AN ESSAY ON THE CONSTITUTIONAL HISTORY OF MALAYSIA (PART 2)

by Y.A. Tuan Mohd. Hishamudin bin Mohd. Yunus SUBJECT: Constitutional Malaysia Also found at [1995]3 CLJ xxxi (July) 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-inCouncil.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 Federations 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 selfgoverning 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 diPertuan 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 Majestys 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 Majestys 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 Gods 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 Tunkus 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 SecretaryGeneral 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-Generals 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 PutraAl-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 States objections: They are that the Malaysian Act will in effect abolish the Federation of Malaya, that this is contrary to the 1957 Agreement, that in any event the proposed changes require the consent of each of the constituent States, including Kelantan, and this has not been obtained, that the Ruler of the State of Kelantan should have been a party, which he was not, to the Malaysia Agreement, that apart from anything else there is a constitutional convention that the Rulers of the individual States should be consulted regarding any substantial changes in the Constitution, and that in any event the Federal Parliament has no power to legislate for the State of Kelantan in respect of any matter regarding which the State has its own legislation.179 Thomson CJ, in discussing the application held: (1) that Parliament had power under Art. 159 of the 1957 Constitution to enact the Malaysia Act so as to amend Art. 1(1) and (2) to admit the three new members and this amendment did not require a two-thirds majority. The Constitution which formed an integral part of the Federation of Malaya Agreement, 1957 did not require consultation with any State as a condition to be fulfilled; (2) that the Malaysia Agreement was signed for the "Federation of Malaya" by the Prime Minister, Deputy Prime Minister and four members of The Cabinet. This was in compliance with Arts. 39 and 80(1) of the Constitution and there is nothing whatsoever in the Constitution requiring consultation with any State Government or the Ruler of any State.180 Thus went the historic judgment and slightly more than twenty four hours later, on 16 September 1963, Malaysia was born. Almost two years later on 9 August 1965, Singapore separated to become a fully independent republic within the Commonwealth. Endnotes: 107 SI 1948, No. 108.

108 Allen, Stockwell, Wright, Collection of Treaties (ibid.): Johore Treaty, pp. 124-128; Kedah Treaty, pp. 182-186; Kelantan Treaty, pp. 227-231; Negeri Sembilan Treaty, pp. 332-339; Pahang Treaty, pp. 361-366; Perak Treaty, pp. 401-406; Perlis Treaty, pp. 428-432; Selangor Treaty, pp. 456-461; Trengganu Treaty, pp. 500-504. All these treaties were dated 21 January 1948. 109 Ibid., pp. 100-223. 110 State of Johore and the Federation of Malaya Agreements (Ratification) Enactment, 1948 (Joh. 1/48); State and Federation Agreements (Ratification) Enactment, 1948 (Kedah 1/1367 (1948)); State and Federation Agreements (Ratification) Enactment, 1948 (Kelantan Enactment No. 1 of 1948); State and Federation Agreements (Ratification) Enactment, 1948 (Negeri Sembilan Enactment No. 1 of 1948); State and Federation Agreements (Ratification) Enactment, 1948 (Pahang Enactment No. 1 of 1948); State and Federation Agreements (Ratification) Enactment, 1948 (Perak Enactment No. 1 of 1948); State and Federation Agreements (Ratification) Enactment, 1948 (Perlis Enactment No. 1 of 1948); State and Federation Agreements (Ratification) Enactment, 1948 (Selangor Enactment No. 1 of 1948);

State and Federation Agreements (Ratification) Enactment, 1948 (Trengganu Enactment No. 1 of 1948). 111 Federation of Malaya Agreement, 1948, Art. 7. See Allen, Stockwell, Wright, Collection of Treaties (ibid.), pp. 100-223. 112 Ibid., Arts. 36-39. 113 Ibid., Art. 38. 114 Ibid., Art. 32. 115 Ibid., Art. 67. 116 Ibid., Art. 72. 117 Ibid., Arts. 16-17 and 86. 118 Ibid., Art. 22. 119 Ibid., Art. 32. 120 Ibid., Art. 100. 121 Ibid., Art. 101. 122 Article 15 of the treaties with the States. See n. 105 (ibid.). 123 Treaties with the States (ibid.), Art. 9. 124 Ibid., Art. 13. 125 Ibid., Art. 4. 126 The Straits Settlements (Repeal) Order in Council, 1946 (SI 1946 No. 462). 127 Report of the Federation of Malaya Constitutional Commission 1957 (Colonial Office, London) (which shall be referred to as the Reid Report), para. 3. 128 This Report has got to be read together with the White Paper entitled "Constitutional Proposals for the Federation of Malaya" (Colonial Office, London, Cmnd. 210), which sets out the changes made to the recommendations of the Reid Report. 129 Reid Report (ibid.), para. 57.

130 Ibid., para. 127. The title of the Head of State as recommended by the Reid Commission was "Yang di-Pertuan Besar" but this was subsequently changed to "Yang di-Pertuan Agong" (see Constitutional Proposals (ibid.), para. 15). 131 Ibid., paras. 60-63, and Constitutional Proposals (ibid.), para. 20. 132 Ibid., paras. 68-69. 133 Ibid., see generally paras. 81-121. 134 Ibid., para. 123. 135 Ibid., para. 124, and Constitutional Proposals (ibid.), para. 33. 136 Ibid., para. 59, and Constitutional Proposals (ibid.), paras. 16-17. 137 Ibid., para. 161. 138 Ibid., paras. 163-168, and Constitutional Proposals (ibid.), paras. 54-55. 139 Zelman Cowan, "The Emergence of a New Federation in Malaya", [1958] 1 Tasmanian University Law Review, pp. 63-64. 140 Reid Report (ibid.), para. 136. 141 Ibid., para. 174. 142 Ibid., paras. 36-38. 143 The authoritative texts of these Constitutions are found in the various State Gazettes as follows: Johore - Joh. GN 2/1948; Kedah - Ked. LN 32 of 1959; Kelantan First Part - Kel. GN 15/1948; Second Part - Kel. GN 195/1957; Negeri Sembilan - NS GN 214/1959; Pahang - Phg. GN 146 of 1959;

Perak First Part - Pk. GN 10/1948; Second Part - Pk. GN 152/1954; Perlis - Per. LN 4 of 1959; Selangor - Sel. GN 349 of 1959; Trengganu First Part - GN 17/1948; Second Part - GN 423/1950. 144 Ibid., para. 177. 145 Ibid., para. 180. 146 Ibid., para. 181. 147 Ibid., para. 182. 148 Ibid., para. 191. 149 5 & 6 Eliz 2 c 60. 150 Federation of Malaya Independence Order in Council, SI 1957 No. 1533. 151 Malayan Constitutional Documents, Vol. 1, pp. 9-11 and 19-172. 152 Ibid., Art. 3. 153 Ibid., Art. 5. 154 Ibid., Art. 4 and Second and Third Schedule. 155 Ordinance No. 55 of 1957. 156 Johore - Joh. GN No. 1A (New Series) of 1957; Kedah - Ked. GN No. 216 of 1957; Kelantan - Kel. GN No. 262 of 1957;

Negeri Sembilan - NS GN No. 452 of 1957; Pahang - Phg. GN No. 301 of 1957; Perak - Pk. GN No. 1372 of 1957; Perlis - Per. GN No. 85 of 1957; Selangor - Sel. GN No. 431 of 1957; Trengganu - Tr. GN No. 242 of 1957. 157 Malayan Constitutional Documents, Vol. 1, pp. 17-18. 158 R.H. Hickling, "An Overview of Constitutional Changes in Malaysia: 1957-1977", Ed., Tun Mohamed Suffian, H.P. Lee and F.A. Trinidade (Kuala Lumpur: Oxford University Press, 1978), p. 8. 159 Allen, Stockwell, Wright, Collection of Treaties (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. 165 Allen, Stockwell, Wright, Collection of Treaties (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. 168 SI 1956 dated 23 August. 169 SI 1956 dated 16 November. 170 SI 1956 dated 3 August. 171 SI 1956 dated 31 August .

172 As Singapore subsequently left Malaysia in 1965, it is not proposed here to elaborate on its constitutional developments. 173 Cmnd. 1794. 174 Malaysia: Report of the Inter-Governmental Committee 1962 (Government Printer, Federation of Malaya, 1963). 175 Allen, Stockwell, Wright, Collection of Treaties (ibid.), pp. 278-281; Parliamentary Papers, Cmnd. 2094, July 1963. 176 Federation of Malaya Act No. 26 of 1963. In the United Kingdom there was passed the Malaysia Act 1963 (1963 c. 35) which provided for the establishment of Malaysia and the termination of Her Majestys 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.