Alex C. Castles, The Constitutional and Legal History of Sarawak: Documents and Commentaries.

Alex C. Castles, The Constitutional and Legal History of Sarawak: Documents and Commentaries. Volume I. People's Law-Making and Brooke Rule, Kuching: Persatuan Sejarah Malaysia Cawangan Sarawak, 2003. 294pp.

Professor Alex Castles was a great polymath who combined an extraordinary capacity for detail with a cheeky irreverence for just about everything except the study of history. My own conversations with him could skip from Aboriginal legal status to the validity of orders issued by the Australian Army from Labuan in September 1945 to the circumstances of Ned Kelly's trial in Melbourne in 1880. Indeed, his last book, published posthumously by Penguin in 2005, pursues the legal issues surrounding Kelly's prosecution. The common theme was always Australia's legal history, of which he is generally regarded as the founder and doyen.

Castles' Sarawak connection was first established more than forty years ago when he taught constitutional history to two bright young Sarawak Malay students, Abdul Taib bin Mahmud and Adenan Hj. Satem, who were then studying law at the University of Adelaide. Remaining in correspondence with them over the years, he was finally invited to prepare a constitutional and legal history of Sarawak, of which this is the first volume. Whether we shall see Volume II, which was intended to take up the story from 1941 to the present, seems somewhat uncertain in the light of Castles' sudden and untimely death, but a good deal was left by him in draft form. We can only hope that Sarawak Museum Director Sanib bin Said, who had so much to do with this valuable project, will be able to see it through to its conclusion.

As its title indicates, Volume I is a collection of documents which are accompanied by Castles' erudite and pithy commentaries. In twelve chapters, the book comprehensively covers the origins and operation of adat law, the foundation of Brooke Sarawak and its subsequent territorial acquisitions, Brooke government and law, and finally, the 1941 Constitution which was proclaimed only months before the arrival of the Imperial Japanese Army. The documents have been brought together by Castles from an astonishing range of far-flung sources in what is a unique compilation of Sarawak's constitutional and legal history. While Castles does not set out to give us an explanatory and interpretative narrative account, his Introduction and his preambles to each of the chapters furnish much of the historical context. The political underpinnings of the story are readily available elsewhere.

There is one surprising omission from Chapter I: "The Beginnings of Law in Sarawak" which must be mentioned. Instead of reproducing the original "Laws and Customs of the Country of Sarawak," James Brooke's attempt commencing in 1842 to codify a written set of laws for Sarawak based on long-established Brunei practice in its dependency (the Rajah seems to have had access to an old Brunei document in preparing this), Castles has only cited Sanib bin Said's paraphrasing of a small part (relating to the relative seniority and jurisdictions of the datu) in his Malay Politics in Sarawak (1985). Tucked away at the back of Volume I of John Templer's The Private Letters of Sir James Brooke (1854), Brooke's "rough draft" of six pages is accompanied by his own interesting explanation as to why he did not proceed with it, despite apparently having sent it to Singapore for printing:

   Before these laws were promulgated, I, on reflection, resolved
   not to impose them, as they might, in portion, be unjust or
   inapplicable, through my ignorance of the native customs, and
   calculated to tie me down in particular cases, which they might
   not meet. For these reasons, I followed, in preference, the plan
   of doing justice to the best of my ability in each particular
   case, adhering, as nearly as possible, to the native law or
   custom. In this way, we shall gain precedents, which themselves
   will form the basis of law.

This early abandonment by Brooke of a Brunei-derived statutory code in favor of something more resembling a combination of British common law and adat lama provides a fundamental explanation for the pragmatic system of justice that subsequently evolved in Brooke Sarawak. It is unfortunate that we do not have Castles' commentary on it.

Much of Sarawak's early history as a Brooke family fiefdom is the struggle to obtain official recognition from successive British governments whose standard line was that no British subject could become the sovereign of another state. Central to the story is the way in which the first Rajah abandoned his early argument that his sovereignty derived from Brunei for the claim that it had been delegated to him by the Sarawak Malay chiefs who claimed to have won independence from Brunei. One of the most interesting documents therefore is the text of a statement to the latter effect recorded by his former political secretary, Spenser St. John, with the three senior datu in October 1855. Whether this was a genuinely held view, or whether it was cooked up by St. John at James Brooke's instigation after the drubbing he received earlier at the Singapore Commission of Inquiry is a nice question. At any rate, it gave rise to the notion of the Brookes as trustees of the natives, something which Charles Brooke would probably have rejected out of hand but which was incorporated in the 1941 Constitution as if it were the official ideology. By that time Vyner Brooke had lost all interest in ruling and had stunned some of his senior officers by abandoning his prerogatives in return for a cash payment.

Charles Brooke's highly personal and idiosyncratic style of rule can be gauged from the Orders he issued on his own authority, such as Order No. IX of 1902 which required that "any Native wearing a cap ... shall remove it from his head upon entering any Government Office ... or when addressing European Officers" and Order No. 1 of 1914 which required that European managers of commercial enterprises were not to be addressed as Tuan Besar. Unaccountably, Castles does not reprint the 1882 Order which tells us so much about Charles' officers' domestic arrangements:

   Whereas it has come to my knowledge that certain European officers
   in the Service are in the habit of openly living with native women,
   I now ... order ... that in future I forbid any of these women
   travelling or taking passage in Government steamers or boats and I
   strongly disapprove of any officer travelling in company with such
   women.

On the other hand, he gives full coverage to all of Charles' pronouncements on the vexing problem of debt slavery.

Castles does not provide a bibliography, which helps to obscure the fact that his work was assisted substantially by the earlier efforts of Thomas Stifling Boyd, the eccentric Scot Judicial Commissioner and then (1928) Chief Justice of Sarawak, who codified all three Rajahs' Orders, modified the Indian Penal Code to suit Sarawak's needs and produced a manuscript in 1934 entitled "The Law and Constitution of Sarawak ..." Castles reproduces part of Boyd's 1934 judgment in H.H. The Rajah v. Dunggaw and Uniar, a headhunting case which he believed had been treated too lightly as it had occurred across the border in Dutch Borneo. However, Castles does not do full justice to Boyd's insistence on the rule of law and how this brought him into sharp conflict with those Brooke officers whom he characterized as employing "rough and ready empirical rules, called by some the rule of common sense and made up as and when occasion requires." Not surprisingly, Boyd was one of the first to go in April 1939 when briefly Anthony Brooke, then briefly Rajah Muda, led a rebellion of outstation officers against the senior officers of the Committee of Administration.

Altogether, Castles' work will be a great boon to Sarawak's lawyers and politicians as well as to historians and anthropologists and all those who are curious to investigate the distinctive character of Sarawak and its constitutional and legal origins. In a timely statement, he reminds us in his Introduction that Sarawak was a full partner with North Borneo, Malaya and Singapore in the formation of Malaysia. (Bob Reece, Murdoch University, Western Australia)