Very few, if any, Malaysians have any doubts over whether they are a Malay or a non-Malay. Being Malay or not Malay in a country that is hyperaware of race is ingrained into our collective psyche. Yet regular Malaysians and academics of Malay studies alike are unable to provide a universal definition of what Malayness is — Barnard and Maier go as far as to say that “the precise meanings of ‘Melayu’, ‘Malay’, and ‘Maleis’ … have never been established, and never will be.”

Would it be possible, then, to avoid these questions of history, sociology, and anthropology? To forgo entirely the much harder question of defining these words historically, in favour of looking at the definition of a Malay from a purely legal standpoint? It turns out that even the purely legal definitions of Malayness (which may or may not reflect its actual historical connotations) are fraught with contradictions, gray areas, and unnecessary complications. This post will begin with the definition of a Malay in the Federal Constitution of Malaysia, followed by the other definitions found in Malaysian state law (chiefly under Malay Reservations Enactments). After considering the case of corporations in Malaysia, we then move on to the definitions found in the other countries of the Malay world: Brunei, Indonesia, and Singapore.

We start, as always, with the Federal Constitution. It is common knowledge that Article 153 of the Constitution provides for the special position of the Malays (and the natives of Sabah and Sarawak), yet who qualifies as a Malay is nowhere in Article 153. It is in Article 160 instead that the definition above can be found. Interestingly, this definition eschews the notions of biological race and lineage that come to mind when thinking of ‘race’ in Malaysia. For example, there is no such thing as a “half-Malay half-Chinese” mixed-race child under the Constitution, despite this sort of terminology being common in Malaysian discourse. Being a Malay under Article 160(2) is thus not determinant on blood at all; instead, whether someone is Malay or not is based on the four factors enumerated above. This means that if a Malay Malaysian were to do any one of: not conforming to Malay custom, not professing Islam, or not habitually speaking Malay, they would thus not be a Malay. On the other hand, if an ethnic Chinese, Indian, or Arab satisfied all the requirements of 160(2), they would be considered a Malay under the Constitution. Ethnicity (or ‘race’) thus have nothing to do with the constitutional definition.

In the case of Lina Joy, the High Court of Kuala Lumpur interestingly ruled that a Malay under Article 160(2) must remain a Muslim until death, without the right to renounce their religion at all, because of the requirement that a Malay must be a Muslim. With respect, the logic of this judgement would lead to odd results if applied to the other factors: should Malays be banned from not habitually speaking Malay or forced to conform to Malay custom as well? Hypothetically, it would make much more sense to interpret Article 160(2) as meaning a person would simply stop being a Malay if they renounced Islam or stopped conforming to Malay culture. In any case, Lina Joy remains the common law in Malaysia — meaning a Malay “remains in the Islamic faith until his or her dying days”, in the words of the Court.

The very confusingly written final factor in determining whether a person is a Malay is often glossed over in literature pertaining to the Article 160(2) definition, yet it is perhaps the most striking determinant in terms of what it requires and who it excludes. Prof Shad Saleem Faruqi eloquently explains what the fourth requirement of having roots in the Federation or Singapore actually requires:

The person must satisfy any one of the following four scenarios to fulfil the fourth requirement:

  • They were born in the Federation of Malaya or Singapore before Merdeka Day
  • They were domiciled in the Federation of Malaya or Singapore on Merdeka Day
  • Either one of their parents was born in the Federation of Malaya or Singapore
  • They are the issue of any person who fulfils any one of the above conditions

This requirement means that a Malay must have roots in Malaya or Singapore (i.e. the Malay Peninsula); ethnic Malays from Riau (in Indonesia) or Patani (in southern Thailand) would thus not be considered Malays under 160(2) unless they satisfied the requirement of having roots in the Malay Peninsula. This is the case even if they satisfy every other requirement for custom, religion, and language in the Article.

Rosli Dahlan and Mohammad Afif Daud argue that this means the constitutional definition of a Malay was thus never meant to be synonymous with an ethnic Malay, but to provide a “determinable class of persons” for the purposes of the law — this artificial definition would be the only way of being able to objectively ascertain whether a person could be a beneficiary of the special position of under the Constitution. This novel argument posits that the Malay ethnicity (or ‘race’) were and are completely separate from the imagined legal definition, which exists in its contorted form for the sake of applicability.

It would seem that the Federal Constitution, which is the apex law of Malaysia, conclusively settles the definitional issue through reference to the four factors in Article 160(2). Naturally, this is not the case. In true Malaysian fashion, the constitutional definition is complicated by the fact that Article 89 of the Federal Constitution provides for the continuation of Malay reserve lands, with Article 89(6) providing that “Malay” for the purposes of that Article includes any person under the law of each State who is treated as a Malay for the purposes of reserve land.

Kuala Lumpur, Kedah, Terengganu, Kelantan, Perlis, Selangor, Perak, Pahang, Negeri Sembilan, and Johor have their own Malay Reservations Enactments which define what a Malay is for the purpose of the separate Enactments. Melaka is served by the National Land Code (Penang and Malacca) Titles Act 1963 instead of having its own Malay Reservations Enactment, and its definition is the only one that is not at odds with the federal definition.

The existence of several separate state definitions seems to be unnecessarily confusing: all of them share the requirement to profess Islam, which is where the similarities end. The language requirements to habitually use Malay is only retained in Kedah — in Johor, it is the use of a “Malaysian language”, while in the other states it is a “Malayan language”. There is also the addition of an ethnicity requirement: in Johor, one must be either of Malay or “Malaysian race”. In Kedah, at least one of the person’s parents must be of the “Malayan race” or of Arab descent (with Perlis also accepting Arab descent). The other states all mention the “Malayan race”.

These differing definitions mean that a person can satisfy the requirements to be a Malay for the purposes of reservation of land in one state, but not another. This also means a person can be a Malay for the purposes of Malay reservation land in one state but not under the Federal Constitution as in 160(2). This means a person who is considered a Malay in Kedah (for land reservation) might not be considered a Malay in Johor for the same purposes, and this same person may or may not be considered a Malay for the purposes of the Federal Constitution (and therefore the Malay special position in Article 153).

All of this is made even more complex by the fact that the Federal Constitution is still the highest law of the land. In fact, all the states in question have adopted Article 160 (which includes the federal definition) as part of their law in their state constitutions. This means the federal definition is part of all the state constitutions. Prof Shad argues that Article 89(6) should refer to the state constitutions, which necessarily prevail over the individual enactments. This would mean that the differing definitions in the enactments which violate the federal definition are in direct clash with their own state constitutions — meaning they are unconstitutional and thus null and void to the extent of the inconsistency. Of course, a judicial decision illuminating the relationship between Article 89(6), Article 160 in the state constitutions, and the enactments would (in the words of Prof Shad) “settle the law in this field”, but no decision has appeared yet.

Beyond the federal and state definitions, the extension of legal Malayness to corporations is a prime illustration of the absurdity of codifying Malayness into law. Under the Majlis Amanah Rakyat Act 1966, MARA as a corporate entity is stated to be deemed a Malay for the purposes of law. Similar provisions exist in the Malay Reservations Enactments in the states, allowing other non-human entities such as boards, companies, or societies to be Malays (for example, the Majlis Ugama Islam in Kelantan).

It is difficult to understate how ludicrous this is in terms of how distanced it is from conventional understandings of ethnicity and race. Companies and corporate bodies are now Malays under legislation in order to properly function in the framework of land reserved for Malays. The preoccupation of our existing legal framework with race has thus led us to absurd consequences.

In Brunei, frequent mention of the “Malay race” is made in the Constitution of Brunei Darussalam. For example, Article 4(5) states that the appointment of Ministers and Deputy Ministers “shall be made from among the Malay race professing the Islamic Religion” (with exceptions provided for wherever the Sultan otherwise decides, of course).

The Brunei Nationality Act 1961 provides a definition for the “Malay race”, stating that it comprises of several indigenous groups: the Belait, Bisayah, Brunei, Dusun, Kedayan, Murut, and Tutong. Interestingly, this leads to the issue of how it would be determined if a person was a ‘Brunei’, a ‘Dusun’, or belonging to any of the other indigenous groups — the Act merely states that the person should be “commonly accepted as belonging to one of the following indigenous groups”.

Anthony Reid points to the 1971 Census (which seems to have had differing authors for its English and Malay versions), which provides additional context. In English, it mentions that the “Malay group in the census consisted of Malays, Kedayans Bisayah, Dusuns and Muruts. Also included were those who called themselves orang Brunei, Belait, Tutong.” It further goes on to explicitly mention that this was to standardise the term ‘Malay’ with the Nationality Enactment 1961. In the Malay version, it goes even further: “This division of communities is to avoid the mistakes found in the 1960 census, since many indigenous communities acknowledged themselves Malay because they follow the Islamic religion.” This gives the reason to be communities deeming themselves Malay (i.e. self-classification) based on their adoption of Islam, yet does not resolve the fact that several groups within that classification were not and remain today not Muslims.

The inclusion of this range of indigenous groups (which, by the use of the word namely, should be taken to be a conclusive list) also means that being a member of the “Malay race” under the act does not imply being a Muslim — for example, many Dusun are not Muslims. This may be why the Constitution of Brunei makes frequent mention not only of the requirement to be of the Malay race, but also professing Islam (though in Malaysia where all Malays must be Muslim, the same wording exists in several state constitutions regarding the appointment of the Menteri Besar). Unlike Malaysia, however, it can clearly be seen that the Bruneian legal definition of a Malay differs significantly (especially considering the Dusun, who are a significant proportion of the Malaysian population of Sabah and for whom being Dusun is completely separate from being Malay).

In Singapore, the position is slightly more complicated. Curiously, despite the existence of a ‘special position’ clause in the Singaporean Constitution in Article 152 (a parallel to Malaysia’s Article 153), the definition of a Malay is found not there or in a general interpretation Article such as the Malaysian Article 160. Indeed, Article 2 of the Singaporean Constitution which provides definitions for the purposes of interpretation is conspicuously lacking in any definition of what a Malay is.

The reason this is so can be found in the Report of the Constitutional Commission 1966, which was tasked (inter alia) “To receive and consider … how the rights of the racial, linguistic, and religious minorities can be adequately safeguarded in the Constitution”. The choice to not provide a definition was intentional: the Report makes frequent reference to a “Malay political organisation” proposing a definition similar to the Malaysian definition in Article 160(2) for the purposes of the Singaporean special position (while agreeing that it should be restricted to citizens).

Keenly aware of the complexities of providing any definition, the Commission instead chose to “not propose, although it has been suggested that we should, to recommend any provision in the Constitution specifying, enumerating, or defining the races, languages, and religions which fall within the category of the racial, linguistic, or religious minorities in Singapore”. This was justified as “helpful factor towards the eventual realisation under a democratic system of government of a united, multi-racial, multi-cultural society.” The problems identified with the Malaysian definition were twofold: (1) that they were over-inclusive in including those who were “not of the Malay race”, and that (2) they were under-inclusive in excluding those who chose to renounce Islam. Notwithstanding these contentions the Commission had with the Malaysian definition, the overarching conclusion was once again to not alter Article 89(2) (at the time, the ‘special position’ Article).

However, a different definition can be found in Articles 19B and 39A of the Singaporean Constitution. Article 19B concerns reserved Presidential elections for minority communities while while Article 39A concerns group representation constituencies, or GRCs.

A “person belonging to the Malay community” (not a Malay) is defined for the purposes of representation in the office of President and in contesting GRCs. Interestingly, the Malay definition alone specifies that this definition is separate from that of the ‘Malay race’ (“whether of the Malay race or otherwise”). This suggests that this definition of a person who belongs to the Malay community is different from someone of the Malay race as someone who is of the Malay race or not can qualify for the purposes of the “community definition”. The inclusion of this definition under Articles 19B(6) and 39A(4) instead of Article 2 as well as the wording “In this Article” implies that this definition is for the purposes of Presidential and GRC elections only, as opposed to the general definition for the special position debated by the Constitutional Commission.

Curiously, the Singaporean Constitution also provides for the establishment of a committee to determine whether someone is a member of the Malay community for the purposes of Articles 19B and 39A. This very Singaporean exercise means that even if a person considers themselves to be Malay, an official committee has the power to inform that person that they are actually not and may thus not contest for the purposes of those Articles.

In Indonesia, unlike the three countries listed above, the state does not define ethnic groups. The Indonesian Badan Pusat Statistik applies the concept of self-identification in carrying out censuses and surveys: Indonesians are simply free to choose for themselves whether they are Malay or not in identifying what their sukubangsa is. The open-ended census, allowing respondents to mention any ethnic group (as opposed to choosing from a list of ethnic groups) has led to the proliferation of an immense variety of responses. “Melayu Asahan, Melayu Deli, Melayu Lahat, Melayu Riau, Langkat/Melayu Langkat, Melayu Banyu Asin, Melayu and Melayu Semendo” are among the many sub-ethnic groups contained within ‘Malay’ for the purposes of the census.

This open-ended approach in Indonesia has led to the ‘Malays’ as a group in its censuses being classified separately from other suku such as Javanese, Minangkabau, or Buginese — completely different from Malaysia, for instance, where all of these other ethnic groups would simply be considered Malay. This has also allowed respondents in Indonesia to be classified as Christian Protestant or Catholic Malays or Buddhist Malays, unlike (once again) in Malaysia, where a Malay must be a Muslim by law.

This post has not ventured into Malayness in the Phillipines (are Filipinos Malays?), the long history of definitions of Malayness in the Archipelago, and the influences of British colonialism on views of Malayness as a race especially on the Peninsula. Even restricted only to legal views of what a Malay is, it can be seen that there are differing definitions in different countries and even the different states of Malaysia.

This does nothing but reveal the extreme complexities of trying to define race through legislation and the underlying futility of such an enterprise. If tomorrow the state were to pass an absurd law saying that Malays were defined as those with three eyes and the ability to fly, even if this was ‘valid’ law (ie passed according to procedure), this would not change at all the people of the Malay world who consider themselves Malay. Any legal definition is thus clearly futile; the law in this instance is no replacement for the self-identification of the people.

References

[1] Document of Destiny: The Constitution of the Federation of Malaysia — Shad Saleem Faruqi

[2] Lina Joy v Majlis Agama Islam Wilayah & Anor [2004] 2 MLJ 119

[3] Anthony Reid (2001), Understanding Melayu as a Source of Diverse Modern Identities

[4] Rosli Dahlan & Mohammad Afif Daud, “Who is the Malay?” (2015) in Breaking the Silence: Voices of Moderation G25 Malaysia (Marshall Cavendish International (Asia) Private Limited, 2016)

[5] Lian Kwen Fee (2001),The Construction of Malay Identity across nations Malaysia, Singapore, and Indonesia

[6] Aris Ananta, Evi Nurvidya Arifin, M. Sairi Hasbullah (2014), Demography of Indonesia’s Ethnicity

[7] B. A. Hussainmiya (2010), The Malay Identity in Brunei Darussalam and Sri Lanka

[8] Allen R. Maxwell (2001), Malay polysemy and political power: census categories, ethnicity, and citizenship in Brunei Darussalam

[9] Seng Piew Loo (2009), Ethnicity and educational policies in Malaysia and Brunei Darussalam

[10] C. L. Lim (2007), Race, Multi-Cultural Accommodation and the Constitutions of Singapore and Malaysia