constitutional history

8/2/2019 Constitutional History

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Pre-Malaysia Constitutions

As Malaysia comprises the former Federation of Malaya,the British Crown Colonies of Sabah & Sarawak, it istherefore pertinent to briefly discuss the formerConstitutions of the three regions.

The fundamentals of the three Constitutions do notdiffer in any measure.

They were introduced as a means to facilitate orderlygovernment or government by rule of law.

Historical background


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However, the Constitution of Federation ofMalaya was a constitution of an independencestate.

It might be recollected that that theFederation of Malaya was formed & grantedindependence from Britain in 1957.

On the other hand, the Constitution of NorthBorneo (Sabah) was one devised & supervisedby trading concerned.

Similarly, Sarawak had been ruled by the

personal authority of the Rajah and while theRajah did introduce the 1941 SarawakConstitution, it did not come into effect asthe world broke out.


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Both North Borneo and Sarawak came

to be colonies after the world whenconstitutional government and the rule

of law were instituted.


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Malayan Union1946


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Before the outbreak of the Second

World War II, the peninsular comprised

three groupings the Strait Settlements-

British Colony;

The Federated Malay States (FMS)-British

protected states

Unfederated Malay States (UMS)-British

protected states

After Japanese surrendered in 1945,British administration was resumed.


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In the MU it consists a broad-based MUcitizenship, all citizens having equal rights.

To realize & established the MU states,British was appointed Sir Harold MacMichael to play an important role to obtainthe co-operation of the Malay Rulers.

Then that action were compelled toconclude 1945 so-called Mac MichaelTreatises

This treatise it was agreed that the Britishshould have full power & jurisdictionwithin each Malays state


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In the MU, the Straits Settlements were

dissolve, Penang & Melaka were grouped

with Malay states.

This all combination were form the MU on

1 April 1946.

The Singapore for economic & political

reasons was left out & became a Crown

colony.

Nevertheless, the MU was short-lived itlasted only two years.


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With the strong opposition came from the

Malays, who just realized that the MacMichael Treatise reduced the status of the

Malay states to that of a colony & deprived

the Malay Rulers of their sovereignty.

Under those treatise, the sole legislative

power of Malay Rulers was confined to

Islam.

The Malays also opposed the MU

citizenship, which raised fear of non-Malay

domination


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In the eyes of Malays, the MU proposal

would entail the abandonment of thepolicy recognizing the Malay states as

Tanah Melayu (Land of the Malays)

Also deprive the Malays of their specialpositions & privileges & the preservation

of which had been the objective of all

preceding agreements


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The opposition forced the British to

withhold bringing into force all the

provisions of the MU order-in-Council1946.

In July 1946, a working committee of

twelve was appointed under thechairmanship of Sir Malcolm MacDonald

(first Governor-General MU) to work

out in detail fresh arrangements wouldform the basis of future constitutional

developments.


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The proposals of that Committee, subjectto discussions with representatives of the

Malay Rulers & of the United MalaysNational Organization (UMNO) &consultations with representatives of thenon-Malays, produced a scheme for a

acceptable federation to all concerned.

The British Government & the Malay Rulersconcluded the Federation Malaya

Agreement (FMA)1948, then establishingthe Constitution of the Persekutuan TanahMelayu (Federation of Malaya)


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Constitution of theFederation Malaya


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Through FMA the Malay Rulers & BritishGovernment concluded separate

agreement, providing for thegovernment of the state in accordancewith a written constitution & FMA 1948

The Federation of Malaya wasintroduced on 1 February 1948

The federation of Malaya, comprisingthe nine Malay states and the Straits

Settlements of Penang and Malacca


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A federal government was set up inKuala Lumpur under the British High

Commissioner.The main organs were;

Executive Council

Legislative Council in which all raceswere represented

The FMA 1948 set the pattern for a

federation with a strong, centralgovernment


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And had being governed by twoconstitutions;First by the Constitutions of the

Federation of Malaya 1948

Later by another one introduced for theFederation which attained independencefrom Britain in 1957.

The two constitutions differed in somefundamental aspects; otherwise most

of its provisions are similar as anyconstitution of a state


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The Malay Rulers becomeconstitutional monarchs & members if

the Majlis Raja-raja Negeri Melayu(Conference of Rulers-CR).

CR would meet at least three times a

year.Approval of the Majlis was required for

any amendment in the constitution @in the immigration laws & for

appointments of senior governmentofficials.


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The Malays were recognized as the

indigenous people, their special

positions guaranteed

Citizenship was granted to non-

Malays,however the qualifications were

more stringent than those under the

MU proposals.


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The federation created by the FMA1948 was intended to be an interim

arrangement.This is clear from the preamble to the

agreement, which expressed the desireof the British Government & MalayRulers that progress should be madetowards eventual self-government.

In 1951, a member @ quasi-

ministerial system was introducedunder which nine nominated membersof the Federal Legislative Council.


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The Federal Legislative Council were

made responsible for various ministries

@ departments.

In 1952, the Federal Executive Council

was expanded to include all members

with portfolio.

And in 1955, the first federal elections

were held for 52 seats on the Federal

Legislative Council.


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The Alliance (of UMNO, MCA & MIC) won 51 seats

& its leader, Tunku Abdul Rahman became Chief

Minister.The six month later he led a Malayan delegation

to London to negotiate for independence (known

as London Conference).

It lasting within three weeks in early 1956 &

attended by

representatives of Malay Rulers &

Alliance GovernmentThe British High Commissioner

Advisers to the British Government.


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The basic principle upon whichindependence could be achieved were

agreed on.The conference appointed an

independent Constitutional Commission

to draw up a constitution providing forfull self-government & independencefor the Federation Malaya by August1957.

The Commission known as ReidCommission


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THE REID

COMMISSION


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The Reid Commissions term of

reference were to examine the existing

constitutional arrangements

throughout the federation

And also to recommend a federal form

of constitution for the whole countrybased on the parliamentary democracy

with a bicameral legislature.

The proposed constitution was toinclude provisions for;


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The establishment of a strong central

government

The safeguarding of the position &prestige of the Malay Rulers

A constitutional Yang di-Pertuan Agong

(Head of State) for the federation, to be

chosen from among Malay Rulers

A common nationality for the whole of the

federation

The safeguarding of the special position ofthe Malays & the legitimate interests of

the other communities.


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The Reid Commission collected data &memoranda from June to Oct. 1956 And

held 188 sessions.In making its recommendations the Reid

Commission had borne in mind that thenew provisions must be both practicable inexisting circumstances & fair to allsections of the community

The Reid Commission Report, containing

recommendations & a draft constitutionwas submitted to the British Government& the Malay Rulers on 21 Feb. 1956.


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In the federation the Reid Commission

Report was examined by a Working

Party comprising;

The British High Commissioner

Representatives of the Malay Rulers

The Alliance Government

Chief Secretary

Attorney General.

Then its was simultaneously studied in

the UK.


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After the Working Party had submitted its

recommendations, a delegation led by Tunku

as Chief Minister went to London to settleunresolved issues.

The draft constitution prepared by the Reid

Commission was reviewed & amended, in

substance & in form

Nevertheless, that draft was the basis for

the Constitution of the Federation of Malaya

Then proclaimed its independence on 31August 1957


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The major achievement of the parties

who negotiated for independence &

the Reid Commission that prepared thedraft Independence Constitution was to

define a compromise of the interests

of the three main racial groups in thefederation.

The resulting Merdeka Constitution was

thus a social contract between thethree races concerned.


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The Merdeka Constitution has evoked

the comment that though it was

federal in form

The entity it created was in reality,

unitary rather than federal.

Subsequent development have furtherconcentrated power at the centre.


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MALAYSIA

CONSTITUTION(FEDERAL CONSTITUTION)


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The Federation of Malaysia is the

Federation of Malaya, enlarge.It was born of an idea conceived by the

Tunku in 1961 for close political &economic association between;

Federation of Malaya

Singapore

North Borneo (Sabah)

SarawakBrunei


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The Malaysia concept was received if nothotly, at least warmly in Malaya, Brunei& Singapore.

Its realization, however was beset withdifficulties.

Initial discussion progressed fairly

quickly. Negotiations proceeded at twolevels:

1. Bilateral negotiations between Malaya &

Singapore on a possible merger2. Multilateral discussions between the leaders

of all the territory that might form Malaysia.


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At a regional meeting of theCommonwealth Parliamentary

association in Singapore July 1961, theleaders of all the territories concernedapproved in principle the Malaysiaconcept

Then they set up a Malaysian SolidarityConsultative Committee and itrecommended;

A commission be formed to ascertain theviews of the people of North Borneo &Sarawak


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The Federation of Malaya Constitution bethe basis for the Federation of Malaysia

ConstitutionA strong central government responsible

for external affairs, defence & security

Parliamentary representative based not

only on population in a constituency, butalso on size of the constituency

Special safeguards for North Borneo &Sarawak, especially in immigration

mattersSpecial privileges for the indigenous

people of the territories


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By August 1961, the Tunku & ChiefMinister Lee Kuan Yew had agreed on

principle merger between Malaya &Singapore.

A Join Working Party was established

to frame more detailed proposals.The A joint British-Malayan Commission

of Enquiry headed by Lord Cobbold(Cobbold Commission) was dispatched

to Borneo territories to ascertain theviews of the people.


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And it reported in June that some 80per cent of the people in the Borneo

territories were in favour of joiningMalaysia

In Brunei, Sultan Omar Ali Saifuddins

enthusiasm for Brunei incorporation inMalaysia increased after a rebellion inDecember 1962.

The rebellion in Brunei led by Sheikh

A.M. AzahariHe opposed the Malaysia concept &

challenged tha Sultans rule but failed.


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The final months of negotiations weremarred by internal & external problems.

Internally, there was hard bargaining overcontroversial details concerning theMalaya-Singapore merger & the accessionof the Brunei territories

There were two main dividing issuesBruneis refusing to join at the lastminute;

1. The proposed collection & use of Bruneis oilrevenues

2. The status accorded to the Sultan of Brunei amongthe Malay Rulers


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Externally, opposition to the formation of

Malaysia came from two fronts;

1. Philippines-claimed North Borneo as a formerdependency of Sulu

2. Indonesias President Sukarno-denounced the

Malaysia concept as a British neo-colonialist

plot.

After a month of haggling, the Federation

of Malaya, the UK, North Borneo, Sarawak

& Singapore Government signed the

Malaysia Agreement Act 1963 in Londonon 9 July 1963.


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The Malaysia Parliament passed

Malaysia Act 1963 to give effect to that

agreement in the federation.

That affected amendments to the

Merdeka Constitution

These concerned special provisions for

the new states that acceded which, in

some significant aspects, elevated

above the states of the formerfederation.


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These changes raised comments thatthey really brought about a new

constitution for a new federationEssentially, the principle of equality of

states underlying the MerdekaConstitution was sacrificed toaccommodate the special interests ofthe newly incorporations states

In reality the new constitution did not

bring the new states into associationwith the states of the formerfederation


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Rather, it brought the new states intoassociation with the former federation

itself, such that the new federationreally comprised four units:The Federation of Malaya

Sabah

Sarawak

Singapore

The Federation of Malaysia was

scheduled to be born on 31 August1963, had its birth deferred to mid-September.


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Malaysia difficulties continued after its

formation. Indonesia & the Philippinesrefused to recognize the new

federation.

Rejecting the findings of the United

Nations Malaysia Mission to Borneo,

Indonesia commenced Konfrontasi

(Confrontation) & a Ganyang (Crush)

Malaysia campaign.


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Internal friction compounded theseproblem.

From the outset there was resentmentbetween the former federation &newly incorporated states.

The resentment was most acute inrelations between the federation &Singapore.

Each resented the others attempts tointerfere in what they considered astheir internal affairs.


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The roots of the friction were part

economic, part political.Singapores attempts to create,

prematurely,a multiracial society of

equal opportunity-based purely on

meritocracy-exacerbated racial

tensions that had erupted in riots

between Chinese & the Malays in

Singapore in July & September 1964.


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On that day, Singapore became an independentrepublic

Consequent amendments to the FederalConstitution were later effected by theConstitution (Amendment) Act 1966.

There has been no territorial change since

Singapore left the federation except forinternal boundary changes.

Wilayah Persekutuan Kuala Lumpur & Putrajayawere carved out of Selangor on 1 February

1974 & 1 February 2001 respectively & Labuanout of Sabah on 16 April 1984 to be madefederal territories

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