Factors That Shaped the Malaysian Constitution

The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia. The Federation was at first called the Federation of Malaya and it adopted its present name, Malaysia, when the States of Sabah, Sarawak and Singapore joined the Federation. The Constitution develops the Federation as an absolute monarchy having the Yang di-Pertuan Agong as the Head of State whose functions are largely ritualistic.

It attends to the establishment and the organization of three primary branches of the government which are the Parliament, which consists of your home of Representatives and the Senate; the executive branch led by the Prime Minister and his Cabinet Ministers; and the judicial branch headed by the Federal Court.

Simply like any other constitution, the Malaysian Constitution can not be properly explained or understood without referring to its history.

Malaysian constitutional development has been influenced inter alia, by several elements which are pre-colonial indigenous customs of sovereignty; colonial conceptions of executive authority; indirect rule; federalism; and political and social concerns during the instant pre- and post-independence period.

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One of the elements is pre-colonial indigenous traditions of sovereignty. Until the 1940s modern-day democratic and representative forms of federal government were more or less unknown in Malaysia. However, this does not suggest that before the colonial duration there was no constitutional law.

The Malacca Sultanate is considered an example of a typical native system in the type of Kanun Undang-Undang Melaka or the Malacca Digest. Although it was not the very first sultanate (the Malacca Sultanate) the effect on the constitutional set-up of other sultanates which emerged later on, was quite far-reaching.

Whatever the legal code of the Malay sultanates those days, taking the Kanun Undang-undang Melaka or the Malacca Digest as an example, one requires to bear in mind that in those days there was no representation or celebration politics.

Apart from the Undang-undang Melaka which contains some constitutional rules, the traditional Malay constitutions were unwritten, being customary in nature. This does not mean that they were primitive or absolutist. For instance, Negeri Sembilan was a federation under the nominal sovereignty of a Sumatran prince, and had very complex rules to succession. All in all, whatever the status of the rulers, the views are divided over whether the rulers were really the ones who ran the states. As Muslim rulers, they were subject to limitations imposed by the Islamic law.

Besides, the colonial conceptions of executive authority, indirect rule or federalism has also been one of the factors which influenced the Malaysian Constitution. The British came to Malaya as traders but ended up interfering in the affairs of the sultanates, starting with the cession of Penang in 1786 by the Kedah Sultanate, etc. The British rule in the Malay states, started with the signing of Pangkor Engagement in 1874 with Perak. Similar treaties were concluded with other states such as Selangor in 1874, Negeri Sembilan in 1879 and Pahang in 1881.

The British did not abolish the sultanates. Instead they used the sultanate to further their interests in the Malay states. This was done through what was known as indirect rule where the sultans continued to be the rulers of the Malay states, but for intent and purpose, it was the British officers known as residents in the Federated Malay States and advisers in the Unfederated Malay States (Perlis, Kedah, Kelantan, Terengganu and Johore) that ruled those states. In addition, another element that influenced the Malaysian Constitution is the notion or idea of federalism.

After the Japanese surrendered in 1945, British administration was resumed. The British proposed the creation of a unitary state, the Malayan Union, with a broad-based Malayan Union citizenship, all citizens having equal rights. The Malayan Union was short-lived. It lasted only two years. Strong opposition came from the Malays, who realized that the MacMichael Treaties reduced the status of the Malay states to that of a colony which is a unitary state as opposed to that of Malay States such as Federated Malay State and Unfederated Malay State.

Malay States were protected states and not colonies) and deprived the Malay Rulers of their sovereignty. Why? This is because executive power was to be exercised by the Governor appointed by the Crown. Legislative power at state level was also to be curtailed. The Malayan Union later was replaced in 1948 by the first Federation of Malaya Constitution, regulating the federal conjunction of the same eleven colonies and protectorates. The Federation created by the Federation of Malaya Agreement (FMA) 1948 was intended to be an interim arrangement.

The agreement expressed the desire of the British Government and the Malay Rulers that progress should be made towards eventual self government. Accordingly, in 1951, ‘member’ or ‘quasi-ministerial’ system was introduced under which nine nominated members of the Federal Legislative Council were made responsible for various ministries and departments. Finally, in 1955, the first federal elections were held for fifty-two seats on the Federal Legislative Council. The Alliance (of UMNO, MCA and MIC) won fifty-one of the fifty-two seats and its leader, Tunku Abdul Rahman became Chief Minister.

Six months later, the Tunku led a Malayan delegation to London (the London Conference) to negotiate for independence. The basic principles upon which independence could be achieved were agreed on. The London conference appointed an independent Constitutional Commission to draw up a constitution providing for full self-government and independence for the Federation of Malaya by August 1957. The Commission was headed by Lord Reid, a British judge; Sir Ivor Jennings, a British expert on Commonwealth constitutional law; Sir William McKell, former Governor-General of Australia; B. Malik, a former High Court Chief Justice from India; and Justice Abdul Hamid of West Pakistan High Court.

The Commission’s terms of reference were to make recommendations for a federal constitution with parliamentary democracy, a bicameral legislature, a strong central government, safeguards for the position of the Rulers, common nationality and safeguards for the special positions of the Malays and the legitimate interests of other communities. The commission held 118 public and private hearings between June and October 1956. It made its recommendations on Feb 21, 1957, and submitted a draft constitution.

A committee was appointed to examine the Reid Commission Report. With a clock ticking against it because the date for Merdeka had already been set, the committee held 23 meetings between Feb and April and made significant amendments both in substance and form to the Reid Commission proposals. For example, special privileges; fundamental rights and judicial review. Then, followed with a lengthy and extraordinary process of ratification of the Merdeka Constitution by the Federal Legislative Council, the Assemblies of the Malay States, the UK Parliament and the British Crown.

The proposals were accepted by the Conference of Rulers in June 1957, and almost adopted by the Legislative Council in August. They were given effect by the Federation of Malaya Agreement 1957, the Federation of Malaya Independence Act 1957 (UK) and Orders-in-Council thereunder, the Federal Constitution Ordinance 1957, and State Enactments in the Malay States. At the stroke of midnight on August 31, 1957, at the Stadium Merdeka, the Duke of Gloucester, acting on behalf of the British Queen, handed over to the Tunku the constitutional documents signifying the independence of the federation of Malaya.

With the cries of “Merdeka, Merdeka, Merdeka,” Malaysia’s tryst with destiny had begun. In a nutshell, as Malaysia citizen, we should carry out our responsibility to follow the Malaysian Constitution. However, if a country without a constitution, the people would still remain uncivilized and chaos. Thus, a constitution is very important to our lives and we should be thankful to the previous history which creates the Malaysian constitution.