Pre-Malaysia Constitutions

1. Historical background • Pre-Malaysia Constitutions • As Malaysia comprises the former Federation of Malaya, the British Crown Colonies of Sabah & Sarawak, it is therefore pertinent to briefly discuss the former Constitutions of the three regions. • The fundamentals of the three Constitutions do not differ in any measure. • They were introduced as a means to facilitate orderly government or government by rule of law.

2. However, the Constitution of Federation of Malaya was a constitution of an independence state. • It might be recollected that that the Federation of Malaya was formed & granted independence from Britain in 1957. • On the other hand, the Constitution of North Borneo (Sabah) was one devised & supervised by trading concerned. • Similarly, Sarawak had been ruled by the personal authority of the Rajah and while the Rajah did introduce the 1941 Sarawak Constitution, it did not come into effect as the world broke out.

3. Both North Borneo and Sarawak came to be colonies after the world when constitutional government and the rule of law were instituted.

4. Malayan Union 1946

5. Before the outbreak of the Second World War II, the peninsular comprised three groupings the Strait Settlements- • British Colony; • The Federated Malay States (FMS)-British protected states • Unfederated Malay States (UMS)-British protected states • After Japanese surrendered in 1945, British administration was resumed.

6. British was introduced a radical reform referred to modern condition-interests of the territories & British economic interest. • Based on this two modern condition British called for a more unified system of government than that which existed before the war. • To that end, the British proposed the creation of a unitary state known as MALAYAN UNION (MU)

7. In the MU it consists a broad-based MU citizenship, all citizens having equal rights. • To realize & established the MU states, British was appointed Sir Harold Mac Michael to play an important role to obtain the co-operation of the Malay Rulers. • Then that action were compelled to conclude 1945 so-called Mac Michael Treatises • This treatise it was agreed that the British should have full power & jurisdiction within each Malays state

8. In the MU, the Straits Settlements were dissolve, Penang & Melaka were grouped with Malay states. • This all combination were form the MU on 1 April 1946. • The Singapore for economic & political reasons was left out & became a Crown colony. • Nevertheless, the MU was short-lived it lasted only two years.

9. With the strong opposition came from the Malays, who just realized that the Mac Michael Treatise reduced the status of the Malay states to that of a colony & deprived the Malay Rulers of their sovereignty. • Under those treatise, the sole legislative power of Malay Rulers was confined to Islam. • The Malays also opposed the MU citizenship, which raised fear of non-Malay domination

10. In the eyes of Malays, the MU proposal would entail the abandonment of the policy recognizing the Malay states as Tanah Melayu (Land of the Malays) • Also deprive the Malays of their special positions & privileges & the preservation of which had been the objective of all preceding agreements

11. The opposition forced the British to withhold bringing into force all the provisions of the MU order-in-Council 1946. • In July 1946, a working committee of twelve was appointed under the chairmanship of Sir Malcolm MacDonald (first Governor-General MU) to work out in detail fresh arrangements would form the basis of future constitutional developments.

12. The proposals of that Committee, subject to discussions with representatives of the Malay Rulers & of the United Malays National Organization (UMNO) & consultations with representatives of the non-Malays, produced a scheme for a acceptable federation to all concerned. • The British Government & the Malay Rulers concluded the Federation Malaya Agreement (FMA)1948, then establishing the Constitution of the Persekutuan Tanah Melayu (Federation of Malaya)

13. Constitution of the Federation Malaya

14. Through FMA the Malay Rulers & British Government concluded separate agreement, providing for the government of the state in accordance with a written constitution & FMA 1948 • The Federation of Malaya was introduced on 1 February 1948 • The federation of Malaya, comprising the nine Malay states and the Straits Settlements of Penang and Malacca

15. A federal government was set up in Kuala Lumpur under the British High Commissioner. • The main organs were; • Executive Council • Legislative Council in which all races were represented • The FMA 1948 set the pattern for a federation with a strong, central government

16. And had being governed by two constitutions; • First by the Constitutions of the Federation of Malaya 1948 • Later by another one introduced for the Federation which attained independence from Britain in 1957. • The two constitutions differed in some fundamental aspects; otherwise most of its provisions are similar as any constitution of a state

17. The Malay Rulers become constitutional monarchs & members if the Majlis Raja-raja Negeri Melayu (Conference of Rulers-CR). • CR would meet at least three times a year. • Approval of the Majlis was required for any amendment in the constitution @ in the immigration laws & for appointments of senior government officials.

18. The Malays were recognized as the indigenous people, their special positions guaranteed • Citizenship was granted to non-Malays,however the qualifications were more stringent than those under the MU proposals.

19. The federation created by the FMA 1948 was intended to be an interim arrangement. • This is clear from the preamble to the agreement, which expressed the desire of the British Government & Malay Rulers that progress should be made towards eventual self-government. • In 1951, a ‘member’ @ ‘quasi-ministerial’ system was introduced under which nine nominated members of the Federal Legislative Council.

20. The Federal Legislative Council were made responsible for various ministries @ departments. • In 1952, the Federal Executive Council was expanded to include all ‘members’ with portfolio. • And in 1955, the first federal elections were held for 52 seats on the Federal Legislative Council.

21. The Alliance (of UMNO, MCA & MIC) won 51 seats & its leader, Tunku Abdul Rahman became Chief Minister. • The six month later he led a Malayan delegation to London to negotiate for independence (known as London Conference). • It lasting within three weeks in early 1956 & attended by • representatives of Malay Rulers & • Alliance Government • The British High Commissioner • Advisers to the British Government.

22. The basic principle upon which independence could be achieved were agreed on. • The conference appointed an independent Constitutional Commission to draw up a constitution providing for full self-government & independence for the Federation Malaya by August 1957. • The Commission known as Reid Commission

23. THE REID COMMISSION

24. The Constitutional Commission was headed by Lord Reid, Sir Ivor Jennings, Sir William McKell, M Justice B.Malik & Mr. Justice Abdul Hamid. • The Read Commission comprised a constitutional law expert from each of the following countries; • United Kingdom • Australia • India • Pakistan

25. The Reid Commission’s term of reference were to examine the existing constitutional arrangements throughout the federation • And also to recommend a federal form of constitution for the whole country based on the parliamentary democracy with a bicameral legislature. • The proposed constitution was to include provisions for;

26. The establishment of a strong central government • The safeguarding of the position & prestige of the Malay Rulers • A constitutional Yang di-Pertuan Agong (Head of State) for the federation, to be chosen from among Malay Rulers • A common nationality for the whole of the federation • The safeguarding of the special position of the Malays & the legitimate interests of the other communities.

27. The Reid Commission collected data & memoranda from June to Oct. 1956 And held 188 sessions. • In making its recommendations the Reid Commission had borne in mind that ‘the new provisions must be both practicable in existing circumstances & fair to all sections of the community • The Reid Commission Report, containing recommendations & a draft constitution was submitted to the British Government & the Malay Rulers on 21 Feb. 1956.

28. In the federation the Reid Commission Report was examined by a Working Party comprising; • The British High Commissioner • Representatives of the Malay Rulers • The Alliance Government • Chief Secretary • Attorney General. • Then its was simultaneously studied in the UK.

29. After the Working Party had submitted its recommendations, a delegation led by Tunku as Chief Minister went to London to settle unresolved issues. • The draft constitution prepared by the Reid Commission was reviewed & amended, in substance & in form • Nevertheless, that draft was the basis for the Constitution of the Federation of Malaya • Then proclaimed its independence on 31 August 1957

30. The major achievement of the parties who negotiated for independence & the Reid Commission that prepared the draft Independence Constitution was to define a compromise of the interests of the three main racial groups in the federation. • The resulting Merdeka Constitution was thus a social contract between the three races concerned.

31. The Merdeka Constitution has evoked the comment that though it was federal in form • The entity it created was in reality, unitary rather than federal. • Subsequent development have further concentrated power at the centre.

32. MALAYSIA CONSTITUTION (FEDERAL CONSTITUTION)

33. The Federation of Malaysia is the Federation of Malaya, enlarge. • It was born of an idea conceived by the Tunku in 1961 for close political & economic association between; • Federation of Malaya • Singapore • North Borneo (Sabah) • Sarawak • Brunei

34. The Malaysia concept was received if not hotly, at least warmly in Malaya, Brunei & Singapore. • Its realization, however was beset with difficulties. • Initial discussion progressed fairly quickly. Negotiations proceeded at two levels: • Bilateral negotiations between Malaya & Singapore on a possible merger • Multilateral discussions between the leaders of all the territory that might form Malaysia.

35. At a regional meeting of the Commonwealth Parliamentary association in Singapore July 1961, the leaders of all the territories concerned approved in principle the Malaysia concept • Then they set up a Malaysian Solidarity Consultative Committee and it recommended; • A commission be formed to ascertain the views of the people of North Borneo & Sarawak

36. The Federation of Malaya Constitution be the basis for the Federation of Malaysia Constitution • A strong central government responsible for external affairs, defence & security • Parliamentary representative based not only on population in a constituency, but also on size of the constituency • Special safeguards for North Borneo & Sarawak, especially in immigration matters • Special privileges for the indigenous people of the territories

37. By August 1961, the Tunku & Chief Minister Lee Kuan Yew had agreed on principle merger between Malaya & Singapore. • A Join Working Party was established to frame more detailed proposals. • The A joint British-Malayan Commission of Enquiry headed by Lord Cobbold (Cobbold Commission) was dispatched to Borneo territories to ascertain the views of the people.

38. And it reported in June that some 80 per cent of the people in the Borneo territories were in favour of joining Malaysia • In Brunei, Sultan Omar Ali Saifuddin’s enthusiasm for Brunei incorporation in Malaysia increased after a rebellion in December 1962. • The rebellion in Brunei led by Sheikh A.M. Azahari • He opposed the Malaysia concept & challenged tha Sultan’s rule but failed.

39. The final months of negotiations were marred by internal & external problems. • Internally, there was hard bargaining over controversial details concerning the Malaya-Singapore merger & the accession of the Brunei territories • There were two main dividing issues Brunei’s refusing to join at the last minute; • The proposed collection & use of Brunei’s oil revenues • The status accorded to the Sultan of Brunei among the Malay Rulers

40. Externally, opposition to the formation of Malaysia came from two fronts; • Philippines-claimed North Borneo as a former dependency of Sulu • Indonesia’s President Sukarno-denounced the Malaysia concept as a British neo-colonialist plot. • After a month of haggling, the Federation of Malaya, the UK, North Borneo, Sarawak & Singapore Government signed the “Malaysia Agreement Act 1963 in London on 9 July 1963.

41. The Malaysia Parliament passed Malaysia Act 1963 to give effect to that agreement in the federation. • That affected amendments to the Merdeka Constitution • These concerned special provisions for the new states that acceded which, in some significant aspects, elevated above the states of the former federation.

42. These changes raised comments that they really brought about a new constitution for a new federation • Essentially, the principle of equality of states underlying the Merdeka Constitution was sacrificed to accommodate the special interests of the newly incorporations states • In reality the new constitution did not bring the new states into association with the states of the former federation

43. Rather, it brought the new states into association with the former federation itself, such that the new federation really comprised four units: • The Federation of Malaya • Sabah • Sarawak • Singapore • The Federation of Malaysia was scheduled to be born on 31 August 1963, had its birth deferred to mid-September.

44. Malaysia difficulties continued after its formation. Indonesia & the Philippines refused to recognize the new federation. • Rejecting the findings of the United Nations Malaysia Mission to Borneo, Indonesia commenced Konfrontasi (Confrontation) & a Ganyang (Crush) Malaysia campaign.

45. Internal friction compounded these problem. • From the outset there was resentment between the former federation & newly incorporated states. • The resentment was most acute in relations between the federation & Singapore. • Each resented the other’s attempts to interfere in what they considered as their internal affairs.

46. The roots of the friction were part economic, part political. • Singapore’s attempts to create, prematurely,a multiracial society of equal opportunity-based purely on meritocracy-exacerbated racial tensions that had erupted in riots between Chinese & the Malays in Singapore in July & September 1964.

47. Worsening relations & mounting tensions drove the Tunku to drastic action. • Singapore was expelled. The separation of Singapore Agreement was signed on 7 August 1965. • The Malaysia Parliament passed the Constitution & Malaysia (Singapore Amendment) Act 1965 (No.53 0f 1965) then force on 9 August 1965

48. On that day, Singapore became an independent republic • Consequent amendments to the Federal Constitution were later effected by the Constitution (Amendment) Act 1966. • There has been no territorial change since Singapore left the federation except for internal boundary changes. • Wilayah Persekutuan Kuala Lumpur & Putrajaya were carved out of Selangor on 1 February 1974 & 1 February 2001 respectively & Labuan out of Sabah on 16 April 1984 to be made federal territories