official text, but an examination of the Malay used in thistext indicates a number of attempts to incorporate English legal concepts – an internalpolyphony as well. Even accounting for the stylistic conventions of Malay court documents,the language of the Malay texts suggest that they were, at least in part, translations fromEnglish. Perhaps more importantly, each of these translations illustrate the struggle toexpress and fix concepts of sovereignty, monarchy, rulership and governance, fealty andsubjecthood, amongst a number of differing registers of political rhetoric.

Both English texts (Versions A and B) begin in the same way, with a literal ratherthan idiomatic translation of the opening Arabic Bismillah.19

FIGURE 1 From Version A, part of the official English translation of the Laws of the

Constitution of Johor (1895).

19There are indications throughout that translation into English was done through the medium ofMalay, rather than by one translator familiar with both Malay and Arabic. The translation, in theopening ‘Bismillah’, of Sayyidina as ‘Our Leader’ and sahbihi as ‘Friends’, both of which seem tobe unlikely interpretations for a native Arabic speaker or one trained in Qur’anic language.


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The opening statements are followed by a Preamble (seru bukaan) and twoDeclarations, the first on behalf of the Sultan and his heirs, the second on behalfof the chiefs and subjects of the state. The first Declaration begins with a statementof the Sultan’s sovereign will: ‘We, in Our name, and for and on Our own behalf . . .are pleased, willing and desirous to do’ (kita dengan nama dan bagi dan kerana pihak dirikita . . . berkenan suka dan reda berbuat seperti yang tersebut).’ The second Declarationfollows with the consent of the governed: ‘likewise all . . . are willing, voluntarilydesirous, ready, and obediently agreeable . . . the same being. . .the petition, intentionand wish of all’ (sekalian isi negeri dan rakyat kerajaan kita demikian juga suka reda sediadan taat)’. Both Malay (Versions C and D) and English versions (A and B) reverberatewith a confusion of imperfect synonyms, reflecting an attempt to cover with a set ofrelated but not equivalent terms political realities very much in flux (Milner 2003:177–8).

At this point, the English (Versions A and B) and Malay text (Version C) diverge.The English versions (A and B) contain two additional paragraphs, labelled ‘Declaration’and ‘Royal Command’:

And Whereas because We Ourselves and the said persons are anxiously desirous tocommence to institute such ‘State Constitution’ at this favourable time, We dotherefore commence the same with the points, arrangements, and terms statedhereunder, they being the things which We think, consider and regard to be prin-cipally and primarily requisite to be the basis, guide, and model for the firm estab-lishment and proper arrangement of the Government and administration of OurState:

Now Therefore Know Ye, all the subjects of Our State, of all ranks, nationalities,and religions, and Know Ye also, all who are concerned with Our Country, Terri-tory, and native soil, that verily, We do make and enact the things stated hereunderas true, real, firm, fixed and settled Law of Our Country and State, that is to say, itshall be unlawful, unmanly, rebellious and criminal for any person to refuse toacknowledge and neglect to obey it.

Here, the language is alternately that of an enlightened sovereign: ‘they being thethings which We think, consider and regard’, and an absolute monarch: ‘it shall beunlawful, unmanly, rebellious and criminal for any person to refuse to acknowledgeand neglect to obey’. The Malay version (D) of this last phrase is given as: iaituharam, dayus, derhaka dan berdosa bagi sesiapa orang yang enggan daripadanya dan yang men-gengkarkan dia, with the words haram and berdosa carrying the connotation of sin againstGod, and the words derhaka and mengengkarkan carrying that of treason against theruler.

It would be possible to interpret the differences in translation as a fallibility ofrecords and archiving practices across more than a century and a continent. Indeed,in the printed Jawi one (Version D) in the Johor state archives, these missing paragraphs


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appear.20 The point is not that pieces were haphazardly or even deliberately added in onelanguage and excised from another, even though the princes of the Johor royal family andothers made such an argument about the Pangkor Treaty later in the 20th century.21 Giventhe existence of multiple variations of the Johor constitutional text in use by members ofthe legal profession, members of the Johor Advisory Board, British Residents and courtadvisors, the analytic point to be considered is that like the other Malay texts we have dis-cussed, in portraiture, diplomacy and law, the Constitution in use was itself a multi-voiceddocument, not a flat and formulaic legal inheritance from a unidirectional imperialrelationship. The discrepancies between and within the Constitutional passages above indi-cate that this multi-vocality had political implications, carrying different shades of meaningfor concepts of sovereign power, loyal subjecthood and just rule.

In combination with the broad themes outlined below, the multiplicity of consti-tutional texts and vernaculars of authority and legitimacy deployed within them raisesome interpretive quandaries and put forward a few further possible directions forresearch, including these: in the travels of legal texts, how are translations to be readand understood? What do mismatches between equivalent texts – in content, tone,wording, ordering, material form, etc. – tell us about the authoring, translating andinterpreting of legal texts? When multiple versions of a text such as the Johor Consti-tution themselves have overlapping, intersecting but not identical circulatory routes,what does it mean to think of these as sources of other laws such as the Federal Con-stitution of Malaysia? These preliminary questions point to the need to take moreseriously than we have the textual, material and authorial histories of legal models,legal vocabularies and legal sources.

The significance of this point is clearly illustrated by the lack of translation of theOttoman Majalla for two decades after its adoption as law into Johor. When printed in

20Version D, transcribed from Jawi:(Kenyataan):

Dan bahawa oleh kerana kita sendiri dan mereka-mereka yang tersebut sangat-sangat berkehendak padamemulai mengadakan ‘undang-undang tubuh kerajaan’ itu pada masa yang baik ini maka kita permu-lakanlah dengan panca-panca peraturan-peraturan dan syarat-syarat seperti yang ada tersebut dibawahini iaitu ialah barang-barang yang kita pikirkan timbangkan sifatkan yang terutama dan terawali dike-hendaknya supaya menjadi asas panduan tauladan bagi ketetapan dan ketentuan perintahan dan tadbirkerajaan kita.

(Titah):

Sekarangpun ketahui olehmu sekalian rakyat kerajaan kita daripada sekalian pangkat bangsa dan igamadan ketahui jua sekalian yang berkenaan dengan negeri jajahan dan tanah air kita bahawa sesunngguhnyakita buat dan jadikan barang-barang yang tersebut di bawah ini undang yang benar betul teguh tentu dantetap bagi negeri dan kerajaan kita iaitu haram (jakus) derhaka dan berdosa bagi sesiapa orang yangenggan daripadanya dan yang mengengkarkan dia.

21Gullick (1992: 31) notes that the sons of Sultan Abdullah of Perak questioned the differencesbetween the English and Malay texts of the Pangkor Treaty in 1915; Iza Hussin (2007: 761)argues that critical interpretive differences about these texts and their implications made for conflictbetween Malay elites and British colonial agents from the outset of their relationship in Perak.


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Malay for the first time in 1913, the Majalah began with the phrase: ‘This book con-tains discussions of the fiqh rulings which are derived from the Shari’ah of Islam thathave previously been in use by the government of Johor in the Arabic language.’22

Whereas the Constitution went through multiple authors and translations, andseveral early copies of it survive in the archives in Malaysia, the Majalah appears tohave been imported from Constantinople with a few cosmetic changes.23 It was nottranslated into Malay until 1913, nor was much attempt made to translateOttoman law into the Shafi’i idiom of the Malay world. Whether the prior lack oftranslation led to interpretive fidelity to the Majalah among the ulama of the Johorstate or the lack of use of the Majalah in the legal life of the state, and whether itstranslation made a substantive change after 1913, is a point that needs furtherinvestigation.

Constitution and Majalah as Malay world texts

This article has taken as its archive multiple kinds of texts that represent the state ofJohor, its sovereign and his connections with the wider world to cast new light uponthe way in which Johor’s history, and through it, the legal history of the Malaysianstate might be read. Multiple networks and pathways for the movement of ideas,people and institutions crossed over Johor in the late 19th century, and these servedas critical resources for the transformation of the state. In portraiture, diplomacy andlegislation, the state of Johor was polyglot and polyphonous – a site of simultaneoustranslation and interpretation, a state whose elites found their power through adepthandling of varied repertoires of authority, legitimacy and statecraft.

As Malay world texts, both the Majalah and Constitution drew upon discoursesfrom Islamic, European, Ottoman and regional sources, to speak to multiple audiencessimultaneously. This polyphony carried a particular implication for law – the Consti-tution opened avenues for the empowerment of local Malay elites at the same timethat it solidified the position of the Sultan over them. The Majalah placed Islamiclegal elites in the position of interpreting Islamic law for the state at the same timethat it removed a significant portion of their autonomy in matters of adjudication. Asexamples of Malay elite discourse, they reveal significant and strategic cosmopolitanism;patterns of borrowings and interpellation within the Malay world and between regionsand empires; in addition, they point to the need to understand contemporary discoursesof law, authority and Islam in light of the trajectory of these ideas through empire, colo-nialism, state-building and elite politics.

Much has been written about legal pluralism and mixed legal systems, and I havediscussed the particular problem of mixed legality in Malaysia elsewhere (Iza Hussin2010). Here, I have focused less on the impact of mixed legality and more on how

22Printed by Matba’ Khairiyyah in Muar in 1913: Kitab ini mengandungi perbicaraan hukum-hukum fiqhyang diterbitkan daripada syari’at al-islam yang telah digunapakai oleh kerajaan Johor selama-lamanya denganbahasa Arab.23Borham (2002: 74-85) contains detailed comparisons of the Johor Majalah and Ottoman Majallatexts and argues that ‘in reality . . .[the Majalah] . . . was sidelined in the resolution of cases relatingto commerce (mal) and civil law’ (Borham 2002: 114).


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the Majalah and Constitution came to occupy adjacent legal spaces in the Johor state.The case of Johor is instructive in both the history of the Malaysian state and the analysisof law and society more generally, making clear the importance of tracing the historicalpaths by which contemporary legal orders have arrived at their current institutionalforms and political meanings. Johor occupies an important space in the developmentof Malaysian law, its constitution a key document in the formation of similar textsacross the Peninsula and a foundation for the Malayan and Malaysian federal consti-tutions. Johor’s elites similarly played critical roles in the formation of the Malaysianstate, its Sultan and aristocrats providing important (and often divergent) voices inthe path towards independence, and its elites as founding members of the UnitedMalay National Organisation (Bayly and Harper 2010: 47). As a case for understandingthe paths taken by Muslim states towards their current forms, Johor provides someimportant object lessons, to which we now turn.

Firstly, colonial control alone does not explain changes made in the content, scopeand meaning of law relating to Islam in the Muslim state. Codification, regularisationand bureaucratisation are common features of the transformation of sharia jurispru-dence and institutions in the 18th and 19th centuries and are often attributed to colo-nial policies (Hallaq 2009). In the case of Johor, these changes were undertaken by asovereign monarch. Johor is not alone as an example of Islamic legal transformationwithout formal colonisation – the Ottoman state is an obvious precedent for this, asare the Indian princely states. While it is clear that empire and colonialism matteredfor the transformation of Muslim states, it is not sufficient to credit colonisation withthe entirety of the changes made during this time, and to do so misses important vari-ations among cases as well as dismisses the agency of local elites.

Secondly, rulers and elites in Muslim states such as Johor had a wide and cosmopo-litan range of models to choose from beyond the Western imperial repertoire. For Johor,the most important were that of the British and the Ottomans, but Japan would play anincreasingly important role for the future of the Johor state and its elites (Bayly andHarper 2010). Rulers in the Malay States referred to each other in their negotiationof colonialism; elites across the Muslim world met in Mecca during the pilgrimageseason; relations of trade, marriage and religiosity connected families, courts and insti-tutions from Constantinople to Calcutta to Aceh. While rulers like Abu Bakar drew ontheir diplomatic circles, their advisors – both aristocrats such as Abdul Rahman Andak,who helped draft the Constitution, and the Hadhrami advisors such as ‘Abd al-Rahmanb. Muhammad al-Zahir al-Saqqaf (1833–1896) – drew upon other networks through-out the Indian Ocean. The impact of this mulitiplicity of models and influences has thusfar received little scholarly attention, and may offer a rich area for research.

Thirdly, neither the importance of non-colonial influences, nor the absence offormal colonisation, should be taken to imply that empire was an insignificant influencein the development of law in Johor – merely that the story is not nearly as unidirectionalas we have often assumed. The shadow of colonisation loomed over Johor throughoutAbu Bakar’s life, and may in fact have led to more far-reaching policies and changesthan the fact of direct colonisation – as a comparison between the Straits Settlementslaw on Islam and that of Johor will readily show. Some of the rulers of the Indian prin-cely states undertook sweeping changes in laws whose progressivism far outmatched thatof colonial policy (Nair 1996). The effects of imperial pressure, therefore, cannot beimputed either from the actions of proximate colonial states or from a sense of the


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general policy of a particular colonial polity – rulers looked to colonial states for mul-tiple reasons and drew contradictory conclusions from them. They also at times soughtto outpace reforms in order to make colonial intervention indefensible.

It is to the influence of the Ottomans that our last comparative point turns, for theOttoman state provided an important intermediary for reform in Muslim states likeJohor. The Ottomans were, for monarchs such as the Sultan of Johor, an importantexample of reforming to forestall imperial intervention, and provided key legitimacyfor this line of action. The Tanzimat reforms, the codification of the OttomanMajalla and the Constitution of 1876 as well as its failure, provided object lessons forMuslim reformers worldwide, as well as legitimation for rulers concerned about main-taining their Islamic credentials. Abu Bakar depended upon the Ottoman empire for itsnominal protection against the British as well as for the legitimacy of his dynasty(Kayadibi 2011). Links between the Muslim rulers of Southeast Asia and theOttoman sultans had been established since the 16th century (Aceh), and during the19th century these were brought into play by both parties against the threat of Europeanexpansion. Recent evidence from the Ottoman archives indicates that Ottoman pan-Isla-mism during the reign of Abdulhamid II may have been informed by Southeast Asianrulers’ claims to the Ottomans for protection against European empires (Kadi et al.2009). The Ottoman empire’s presentation of itself as exemplar and leader ofMuslims all over the world, in particular against European religious and politicalencroachment, meant that its successes and its failures were closely watched byrulers like Abu Bakar. In Johor, the solution to the problem of British imperialismwas similar to the Ottoman approach in the second half of the 19th century: modern-isation, bureaucratisation and codification in law and government. Unlike the Ottomans,in Johor both commercial and family laws were placed under the ambit of Islamic law;the extent of power ceded from monarch to state elites was very much circumscribed;the language of Malay ethnicity (introduced in the Johor Constitution) was madeincreasingly important in discussions of citizenship and leadership. By the time of theMalayan Union controversies (1946–1948) and the establishment of an independentMalayan Federation (1957), these elements of law and identity had become central tothe debate about what kind of state Malaysia could become.

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Bil. 998/13, 29.11.1913 – Correspondence between Sultan Ibrahim, the Mufti of Johor(Abdul Qadir bin Mohsin al-Attas) and Dato Pemangku Setiausaha Kerajaan Johor.

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Author biography

Iza Hussin is Assistant Professor of Political Science at the University of Chicago and cur-rently Visiting Fellow at the Centre for History and Economics, Magdalene College, Uni-versity of Cambridge. Email: [email protected]


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http://www.ari.nus.edu.sg/docs/wps/wps05_036.pdf

http://www.ari.nus.edu.sg/docs/wps/wps05_036.pdf

textual trajectories

Documents