an essay on the constitutional history of malaysia

An Essay on the Constitutional History of Malaysia

An Essay on the Constitutional History of Malaysia [1995] 3 CLJ xiv (July)

(PART 1)

by

Y.A. Tuan Mohd. Hishamudin bin Mohd. Yunus

I - Introduction

The Federation of Malaya, as an independent State, came into being on 31 August 1957 by federating the nine protected Malay states of the Malay Peninsula (Johore, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak, Perlis, Selangor and Trengganu) with the two colonies known as the settlements of Malacca and Penang. Six years later, on 16 September 1963, Malaysia was formed by federating these eleven States (on joining the Federation of Malaya, Malacca and Penang were called States) with Singapore, North Borneo (thereafter became known as Sabah) and Sarawak. Singapore left Malaysia to become an independent State on 9 August 1965.

The constitutional history of Malaysia is to a large extent the history of British rule in the Malay Peninsula and Borneo, whose rule had taken the form of either direct rule, as for example in the case of the Straits Settlements which was a Crown Colony, or indirect rule, as for example in the case of the Federated Malay States which were protected States. British rule over these territories began in 1786 with the acquisition of the island of Penang by Francis Light of the East India Company. From here British rule, either direct or indirect, began to be extended to the other areas which consisted of several political units each ruled by a despotic Malay Ruler called "Sultan". Some territories became Crown Colonies such as the Straits Settlements (comprising Labuan, Malacca, Penang and Singapore) while others, through treaties with the respective Rulers, became protected States. However, eventually all these territories were to be united beginning first, with the formation of the Malayan Union in 1946 (which was in effect an abortive attempt to amalgamate the Malay States with Settlements of Malacca and Penang to form one single political unit under direct British rule), then with the formation of the Federation of Malaya 1948, followed with the formation of the independent Federation of Malaya, 1957, and finally (this time with the inclusion of the Borneo States), with the formation of the independent federation called "Malaysia" in 1963.

II - The Straits Settlements


The Acquisition of Settlements by the British: Malacca, Penang and Singapore

The first territory in Malaysia to come under British rule was the island of Penang. During the second half of the eighteenth century the British were looking for a suitable harbour for their trading ships plying the Straits of Malacca. The island was considered suitable and in 1786 after negotiations with the Sultan of Kedah1 a treaty was concluded whereby the island of Penang was ceded to the East India Company in return for the availability of British troops to Kedah to assist the Sultan in repelling his enemies, the Bugis, and the Siamese. In 1800 the East India Company entered into another treaty2 with the Sultan whereby the Company obtained the cession of a sizeable territory on the mainland opposite Penang, and this territory became known as "Province Wellesley" and became part of the Settlement of Penang (which earlier, upon, acquisition, had been renamed "Prince of Wales Island").

The next territory to come under British rule was Malacca. In 1795 the British peacefully occupied all the Dutch settlements in the Far East including Malacca. Britain and Holland were allies in the Napoleonic wars and the understanding was that all these settlements were to be handed back to the Dutch when the wars ended. Accordingly these settlements were returned to the Dutch in 1818 under the Treaty of Vienna.3 Malacca, however, was ceded to Great Britain by a treaty concluded in 1824 (Treaty of Holland).4

When Malacca was restored to the Dutch it became necessary for the British to seek another port in the Straits of Malacca and an island at the tip of the Malay Peninsula, called Singapore, was selected. In January 1819 a preliminary agreement5 was entered into with the Dato' Temenggong of Johore, the chieftain of the island. In February, the same year, a formal treaty6 was concluded between the East India Company and Sultan Husain of Johore together with the Dato' Temenggong. By this treaty the preliminary agreement was ratified and the Company, among other things, agreed to pay the Sultan 5,000 Spanish dollars annually as long as they maintained a factory on any part of the Sultan’s hereditary dominions. As the settlement progressed there was felt the need to obtain the absolute cession of the island. So in 1824 a fresh treaty7 was entered into with the Sultan and the Temenggong whereby the island of Singapore became British property. The Company agreed to pay to the Sultan 33,200 Spanish dollars and a stipend during his natural life of 1,300 Spanish dollars per month, and to the Dato' Temenggong 26,800 Spanish dollars and a monthly stipend of 700 Spanish dollars during his natural life.

In 1826 a treaty8 was concluded with the Sultan of Perak whereby he ceded to the East India Company the island of Pangkor, and a


strip of the coastal territory known as the "Dindings" and these territories were governed as part of the Straits Settlements. They were, however, ceded back to Perak under the Dindings Agreement (Approval) Act, 1934.

In 1846, as a result of a treaty9 with the Sultan of Brunei, the island of Labuan in Borneo became a British colony, and in 1907 became part of the Settlement of Singapore.

The Cocos (or Keeling) Islands, which had previously been administered with Ceylon were added to the Straits Settlements in 1886, and Christmas Island, which had previously been a separate colony, in 1900.

Constitutional Developments of the Straits Settlements up to 1946

Penang from 1786 until 1805 was under the Presidency of Bengal. In 1805 it became a separate Presidency - the Eastern Presidency - with a Governor and a Council. Singapore from 1819 to 1823 was under the Presidency of Bencoolen (in Sumatra - now in Indonesia) but from 1823 until 1826 was under the direct control of the Governor-General of India. Malacca also was, from 1824 to 1826, directly under the Governor-General of India. In 1826 Singapore and Malacca were enjoined to Penang and became part of the Eastern Presidency, but in 1830 the Eastern Presidency was abolished and the Straits Settlements was again placed under the Presidency of Bengal. Earlier, in 1823, the capital of the Straits Settlements was transferred from Penang to Singapore. In 1851 the Settlements were removed from the jurisdiction of the Bengal Presidency and placed directly under the Governor-General of India. In 1858 the East India Company was abolished and the Straits Settlements came under the new Indian Government until 1867 when its administration was transferred from the India Office to the Colonial Office in London in response to agitation by the mercantile community in the Straits Settlements who, for various reasons, were discontented with the Government of India.

The transfer was effected by the passing of the Government of the Straits Settlements Act,10 1866 which provided for the separation of the Straits Settlements from the Government of India. The Act empowered the Crown to establish laws, institutions and ordinances, and to make provision for the Courts and administration of justice and generally for the good government of the Straits Settlements.11 Power was also given to the British Crown to delegate by Letters Patent its powers and authorities as to the Straits Settlements to resident officers.12


With the passing of the 1866 Act, the Straits Settlements became a unitary Crown Colony. By Letters Patent13 of 1911 its government was vested in a Governor assisted by an Executive and a Legislative Council.14 The Letters Patent defined the Governor’s duties.15 The manner in which his duties were to be carried out was set out in the Instructions.16 He also received instructions from the Secretary of State.17 The Governor convoked and prorogued the Councils, initiated legislation and assented to Bills18 or reserved them for the Royal pleasure.19 He was empowered to make and execute under the public seal grants and disposition of land,20 to appoint Judges, Commissioners, Justices of the Peace and other officers,21 to dismiss or suspend certain officers22 and to remit fines and to grant pardons.23

The Governor, in the discharge of his duties, was assisted by an Executive Council constituted by the Instructions. The Council consisted of the Senior Military Officer, the Colonial Secretary, the Resident Councillors for Penang and Malacca, the Attorney General, the Treasurer, the Colonial Engineer and two unofficial members.24 The Council had to be consulted by the Governor on all matters of importance except matters that were either too urgent to be laid before it or of such a nature that reference to it would prejudice the public service. In all urgent cases the Governor was required as soon as practicable, to communicate to the Executive Council the measures he had adopted. The Governor was entitled to refuse to follow the advice of the Council but in such a case he had to report as early as possible to the Secretary of State.26

By the Letters Patent the powers of the Crown were delegated to the Legislative Council of the Straits Settlements;27 without prejudice however, to the powers of the Crown to legislate for the Colony by Order-in-Council, the original constitutional method of legislation for the colonies.28 In 1867, the Legislative Council consisted of the Governor, the Chief Justice, the Officer Commanding the Troops, the Lieutenant Governor of Penang, the Colonial Secretary, the Attorney General, the Colonial Engineer and four unofficial members who were Europeans.29 By 1931 there were eleven ex-officio members (the Senior Military Officer, the Colonial Secretary, the Attorney General, the Resident Counsellors of Penang and Malacca, the Treasurer, the Colonial Engineer, the Director of Education, the Secretary of Chinese Affairs, the Principal Civil Medical Officer and the Commissioner of Lands), two nominated official members elected by the Chambers of Commerce of Singapore and Penang, and eleven nominated unofficial members. Of the nominated unofficial members, one had to be a Eurasian, one a representative of the Malay race, one a British Indian and three Chinese British subjects from the three Settlements.30


It will be noted that with the passage of time the judiciary was no longer represented on the Legislative Council and that the official seats were opened to the heads of important departments. A notable development was the increased representation of educated Asiatic English-speaking members to represent all communities of British subjects. Another notable advance was the recognition of the need for representation from the mercantile community.

The constitution and powers of the Legislative Council were provided by the Letters Patent and Instructions of 1911. Its procedure was provided by the Standing Orders made by the Council pursuant to the Instructions.31 The Crown reserved the right to disallow any Ordinance.32 The Governor presided over the Council.33 A Bill, unless reserved for the Royal assent, took effect as an Ordinance after it had been duly passed by the Legislative Council and the Governor had given his assent.

III - The Federated Malay States

The Residential System

Having acquired Malacca, Penang and Singapore the British were soon to interfere in the affairs of the Malay States. Various reasons have been advanced by historians but the major reason for the intervention was commercial. As the Straits Settlements prospered, the mercantile community of the straits settlements was anxious to discover new, convenient and profitable outlets for financial investments. The Malay States were particularly attractive because they possessed a number of products, such as tin, sought after by both Europe and the surrounding Asian countries.35

It was in the State of Perak that they first intervened. In 1874 representatives of the British Government and the Chief of Perak concluded the Pangkor Engagement whereby it was agreed that "the Sultan received and provide residence for a British officer to be called Resident, who shall be accredited to the court and whose advice must be asked and acted upon on all questions other than those touching Malay religion and custom".36 This step marked the introduction of the system of indirect rule - the Residential System - into the Malay States. In 1875 a British Resident was sent to the State of Selangor. The Sultan had been advised (or rather induced) to ask for assistance and in January 1875 the Governor of the Straits Settlements issued a proclamation that the Sultan "has asked for an English officer to assist him to open up and govern the country" and that the Governor had acceded to his request.37 In 1874, following a request by the Dato' Klana of the State of Sungei Ujong, a Resident was sent to that State; and in 1889 when the Rulers of a


number of petty States around Sungei Ujong agreed to enlarge their confederation so as to include Rembau and Tampin and to rename the confederation as "Negeri Sembilan" (literally, this means "Nine States) they expressed their desire "that they may have the assistance of a British Resident in the administration of the government of the said Confederation and they undertake to follow his advice in all matters of administration other than those touching the Mohammedan religion".38 In the State of Pahang the Resident was introduced in response to a letter from the Sultan inviting a British officer to "assist in matters relating to the government of our country on a similar system to that existing in the Malay States under British protection". The Sultan also stated "In asking this we request that the British Government will assure to us and our successors all our proper privileges and powers according to our system of government and will understand that they will not interfere with the old customs of our country which have good and proper reasons and also with all matters relating to our religion".39

Prior to these interventions the Sultans were absolute monarchs. But the introduction of the Residents marked the beginning of the gradual diminishing of their authority. In theory the British Resident was there to advise the Sultan by whom the government was to be carried on. In practice, however, the Malay Sultan was persuaded to leave the administration of the country to the Resident and the Governor. So far as the general machinery of the government was concerned the functions of the Ruler were to validate State documents by the addition of his seal, to advise as to the feelings among the Malays, to endorse reforms by his personal example and to provide a ceremonial focus for the government of the State. Regulations and Orders in Council were issued in the name of the Ruler but in actual fact he had little control over the contents of the documents he sealed. They were all drafted in the Resident’s office and presented to him for formal ratification.40

An important instrument of the Residential System was the State Council which the British considered as providing a constitutional framework for the government of the State.41 The first State Council was established in Perak which held its first meeting in Kuala Kangsar on 10 September 1877. Later in the same year the Selangor State Council was established. The Sungei Ujong State Council was founded in 1883. In 1889 the Negeri Sembilan (Old) State Council was established. The Sungei Ujong State Council and the Negeri Sembilan (Old) State Council were amalgamated in 1895 to form the new Negeri Sembilan State Council. The Pahang State Council was established in 1889.

In theory members of the Council were appointed during the pleasure of the Sultan; in effect they were appointed for life. They were appointed by the Sultan after their names had been approved


by the Governor.42 In practice they were nominated by the Resident, although the likelihood was that the choice was made in consultation with the Sultan. The Council was composed of small intimate bodies of Malay chiefs, Chinese leaders and British administrators.43 Council meetings were presided by the Sultan or his Regent but in practice it was the Resident who dominated the proceedings.44

Originally the principal function of the Council was advisory in nature. But soon it began to assume other important functions. It was the legislative body of the State: legislation took the form of Orders or Regulations passed by the "Sultan in Council". It was also the final Court of Appeal: death sentences required its ratification and the Sultan’s warrant before they could be carried out. The Council was also the chief executive body: changes in the tariff structure, Malay pensions and appointments; the jurisdiction and discipline of headmen and all other matters relating to local government, the appointment of Kathis and the administration of Muslim personal law were all dealt with by the resolutions of the Council.45 Although in practice the Resident dominated the Council, in legal theory, it was the assent of the Ruler which provided for the legal force of any executive or legislative act.46

It is important to note however, that despite the important functions carried out by the State Council, they were established merely by practice and not by law.47

In practice, the competence of the Council was limited by the final authority of the Governor and the Secretary of State. The Governor, sometimes acting on his own initiative and sometimes under instructions from the Secretary of State, had the power to disallow or compel any legislation or executive action. The Council minutes were forwarded to Singapore and were not acted upon till they had been approved by the Governor. Legislation of importance was submitted to the Governor in draft before introduction in the Council.48

The Treaty of Federation, 1895

The next important development in the constitutional history of Malaysia was the signing of the Treaty of Federation49 in 1895. It was the British who initiated the idea, and there were several reasons for the move. First of all there was lack of uniformity within the four protected States. In each State the Resident acted independently. Therefore considerable differences occurred in the administration of justice, in taxation and in land settlement, and the laws passed by the several States were often discrepant. The Governor of the Straits Settlements was too pre-occupied with the affairs of the Settlements to direct effectively the activities of the


Residents. Also it was felt that a federation would bring greater efficiency in the administration as officers could be interchangeable between one State and another. Furthermore more, it was intended that the richer States with greater resources should help in the development of the poorer States.50

The Treaty of Federation contained only five articles. Whether it was by design or otherwise the treaty exemplified a piece of loose and casual drafting. The treaty constituted the four States of Perak, Selangor, Negeri Sembilan and Pahang as "a Federation to be known as the Protected Malay States to be administered under the advice of the British Government".51 Under the Treaty the Rulers of the four States agreed to accept a British officer, styled the Resident-General, as the agent and representative of the British Government under the Governor of the Straits Settlements, and to follow his advice "in all matters of administration other than those touching the Mohammedan Religion". Article 3 of the Treaty, however, assured the Rulers that the arrangements "did not imply that any one Ruler or Chief shall exercise any power or authority" over any other State. By Art. 5 the Rulers agreed to aid one another in time of need in terms of men, money or other respects as the British Government might advise. The last limb of this article assured that nothing in the treaty was intended to curtail any of the existing powers or authority held by the Rulers in their respective States.

The first criticism that can be made here concerns the fact that the treaty purported to create a federation. A federation as is generally understood by lawyers is a system of government in which there is a division of powers between the Federal and State Governments, yet under which each government is, in its own sphere, independent.52 Yet looking at the treaty one finds that it did not define the powers of the Federation nor of each of the four component States. In fact, in the first place, no proper Central Government was established under the treaty. And, far from apportioning powers, the treaty, by articles, expressly preserved all existing State rights. It was of little surprise therefore when in the case of Ho Chik Kwan v. British Resident Selangor53 the Court held that the treaty did not confer on the "Federation" the status of a separate State having an existence independent of the constituent States. The term "Federation" as used in the treaty was, therefore, a legal misnomer. But be that as it may, the treaty nevertheless did create some kind of a loose Federation.

Another criticism is that, whether or not it was done deliberately, no attempt was made in the Treaty to define clearly the relationship between the Sultans and the Resident General.


Yet whatever misgivings there were about the treaty, from the point of view of constitutional history, it has its significance; for it is here, in this treaty, that the concept of federation was first introduced to the Malay States.

What were the effects of the Treaty on the States? In practical terms the Federation affected the legislative function of the State Councils. For the purpose of achieving uniformity of laws, a federal officer styled "Legal Adviser" was appointed to draft laws for the States. Draft Enactments were drawn up by the Legal Adviser in consultation with the Resident-General and were then submitted to the Governor (who in the following year after the signing of the Treaty became, ex-officio, the "High Commissioner" of the Federated Malay States) for approval and afterwards presented to the State Councils for discussion and acceptance. In practice there was really no free discussion as otherwise uniformity of legislation throughout the Federation would have been difficult to attain.54 In effect the State Councils were now nothing more but mere "rubber stamps".

But there were also the advantages. Federation brought about co-operation and co-ordination between the States and these led to prosperity. Gradually Federal Departments grew up with uniform powers, uniform regulations, and uniform terms of service. Under the Federation were started the Railways Department, the Labour Department, the Agriculture Department, the Forest Department, and the Survey Department. British officers in the Malay States were constituted into a unified civil service.55

One consequence of the Federation was that the authority of the Residents was diminished. Gradually powers were taken away from them and transferred to the Heads of the Federal Departments who administered them subject to the authority of the Resident-General. The result was that the Resident General by virtue of his control over the Residents and Heads of the Federal Departments became a powerful figure wielding great executive powers.56

One significant development as a result of the Federation was the introduction of the Rulers Conference (or Durbar) which was meant to be purely consultative and advisory. The first conference took place in July 1897. This meeting was significant in that it was the first occasion when Rulers from the four States had met in an atmosphere of peace and friendship.

The 1909 Agreement


In 1909 an agreement57 was concluded between the British Crown and the Rulers of the Federated Malay States for the establishment of a Federal Council. The setting up of this Council was in response to the dissatisfactions and disappointments expressed by the Malay Rulers over the fact that the powers which the States once had were now concentrated in the hands of the Federal authorities and the Resident-General; that prerogatives of the State Councils in administration were largely nominal; and that in matters of legislation they were merely registering bodies.58

This agreement, like the Treaty of Federation, was also loosely drafted. The preamble to the agreement stated that it was to fulfil the desire of the Rulers that "means should be provided for the joint arrangement of all matters of common interest to the Federation or affecting more than one State and for the proper enactment of all laws intended to have force throughout the Federation or in more than one State."

The first Article established the Federal Council. Articles 2-8 dealt with the membership and procedure of the Council. It was composed of the High Commissioner, the four Sultans, their respective Residents, the Resident-General and four nominated members representing business interests.

Article 9 appears to have been vaguely worded. It provided:

Laws passed or which may hereafter be passed by the State Councils shall continue to have full force and effect in the State except in so far as they may be repugnant to the provisions of any law passed by the Federal Council and questions connected with the Mohammedan religion, mosques, political pensions, Native Chiefs and Penghulus and any other questions which in the opinion of the High Commissioner affect the rights and prerogatives of any of the Rulers or which for other reasons he considers shall properly be dealt with by the State Councils shall be exclusively reserved to the State Councils.

Article 10 declared that the draft estimates of revenue and expenditure should be considered by the Federal Council but should immediately on publication be communicated to the State Councils. Article 11 (saving the existing powers and authority of the Rulers) was identical with the concluding part of the Treaty of Federation.It is to be observed that Art. 9 purported to provide for a division of powers between the Federal Council and the State Councils. But a curious aspect of the drafting of the agreement is that neither in this Article nor anywhere else in the agreement was legislative power


expressly conferred on the Council. That the Federal Council did have the power to legislate - and in practice it did exercise such powers - seemed to have been conveniently left to be a matter of inference. One legal authority came to the conclusion that the fact that the agreement did not expressly define the legislative powers of the Council meant that the Council had no power to pass laws, and that consequently no Enactment passed by the Federal Council under the agreement possessed any legal force in any State "save from the fact that the Ruler of that State had assented to it".59 It was not until 1927 when under a separate agreement60 the Council was expressly granted legislative powers. But assuming that Art. 9 conferred legislative powers on the Council, the powers so conferred were very wide indeed for, as provided, the Council may legislate on any matter at all, the only matters excepted were those few specified by the article. It has been said that the Federal Council "by an invisible grant received almost unlimited legislative powers".61Article 10 gave the Federal Council absolute control of the finances of the States. Article 11 was meaningless in view of Arts. 9 and 10.But whatever misgivings there were with regard to the drafting and provisions of the agreement, the practical effect of the agreement was, instead of enhancing the status of the Sultans and State Councils, to reduce further their importance and to enhance the powers of the Resident-General. Though the Sultans were made members of the Federal Council, the terms of their membership were not in keeping with their status and dignity. In the Council it was the High Commissioner who presided. The Rulers were mere ordinary members each with one vote. They had no veto and the Council could legislate whether they were present or not. It was the High Commissioner who signed the legislation as President of the Council. The assents of the Rulers were not required. Moreover, with the creation of the Federal Council, the legislative power had in fact passed out of the hands of the Sultan and State Councils except for matters of trivial importance.62In 1927, by another agreement63 between the Rulers and the British Crown, the Federal Council was reconstituted. The Rulers were removed from the Council to enhance their prestige and dignity.64 The form of legislation was also changed. While in the past the enacting clause ran "It is hereby enacted by the Rulers of the Federated Malay States in Council" the new enactment clause followed the model of the Imperial Parliament and read "It is hereby enacted by the Rulers of the Federated Malay States by and with the advice and consent of the Federal Council". It was also provided that every Bill should be signed by each of the Rulers before coming into force. The agreement explicitly stated that "the Council shall pass all laws intended to have force throughout the Federation". The membership of the Council was increased to twenty-four: thirteen officials, the heads of the Federal Departments and eleven non-officials representing the various communities and interests.


DecentralizationWith the administration gradually becoming more and more centralized in the office of the Resident-General, and with the Rulers voicing out their displeasure over this tendency, steps towards decentralization were taken in order to appease them. In 1910 the Resident-General’s title was changed to that of Chief Secretary with a view to trim some of his powers. Further steps at decentralization were proposed in 1925. The High Commissioner, Sir Lawrence Guillemerd, suggested the abolition of the post of Chief Secretary, whose powers would be transferred to the Residents. The States were to have control over all Government Departments except Railways, Customs and Excise, Post and Telegraphs which would remain federal.65 The Rulers accepted these proposals, but they were opposed by the business community. As a result there was a compromise and only a limited instalment of decentralization was introduced by granting the State Governments control over some sources of revenue and greater freedom in the allocation of the revenue grant received from the Federal authority.66Further steps at decentralization were taken in 1933. The State Councils, which had been in decay were reconstituted and non-Malay interests were given representation on them. The powers of the Chief Secretary were passed to the Residents and many Departments, including the Agriculture, Education, Medical Services and the Public Works Department, were transferred to the individual States.67 In 1935 the post of Chief Secretary was abolished and in its place the post of Federal Secretary, a post of lower status, was constituted. By the time war seemed imminent in 1939-40 some degree of decentralization had been carried out though the Federal authorities still controlled most of the Departments. State Governments had full control over the Medical and Public Works Departments and partial control over the Agriculture, Education, Forestry and Mining Departments. State Councils had also acquired the power to legislate on certain subjects and had much more initiative in spending revenue.68The Constitutional Position of the Malay RulersBefore moving on to the Unfederated Malay States it is proposed at this stage to consider briefly the constitutional position of the Malay Rulers. Before the British intervention in the administration of their States they were undoubtedly absolute monarchs, and this was, from time to time, affirmed by the Courts.69 The Rulers ruled by their will alone without any executive or legislative Council. Legislative and executive authority were vested in the Ruler alone. The law followed were Islamic law and customary law.70 The more important acts of the Ruler, whether legislative or executive, were embodied in Royal Proclamations known as Titahs.71But what effect did the various treaties have on the Sultans, in particular, the introduction of the Residential System, the State Councils and, later, the Federal Council? We have seen that as a result of these treaties the Sultans ceased to be the de facto rulers


of their States. But what about their position de jure? Their constitutional position was also summarized by the Privy Council in the subsequent case of Pahang Consolidated Company Ltd. v. The State of Pahang72 where Lord Tomlin held as follows:

The constitutional position in Pahang so far as it is material to the matters under consideration in this Appeal may be summarized thus:

(1) The Sultan of Pahang is an absolute ruler in whom resides all legislative and executive power, subject only to the limitations which he has from time to time imposed upon himself in the circumstances hereinafter mentioned.

(2) In 1888 he agreed to administer his country with the advice of a British Resident.

(3) In 1889 he appointed and there has since existed a State Council, but this is only an advisory body, and though since 1889 laws for the State have been enacted by the Sultan in Council, the legislative power has remained in the Sultan acting with the advice of the British Resident.

(4) In 1895 the Federation of the Malay States was first formed by Treaty between the States, but that Treaty did not curtail any of the powers of this Ruler of the State of Pahang within his State.

(5) By an agreement made in 1909 a Federal Council was constituted, of which the Sultan of Pahang was a member, and it was agreed that laws passed or to be passed by the State Councils should continue to have full force and effect in the States, except in so far as they might be repugnant to any law passed by the Federal Council, and that nothing in the agreement was intended to curtail any of the powers or authority held by any of the Rulers in their respective States.

(6) By a further agreement in 1927 the Federal Council was reconstructed in such a manner that (inter alia) the Sultan of Pahang


himself no longer sat on it, but was represented by the British Resident of Pahang, and it was provided (a) that the Federal Council should pass all laws intended to have force throughout the Federation; (b) that laws passed by such Council should be enacted in the following words: "It is hereby enacted by The Rulers of the Federated Malay States by and with the advice and consent of the Federal Council" and should be signed by each of the Rulers before coming into force; (c) that any law passed or which might thereafter be passed by a State Council should continue to have full force and effect in such State except insofar as it might be repugnant to the provisions of any law passed by the Federal Council; and (d) that nothing in the agreement was intended to curtail any of the powers or authority held by any of the Rulers in their respective States.

IV - The Unfederated Malay StatesThe States which came to be called the "Unfederated Malay States" were Perlis, Kedah, Kelantan, Trengganu and Johore. Unlike the Federated Malay States, these States had no special ties among themselves. Kedah, Kelantan, Perlis and Trengganu came under British protection in 1909 when Siam by treaty 73 transferred to Britain her sovereignty over these territories, and, under a series of agreements, a British Adviser was appointed to each State. Johore had confided the control of its foreign affairs to the care of Great Britain by a treaty74 in 1885 but it was not until 1914 that an agreement75 was concluded with the Sultan under which a British officer was appointed as General Adviser.Let us now consider the constitutional developments in each of these States up to the outbreak of the Second World War. JohoreThe status of Johore after the 1885 Treaty came into question in the well-known case of Mighell v. Sultan of Johore76 in which the British Courts upheld the sovereign independence of the Sultan. In this case the Sultan, who was sued for breach of promise, pleaded that the British Courts had no jurisdiction over his sovereign person. The lower Court requested the opinion of the Colonial Office as to the status of Johore and was informed that "Johore was an independent State and territory in the Malay Peninsula" and the Sultan exercised the usual attributes of a sovereign ruler.


Johore was the first Malay State to have a written constitution which was granted by the Sultan in 1895.77 The Constitution provided for the sovereign, his election and his State allowance and for succession to the Crown. It also provided for the Constitution of the Council of Ministers and Council of State, for the religion of the State and for the basis of law to be administered in the Courts of justice. A further Council was added in 1912 called the Executive Council. The Council of Ministers acted as a Privy Council or cabinet. The Executive Council which was presided over by the Sultan performed functions similar to those of the Executive Council in the Straits Settlements and initiated legislation. The Sultan might act contrary to the advice of the Council but must record in writing the reasons for so doing. The State Council was presided over by the Prime Minister and acted principally as a legislative body. The force of its Enactments was derived from the Sultan’s assent thereto, as provided by the Constitution. KedahIn 1923 the Sultan of Kedah concluded a treaty78 with the British Crown whereby the Sultan accepted a British Adviser on the usual terms. Malay was made the official language and the State Council, which had earlier been established in 1905 by an edict of the Sultan, was to consist of the Sultan, as President, three other Malay members and the British Adviser. The Sultan and the High Commissioner could by mutual consent appoint additional members.The powers of the Council included the passage of all legislation, subject to the Sultan’s approval; the passage, on its own authority, of all rules, regulations and by-laws; and the supervision and control of the finances of the State.In the case of S.K. Pillai v. State of Kedah79 Stevens J commented on the juristic position of the Sultan of Kedah as follows:

Kedah is a Malay State, governed in accordance with Mohammedan law and custom. Its ruler’s prerogrative (if I may use the term) must, I think, be assumed to be limited only by the established adat of the country, and it is common knowledge that such rulers, unless and until they surrender their powers by treaty or otherwise, exercise almost despotic powers over the people residing within their dominions. It is true that by the treaty now in force with H.M. the King the Sultan of Kedah has agreed to permit a British officer to reside in his territories, and to act on the advice of his ministers. The result, therefore, of the treaty has been to secure that the Sultan exercises his prerogative on the advice of the British Adviser whose position in this respect is not unlike that of a Minister of the British Crown.


PerlisThe agreement80 between the British Crown and the Raja of Perlis for the appointment of a British Adviser was concluded in 1930. The supreme authority of the State was vested in the Raja in Council. The Council consisted of the Ruler (as President), the British Adviser, a Malay Vice-President, and three other Malay members, usually the heads of government departments. Its functions were to enact legislation and to consider important administrative matters. In practice, however, the administration of the State was in the hands of the British Adviser whose function was to tactfully "advise" the Ruler and his Council as to how to run the State.81KelantanIn Kelantan the agreement82 for the appointment of British Adviser was concluded in 1910. The agreement required the Sultan to follow the advice of the Adviser in all matters of administration other than those touching the Muslim Religion and Malay custom.The British Adviser and his staff actually ran the State while the Sultan formally possess the Sovereignty which the British Courts had stoutly upheld.83 In Duff Development Co., Ltd., v. Government of Kelantan and Anor.84 the Secretary of State for Colonies then, Mr. Winston Churchill, certified that the Sultan of Kelantan was the sovereign Ruler of an independent State and therefore immune from the jurisdiction of the English Courts. The control of legislation was vested for practical purposes in the hands of the British Adviser.85The State Council consisted of fifteen appointed members almost exclusively Malay, under the presidency of the Sultan. The Advisor was a member of the Council. TrengganuThe agreement86 with Trengganu was also made in 1910. Provision was made only for the appointment of a British Agent. The appointment of a British Adviser with the customary powers was effected by a supplementary agreement87 in 1919. Like Kelantan, it was the British Adviser and his officers who held the commanding positions while actual authority, theoretically, was vested in the Ruler.88 The control of legislation, for all practical purposes, was in the hands of the Adviser.89Trengganu had a written constitution since 1911 and was the second Malay State to have a written constitution.90 The Constitution made provisions for the Ruler, his Ministers and a State Council. The State Council’s functions were "to assist the Raja and the Cabinet of Ministers in governing the country and its subjects in the way of making, adjusting and adding to the laws and regulations other than those concerning religion and the Mohammedan Law..."The State Council consisted of fifteen appointed members, almost all Malays with the Mentri Besar (Chief Minister) presiding. Though the Adviser was not a member of the Council, he in fact attended whenever possible all meetings of the Council and invariably was asked to give his advice before any resolution was passed.91


V. - Malayan UnionThe Japanese invaded Malaya in December 1941 and with the fall of Singapore in February 1942, the whole area came under Japanese control until the surrender in 1945. When the British resumed control the region came under the British Military Administration until the creation of the Malayan Union.During the Japanese occupation plans were made for the future constitutional structure of Malaya after the cessation of hostilities. In 1946 two statements of British Government policy were published.92 The statements proposed to establish a Malayan Union comprising the Federated Malay States, the Unfederated Malay States and the Straits Settlements of Malacca and Penang. Singapore, because of its large entrepot trade and its special economic and social interest, was to be made a separate colony. There was also the proposal to extend citizenship to all persons born in the Union or Singapore.Under the Malayan Union Scheme the Federated Malay States, the Unfederated Malay States and the Settlements of Malacca and Penang were to be administered and governed together under a Governor appointed by the British Government.93 The general executive power would be exercised by the Governor who would be advised by an Executive Council consisting of the Chief Secretary, the Attorney General and the Financial Secretary, together with seven other members to be appointed by His Majesty or in pursuance of his Majesty’s instructions.94 The general legislative power would be vested in the Governor acting with the advice and consent of a Legislative Council consisting of the Governor, ex-officio members, and official instructions of His Majesty.95 Legislative powers for the States and matters declared to be of a purely local nature or other powers delegated by the Legislative Council would be vested in the State Council consisting of the Resident-Commissioner, ex-officio members, nominated official and unofficial members appointed by the Governor and elected members. The State Council would also have powers of administration but only to the extent prescribed by law of the Union or allocated to it by the Governor in Council. Any laws passed by the State Council would require the assent of the Governor or His Majesty; would be liable to repeal or amendment by the Legislative Council; or would be void if repugnant to the laws of those passed by the Legislative Council.96In each Malay State there would be established a Malay Advisory Council consisting of the Sultan as President and other members appointed by him. The functions of the Council would be to advise the Sultan on matters affecting the Muslim religion and on the making of laws relating solely to the Muslim religion. No Bill, however, would become law until it had received the assent of the Sultan after approved by the Council of Sultans.97The Council of Sultans would consist of the Governor as President, Their Highnesses the Rulers of the Malay States, and the Chief


Secretary, the Attorney General and the Financial Secretary. The Council’s functions were to consider legislation relating solely to matters of Muslim religion, and to advise the Governor on any matter he might refer to the Council or which any Ruler might propose for discussion.98In order to bring about the establishment of the Malayan Union Sir Harold MacMichael was sent to Malaya from London to get each of the Sultans to agree to the proposals and to sign an agreement under which each of the Sultans granted to the British Crown full power and jurisdiction within his State and territory. He was given the power to decide who was competent to sign on behalf of each State; he could confirm a Ruler in his position or replace him with a candidate whose relations with the Japanese had been less close, or who was in other ways more acceptable to the British Government.99 By December 1945 he was able to conclude the agreements with all the Rulers (these agreements were subsequently known as the MacMichael Treaties).100This accomplished, the British Parliament then passed the Straits Settlements (Repealed) Act 1946101 which disbanded the Straits Settlements. Malacca and Penang became separate "Settlements" of the Malayan Union by virtue of the Malayan Union Order in Council of 1946. Labuan was merged with North Borneo which became a Crown Colony. Singapore together with the Cocos Islands and Christmas Island were jointly constituted as a separate colony under the name of the Colony of Singapore.The Malayan Union was constituted by the Malayan Union Order in Council 1946 and the Royal Instructions dated 27 March 1945, known collectively as the Malayan Union Constitution. Part of this Order in Council came into operation on 1 April 1946, and the remainder was never brought into operation at all and on 1 February 1948, the whole Order was revoked and replaced by the Federation of Malaya Order in Council 1948 establishing the Federation of Malaya. The Royal Instructions came into operation on 1 April 1946, but they too were never fully effective and were later revoked on 1 February 1948.The Malayan Union constitution was never fully implemented because of strong Malay opposition. The basis of Malay objections was a revulsion against what was regarded as a deprivation of sovereignty and a fear of non-Malay domination as a result of the proposed new citizenship.102 Accordingly in July 1946, a Working Committee was appointed by the Governor the Rulers of the Malay States and representatives of the United Malay National Organization (UMNO),103 to work out in detail fresh constitutional arrangements acceptable to the Malays which at the same time would preserve the fundamental objectives of the British Government, namely:

the establishment of a strong central government with control over all matters of importance to the progress


and welfare of the country as a whole, and the creation of a form of common citizenship which will be open to all those who regard Malaya as their real home and as the object of their loyalty.104

The proposals of the Working Committee were published on 24 December 1946,105 and were conditionally approved by the British Government, subject to further discussions. In the same month the Governor appointed a Consultative Committee of ten non-officials, the majority of whom were influential representatives of the non-Malay communities. It was instructed to receive representations either verbally or in writing from all individuals, communities and groups in Malaya on the proposals for a Federation. The Consultative Committee found that generally most of the proposals were acceptable. Further discussions were arranged with representatives of the Rulers and of UMNO by reconvening the Working Committee. This reconvened Working Committee considered the amendments proposed by the Consultative Committee, and reported in turn to a Plenary Conference of the Government, Their Highness the Rulers and other Malay representatives. Lastly, the approval of the British Government was sought, and the Revised Constitutional Proposals was published in July 1947.106 The essence of the revised proposals was that the Malayan Union should be abolished and a Federation established by means of an agreement; new State Agreements would be made with each of the Rulers and ratified by the State legislatures; and thereafter His Brittanic Majesty would have jurisdiction in the Malay States only in respect of external affairs and defence, and for the purpose of appeals to the Privy Council.Endnotes:

1 Maxwell and Gibson, Treaties and Engagements Affecting Malay States and Borneo (London: Jas Truscott & Son Ltd., 1924), pp. 95-96.

2 Ibid., pp. 98-100.

3 Hertslet’s Treaties, Vol. 1, p. 359.

4 A Collection of Treaties and Other Documents Affecting the States of Malaysia 1761-1963, Edn., J. de V. Allen, A.J. Stockwell and L.R. Wright (London: Oceana Publications Inc.), pp. 288-293.

5 Ibid., pp. 28-29.

6 Ibid., pp. 30-32.


7 Ibid., pp. 37-41.

8 Ibid., pp. 377-378.

9 Ibid., pp. 399-400.

10 29 & 30 Vic. c. 115.

11 Ibid., s. 2.

12 Ibid., s. 3.

13 SI 1911, 17 February 1911.

14 Ibid., Art. VII.

15 Ibid., Art. III.

16 These Instructions were dated 17 February 1911 and, together with the Letters Patent (ibid.), were published in the Gazette of 6 April 1911. See Braddell, Law of the Straits Settlements (n. 17 below), app. 111.

17 Roland St. John Braddell, The Law of the Straits Settlements (Kuala Lumpur: Oxford University Press, 1982), p. 97.

18 SI 1911 (ibid.), Art. X.

19 Ibid., Art. XI.

20 Ibid., Art. XIII.

21 Ibid., Art. XIV.

22 Ibid., Art. XV.

23 Ibid., Art. XVI.

24 Instructions dated 17 February 1911 (ibid.), Art. II.

25 Ibid., Art. XI.

26 Ibid., Art. XIII.

27 SI 1911 (ibid.), Art. VIII.

28 Government of the Straits Settlements Act (29 & 30 Vic. c. 115), proviso to s. 3.


29 R. O. Winstedt, The Constitution of the Colony of the Straits Settlements and of the Federated and Unfederated Malay States (London: Royal Institute of International Affairs, 1934), p. 4.

30 Ibid.

31 Standing Rules and Orders of the Legislative Council. See Appendix III of Braddell, Law of the Straits Settlements (ibid.)

32 SI 1911 (ibid.), Art. IX.

33 Instructions dated 17 February 1911 (ibid.), Art. XXIV.

34 SI 1911 (ibid.), Art. X.

35 Jagjit Singh Sidhu, Administration in the Federated Malay States (Kuala Lumpur: Oxford University Press, 1980) p. 5.

36 Maxwell and Gibson, Treaties and Engagements (ibid.), pp. 28-29.

37 Ibid., p. 36.

38 Ibid., p. 63.

39 Ibid., pp. 67-69.

40 Emily Sadka, The Protected Malay States 1874-1895, (Kuala Lumpur, 1968), p. 173.

41 Emily Sadka, "The State Councils in Perak and Selangor, 1877-1895", Papers on Malayan History, Edn. K.G. Tregonning (Singapore: Journal of South-East Asian History, 1962), p. 89.

42 Ibid., p. 101.

43 Ibid., p. 95.

44 Sadka, The Protected Malay States (ibid.), p. 186.

45 Ibid., pp. 184-185.

46 Roland St. John Braddell, The Legal Status of the Malay States (Singapore: Malaya Publishing House Ltd., 1931) p. 13.


47 Ahmad Ibrahim, "Legislation in the Malay States", [1977] 2 MLJ p. ms lxxiii. But according to Dr. P.L. Burns in his Ph.D Thesis, University of London (unpublished), entitled "Constitutional Developments in the Federal Malay States [1895-1916]" the State Councils of Perak and Selangor were established by the titah of the respective Rulers.

48 Sadka, The Protected Malay States (ibid.), p. 185.

49 Maxwell and Gibson, Treaties and Engagements (ibid.), p. 70.

50 Sidhu, Administration in the Federated Malay States (ibid.), pp. 37-38.

51 By an executive instruction in 1896 the Resident-General instructed that the Federation should be called "Federated Malay States" (Selangor Government Gazette No. 584, 11 September 1896, p. 622).

52 K.C. Wheare, Federal Government, (London: Oxford University Press, 1953), pp. 16-19.

53 [1932] MLJ p. 99.

54 Federal Council Paper No. 39 of 1925, para. 3, cited by Braddell, Legal Status of the Malay States (ibid.), p. 14.

55 Winstedt, Constitution (ibid.), pp. 10-11.

56 Sidhu, Administration in Federated Malay States (ibid.), pp. 55-56.

57 Maxwell and Gibson, Treaties and Engagements (ibid.), pp. 71-72.

58 Sidhu, Administration in the Federated Malay States (ibid.), p. 78.

59 Braddell, Legal Status of the Malay States (ibid.), p. 16.

60 Allen, Stockwell, Wright, Collection of Treaties (ibid.), pp. 72-75.


61 R. Emerson, Malaysia: A Study in Direct and Indirect Rule (Kuala Lumpur: University of Malaya Press, 1964), p. 148.

62 Ibid., pp. 149-150.


64 Emerson, Malaysia (ibid.), p. 173.

65 Ahmad Ibrahim, "Malaysia as a Federation", Journal of Malaysian and Comparative Law [1974], p. 4.

66 N.J. Ryan, The Making of Modern Malaya (Kuala Lumpur: Oxford University Press, 1963), p. 155.

67 Ahmad Ibrahim, "Malaysia as a Federation" (ibid.), p. 4.

68 Ryan, The Making of Modern Malaya (ibid.), pp. 160-161.

69 See eg. The Pahang Consolidated Company Ltd. v. State of Pahang, [1933] MLJ p. 247; Privy Council Appeal No. 27 of 1932.

70 Ahmad Ibrahim, "Legislation in the Malay States" (ibid.), p. ms lxiii.

71 Braddell, Legal Status of Malay States (ibid.), p. 12.

71A FMS Law Rpts. Vol. II, 70 at pp. 82-3.

72 [1933] MLJ, p. 247; Privy Council Appeal No. 27 of 1932.

73 Allen, Stockwell, Wright, Collection of Treaties, pp. 332-344.

74 Ibid., pp. 72-74.

75 Ibid., pp. 111-112.

76 [1894] 1 QB 149.

77 Laws of the Constitution of Johore, Malayan Constitutional Documents, Vol. 2, pp. 7f.


78 Maxwell and Gibson (ibid.), p. 104

79 [1927] 6 FMSLR 160.




83 Emerson, Malaysia (ibid.), pp. 262-263.

84 [1924] AC 707.



87 Ibid., pp. 492-493.

88 Emerson, Malaysia (ibid.), pp. 262-263.

89 Ibid., p. 263.

90 Laws of the Constitution of Johore, Malayan Constitutional Documents, Vol. 2, p. 383f.


92 Malayan Union and Singapore, Cmnd. 6724 of 1946; Malayan Union and Singapore: Summary of Proposed Constitutional Arrangements.

93 Malayan Union and Singapore: Summary of Proposed Constitutional Arrangements, Cmnd. 6749 of 1946, paras. 2-3.

94 Ibid., para. 4.

95 Ibid., para. 6.

96 Ibid., para. 9.

97 Ibid., para. 8.

98 Ibid., para. 7.


99 R.H. Hickling, An Introduction to the Federal Constitution (Kuala Lumpur: Malaysian Law Publishers, 1982), p. 7.

100 Great Britain, Report on a Mission to Malaya: October 1945-January 1946 by Sir Harold MacMichael, Colonial No. 194 (London, 1946).

101 9 and 10 Geo. 6, c. 37.

102 Federation of Malaya, Summary of Revised Constitutional Proposals, Cmnd. 7171, para. 3.

103 This Malay party was born out of Malay opposition to the Malayan Union. In March 1946 a delegation from forty-one Malay associations met in Kuala Lumpur and they resolved that the new all-Malay political associations be named the "United Malays National Organization" (UMNO). Dato Onn became UMNO’s first President.

104 British Malaya, Vol. XXI, No. 9 (January 1947), p. 137.

105 Malayan Union, Constitutional Proposals for Malaya; Report of the Working Committee Appointed by a Conference of His Excellency the Governor of the Malayan Union, Their Highnesses the Rulers of the Malay States, and the Representatives of the United Malays National Organization (Kuala Lumpur, 1946).

106 Cmnd. 7171.



(PART 2)

by

Y.A. Tuan Mohd. Hishamudin bin Mohd. Yunus

VI - Federation of Malaya Agreement 1948

The Federation of Malaya, 1948

The Federation of Malaya came into existence on 1 February 1948. The following were the steps taken to bring the Federation into being. Firstly there was promulgated the Federation of Malaya Order-in-Council 1946107 which revoked the Malayan Union Order-in-Council and simultaneously conferred a written constitution on each of the Settlements of Malacca and Penang. Secondly separate new agreements108 were negotiated between His Britannic Majesty and Their Highnesses The Rulers under which the Ruler of each State agreed to govern his State in accordance with a written constitution establishing a legislature (called Council of State) and a State Executive Council. Thirdly, an agreement - the Federation of Malay Agreement, 1948109 - was concluded between His Britannic Majesty and Their Highnesses the Rulers establishing a Constitution of the Federation with effect from 1 February 1948. The Constitution provided for a federation consisting of the Malay States and Malacca and Penang, with a strong central government. Fourthly, the legislature of each Malay State passed enactments110 ratifying the provisions of the State Agreement and the Federation of Malaya Agreement 1948, and declaring that they should have the force of law throughout the State.

The Head of the new Federal Government was the High Commissioner who had wide legislative and administrative powers.111 Under the Federation Agreement a Federal Legislative Council was set up consisting of the High Commissioner as President, three ex-officio members (the Chief Secretary, the Attorney General and the Financial Secretary), eleven Official Members and thirty-four Unofficial Members.112 It was provided that the Federation Government should have powers to make laws with respect to all the matters set out in the Second Schedule to the Agreement,113 and it would seem that it was the intention to make the Schedule as comprehensive as possible (144 subjects). But the High Commissioner was given authority to override Legislative Council decisions by refusing his assent to a Bill or, if he considered it expedient in the interests of public order, public faith, or good government of the Federation, by declaring that any Bill or motion


not passed by the Council within such time and in such form as he considered reasonable and expedient should nevertheless have effect as if it had been passed by the Council.114

The Agreement also provided for the establishment of a Conference of Rulers consisting of all the Rulers of the Malay States.115 It was contemplated that the Conference would consider draft legislation, new draft salary schemes or major amendments to existing salary schemes, any draft scheme for the creation or major reorganization of any department or service of the Federal Government, and major changes in immigration policy.116

The administrative authority of the High Commissioner extended to all subjects except those which became the responsibility of the States.117 Under the Agreement there was established a Federal Executive Council to aid and advise him in the exercise of his functions118 but he could act in opposition to the advice given to him by members of the Council.119 The Second Schedule to the Agreement provided for the compulsory delegation of executive authority to the States and Settlements over a number of matters.

The States had very limited legislative powers. According to the Agreement the Councils of State could pass laws on any subject omitted from the Second Schedule. They could also legislate on matters relating to the Muslim religion or the custom of the Malays and on any other subject in respect to which by virtue of a law made by the Federal Legislative Council they were for the time being authorized to pass laws.120 The Rulers had reserved powers in respect of State affairs similar to those of the High Commissioner in respect of Federal affairs.121 State administrations under Menteri Besar (Chief Minister) were set up in each of the former Unfederated Malay States. There was provision for the establishment of State Executive Councils at meetings of which the Ruler of the State concerned would normally preside. Each Ruler was empowered to act in opposition to the advice given to him by members of the Council if in any case it should in his judgment be right so to do. The State Agreements provided that the prerogatives, powers and jurisdiction of the Rulers would be those which they possessed on the first day of December 1941, subject to the provisions of the Federation Agreement and State Agreements.122 The Rulers undertook to govern their States according to written constitutions123 and accepted the responsibility of encouraging the education and training of the Malay inhabitants of the States so as to fit them to take full share in the economic progress, social welfare and government of the States and of the Federation.124 A British Adviser was appointed in each State and the Rulers undertook to accept the advice of their Advisers on all State Affairs other than those relating to the Muslim religion and Malay custom.125


The settlements of Malacca and Penang were included in the Federation by Order-in-Council.126 There were set up in each Settlement a Settlement Council with legislative powers similar to those of the Councils of State, and a Nominated Council with powers similar to those exercised by the State Executive Councils. The chief executive in each Settlement was the Resident Commissioner. The reserved powers exercised by the Rulers in the States were, in the Settlements, exercisable by the High Commissioner.

Towards Self-government

The 1948 Agreement had, in its preamble, expressed the desire of the United Kingdom Government their Highnesses the Rulers that progress be made towards self-government, and that legislation should be introduced as soon as circumstances permitted for the election of members to the Federal Legislative Council, the Councils of State and the Settlement Councils. The first major step forward in the Federation’s political advance came in 1951 with the introduction of the "Member" system in the Legislative Council. Under this system nine of the nominated members were made responsible for various departments and functions of government with portfolios such as a Home Affairs, Education, Health, etc. The system was quasi-ministerial, and one of its advantages was that it enabled the conduct of public business to be decentralized from the Chief Secretary and at the same time ensured that all departments of government were directly represented through their respective members in the Federal Legislative Council.

The other important change was that relating to the composition of the various legislature throughout the country and the introduction of elections. As a result of the work of a representative committee which was appointed in July 1953, to recommend further constitutional change the first election to the Council was held in July 1955. The Alliance, consisting of the three political parties, the United Malay National Organization (UMNO), the Malayan Chinese Association (MCA), and the Malayan Indian Congress (MIC), won fifty-one of the fifty-two seats for elected members and Tunku Abdul Rahman, the President of UMNO and leader of the Alliance, became the Chief Minister of the new Government. In addition to the elected members the new Council consisted of the Speaker, appointed by the High Commissioner with the concurrence of the Rulers, the ex-officio members, the Chief Secretary, the Attorney-General and the Financial Secretary, the nine Menteri Besar (Chief Minister) of the Malay States, and one representative of each of the Settlements, and thirty-two appointed members representing various interests. Side by side with these developments arrangements were made for the election of members to the State and Settlement Legislature,


and by the end of 1955 all the Legislature in the country had a proportion of elected members directly representing the people.

VII - The Federal Constitution of 1957

The Alliance Party had as its campaign manifesto the attainment of complete sovereignty - "Merdeka". Following the 1955 election the desire for political independence grew stronger. In August 1955, it was agreed by the United Kingdom Government, the Rulers and the Alliance Government that a conference should be held early in 1956 in London to discuss plans for further constitutional developments. Accordingly in January 1956 a Conference was held in London attended by representatives of the Rulers, the Chief Minister of the Federation and three other ministers, and also by the High Commissioner and his advisers. The conference agreed that an independent constitutional commission be appointed to make recommendations for a form of constitution for a fully self-governing and independent Federation of Malaya within the Commonwealth.

Appointment of the Constitutional Commission (Also Known as the Reid Commission)

The person appointed as Chairman was Lord Reid, a Scottish lawyer and judicial member of the House of Lords. The other member nominated by the United Kingdom was Sir Ivor Jennings, a distinguished constitutional lawyer. The other members were Mr. Justice Malik (nominated by the Government of India), Mr. Justice Abdul Hamid (nominated by the Government of Pakistan) and Sir William McKell (nominated by the Government of Australia).

The terms of reference for the Commission were:

To examine the present constitutional arrangements throughout the Federation of Malaya, taking into account the positions and dignitaries of Her Majesty the Queen and of Their Highnesses the Rulers; and

To make recommendations for a federal form of constitution for the whole country as a single independent, self-governing unit within the Commonwealth based on Parliamentary democracy with a bi-cameral legislature, which would include provision for:


(i) the establishment of a strong central government with the States and Settlements enjoying a measure of autonomy (the question of residual legislative power to be examined by, and to be the subject of recommendations by the Commission) and with machinery for consultation between the central Government and the States and Settlements on certain financial matters to be specified in the Constitution:

(ii) the safeguarding of the position and prestige of their Highnesses as constitutional Rulers of their respective States;

(iii) a constitutional Yang di-Pertuan Besar (Head of State) for the Federation to be chosen from among their Highnesses the Rulers;

(iv) a common nationality for the whole of the Federation;

(v) the safeguarding of the special position of the Malays and the legitimate interests of other communities127

The Commission submitted its report (which contained a draft constitution) to Her Britannic Majesty and Their Highnesses the Rulers on 21 February 1957. A Working Party was jointly appointed by the British Government, the Conference of Rulers and the Government of the Federation to study the Reid Report in detail. The Working Party consisted of the High Commissioner, four representatives of Their Highnesses the Rulers, four representatives of the Alliance Government, the Chief Secretary and the Attorney General. They held a series of meetings between February 22 and April 27 and reported to the Conference of Rulers and to the Federal Executive Council by early May of 1957. Meanwhile the report was being studied in the United Kingdom, and when the Working Party in the Federation had agreed upon its recommendations a delegation consisting of the High Commissioner, the Chief Minister, the Attorney General and representatives of the Rulers and the Government of the Federation went to London to discuss the report and agreed on the final details of the new Constitution. The draft Constitutions contained in the report of the Constitutional Commission were reviewed and amended both in substance and form, but basically the existing Federal Constitution follows the


provisions of the draft constitution recommended by the Constitutional Commission. Report of the Constitutional Commission (also known as the Reid Report)128Parliament and the ExecutiveThere should be established a Federal Parliament for the whole country consisting of the Yang di-Pertuan Agong, the Senate and the House of Representatives. The Parliament established, subject to limitations contained in the Constitution, should be free to pass laws relating to any subject within the Federal sphere. Bills passed by both Houses should require the assent of the Yang di-Pertuan Agong before it can become law.129The Head of State would be the Yang di-Pertuan Agong who should be a constitutional Ruler. He should be elected for five years by the Conference of Rulers. There should also be appointed a Deputy Yang di-Pertuan Agong who will act during the absence of the Yang di-Pertuan Agong. In the exercise of his functions, the Yang di-Pertuan Agong should act in accordance with the advice of the Cabinet, except in certain cases. He should act in his discretion in making the appointment of a Prime Minister, in withholding his assent to a request for the dissolution of Parliament, and in requiring a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Highnesses the Rulers.130The House of Representatives should be wholly elected by single-member constituencies on a territorial basis. As for the Senate the majority should be elected by indirect election (two from each State elected by the State Legislative Assembly) and the rest nominated by the Yang di-Pertuan Agong for a term of years.131The Prime Minister should be appointed by the Yang di-Pertuan Agong and he should be the person most likely to command the confidence of the House of Representatives. The Prime Minister should then choose the Ministers of his Cabinet. If the Prime Minister were to lose the confidence of the House of Representatives he should either resign or ask for a dissolution of Parliament, and if the Yang di-Pertuan Agong were to refuse a dissolution of Parliament he should vacate his office.132Division of Legislative Powers133The legislative powers of Parliament and of the State Legislature should be defined by a List of Federal subjects, a List of State subjects and a Concurrent List. Examples of matters under the Federal List were external affairs, defence, internal security, civil and criminal law and procedure, the administration of justice, and citizenship. Examples of matters under the State List were Muslim law, land, forestry, local government, turtles and riverine fishing. Examples of matters in the Concurrent List were social welfare, scholarships, protection of wild life and town and country planning. The residual power should remain with the State.


JudiciaryThe existing Supreme Court should be continued and should have the function of interpreting the Constitution and protecting State rights and fundamental liberties in addition to its ordinary functions.134 A Judge should not be removed from office except by an order of the Yang di-Pertuan Agong in pursuance of a recommendation of a tribunal especially appointed to consider the removal of the Judge from office.135Conference of RulersThe Conference of Rulers should also include the Governors of Malacca and Penang and it should be the function of the Conference to elect the Yang Di-Pertuan Agong and his deputy, and to consent or withhold consent to certain laws. The Conference should also be consulted on certain important appointments (eg. the appointment of Chief Justice) and on any changes in policy affecting the special position of the Malays or the legitimate interests of the other communities which it is proposed to introduce by administrative action.136Fundamental RightsThe Federal Constitution should define and guarantee certain fundamental rights and the Courts should have the power and duty of enforcing these rights.137Special Position of the MalaysThe original treaties with the Malay Rulers recognized the special position of the Malay community and this was reaffirmed from time to time. The matters connected with special position of the Malays were special land rights, preference in admission to public service and in the granting of licences and permits to carry on certain occupations, and preferences in the award of scholarships and other forms of aid for educational purposes. The Commission was of the opinion that these special privileges given to Malays ought to continue since otherwise the Malays would be at a serious and unfair disadvantage compared with other communities. The protection of the privileges of the Malays and the legitimate interests of other communities was made the responsibility of the Yang di-Pertuan Agong acting on the advice of the Cabinet.138Emergency PowersWhile negotiations for independence were going on, a guerilla war was still being waged in the jungle by Malayan Communist forces. The Malayan Communist Party was composed almost entirely of Chinese and had close association with the Communist Party of China. During the Japanese occupation the Malayan Communist Party led an effective resistance movement against the Japanese. After the Japanese surrendered the Party attempted to overthrow the British Administration.139In view of the fact that emergency continued to exist, it was considered necessary to make provision in the Constitution for dealing with the existing situation, and to provide safeguards


against further threats and dangers. The Commission recommended that emergency legislation existing when the new Constitution comes into force should be continued for one year with power to amend or repeal any part of it. If after one year it was still necessary to keep any part of the legislation in force that should only be done by resolution of both Houses of Parliament.140As for future threats and dangers the Commission recommended that in emergencies such as war, or internal disturbance, which constitute an immediate threat to the security of the country, the Federal Government should have the power to make a Proclamation of Emergency and thereafter to give direction to any State Government or State Officer or authority. In such a situation Parliament should have the power to enact any provision even though it infringes fundamental rights or State rights.141CitizenshipOn this issue the Commission accepted the proposal of the Alliance Party and accordingly recommended that all persons born in the Federation on or after Merdeka Day should become citizens by operation of law. There was provision for the acquisition of citizenship by registration or naturalization and provisions granting Malay preference or privileges.142The StatesAll the States have written constitutions: that of Johore dates from 1885 and that of Trengganu dates from 1911. The Constitution of the other States were granted by the Ruler of each State following the Federation Agreement and the State Agreements in 1948.143 Under all these Constitutions the Ruler was advised by an Executive Council at which he presided and by a Council of State at which the Menteri Besar (Chief Minister) presided. The Mentri Besar was appointed by and responsible to the Ruler. The Ruler had the power to overrule the advice of his Executive Council and Council of State.Under the terms of reference of the Commission, its recommendations must include provision for "the safeguarding of the position and prestige of Their Highnesses the Rulers as constitutional Rulers of their respective States". In the opinion of the Commission the Rulers were not constitutional Rulers. In its view, a constitutional ruler is a ruler with limited powers; and the essential limitations are that the Ruler should be bound to accept and act on the advice of the Mentri Besar or Executive Council, and that the Mentri Besar or Executive Council should not hold office at the pleasure of the Ruler nor be ultimately responsible to him but should be responsible to a parliamentary assembly and should cease to hold office on ceasing to have the confidence of that assembly.144Accordingly the Commission recommended that all State Constitutions should be amended so that:

(i) the Ruler became bound to accept the advice of the Menteri Besar or Executive Council in the same way as


the Yang di-Pertuan Agong is bound to accept the advice of the Prime Minister or Cabinet, and

(ii) the Menteri Besar became responsible to the Council of State (to be called the "State Legislative Assembly") and must cease to hold office on ceasing to have the confidence of that Assembly.145

There should be in each State an Executive Council presided over by the Mentri Besar and collectively responsible to the Legislative Assembly. The Mentri Besar must be an elected member of the Legislative Assembly. Members of the Executive Council should hold office at the pleasure of the Ruler but in appointing members or terminating their appointments the Ruler must act on the advice of the Menteri Besar. All members of the Executive Council should be members of the Legislative Assembly.146 The Legislative Assemblies should consist entirely of elected members.147The SettlementsThe Settlements should cease to be part of Her Majesty’s dominions and become autonomous States within the Federation on Merdeka Day. For this purpose the Commission had the Constitution of each of the Settlements drafted. They should no longer be called Settlements, instead they should be called the States of Penang and Malacca, and should have the same status and powers as the other States in the Federation. The Governors should be appointed by the Yang di-Pertuan Agong after consultation with the respective State Governments and should hold office for four years subject to power of removal only on a resolution carried by a two-third majority in the State Legislative Assembly. The System of government in Penang and Malacca should be the same as that in the States.148.The Birth of the New ConstitutionThe following were the steps taken to bring the new constitution into force. First on 31 July 1957 the British Parliament passed the Federation of Malaya Independence Act, 1957,149 giving Her Brittanic Majesty the approval to conclude with the Rulers of the Malay States an agreement for the establishment of the Federation of Malaya as an independent sovereign country under a federal constitution; and empowering Her Majesty to terminate her sovereignty and jurisdiction in respect of the Settlements of Malacca and Penang, and all her other powers and jurisdiction in respect of the Malay States or the Federation as a whole. An Order in Council150 was made under the Act giving the force of law to the Federal and State Constitutions (State here refers to the States of Penang and Malacca) set out in the Schedule to the Agreement of 1957 and revoking the Federation of Malaya Order in Council 1948.Second, on 5 August 1957, the Federation of Malaya Agreement, 1957,151 was concluded between the High Commissioner, on behalf of Her Majesty, and the Rulers. This agreement established a new


federation of States called the Federation of Malaya consisting of the Malay States and the Settlements as from 31 August 1957. Under the agreement the Settlements ceased to form part of Her Majesty’s dominions and Her Majesty ceased to exercise any sovereignty over them, and all the powers and jurisdiction of Her Majesty or of the British Parliament in respect of the Settlements or of the Malay States came to an end.152 The agreement revoked the Agreement of 1948153 and contained the new Federal Constitution and the Constitutions of Penang and Malacca.154Third, the Federal Legislative Council passed the Federal Constitution Ordinance, 1957,155 giving the Agreement and the three Constitutions contained in it the force of law. In each of the Malay States, State Enactments were passed approving and giving the force of law to the Federal Constitution.156The new Federal Constitution came into force on 31 August 1957. The Proclamation of Independence157 proclaimed and declared "that as from 31 August 1957, The Persekutuan Tanah Melayu, comprising the States of Johore, Pahang, Negeri Sembilan, Selangor, Kedah, Perlis, Kelantan, Trengganu, Perak, Malacca and Penang is and with God’s blessing shall be forever a sovereign democratic and independent State founded upon the principle of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations." VIII - Formation of MalaysiaOn 27 May 1961 Tunku Abdul Rahman, the Prime Minister of the Federation of Malaya suggested the formation of Malaysia - a Federation comprising his country, Singapore, Sarawak, Brunei and North Borneo.158The territories that did eventually form Malaysia were the Federation of Malaya, North Borneo, Sarawak and Singapore. Brunei initially showed an interest to join Malaysia, but subsequently decided to back out. Singapore left Malaysia in 1965. Constitutional Developments in Sabah, Sarawak and SingaporeNorth Borneo became a Crown Colony in 1946. Before the Japanese occupation North Borneo was owned by the British North Borneo Company and when the Allied forces took over from the Japanese it was sold by the company to the British Crown159 and so North Borneo became a Crown Colony160 with the island of Labuan enjoined to it.161 The constitutional documents of North Borneo consisted of:

(1) The North Borneo Letters Patent 1946 to 1955;162

(2) The North Borneo Royal Instructions 1950;163 and

(3) The North Borneo Order-in-Council 1950.164


The North Borneo Letters Patent 1946 to 1955 provided for the constitution of the office of Governor. The North Borneo Royal Instructions 1950 provided for the establishment of an Executive Council. The North Borneo Order-in-Council 1950 provided for the establishment of a Legislative Council.Sarawak was originally a dependency of Brunei and was ceded to James Brooke in 1841.165 In 1946 it was ceded to the Crown and became a Crown Colony.166 The constitutional documents forming the legal basis of government were:

(1) the Sarawak Letters Patent 1956;167

(2) the Sarawak Royal Instruction, 1956168 (amended by the Sarawak Additional Royal Instructions 1956);169

and

(3) the Sarawak (Constitution) Order in Council 1956170 (amended by the Sarawak (Constitution) (Amendment) Order in Council 1956).171

The Letters Patent constituted the office of Governor. The Royal Instructions set out certain obligations of the Governor, with particular reference to legislation. The Order in Council established both an Executive Council and a Legislative Council called Supreme Council and Council Negeri, respectively.Singapore was also a Crown Colony, but was independent in all its internal affairs. Britain had control only in respect of defence and external affairs.172The Cobbold CommissionSoon after the Tunku’s suggestion, the British Government, which by this time already had the intention to give up Singapore, North Borneo and Sarawak, began negotiations with the Malayan Government and the representatives of the three territories with a view to their joining the Federation. A joint British-Malaya Commission under the chairmanship of Lord Cobbold (hence the Commission was known as the Cobbold Commission) visited North Borneo and Sarawak between February and April 1962 and its report was published on 1 August 1962.173 The Commission was unanimously agreed that a Federation of Malaysia was in the best interests of North Borneo and Sarawak and that an early decision in principle should be reached.The Report was considered in detail in a series of meetings in London in July 1962, by British and Malayan Ministers. In the light of the Report and of the agreement reached between the Government of Malaya and the Government of Singapore, the British and


Malayan Governments decided in principle that, subject to the necessary legislation, the proposed Federation of Malaysia should be brought into being by 31 August 1963. The Inter-Governmental CommitteeThe two Governments decided to establish an Inter-Governmental Committee, on which the British, Malayan, North Borneo and Sarawak Governments would be represented. Its task was to work out the future constitutional arrangements, including safeguards for the special interests of North Borneo and Sarawak to cover such matters as religious freedom, education, representation in the Federal Parliament, the position of the indigenous races, control of immigration, citizenship and the State Constitution.The Minister of State for Colonial Affairs, Lord Lansdowne, the Chairman of the Committee, and the Deputy Prime Minister of the Federation of Malaya, Tun Abdul Razak, the Deputy Chairman of the Committee visited North Borneo and Sarawak in August 1962, and a Preparatory Meeting of the Inter-Governmental Committee was held in Jesselton on 3 August 1962.On completion of its work the IGC submitted its Report to the Governments of the four parties concerned - Britain, Malaya, Sarawak and North Borneo. The Report was published on 27 February 1963.174In North Borneo general elections were held in December 1962 and in Sarawak in 1963. The Birth of MalaysiaOn 9 July 1963, the Governments of the Federation of Malaya, United Kingdom, North Borneo, Sarawak and Singapore signed the Malaysia Agreement175 whereby Singapore, Sarawak and North Borneo would federate with the existing States of the Federation of Malaya and the new federation so established would be called Malaysia. The Federal Parliament then passed the Malaysia Act176 to amend Art. 1(1) and (2) of the Federal Constitution to provide, inter alia, for the admission of the three new States and for the renaming of the Federation as Malaysia. The Act received the Royal assent on 26 August and was to come into force on 16 September 1963.But as events turned out it was not going to be smooth sailing for the founding fathers of Malaysia. There were both external and internal opposition to the formation of the new federation. The Phillipines and Indonesia opposed the formation of Malaysia and refused to accept that the self-determination process had been properly carried out. They proposed during a tri-partite summit meeting in Manila in 1963, to invite the United Nations Secretary-General or his representative to ascertain, prior to the establishment of Malaysia, the wishes of the people of North Borneo and Sarawak and to take into consideration whether Malaysia was a major issue, if not the main issue, at the elections and whether the


procedure of the recent elections was in conformity with democratic practice. The Malayan Government agreed to these proposals. Accordingly the Secretary-General of the United Nations sent a mission which spent about three weeks to conduct the necessary survey in Borneo. The mission reported to the Secretary General who on 15 September 1963, announced his findings that the majority of the people in North Borneo and Sarawak supported Malaysia. Despite the Secretary-General’s conclusions the Indonesian and Phillipines governments continued to oppose Malaysia.177The internal opposition was to come from the north-eastern State of Kelantan whose government at this time was controlled by opposition party, the Pan Malaysian Islamic Party (PAS). It took the Government of the Federation of Malaya and Tunku Abdul Rahman to Court. Six days before Malaysia was scheduled to be born, the High Court in Kuala Lumpur was asked in The Government of the State of Kelantan v. The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-haj178 to declare that the Malaysia Agreement and the Malaysia Act to establish Malaysia were null and void or alternatively were not binding on the State of Kelantan. Further the State Government of Kelantan moved that pending the ultimate disposal of their dispute, the Court should restrain the defendants, the Government of the Federation of Malaya and the Prime Minister, from carrying into effect any of the provisions of the Malaysia Act. The Chief Justice himself heard the application and dismissed it at 5 pm on 14 September. Thomson CJ briefly summarized the grounds of the State’s objections:

They are that the Malaysian Act will in effect abolish the Federation of Malaya, that this is contrary to the 1957 Agreement, that in any event the proposed changes require the consent of each of the constituent States, including Kelantan, and this has not been obtained, that the Ruler of the State of Kelantan should have been a party, which he was not, to the Malaysia Agreement, that apart from anything else there is a constitutional convention that the Rulers of the individual States should be consulted regarding any substantial changes in the Constitution, and that in any event the Federal Parliament has no power to legislate for the State of Kelantan in respect of any matter regarding which the State has its own legislation.179

Thomson CJ, in discussing the application held:

(1) that Parliament had power under Art. 159 of the 1957 Constitution to enact the Malaysia Act so as to amend Art. 1(1) and


(2) to admit the three new members and this amendment did not require a two-thirds majority. The Constitution which formed an integral part of the Federation of Malaya Agreement, 1957 did not require consultation with any State as a condition to be fulfilled;

(2) that the Malaysia Agreement was signed for the "Federation of Malaya" by the Prime Minister, Deputy Prime Minister and four members of The Cabinet. This was in compliance with Arts. 39 and 80(1) of the Constitution and there is nothing whatsoever in the Constitution requiring consultation with any State Government or the Ruler of any State.180

Thus went the historic judgment and slightly more than twenty four hours later, on 16 September 1963, Malaysia was born. Almost two years later on 9 August 1965, Singapore separated to become a fully independent republic within the Commonwealth.

Endnotes:

107 SI 1948, No. 108.

108 Allen, Stockwell, Wright, Collection of Treaties (ibid.):

Johore Treaty, pp. 124-128;

Kedah Treaty, pp. 182-186;

Kelantan Treaty, pp. 227-231;

Negeri Sembilan Treaty, pp. 332-339;

Pahang Treaty, pp. 361-366;

Perak Treaty, pp. 401-406;

Perlis Treaty, pp. 428-432;

Selangor Treaty, pp. 456-461;


Trengganu Treaty, pp. 500-504.

All these treaties were dated 21 January 1948.

109 Ibid., pp. 100-223.

110 State of Johore and the Federation of Malaya Agreements (Ratification) Enactment, 1948 (Joh. 1/48);

State and Federation Agreements (Ratification) Enactment, 1948 (Kedah 1/1367 (1948));

State and Federation Agreements (Ratification) Enactment, 1948 (Kelantan Enactment No. 1 of 1948);

State and Federation Agreements (Ratification) Enactment, 1948 (Negeri Sembilan Enactment No. 1 of 1948);

State and Federation Agreements (Ratification) Enactment, 1948 (Pahang Enactment No. 1 of 1948);

State and Federation Agreements (Ratification) Enactment, 1948 (Perak Enactment No. 1 of 1948);

State and Federation Agreements (Ratification) Enactment, 1948 (Perlis Enactment No. 1 of 1948);

State and Federation Agreements (Ratification) Enactment, 1948 (Selangor Enactment No. 1 of 1948);

State and Federation Agreements (Ratification) Enactment, 1948 (Trengganu Enactment No. 1 of 1948).

111 Federation of Malaya Agreement, 1948, Art. 7. See Allen, Stockwell, Wright, Collection of Treaties (ibid.), pp. 100-223.

112 Ibid., Arts. 36-39.

113 Ibid., Art. 38.

114 Ibid., Art. 32.

115 Ibid., Art. 67.

116 Ibid., Art. 72.

117 Ibid., Arts. 16-17 and 86.


118 Ibid., Art. 22.

119 Ibid., Art. 32.

120 Ibid., Art. 100.

121 Ibid., Art. 101.

122 Article 15 of the treaties with the States. See n. 105 (ibid.).

123 Treaties with the States (ibid.), Art. 9.

124 Ibid., Art. 13.

125 Ibid., Art. 4.

126 The Straits Settlements (Repeal) Order in Council, 1946 (SI 1946 No. 462).

127 Report of the Federation of Malaya Constitutional Commission 1957 (Colonial Office, London) (which shall be referred to as the Reid Report), para. 3.

128 This Report has got to be read together with the White Paper entitled "Constitutional Proposals for the Federation of Malaya" (Colonial Office, London, Cmnd. 210), which sets out the changes made to the recommendations of the Reid Report.

129 Reid Report (ibid.), para. 57.

130 Ibid., para. 127. The title of the Head of State as recommended by the Reid Commission was "Yang di-Pertuan Besar" but this was subsequently changed to "Yang di-Pertuan Agong" (see Constitutional Proposals (ibid.), para. 15).

131 Ibid., paras. 60-63, and Constitutional Proposals (ibid.), para. 20.

132 Ibid., paras. 68-69.

133 Ibid., see generally paras. 81-121.

134 Ibid., para. 123.

135 Ibid., para. 124, and Constitutional Proposals (ibid.), para. 33.


136 Ibid., para. 59, and Constitutional Proposals (ibid.), paras. 16-17.

137 Ibid., para. 161.

138 Ibid., paras. 163-168, and Constitutional Proposals (ibid.), paras. 54-55.

139 Zelman Cowan, "The Emergence of a New Federation in Malaya", [1958] 1 Tasmanian University Law Review, pp. 63-64.

140 Reid Report (ibid.), para. 136.

141 Ibid., para. 174.

142 Ibid., paras. 36-38.

143 The authoritative texts of these Constitutions are found in the various State Gazettes as follows:

Johore - Joh. GN 2/1948;

Kedah - Ked. LN 32 of 1959;

Kelantan -

First Part - Kel. GN 15/1948;

Second Part - Kel. GN 195/1957;

Negeri Sembilan - NS GN 214/1959;

Pahang - Phg. GN 146 of 1959;

Perak -

First Part - Pk. GN 10/1948;

Second Part - Pk. GN 152/1954;

Perlis - Per. LN 4 of 1959;

Selangor - Sel. GN 349 of 1959;

Trengganu -

First Part - GN 17/1948;


Second Part - GN 423/1950.

144 Ibid., para. 177.

145 Ibid., para. 180.

146 Ibid., para. 181.

147 Ibid., para. 182.

148 Ibid., para. 191.

149 5 & 6 Eliz 2 c 60.

150 Federation of Malaya Independence Order in Council, SI 1957 No. 1533.

151 Malayan Constitutional Documents, Vol. 1, pp. 9-11 and 19-172.

152 Ibid., Art. 3.

153 Ibid., Art. 5.

154 Ibid., Art. 4 and Second and Third Schedule.

155 Ordinance No. 55 of 1957.

156 Johore - Joh. GN No. 1A (New Series) of 1957;

Kedah - Ked. GN No. 216 of 1957;

Kelantan - Kel. GN No. 262 of 1957;

Negeri Sembilan - NS GN No. 452 of 1957;

Pahang - Phg. GN No. 301 of 1957;

Perak - Pk. GN No. 1372 of 1957;

Perlis - Per. GN No. 85 of 1957;

Selangor - Sel. GN No. 431 of 1957;

Trengganu - Tr. GN No. 242 of 1957.

157 Malayan Constitutional Documents, Vol. 1, pp. 17-18.


158 R.H. Hickling, "An Overview of Constitutional Changes in Malaysia: 1957-1977", Ed., Tun Mohamed Suffian, H.P. Lee and F.A. Trinidade (Kuala Lumpur: Oxford University Press, 1978), p. 8.


160 North Borneo Cession Order in Council, 1946, SI 1946 dated 10 July

161 Labuan Order in Council, 1946, SI 1946 No. 1084.

162 SI 1946 dated 10 July ; SI 1950 dated 9 August .

163 SI 1950 dated 9 October.

164 SI 1950 No. 1643.


166 Laws of Sarawak [1958], Vol. vi, pp. 34-37; Sarawak Cession Order in Council, SI 1946 dated 26 June.

167 SI 1956 dated 28 August.


169 SI 1956 dated 16 November.


171 SI 1956 dated 31 August .

172 As Singapore subsequently left Malaysia in 1965, it is not proposed here to elaborate on its constitutional developments.

173 Cmnd. 1794.

174 Malaysia: Report of the Inter-Governmental Committee 1962 (Government Printer, Federation of Malaya, 1963).

175 Allen, Stockwell, Wright, Collection of Treaties (ibid.), pp. 278-281; Parliamentary Papers, Cmnd. 2094, July 1963.


176 Federation of Malaya Act No. 26 of 1963. In the United Kingdom there was passed the Malaysia Act 1963 (1963 c. 35) which provided for the establishment of Malaysia and the termination of Her Majesty’s sovereignty and jurisdiction over Sabah, Sarawak and Singapore; this was followed by the making of the Sabah, Sarawak and Singapore (State Constitutions) Order in Council 1963 (SI 1963 No. 1493) which sets out, in the Schedules, the Constitutions of Sabah, Sarawak and Singapore.

177 Tun Mohamed Suffian bin Hashim, An Introduction to the Constitution of Malaysia, 2nd Edn., (Kuala Lumpur: Government Printer, 1976) p. 13.

178 [1963] MLJ 355.

179 Ibid., 357.

180 Ibid., 359.

List of Abbreviations

FMSLR ... Federated Malay States Law Report

GN ... Gazette Notification

MLJ ... Malayan Law Journal

SI ... Statutory Instrument

Selected Bibliography

BooksAllen, J. de V., Stockwell, A.J. and Wright, L.R., eds., A Collection of Treaties and Engagements Affecting the States of Malaysia.

London: Oceana Publications Inc.

Braddell, Roland St. John. The Law of the Straits Settlements.

Kuala Lumpur: Oxford University Press, 1982.

The Legal Status of the Malay States.

Singapore: Malaya Publishing House Ltd. 1931.


Emerson, R. Malaysia: A Study in Direct and Indirect Rule.

Kuala Lumpur: University of Malaya Press, 1964.

Hickling, R.H. An Introduction to the Malayan Constitution.

Kuala Lumpur: Malayan Law Publishers, 1982.

Maxwell and Gibson. Treaties and Engagements Affecting the Malay States and Borneo.

London: Jas Truscott & Son Ltd., 1924.

Sheridan, L.A. Edn. The British Commonwealth: The Development of Its Laws and Constitutions, Vol. 9 - Malaya and Singapore, the Borneo Territories.

London: Stevens and Sons Ltd., 1961.

Sidhu, Jagjit Singh. Administration in the Federated Malay States.

Kuala Lumpur: Oxford University Press, 1980.

Mohamed Suffian bin Hashim, Tun. An Introduction to the Constitution of Malaysia. 2nd Edn.,

Kuala Lumpur: Government Printer, 1976.

ArticlesMalaysia as a Federation, Ahmad Ibrahim, Journal of Malaysian and Comparative Law, 1974, p. 4. Legislation in the Malay States, Malayan Law Journal, Vol. 2, 1977. The Emergence of a New Federation in Malaya, Cowan, Zelman, [1958] 1 Tasmanian University Law Review, pp. 46-67. The State Councils in Perak and Selangor, 1877-1895, Sadka, Emily. Papers on Malayan History, Edn., K.G. Tregonning, Singapore: Journal of South-East Asian History, 1962, p. 89. The Constitution of the Colony of the Straits Settlements and of the Federated and Unfederated Malay States, Winstedt, Richard Olaf. London: Royal Institute of International Affairs, 1934, pp. 1-20. Official PublicationsMalayan Union and Singapore: Summary of Proposed Constitutional Arrangements.


Cmnd. 6794 of 1946.

Report on a Mission to Malaya by Sir Harold MacMichael.

Colonial No. 194, London, 1946.

Federation of Malaya: Summary of Revised Constitutional Proposals.

Cmnd. 7171.

Report of the Federation of Malaya Constitutional Commission, 1957.

Colonial Office, London, 1957.

Constitutional Proposals for the Federation of Malaya.

Colonial Office, London, Cmnd. 210.

Malaysia: Report of the Inter-Governmental Committee 1962.

Government Printer, Federation of Malaya, 1963.

Malayan Constitutional Documents.Kuala Lumpur: Government Printer, 2nd Edn., 1962.