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".61
Article 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.62
In 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.
Decentralization
With 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.66
Further 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.68
The Constitutional Position of the Malay Rulers
Before 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.71
But 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 States

The 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.
Johore
The 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.
Kedah
In 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.
Perlis
The 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.81
Kelantan
In 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.85
The State Council consisted of fifteen appointed members almost
exclusively Malay, under the presidency of the Sultan. The Advisor
was a member of the Council.
Trengganu
The 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.89
Trengganu 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 Union
The 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.96
In 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.97
The 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.98
In 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).100
This 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.

(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.

(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.

(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.

pp. 72-75.
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.

pp. 175-176.

pp. 220-222.
83 Emerson, Malaysia (ibid.), pp. 262-263.
84 [1924] AC 707.

pp. 466-468.
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)128
Parliament and the Executive
There 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.129
The 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.130
The 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.131
The 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.132
Division of Legislative Powers133
The 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.
Judiciary
The 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.135
Conference of Rulers
The 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.136
Fundamental Rights
The Federal Constitution should define and guarantee certain
fundamental rights and the Courts should have the power and duty
of enforcing these rights.137
Special Position of the Malays
The 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.138
Emergency Powers
While 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.139
In 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.140
As 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.141
Citizenship
On 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.142
The States
All 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.144
Accordingly 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.147
The Settlements
The 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 Constitution
The 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.154
Third, 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.156
The 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 Malaysia

On 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.158
The 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 Singapore

North 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.172
The Cobbold Commission
Soon 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 Committee

The 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 1963.174
In North Borneo general elections were held in December 1962 and
in Sarawak in 1963.
The Birth of Malaysia

On 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.177
The 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));

Enactment, 1948 (Kelantan Enactment No. 1 of 1948);

Enactment, 1948 (Negeri Sembilan Enactment No. 1 of
1948);

Enactment, 1948 (Pahang Enactment No. 1 of 1948);

Enactment, 1948 (Perak Enactment No. 1 of 1948);

Enactment, 1948 (Perlis Enactment No. 1 of 1948);

Enactment, 1948 (Selangor Enactment No. 1 of 1948);

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.

(ibid.), pp. 542-552.
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.

(ibid.), pp. 571-572.
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).

(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
Books
Allen, 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.
Articles
Malaysia 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 Publications
Malayan 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.

An Essay On The Constitutional History of Malaysia

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An Essay on the Constitutional History of Malaysia

An Essay on the Constitutional History of Malaysia [1995] 3

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

The Federation of Malaya, as an independent State, came into being

The constitutional history of Malaysia is to a large extent the history

II - The Straits Settlements

The Acquisition of Settlements by the British: Malacca,

When Malacca was restored to the Dutch it became necessary for

In 1826 a treaty8 was concluded with the Sultan of Perak whereby

strip of the coastal territory known as the "Dindings" and these

In 1846, as a result of a treaty9 with the Sultan of Brunei, the island

The Cocos (or Keeling) Islands, which had previously been

Constitutional Developments of the Straits Settlements up to 1946

The transfer was effected by the passing of the Government of the

The Governor, in the discharge of his duties, was assisted by an

By the Letters Patent the powers of the Crown were delegated to

The constitution and powers of the Legislative Council were

III - The Federated Malay States

The Residential System

Having acquired Malacca, Penang and Singapore the British were

It was in the State of Perak that they first intervened. In 1874

number of petty States around Sungei Ujong agreed to enlarge their

Prior to these interventions the Sultans were absolute monarchs.

An important instrument of the Residential System was the State

In theory members of the Council were appointed during the

by the Governor.42 In practice they were nominated by the

Originally the principal function of the Council was advisory in

It is important to note however, that despite the important functions

In practice, the competence of the Council was limited by the final

The Treaty of Federation, 1895

The next important development in the constitutional history of

Residents. Also it was felt that a federation would bring greater

The Treaty of Federation contained only five articles. Whether it was

Another criticism is that, whether or not it was done deliberately, no

One consequence of the Federation was that the authority of the

One significant development as a result of the Federation was the

The 1909 Agreement

In 1909 an agreement57 was concluded between the British Crown

This agreement, like the Treaty of Federation, was also loosely

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

Laws passed or which may hereafter be passed by the

Article 10 declared that the draft estimates of revenue and

expressly conferred on the Council. That the Federal Council did

of their States. But what about their position de jure? Their

The constitutional position in Pahang so far as it is

(1) The Sultan of Pahang is an absolute ruler

(2) In 1888 he agreed to administer his

(3) In 1889 he appointed and there has

(4) In 1895 the Federation of the Malay

(5) By an agreement made in 1909 a

(6) By a further agreement in 1927 the

himself no longer sat on it, but was

IV - The Unfederated Malay States

Kedah is a Malay State, governed in accordance with

Secretary, the Attorney General and the Financial Secretary. The

the establishment of a strong central government with

and welfare of the country as a whole, and the creation

The proposals of the Working Committee were published on 24

1 Maxwell and Gibson, Treaties and Engagements

2 Ibid., pp. 98-100.

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

4 A Collection of Treaties and Other Documents