— Clive Kessler
The Malaysian Insider
Sept 13, 2011

SEPT 13 — It is not my objective to argue the historical facts of this issue, to take sides.

On the facts, Farish Noor and Art Harun are clearly right and Prof Zainal Kling, however ingenious the hair-splitting technicalities that he invokes, is wrong.

But that is not the end, or even the heart, of the matter.

We must ask, what is the purpose, and what are the practical effects, of Prof Zainal now making his seemingly fanciful argument?

Prof Zainal’s argument is simply wrong, marvellously eccentric and absurdly counterfactual historically. But it is wonderfully clever, cunning and “very strategic”, politically.

By denying that Malaya, meaning the Malay states, was ever colonised by the British, Prof Zainal opens yet another front for struggle over the now increasingly contested question of Malaysian national sovereignty.

There is no doubt that, as one of the world’s nations, Malaysia exists. So it has sovereignty. But the grounding of its modern national sovereignty is a contested, and now ever increasingly inflamed, question.

Where does Malaysia’s national sovereignty lie, on what foundation is the sovereignty of the modern nation-state grounded?

In the people themselves, who are the nation, and upon whom, under the doctrine of popular sovereignty, all modern democratic nations are founded?

Or in the Federal Constitution, which is the self-declared basis of the nation’s common character, legal order and political life?

Or in the Sultans and Malay Rulers? And if so, by virtue of their recognised standing in the Federal and state constitutions?

Or on some other grounds?

With Prof Zainal’s recent comment, we are drawn back to this aspect, understanding, or (as some would have it) attempted revisionist redefinition of the national sovereignty question.

From 1986 and throughout the 1990s until 2008, the notion of Ketuanan Melayu, the idea or assertion that Malay political ascendancy had somehow been written into the constitutional foundations of the nation as part of an originating “social contract”, took shape and grew in strength.

The results of the 2008 elections came as a surprise, even shock, to many. To those determined to uphold the notion of Malay ascendancy, they were a threat and a challenge.

Was the primacy, as they saw it, of the Malay stake in the nation now, and henceforth, at risk?

From that time, and with the growth of new Malay political pressure groups such as Perkasa, a new determination to assert Malay primacy and national political ascendancy was voiced.

As part of that response, some new understandings of the ideas of Ketuanan Melayu and national sovereignty began to be developed and promoted.

Ketuanan Melayu, some now ventured to suggest, was not the crude “ethnosupremacist” idea (that, to some, the NEP seemed to suggest and underwrite) of the categorical superiority, or greater national entitlement, of Malays over non-Malays among the state’s citizens.

It had to do with the historical foundations and “public personality” of the national political order, of the nation.

It had to do with the origins of the independent federation of Malaya and later Malaysia as the direct lineal descendant, by a clear line of succession, from the various Malay states of the pre-British phase of the peninsula’s and region’s history.

This line of argument was further developed by, or at least on behalf of, the Malay Rulers and royal houses themselves by YM the Raja Muda of Perak Raja Nazrin, in a pre-Merdeka Day address at the Dewan Bahasa dan Pustaka in 2009.

On that occasion Raja Nazrin recalled the Wasiat Raja-Raja Melayu of August 5, 1957. Through that solemn declaration the nine Malay Rulers signified their assent to the constitutional arrangements of the new nation that was about to be born.

Their Wasiat, as they understood it, was not just a legal will or testament — the last political testament of the old political order, the ancien régime on the Malay peninsula.

It had, for them, an older historical meaning and also looked forward to newer times.

For them the term was not just a technical legal or constitutional instrument; it also had powerful connotations suggesting a sacred heirloom or legacy.

By their Wasiat their Rulers affirmed their consent to Merdeka and gave it their blessing. The new nation born of the “Merdeka moment” was in that way stamped with their great prestige.

Yet their action, in their royal eyes, implied something more than simply a stamp of kingly approval.

The daulat that the Rulers embodied, they implied, was not merely sacred royal prestige. Their royal consent and blessing suggested — or has subsequently been read to suggest — that the daulat of the Rulers was in fact sovereignty, in the technical jurisprudential sense.

This view, whether held at the time or retrospectively asserted, holds, or again further implies, that from pre-colonial times and throughout the years of British control, the sovereignty of the Malay Rulers, or “Malay sovereignty”, had continued: uninterrupted and unbroken, unimpaired and undiminished.

Those who wish to maintain this position can, it seems, do so in either of two ways. They may argue that there was never any diminution of effective Malay royal sovereignty, understood as ultimately authenticating power and “reality-creating” authority, under British rule. That is a difficult position to sustain.

Or they may argue that, while the Malay Rulers and their quasi-sacred political position had in fact been eclipsed under the British, that diminution was entirely without force or meaning, since British rule was itself fundamentally illegitimate. Hence its effects and implications for Malay royal sovereignty can be ignored, or set aside as if they had never been.

In either case, throughout the years of British administration and control, Malay royal sovereignty, some suggest, had continued: either in full force but hidden or else dormant and, so to speak, “underground”, only to awake and surface again at the moment of national independence.

However bizarre and counterfactual they may seem to some, Prof Zainal’s recent comments on Malayan history do not come from nowhere. They are not simply an individual eccentricity or folly.

Prof Zainal, with his recent intervention, is simply the latest Malay political commentator, activist and practical ideologist who has sought to affirm this notion of the continuity of Malay sovereignty.

His position seems to be an artful combination of the two possibilities noted above. He seems to hold that British colonial rule was illegitimate and therefore not entitled to be of any ultimate consequence; and that pre-colonial Malay sovereignty therefore persisted — was never interrupted, severed or broken — throughout the illegitimate British interlude.

Prof Zainal’s position, and that of those who are of the same mind in these matters, is that not merely Malay sacred royal daulat but “sovereignty” in the modern technical jurisprudential sense had survived in the hands of the Malay Rulers, unimpaired and undiminished, throughout the “British years” from 1874 to 1957.

More than that, having remained with them, in their traditional custodianship, this sovereignty could be, and in historical fact was, passed on by the Malay Rulers (as they asserted in their Wasiat of August 5, 1957) to the new independent nation.

In that way, a new nation was born, but born as the vehicle and instrument of a continuing sovereignty that was far older. It embodied a moral authority and sovereignty of far greater political and cultural authenticity than anything that the departing British might have managed through its Colonial Office to fabricate.

This view, which seems to be that of Prof Zainal’s, or to underlie it, has profound implications for the continuing nature, now and well into the future, of the Malaysian nation, for its political character and the underlying foundations of its sovereignty.

The idea that the British never ruled, or governed, in Malaya may seem absurd.

But it is a very inventive and resourceful way, in the political context suddenly created by the national elections of March 2008, to argue — whatever those results may have been, and whatever outcome future elections may yet disclose — that the nation’s sovereignty, both in its historical origins and its contemporary character, is a distinctively Malay sovereignty.

The argument is one that seeks to assert, and place beyond any partisan dispute or political challenge, the notion that Malaysia is still Tanah Melayu, a nation embodying Malay sovereignty, and a nation inscribed in whose innermost nature is the principle of Malay primacy.

This, like it or not, is the new post-NEP and post-2008 notion of Ketuanan Melayu.

That, at all events, seems to be, either explicitly or by implication, the position of Prof Zainal and those who are of the same mind.

As for the controversy that his views have prompted, the central question is not whether they are historically correct (which is contestable) but whether they can be made to prevail politically.

That too is perhaps contestable. That is a matter for all the people of Malaysia to determine. There is no other way, no basis other than common and ever renewed consent, to found and sustain a nation.

* Clive Kessler is Emeritus Professor of Sociology & Anthropology at The University of New South Wales, Sydney Australia.