Family Law as Colonial Specter of Shelter

By Nurfadzilah Yahaya

My book  Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (Cornell University Press, 2020) traces changing notions of family and clan across legal cultures in the realm of family law. Supposedly, Islamic law does not enter the secular sphere of politics during the colonial period. Yet, although dissipation of political power led to the erosion of local authority and confidence over time, nowhere do we see the complete disavowal of older forms of authority associated with those who became colonial subjects. Murky arrangements eventually led to expansion of colonial power. In Malaya, the Pangkor Treaty signed on January 20, 1874, is the turning point in the history of British colonialism as the British managed to wield significantly more influence in the region afterwards after being in the region for two centuries beginning with the English East India Company settlement in Bengkulu on the island of Sumatra at the end of the seventeenth century.

The Pangkor Treaty of 1874 was signed between Malay chiefs and the Governor General of the Straits Settlements, Andrew Clarke, installing Abdullah as Sultan of Perak and alongside him, a British Resident, J.W.W. Birch whose advice the sultan would seek on everything except matters of religion and custom. This was heralded as a triumphant move in line with British policy of non-intervention in religious affairs strewn with inconsistencies and contradictions. Birch’s heady tone and attitude contributed to his violent demise 22 months later. Generally, the impact of the Pangkor Treaty is much wider because it directly led to the wider British administration and revenue collection beyond Perak, therefore granting the British a firmer foothold in Malaya. Three major transformations occurred during the last quarter of the nineteenth century: First, Malay states could not contract foreign relations with other foreign powers without British permission, secondly, religious laws were pitted against adat or customary law: “We could modify the Malay laws and customs, and still keep them in harmony with their religious ideas” a British colonial official said.[1] Thirdly, heirs and legatees were to be courted or thwarted depending on the circumstances.

Colonial legal domains were generally not well demarcated. While it is true that the domain of Islamic law was whittled down, it was still allowed to exist and in fact, couched in vocabulary of preservation granting a false sense of security that it was henceforth a protected sphere. Restricting the purview of adat (customary law) and Islamic law to the realm of family law made political rule intensely familial, and essentially trapped political rhetoric within the realm of the family with its uncertainties and dangers. How much power does one give up when one continually needs to approve appointments? Because the legitimacy of the heirs was crucial, there had to be at least some degree of consensus on who was a legitimate ruler amongst colonial subjects which included local rulers recently dethroned. Treaties between British officials and Malay rulers did not diminish the latter’s prerogative entirely; it only restricted their personal discretion in the exercise of that prerogative. A judge admitted as much in a case in 1927 by likening Malay rulers’ authority to the personal discretion of the King of England because the exercise of his prerogative was in effect restricted by the obligation to act on the advice of his ministers. The result, therefore, of treaties with Malay rulers was to ensure that the latter exercised their prerogative on the advice of a British Adviser, whose position in this respect is not unlike that of a minister of the British Crown supposedly.[2] Of course, this is not true – political power of Malay rulers was significantly diminished under colonial rule in a different way than English royalty. The major difference is that Malay rulers could theoretically retreat into the newly created sphere of adat and Islamic law to escape British intervention. Did they do this in matters of inheritance of political power as well?

This strategy, the retreat of political power into the domain of the family to be framed as inheritance, has not received much attention because it was historically too subtle although one could argue its effectiveness lies in its very subtlety. While its effectiveness remains a matter of some conjecture, pending systematic historical research of all royal claims to authority especially in the individual Malaysian states’ archives, shoehorning family law into the realm of politics was definitely not such a stretch and both sides experimented with this. From the perspective of Malay royalty, what does it mean to shelter a sphere that also provides shelter to one’s freedom? Not only were they forced to simultaneously see from inside and outside of an externally prescribed bubble, they have to protect while being vulnerable, like constantly chasing a specter of freedom.

To study this phenomenon of a retreat to family law which was the most concrete manifestation of religion and custom, scholars need to go beyond thinking of the family as simply a figurative concept by paying attention to how silsilahs (genealogies) and documents justified royal appointments. Political relations constantly acquired an aura of family strife especially because royal families continually had to sign off on who the heir or “waris” was while succession laws in the Indo-Malay Archipelago are hugely complicated. Even in the 1824 Treaty of Friendship and Alliance between local rulers of Singapore and the English East India Company which can be regarded as the founding treaty of the colony of the British Straits Settlements, one of the firmest British holds in Southeast Asia, the extent of the meaning of the word “waris” was unclear. British authorities were understandably concerned about whether “waris” was used in the singular or plural form because the word could denote both. The first mention was ultimately deemed to be plural in the Malay translation in line with the original English version while the second one is singular in keeping with British financial interests – they did not want to keep on paying heirs beyond the immediate ones but they did want these heirs to continue residing outside of Singapore. Below are the Malay and English versions of the Treaty.

Perkara VI

Syarikat Hindia Timur Inggeris Yang Mulia dengan ini berjanji, sekiranya Duli Yang Maha Mulia Baginda Sultan dan Datuk Temenggung, waris atau pengganti Baginda dan Datuk Temenggung, waris atau Datuk Temenggung memilih untuk menetap di mana-mana bahagian negeri sendiri, dan bagi maksud tersebut hendak berpindah dari Singapura, membayar kepada Duli yang Maha Mulia  Sultan Hussain Muhammad Shah, Waris atau pengganti Baginda, sejumlah wang sebanyak dua puluh ribu (20,000) Dolar Sepanyol, dan kepada Duli Yang Amat Mulia Datuk Temenggung Abdul Rahman Seri Maharaja, waris atau pengganti Datuk Temenggung sejumlah wang sebanyak lima belas ribu (15,000) Dolar Sepanyol.[3]

Article 6th

The Honourable the English East India Company hereby engages, in the event of their Highnesses the Sultan and Tumonggong, their heirs or successors, preferring to reside permanently in any portion of their own states, and to remove for that purpose from Singapore, to pay unto them, that is to say, to his Highness the Sultan Hussein Mahomed Shah, his heir or successor, the sum of twenty thousand (20,000) Spanish dollars and to this Highness, the Datu Tumonggong Abdul Sree Maharajah, his heirs or successors, the sum of fifteen thousand (15,000) Spanish dollars.[4]

50 years later, as we see below, the identity of “waris” in the Pangkor Treaty was addressed immediately by Malay political authorities in Perak who wrote the following letter to the British Resident of Perak, J.W.W. Birch who was later assassinated by people associated with the letter’s authors.[5]

The word “waris” came up, the first being “waris-negeri” defined as “princes of the blood royal,” we inquire about our friend’s having got a “Kuasa” (written authority) over this country of Perak, to become Resident and govern Perak, collecting all the taxes of the country. From whom did our friend get that “Kuasa”? Our friend [British authorities] must let us know clearly. If our friend got it from Raja Abdullah, we will in no way accept a single clause of it, for Raja Abdullah is not the only “Waris” (blood royal) of the country of Perak; there are many other “Waris” better than he.

Our friend must first examine all the “Waris,” whether they like it or not, and they may know what our friend intends to do, in order that our friend may not give orders which shall oppress all the “Waris” to whom the country of Perak belongs. Moreover, we inform the gentlemen in Penang and Singapore and other places that the kingdom for which they have made a Raja is in the hands of us all, the “Waris” of the country of Perak; and that, as regards Raja Abdullah whom they installed, we will … in no way, any of us, accept him, for it is against (or perhaps “he is outside the pale of”) Malay laws and customs.

While some states like Johor made it easier over time by streamlining lineal male descendants, others did not which meant that there were constantly many contenders vying for power. The word ‘waris’ is tricky. It could refer to heir to property, and to the throne and we all know that words could be repurposed to mean something else rendered more operative in a particular field. The term could refer to any relative, male or female, not just descendants. It led to much confusion for newcomers to the region. In 1877, Colonial Secretary of the Straits Settlements exclaimed “The sons of Toongkoo Jalil (in Singapore) are not “waris” their father not being the bloody royal!” only to be enlightened by his colleague who had a more nuanced understanding of heirs in electing (“waris pelayakan Raja”) and heirs to the throne (“waris kerajaan”).[6] In some places like Perak and Negri Sembilan, there was the “land waris” and “water waris.”[7] Potential heirs were everywhere.

Notes:

[1] William Jervois to the Earl of Carnarvon, Colonial Office, Further Correspondence – Affairs of Certain Native States in Malay Peninsular in the Neighbourhood of the Straits Settlements (London: George Edward Eyre and William Spottiswoode, 1876), 18.

[2] S. K. Pillai v. State Of Kedah [1925-1931] 06 FMSLR 160.

[3] Perjanjian dan Dokumen Lama Malaysia (Kuala Lumpur: Institut Terjemahan Negara Malaysia, 2009), 15.

[4] Reports from Committee: East India Company’s Affairs, Volume 14 (London: House of Commons, 1832), 503.

[5] Haji Mohamed Ahlee to Rajah Haji Yahya translated by Frank A. Swettenham, January 22, 1876, Further Correspondence – Affairs of Certain Native States in Malay Peninsular in the Neighbourhood of the Straits Settlements (London: George Edward Eyre and William Spottiswoode, 1876), 20.

[6] “Variorum” Singapore Daily Times, December 18, 1877, p. 3.

[7] H. E. the Governor’s Visit to the Native States. Straits Times Overland Journal, April 10, 1881, p. 2.

Leave a Reply