Indonesian syariah is sui generis—it is not the syariah of the Middle East, North Africa or other parts of Southeast Asia. It does, however, share a common classical (Arabic) heritage with Muslim states in other regions, including the great technical fiqh heritage. All states have had to work through that heritage since the nineteenth century, and in doing so have stretched the historically derived doctrine to the edge. For example, modern medical science and modern forms of finance now pose questions that force syariah techniques to their limits (Hooker 2003a: 227 ff.). More recently, Bulliet (2004: 135 ff.) has used ‘edge’ to mean periphery—in the sense of the differences that have emerged between the traditional centre of Islam (the Middle East) vis-à-vis the geographical edge of Islam (Africa and Asia). Both meanings are appropriate for Indonesia and it is in them that the notion of syariah as a work in progress finds its context.

‘Work in progress’ can mean just a continuing activity, but it has also acquired connotations of improvement or advancement. From the Western point of view ‘progress’ has a favourable resonance. But this is not a universally held position in Muslim states, where the modernization of syariah is often rejected as just another version of orientalism (see, for example, Mahdi 1990). Here I use ‘progress’ in the minimal sense of work that is proceeding. In this sense Indonesian syariah can be described as having progressed to the point where it is suitable for local and temporal conditions—a real achievement. Progress on the localization and rationalization of syariah (see Chapter 2) is also advancing into new (‘edge’) territory. Of course one may object that the syariah is no longer an independent variable but merely an object to which the state gives a form in some law or regulation. Fiqh has totally disappeared. The state sets the agenda and conducts an ongoing process of selection directed towards the creation of a national school of legal thought (mazhab).

This study of the politics of merger between Singapore and Malaysia stems from my on-going interest in the emergence of post-colonial states in the aftermath of empire in Asia. While the formation of Malaysia has attracted the attention of scholars since the late 1960s, the contexts and processes have not been subjected to deep historical analysis that could illuminate the critical decisions that were taken during that episode in the history of Singapore and Malaysia. Although there has been a spate of books dedicated to Singapore's association with Malaysia, none has examined, in detail, the manner in which the deal was constructed by the major parties concerned — British officials on the ground and in Whitehall, the People's Action Party (PAP) government in Singapore and the Alliance leaders at Kuala Lumpur. With the de-classification of official records of the 1960s in the British archives in the past few years, the opportunity has presented itself for historians to dig deeper and to provide a fuller picture of the events of that momentous period — the transition between the end of British rule and Singapore's independence through Malaysia.

My interest in the history of Singapore's independence through merger was further piqued by the publication of the memoirs of Singapore's founding Prime Minister, Lee Kuan Yew in 1998. In volume 1, The Singapore Story, Lee recounted Singapore's tumultuous years in Malaysia, culminating in separation in 1965. The story of the failed merger between Singapore and Malaysia has generated excitement from both sides of the causeway, especially on the personalities and issues that had contributed to the breakup. Analysing the contentious and acrimonious relationship between Singapore and Kuala Lumpur between 1963 and 1965, it became apparent that the seeds of dissension had indeed been sown earlier, when the deal was being worked out that would bring Singapore, the Federation of Malaya and the Borneo Territories of North Borneo and Sarawak together to form Malaysia. To understand the difficulties that emerged between 1963 and 1965, it is therefore necessary to take a few steps back — to look into the history of the making of Malaysia — to understand why the new Federation that was constructed in 1963 was fraught with so many innate problems. This study is intended as an analysis in the making of a flawed federation, the important prequel to the story of separation.

In this chapter I examine four regional syariah law texts that collectively illustrate a new stream of independent judgment (ijtihad) in Indonesian syariah. They are the Aceh Qanun, the South Sulawesi draft syariah code, the West Sumatra regional regulations and the MMI draft criminal code. The appearance of such texts over the past few years raises questions about the relationship of the new codes with Pancasila, the current laws and regulations of the state, and the Constitution. The texts also provide insights into the new forms syariah might take in the Indonesian state.

All four texts reflect the syariah values of their proponents, so a preliminary word on what these values are may be in order. Chapter 4 on the public transmission of syariah suggested that these values are based on the Qur’ān and include an affirmation of Islam, orthopraxy, public propriety and the maintenance of core values in a time of unprecedented social and political change. In the texts examined here, these values are distilled into forms ready for adoption by regional governments. These regional expressions of syariah values now inform the debate on a national school of legal thinking (mazhab) on syariah. However, this raises its own problem: of how such widely differing interpretations of syariah values can be integrated into a national mazhab and, indeed, whether they should be integrated at all.

Contemporary debate on the new syariah codes focuses on three issues in particular. The first concerns the extent to which the first principle of Pancasila— belief in one God—can be made to accommodate the imposition of syariah values in the wider community. The proponents of the new codes argue that they are justified because they express the essential nature of belief in one God and are, therefore, merely practical manifestations of it. This argument is commonly extended further to claim that the mass of Indonesians agree with the new texts because they defend a general social morality to which all citizens—regardless of religion—subscribe.

In the contemporary world of Islam we have by now become accustomed to the fact that the formal expression of syariah differs from region to region. In practice this means that we have to be specific as to place and time when answering the question, ‘What is syariah and how is it known?’ At the level of nations—Egypt, Tunisia, Saudi Arabia, India, Malaysia and so on—we can give a specific reply to this question, but for the Islamic world as a whole there is no answer except at some almost meaningless level of generality. It is also possible to answer the question in terms of Western forms of law, that is, civil and common law reformulations which show, for example, that Malaysia and India have quite a lot in common whereas Malaysia and Indonesia do not, despite their similar languages and culture. In short, syariah in practice is various, not homogenous.

These comments should not be read as saying that the formal rules of positive law (fiqh) in the classical texts are no longer of any significance. It is easy to suppose this because of the nineteenth and twentieth-century state reformulations of ‘Islamic’ or ‘Muslim’ law, but it is wrong. Perhaps the best way of putting it is to say that the classical fiqh texts are fundamental but no longer primary on a dayto- day basis. This is not a paradox but, I believe, a plain assessment of fact.

The idea that fiqh is no longer important has come about because of the dominance of Western forms of law. However, as I argue below, that dominance is by no means uncontested. The main characteristic of state dominance is selection: the practice of taking from the classical (Arabic) legal thought that which is held to be appropriate for a particular state at a given time.

By May 1961, although the Tunku was evidently prepared to contemplate the possibility of a merger between the Federation and Singapore, he was nonetheless adamant that two essential conditions first be satisfied. First, before being committed to an agreement to bring Singapore into the Federation, he wanted to be absolutely certain that he would be able to incorporate the three Borneo territories, with their predominantly non-Chinese population, to form a wider Malaysian Federation. Second, the Singapore Government would have to agree to have a smaller representation in the federal parliament than they would otherwise be entitled to on a population basis. In return, the Tunku was prepared to concede to Singapore the retention of much wider local powers than the other member states of the Federation. The intention behind the conditions was obvious: it was vital to the Malayan Government that the terms of the merger with Singapore should contain provisions that would safeguard the Federation as a whole against what the UMNO and Malay politicians feared most — the possibility of Chinese political domination. The Tunku was clearly caught in the horns of a dilemma. He knew, on the one hand, that pro-communist forces were gaining ground in Singapore, and that a communist-controlled independent Singapore would give him no end of trouble. The only way he could control the situation was to bring Singapore into the Federation and then deal with the communist threat there as an internal security issue directly from Kuala Lumpur. Yet, he knew of the political cost of bringing Singapore into the Federation — the addition of 1.3 million Chinese on the island would upset the racial balance in the Federation, and “ruin the calm atmosphere there”. Lee Kuan Yew was aware of the Tunku's deep-seated mistrust of the Chinese — “many Chinese educated and new immigrants to the country”, the Tunku was reported to have said, “will always be loyal to China and they are less Malayan-minded”. Earlier overtures on the part of the Singapore Government to merger with Malaya had repeatedly been rejected by the Tunku primarily because of the Chinese factor. But Lee knew that by 1961 the Tunku was beginning to take notice of the increasingly tenuous political situation in Singapore. The Tunku would have to act, but, clearly, he would only do so on his own terms.

By 1960 the Colonial Office, Commonwealth Relations Office and Ministry of Defence of the Government of the United Kingdom had reached a consensus that the merger between Singapore and Malaya, and the eventual incorporation of the Borneo Territories, individually or as a unit, into the newly extended Federation to form a Greater Malaysia should constitute the “ultimate goal of British policy in Southeast Asia”. Preliminary soundings among British officials serving in the territories concerned had unanimously indicated that the Grand Design — the establishment of a Federation incorporating Malaya, Singapore, North Borneo, Sarawak and Brunei — was a logical policy that would serve well the interests of all concerned. Independence would be given to the remnants of the British colonies in Southeast Asia, and the post-independent political and economic viability of these erstwhile, smaller colonies (for whom the British regarded there was little future in individual independence or even independence in association together)1 would be enhanced by their amalgamation into a bigger, more stable Federation. The inclusion of the North Borneo territories into a Malaysian Federation would effectively thwart whatever territorial designs Indonesia and the Philippines might harbour on those colonies. Most importantly, Britain's strategic and defence concerns and obligations in the region denoted “East of Suez” by policy-makers would in no way be diminished by the process of de-colonization. London would be able to create a friendly Commonwealth bloc in the region, containing an “independent” Singapore whose military bases would still be available for British use, with the added advantage that the thorny issue of internal security in Singapore would no longer be a British concern, but a burden for Kuala Lumpur to bear. All things considered, the formation of Greater Malaysia promised to be a propitious end to formal British Empire in Southeast Asia.

Reactions among the local politicians to the idea of a wider Malaysian Federation were, however, more varied. Since its separation from Malaya in 1946, all shades of political opinion in Singapore were agreed that the island-colony had no long-term political future on its own, and would eventually find its way back into the fold of its natural hinterland — the Malayan peninsula.

For the better part of 1961 and throughout 1962 the governments of Singapore and the Federation had preoccupied themselves with the settlement of the major political issues concerning merger, involving political representation in the Federal Government, citizenship and local autonomy in labour and education. The acceptance of the Singapore White Paper of 1961 and the successful referendum in Singapore endorsing the White Paper proposals for merger had removed the major obstacles to merger, and by the beginning of 1963, with the thorny issue of dual citizenship seemingly settled, it looked as if the target date for establishing merger by 31 August 1963 would be achieved easily. The remaining tasks were straightforward enough: both the Singapore and Federation governments simply had to work out the details of financial and tax arrangements that would be effected when Malaysia came into being. The negotiations in earnest on the financial arrangements started only in 1963, as previously, the two governments were trying to iron out the politically more sensitive issues of parliamentary representation and citizenship. However, as the planned date for the Malaysia agreement drew near, the nitty-gritty matters of tax collection and the sharing of revenues between state and centre came to the fore, leading to hard bargaining between the two governments. On a number of occasions, the disagreements over financial arrangements threatened the progress towards Malaysia. The nature of the disputes reflected the divergent aims and underlying assumptions which both the Singapore and the Federation governments adopted with regard to merger. As far as Malaya was concerned, merger was meant to solve a political-security problem: to allow Kuala Lumpur to exert direct control in Singapore and thereby nip the growing threat of communism there. The Tunku was thus satisfied that as long as he could do that without Singapore politics jeopardizing his Malayan political base he was quite happy to include Singapore within the Federation. Thus, according to Lee, “the bargain between [the Tunku] and [him] was: You be the New York, do exactly what you like; don't give me trouble in internal security and foreign affairs and defence, you be New York, don't worry”. With the big issues of citizenship and parliamentary representation in the bag, the Tunku was thus prepared to leave the bargaining of the non-political details to his advisors and ministers.

The focus in the preceding chapters has been on the complicated negotiations leading to an Ulster-type merger between Singapore and Malaya. The story of Malaysia would be incomplete without an analysis of how that crucial piece of the jigsaw, the Borneo Territories, was eventually put in place for the realization of the Malaysia Plan. At the outset, the Malayan Prime Minister had made it clear that Singapore would be incorporated into the Federation only on condition that the Borneo Territories were brought in first. Indeed, his grudging attitude towards merger with Singapore stood in striking contrast to his almost unbridled enthusiasm for the Borneo Territories to be brought into the Federation. However, despite Malayan interests and British intentions — British officials generally agreed that the political future of the Borneo Territories lay in an association with a larger Federation — the amalgamation of the Borneo Territories with the Federation of Malaya and Singapore was not going to be a straightforward affair. Colonial officers were concerned that the vast disparity in social and political development between the Borneo Territories on the one hand and Singapore and Malaya on the other would make any form of federation of these territories untenable. Yet, the British Government was determined to press ahead with the association of the Borneo Territories with the Federation of Malaya, without which the latter would not accept merger with Singapore. If Malaya could not bring the Borneo Territories into the Federation, merger with Singapore would be jettisoned. Without merger, the Government in Singapore would fall, and this would result in the loss of the use of the base, a worst case scenario for the British. This chapter explains why the proposed federation of the Borneo Territories with Malaya and Singapore was not as plain-sailing as the British and Malayans had hoped, as well as the circumstances, events and tactics employed by the British and Malayans that eventually secured the entry of North Borneo and Sarawak into the Federation.

British Plans for the Borneo Territories

In contemplating the political future of the Borneo Territories, political backwardness of the two territories had been of primary concern.

At the start of 1962, the PAP's White Paper proposals for merger with the Federation were officially endorsed by the Singapore Legislative Assembly. After 13 days of debate that began on 20 November 1961, during which the government's main political opponents, the Barisan Sosialis (BS), had tried their best to defeat the White Paper through what Lee Kuan Yew remembers as “tedious and repetitious” arguments, the Assembly carried the motion by 33 votes to nil for the Heads of Agreement as set out in the White Paper, with the opposition BS members opting to abstain by absenting themselves during the voting. On 30 January 1962 the Legislative Assembly voted 35 ‘ayes’ (PAP, UMNO, SPA), 13 ‘noes’ (BS), three abstentions to support “in principal the plan proposed by the Tunku for the establishment of the Federation of Malaysia comprising the 11 states of Malaya, the states of Singapore and Brunei, and the territories of Sarawak and North Borneo”. By 1962, it had become clear that merger with the Federation would certainly happen, and on the PAP's terms as spelt out in the 1961 White Paper.

The PAP was on strong, defensible grounds in making its arguments for merger. Few could argue with the fact that a Malayan hinterland was critical for Singapore's political and economic survival. With a growing population, limited physical and natural resources and an economy that was stagnating, Singapore simply could not survive as an independent country on its own. Unable to contest the PAP's argument that merger was an absolute economic and political necessity for Singapore, all that the BS could resort to was to question the Tunku's motive for agreeing to merger with Singapore, and to arguing that the terms of the merger as proposed by the PAP were essentially detrimental to the interests of the people of Singapore. The BS argued that the Tunku's scheme was nothing but a neo-colonialist plot, hatched by the British to help the Federation suppress the radical anti-colonialists in Singapore and thus save the increasingly rightwing PAP government. To support its claims, the BS pointed to the various provisions for merger as stipulated by the Heads of Agreement between the Tunku and Lee. The arrangements, particularly on citizenship and Federal legislative representation for Singapore, the BS alleged, were clearly designed to isolate Singapore politically.

On 9 July 1963, the agreement for the establishment of Malaysia was signed by the United Kingdom, Malaya, North Borneo, Sarawak and Singapore. The agreement envisaged that all legislative and related activities leading to the formal constitution of Malaysia would be completed by the end of July or early August, and Malaysia Day could be declared on 31 August 1963. As things turned out, Malaysia's birthday was delayed and the new state came into existence on 16 September 1963, after a last gasp bid by the Indonesians to abort its birth. Both Indonesia and the Philippines had opposed the concept of Malaysia from the outset, and when it appeared that the British and Malayans were pushing ahead with the formation of “Greater Malaysia” despite the unresolved Philippines’ claim to North Borneo, the Brunei Revolt and the Indonesian declaration of Konfrontasi (Confrontation), the United Nations was summoned in a last ditch attempt to stop Malaysia. The Tunku had earlier attempted to mollify his unhappy neighbours by suggesting, in a summit in Manila early August 1963, the formation of a super-federation known as “Mal-phil-indo”, incorporating Malaysia, Philippines and Indonesia. The latter two were not entirely assuaged, and demanded that the United Nations’ Secretary-General, U Thant, send a team to Sarawak and North Borneo to ascertain whether it was the wishes of the people there to join Malaysia. This last minute intervention by the United Nations meant that the date originally proposed for the establishment of Malaysia — 31 August 1963 — would have to be postponed. The fact-finding mission merely delayed the inevitable. A few days after the Manila Agreement, the legislative council in North Borneo voted unanimously that the colony would declare independence under the new name of Sabah, irrespective of the findings of the UN mission. A similar statement was issued by Sarawak, declaring that “Malaysia shall be born on 31 August, no matter what happens”. Singapore too decided to declare its independence unilaterally on 31 August 1963, in accordance with the Malaysia schedule agreed a year earlier. In any case, the UN Mission subsequently confirmed that the overwhelming majority of people in both Sarawak and Sabah were prepared to join the Federation of Malaysia.

The ‘philosophy of syariah’ is an enigmatic phrase. It has been used to construct philosophies of law from very different premises: first, where the major premise is the Qur’ān and Sunnah; second, where it is historical fiqh; and third, where it is the actual facts of political, social and legal life in a particular time and place. I am not suggesting that these are the only possible premises, but they are necessary if not wholly sufficient for the present. If we choose to emphasize one premise over the others, then we introduce a weight that shifts the balance (of what is ‘true’, ‘good’, ‘workable’) in favour of that one. Thus, if we choose the first, we can come up with a system that justifies a caliphate, or can be made to seem to do so. The second gives us a philosophy rooted in scholasticism and the third may lead to the unrestrained use of independent judgment (ijtihad)—even, eventually, to Western social science and positive law.

These are the issues I explore in this chapter. For the sake of initial clarity,it is as well to emphasize again that Islam/syariah has a presence in public life—that is, in politics—as well as in public documents such as the Constitution (Pancasila) and laws. The time with which I am primarily concerned is the 1940s to the present. My purpose is to explore a variety of syariah philosophies that I believe define the syariah possibilities for a distinctly Indonesian school of legal thought (mazhab). I purposely use the plural, because Indonesia has not decided on ‘a’ syariah philosophy. The five philosophies I discuss in this chapter are acknowledged alternatives; although I deal with them separately, they are often conflated. Just as frequently the balance between and within them oscillates. Their respective boundaries can be indicated but have to be considered porous.

The reader might well ask why one would give space to the Friday sermon—the khutbah—in a book on syariah. The answer is that the khutbah is the main vehicle through which the ‘ordinary’ Muslim is instructed in his or her duty to God; it is how that person knows the syariah. The syariah encapsulates theology in the form of prescription. That is what we mean when we say that Islam does not recognize distinctions between law, ethics, morality, the syariah and the totality of these. Any comparison with the contemporary Christian sermon is not sustainable because ‘God's laws’, expressed theologically, are no longer primary in Western society. The law, one's personal and social duty, is found elsewhere, in codes and statutes.

The instructional functions of khutbah are crucial to individual and social duty and they are, thus, syariah texts. In this sense they are the most public of the faces of syariah in all Muslim countries. Indonesia is no exception in this regard, and has its own vibrant khutbahpublishing industry.

The function of the khutbah is purely didactic: to instruct the faithful in religion. This means instructing the Muslim in his or her individual duty to God as this is understood in a particular place, at a certain time. Khutbah are, therefore, specific and local. This may seem obvious, but it was in fact the subject of intense debate in Indonesia in the 1920s through 1950s. The central issue concerned language: should the khutbah be delivered in Indonesian or Arabic? In the 1920s, Nahdlatul Ulama (NU) recommended Arabic accompanied by an Indonesian summary, on the basis that the khutbah is integral to the prescribed ritual prayers (shalat), for which Arabic is required. Although the use of Indonesian has been standard since the 1930s, the same issue occasionally surfaces even now. As Ahmad Hassan, the founder of Persis, said as far back as the 1930s.