HISTORICAL DEVELOPMENTS OF

MALAYSIA’S CONSTITUTION

PRE-COLONIAL PRE-COLONIAL CONSTITUTIONAL HISTORYCONSTITUTIONAL HISTORY

i) Malay Constitutional Ideas in Generali) Malay Constitutional Ideas in General ii) The Constitutional Legacy of the Melaka ii) The Constitutional Legacy of the Melaka

SultanateSultanate iii) Negeri Sembilan and the Minangkabau iii) Negeri Sembilan and the Minangkabau

Constitution Constitution

i) Malay Constitutional Ideas in i) Malay Constitutional Ideas in GeneralGeneral

The constitutional ideas of the Malay states The constitutional ideas of the Malay states stem from the Melaka sultanate.stem from the Melaka sultanate.

Apart from the Undang-Undang Melaka, Apart from the Undang-Undang Melaka, which contains some constitutional rules, the which contains some constitutional rules, the traditional Malay constitutions were unwritten, traditional Malay constitutions were unwritten, being customary in nature. being customary in nature.

The community were actually The community were actually extremely rich and complex to the extremely rich and complex to the

point of obscurity, depending point of obscurity, depending largely on a combination of largely on a combination of

precedent, political circumstance precedent, political circumstance and opinion.and opinion.

However, there are differences of However, there are differences of law between states. law between states.

Negeri Sembilan, for example, was Negeri Sembilan, for example, was a federation under the nominal a federation under the nominal

sovereignty of a Sumatran prince, sovereignty of a Sumatran prince, and had very complex rules of and had very complex rules of

succession.succession.

ii) The Constitutional Legacy of the ii) The Constitutional Legacy of the Melaka SultanateMelaka Sultanate

The three texts, Undang-Undang Melaka, The three texts, Undang-Undang Melaka, Ninety-Nine Laws of Perak and Sejarah Ninety-Nine Laws of Perak and Sejarah Melayu gave broad conceptions of Melayu gave broad conceptions of sovereignty. sovereignty.

From these texts, they seek to establish the From these texts, they seek to establish the dignity of the Raja as a focus of unity and dignity of the Raja as a focus of unity and security. security.

iii) Negeri Sembilan and the iii) Negeri Sembilan and the Minangkabau Constitution Minangkabau Constitution

Constitutional ideas were taken much further Constitutional ideas were taken much further in Negeri Sembilan than in any other state.in Negeri Sembilan than in any other state.

This State (originally nine States which This State (originally nine States which merged later into four) was formed by merged later into four) was formed by immigrant Minangkabau Malays from West immigrant Minangkabau Malays from West Sumatra, whose constitutional ideas were Sumatra, whose constitutional ideas were based on consensual democracy and based on consensual democracy and federalism.federalism.

The emphasis on judicial powers is The emphasis on judicial powers is due to the importance of adat in due to the importance of adat in

Minangkabau culture. Minangkabau culture. It was not merely a basis for It was not merely a basis for

resolving disputes, but the basis of resolving disputes, but the basis of all governmental activity.all governmental activity.

CONSTITUTIONAL DEVELOPMENTS CONSTITUTIONAL DEVELOPMENTS DURING THE COLONIAL PERIODDURING THE COLONIAL PERIOD

i) The British Residential Systemi) The British Residential System ii) The Introduction of Written Constitutionsii) The Introduction of Written Constitutions iii) The Federated Malay States iii) The Federated Malay States

i) The British Residential Systemi) The British Residential System

The British intervention was precipitated by a The British intervention was precipitated by a number of commercial and strategic factors.number of commercial and strategic factors.

The Pangkor Engagement of 1874, under The Pangkor Engagement of 1874, under which Perak accepted a British Resident, set which Perak accepted a British Resident, set the precedent for and the style of the British the precedent for and the style of the British intervention and the residential system intervention and the residential system throughout Malaya.throughout Malaya.

The Ruler accepted a British The Ruler accepted a British Resident as adviser, but retained Resident as adviser, but retained control over matters pertaining to control over matters pertaining to

Islam and Malay custom.Islam and Malay custom.

ii) The Introduction of Written ii) The Introduction of Written ConstitutionsConstitutions

Another result of British intervention was Another result of British intervention was the innovation of the written constitution, the innovation of the written constitution, which occurred in Johor and Terengganu.which occurred in Johor and Terengganu.

Terengganu was granted its own written Terengganu was granted its own written constitution by the Ruler in 1911.constitution by the Ruler in 1911.

Johor, on the other hand, recognized Johor, on the other hand, recognized as an entirely independent state by a as an entirely independent state by a

Treaty of 1885, was granted a Treaty of 1885, was granted a written Constitution in 1895 by written Constitution in 1895 by

Sultan Abu Bakar shortly before his Sultan Abu Bakar shortly before his death.death.

It is to the Johor constitution that It is to the Johor constitution that Malaysia owes the principle of Malaysia owes the principle of

equal treatment of all races under the equal treatment of all races under the law.law.

Johor was also the first state to adopt Johor was also the first state to adopt a British-style governmental a British-style governmental

structure.structure.

iii) The Federated Malay States iii) The Federated Malay States

It was thought that the administrative It was thought that the administrative centralization in Kuala Lumpur under a centralization in Kuala Lumpur under a Resident-General would prove more Resident-General would prove more economical in terms of communications and economical in terms of communications and administration, and more uniform in terms of administration, and more uniform in terms of policy.policy.

In 1895, the four protected states In 1895, the four protected states (Selangor, Negri Sembilan, Pahang (Selangor, Negri Sembilan, Pahang and Perak) were grouped together and Perak) were grouped together

into a federation by a short into a federation by a short “Treaty of Federation”.“Treaty of Federation”.

Although it purported to constitute Although it purported to constitute the four states into a federation, the four states into a federation,

there was no surrender of there was no surrender of sovereignty, and the government was sovereignty, and the government was to be administered under the advice to be administered under the advice

of the British Government.of the British Government.

The Emergence of the Modern The Emergence of the Modern ConstitutionConstitution

i) The Malayan Union (1946-1948)i) The Malayan Union (1946-1948) ii) The Federation of Malaya (1948-1957)ii) The Federation of Malaya (1948-1957) iii) The Reid Commission 1957iii) The Reid Commission 1957 iv) The Debate on the Reid Commission’s iv) The Debate on the Reid Commission’s

ProposalsProposals v) The Malaysian Federation 1963v) The Malaysian Federation 1963 vi) Crisis I: The 13 May 1969 Riots and NOC vi) Crisis I: The 13 May 1969 Riots and NOC

Rule Rule

i) The Malayan Union (1946-1948)i) The Malayan Union (1946-1948)

Following the reoccupation of Malaya Following the reoccupation of Malaya and Borneo by British and empire forces and Borneo by British and empire forces on the Japanese surrender in 1945, it on the Japanese surrender in 1945, it was a clear political necessity to move was a clear political necessity to move from military administration to some from military administration to some form o f self-government.form o f self-government.

The result of deliberation over The result of deliberation over these problems was the Malayan these problems was the Malayan Union Plan, which was introduced Union Plan, which was introduced by the Malayan Union Order-in-by the Malayan Union Order-in-

Council on 1 April 1946, but never Council on 1 April 1946, but never came fully into operation due to came fully into operation due to

fierce Malay opposition. fierce Malay opposition.

Its general shape can be seen Its general shape can be seen from the following summary:from the following summary:

A) Unitary stateA) Unitary state B) Executive powerB) Executive power C) Legislative powerC) Legislative power D) The StatesD) The States E) Judicial power E) Judicial power

A) Unitary stateA) Unitary state The Malay States (FMS and UMS), together The Malay States (FMS and UMS), together

with the Settlements of Penang and Melaka, with the Settlements of Penang and Melaka, but not Singapore, were joined in a unitary but not Singapore, were joined in a unitary state. state.

To make this happen, the Rulers had to sign To make this happen, the Rulers had to sign the MacMichael Treaties of 1945, which the MacMichael Treaties of 1945, which ceded sovereignty and all legal authority in ceded sovereignty and all legal authority in the Malay States to the Crown.the Malay States to the Crown.

B) Executive powerB) Executive power Executive power was to be exercised by a Executive power was to be exercised by a

Governor, appointed by the Crown and Governor, appointed by the Crown and advised by an appointed Executive council advised by an appointed Executive council which included three ex officio members. which included three ex officio members.

The Governor was aided by an Advisory The Governor was aided by an Advisory Council consisting of three ex officio Council consisting of three ex officio members and other members and other members and other members and other members appointed by the Governor.members appointed by the Governor.

C) Legislative powerC) Legislative power

Legislative power was to be exercised by Legislative power was to be exercised by the Governor with the advice and consent of the Governor with the advice and consent of a Legislative Council consisting of the a Legislative Council consisting of the Governor as President, three ex officio Governor as President, three ex officio members, and up to 18 official and up to 21 members, and up to 18 official and up to 21 unofficial members appointed by the unofficial members appointed by the Crown.Crown.

The Governor retained the power The Governor retained the power to legislate, after consulting the to legislate, after consulting the

Advisory Council, ‘for the peace, Advisory Council, ‘for the peace, order and good government’ of the order and good government’ of the

Union.Union.

D) The StatesD) The States

At the state level, legislative power was to At the state level, legislative power was to be severely curtailed, consisting only of be severely curtailed, consisting only of matters declared by the Governor to be of matters declared by the Governor to be of purely local nature in the State or Settlement purely local nature in the State or Settlement and matters delegated by the Legislative and matters delegated by the Legislative council.council.

E) Judicial powerE) Judicial power

Unlimited civil and criminal jurisdiction was Unlimited civil and criminal jurisdiction was vested in a Supreme Court, consisting of a vested in a Supreme Court, consisting of a High Court and Court of Appeal, presided High Court and Court of Appeal, presided over by a Chief Justice and staffed by judges over by a Chief Justice and staffed by judges appointed by the Crown.appointed by the Crown.

ii) The Federation of Malaya ii) The Federation of Malaya (1948-1957)(1948-1957)

At Working Committee of 12, comprising At Working Committee of 12, comprising six British officials, four representatives of the six British officials, four representatives of the Rulers, and two representatives of UMNO, Rulers, and two representatives of UMNO, formulated a new federal plan which had the formulated a new federal plan which had the following features: following features:

i)i) There would be established a There would be established a Federation of the Malay States Federation of the Malay States and the Settlements of Penang and the Settlements of Penang and Melaka, the Rulers being and Melaka, the Rulers being retained as constitutional retained as constitutional monarchs;monarchs;

ii) The Head of Government would ii) The Head of Government would be a High Commissioner with be a High Commissioner with powers over all matters except powers over all matters except Malay custom and religion;Malay custom and religion;

iii) The Malays would be recognized iii) The Malays would be recognized as the indigenous people, and as the indigenous people, and citizenship for the non-Malay citizenship for the non-Malay communities would be based on 15 communities would be based on 15 years’ residence, not five years as years’ residence, not five years as under the Malayan Union;under the Malayan Union;

iv) There would be Federal iv) There would be Federal Legislative and Executive Legislative and Executive Councils, but the identity of the Councils, but the identity of the states and the States Councils states and the States Councils would be retained;would be retained;

v) The Legislative Council would v) The Legislative Council would be chaired by the High be chaired by the High Commissioner and be composed of Commissioner and be composed of officials, including the nine Malay officials, including the nine Malay Presidents of the State Councils, Presidents of the State Councils, and 50 unofficials representing the and 50 unofficials representing the various races.various races.

iii) The Reid Commission 1957iii) The Reid Commission 1957

The modern Malaysian constitution has its The modern Malaysian constitution has its more precise origins in the Report of the more precise origins in the Report of the Constitutional Commission of 1957, chaired Constitutional Commission of 1957, chaired by Lord Reid (the Reid Commission).by Lord Reid (the Reid Commission).

Later, constitutional developments have been Later, constitutional developments have been in essence departures from the “Reid in essence departures from the “Reid Constitution”, as the Constitution”, as the MerdekaMerdeka Constitution of Constitution of 1957 is often called. 1957 is often called.

Cont.Cont. i) Appointment of the Commission;i) Appointment of the Commission; ii) The legislatureii) The legislature iii) The executiveiii) The executive iv) The Rulersiv) The Rulers v) The Statesv) The States vi) The judiciaryvi) The judiciary vii) Special privileges and the national languagevii) Special privileges and the national language viii) Fundamental rights and judicial reviewviii) Fundamental rights and judicial review ix) Emergency powers ix) Emergency powers

i) Appointment of the Commission;i) Appointment of the Commission;

Following the first federal elections in 1955, Following the first federal elections in 1955, the prospect of imminent independence the prospect of imminent independence raised, for the third time in ten years, raised, for the third time in ten years, important constitutional issues.important constitutional issues.

A Constitutional Conference on the usual A Constitutional Conference on the usual imperial pattern was held in London imperial pattern was held in London in January and February 1956 between in January and February 1956 between

representatives of the British representatives of the British Government, the Rulers (four Government, the Rulers (four

representatives), the Chief Minister (the representatives), the Chief Minister (the Tunku), three Ministers of the Tunku), three Ministers of the

Federation Government, and the High Federation Government, and the High Commissioner,Commissioner,

This important Conference This important Conference proposed independence for the proposed independence for the

Federation by August 1957 and Federation by August 1957 and the appointment of a the appointment of a

Constitutional Commission. The Constitutional Commission. The proposal having been accepted by proposal having been accepted by

the Rulers and the British the Rulers and the British Government, the Commission Government, the Commission

submitted its Report about one year submitted its Report about one year later, in February 1957.later, in February 1957.

Members of The Reid CommissionMembers of The Reid Commission

i) Lord Reid (the Scottish judge);i) Lord Reid (the Scottish judge); ii) Sir Ivor Jennings (the Cambridge jurist);ii) Sir Ivor Jennings (the Cambridge jurist); iii) Sir William McKell (a former Judge iii) Sir William McKell (a former Judge

Governor-General of Australia);Governor-General of Australia); iv) Mr. Justice B. Malik (an Indian Judge);iv) Mr. Justice B. Malik (an Indian Judge); v) Mr. Justice Abdul Hamid (a Pakistani v) Mr. Justice Abdul Hamid (a Pakistani

Judge). Judge).

The appointment of such a The appointment of such a Commission was preferred to the Commission was preferred to the

appointment of a constituent appointment of a constituent assembly as occurred in India. assembly as occurred in India.

Although this enabled independence to Although this enabled independence to be reached probably sooner than might be reached probably sooner than might otherwise been possible, and although otherwise been possible, and although the Commission consulted widely and the Commission consulted widely and

sympathetically and the Reid sympathetically and the Reid Constitution was accepted by all the Constitution was accepted by all the

relevant institutions in Malaya, the relevant institutions in Malaya, the Malaysian Constitution has probably Malaysian Constitution has probably

suffered from the fact that it was not suffered from the fact that it was not drafted by the representatives of the drafted by the representatives of the

people.people.

It has often been seen or It has often been seen or presented as a foreign document presented as a foreign document rather than an indigenous one. rather than an indigenous one.

ii) The legislatureii) The legislature

The Reid Commission recommended as the The Reid Commission recommended as the federal legislature a Parliament consisting of:federal legislature a Parliament consisting of:

a) Dewan Rakyat (House of Representatives) a) Dewan Rakyat (House of Representatives) of 100 members, similar to the House of of 100 members, similar to the House of Commons in the United Kingdom; andCommons in the United Kingdom; and

b) A Dewan Negara (Senate).b) A Dewan Negara (Senate).

iv) The Debate on the Reid iv) The Debate on the Reid Commission’s proposalCommission’s proposal

The principle topics for debate concerning The principle topics for debate concerning the Constitution were of course the central the Constitution were of course the central concerns of the social contract, citizenship, concerns of the social contract, citizenship, language and special privileges. language and special privileges.

v) The Malaysian Federation 1963v) The Malaysian Federation 1963

Accordingly, federation proceeded on 16 Accordingly, federation proceeded on 16 September 1963, despite the persistence of September 1963, despite the persistence of objections. objections.

With the formation of Malaysia, true With the formation of Malaysia, true independence was attained by the former independence was attained by the former British territories in the region. British territories in the region.

vi) Crisis I: The 13 May 1969 Riots vi) Crisis I: The 13 May 1969 Riots and National Operation Council and National Operation Council (NOC) Rule(NOC) Rule

The race riots of 13 May 1969 and the The race riots of 13 May 1969 and the emergency proclamation and emergency rule emergency proclamation and emergency rule which followed constituted the most which followed constituted the most traumatic episode in the post-independence traumatic episode in the post-independence history of Malaysia, and affected the nature history of Malaysia, and affected the nature of Malaysia constitutionalism. of Malaysia constitutionalism.