Introduction
Before we go into the discussions
which eventually led to the drafting of the Constitution, it is important to
provide a brief background on the history of Malaya after the 1940’s. This
article will focus on the principles and/or features of the Constitution which
are currently under attack and undermined by certain quarters.
Formation of the Federation of Malaya
In the early 1940’s, during the
Japanese conquest, the territories of Malaya were divided into three main
regions. The Straits Settlements consisted of Penang Island, Province
Wellesley, Malacca, Singapore, Labuan, the Cocos Islands and Christmas Island.
The Federated Malay States (“FMS”)
consisted of Negeri Sembilan, Pahang Perak and Selangor. The Unfederated Malay
States (“UFMS”) consisted of Johore,
Kedah, Kelantan, Terengganu and Perlis.
In 1946, after the Japanese
occupation was over, Malaya was under British military administration. Malaya
was moulded into a crown colony known as the Malayan Union, consisting of FMS,
UFMS and the Strait Settlements with the exception of Singapore. The idea at
that material time was to prepare the colony for independence. However the
intended arrangement would, if implemented, weaken the sovereignty of the Malay
rulers and establish equality between the Malays and non-Malays. The Malayan
Union constitution never got under way and was replaced in 1948 by the
Federation of Malaya Agreement (“FMA”).
The FMA was the first Malayan
national constitution, which ultimately established the Federation of Malaya
(the “Federation”). The FMA
established the position of the High Commissioner, who was effectively the head
of the state. The FMA provided a framework for the various bodies such as,
amongst others, the Council of Rulers, the Executive Council, the Federal
Legislative Council (the “Council”) and the Judiciary.
The first election to the Council
was held in July 1955. The Alliance, consisting of the United Malay National
Organization (“UMNO”), the Malayan
Chinese Association and the Malayan Indian Congress, won fifty-one of the
fifty-two seats contested. Tunku Abdul Rahman, the then President of UMNO and
the Alliance, became the Chief Minister of the Government.
Establishment of The Reid Commission
Following the elections, the
desire for political independence and complete sovereignty grew stronger. In
August 1955, the United Kingdom (“UK”),
the Rulers and the Alliance Government agreed to hold a conference in London to
discuss plans for an establishment of a federal constitution. A conference was
held in January 1956 in London and attended by representatives of the Rulers,
the Chief Minister of the Federation with three other ministers, and the High
Commissioner with his advisers. The Conference agreed that, amongst others, a
full self-government and independence within the Federation should be
proclaimed by August 1957 and that a Commonwealth Constitutional Commission
should be appointed to make recommendations for a Constitution for the
Federation (the “Reid Commission”).
The Reid Commission was headed by Lord Reid (British judge), Sir Ivor Jennings
(Master of Trinity Hall, Cambridge), Sir William McKell (former Governor
General of Australia), Mr. B. Malik (former Chief Justice of the Allahabad High
Court) and Justice Abdul Hamid (West Pakistan High Court).
The terms of reference of the
Reid Commission were, essentially, to make recommendations for a federal
constitution with the following features:
1. Westminster
style of parliamentary democracy;
2. A
bicameral legislature;
3. A
strong central government;
4. Safeguards
for the position of the Rulers;
5. Common
nationality for the whole of the Federation; and
6. Safeguards
for the special position of the Malays and the legitimate interests of other
communities
The Reid Commission held public
and private hearings between June and October 1956. At this point, it is
important to point out the positions taken and the discussions on the special
position of the Malays.
Discussion on the Special Position of the Malays
On 25.09.1956, the Alliance
presented a Memorandum to the Reid Commission on the special position of the
Malays. The Memorandum stated:
“While we accept that in independent
Malaysia, all nationals should be accorded equal rights, privileges and
opportunities and there must not be discrimination on grounds of race or creed,
we recognize the fact that the Malays are the original sons of the soil and
that they have a special position arising from this fact, and also by virtue of
the treaties made between the British Government and the various sovereign
Malay States. The Constitution should, therefore, provide that the Yang
di-Pertuan Besar should have the special responsibility of safeguarding the
special position of the Malays. In pursuance of this, the Constitution should
give him powers to reserve for Malays a reasonable proportion of lands, posts
in the public service, permits to engage in business or trade, where such
permits are restricted and controlled by law, Government scholarships and such
similar privileges accorded by the Government; but in pursuance of his further
responsibility of safeguarding the legitimate interests of the other
communities, the Constitution should also provide that any exercise of such
powers should not in any way infringe the legitimate interests of the other
communities or adversely affect or diminish the rights and opportunities at
present enjoyed by them.”
On 27.09.1956, during submissions
by the Alliance before the Reid Commission, the following positions were taken
by Dato Abdul Razak:
“Chairman: But you would be prepared
to leave [State reservations of land for Malays] to the provision that an
extension of the privilege is not to be increased substantially because you say
at the end, the privilege “should not in any way infringe the legitimate interests
of the other communities”. That would mean that you must not have more of these
privileges than you have at present, I suppose.
Dato Abdul Razak: We do not want to
reduce the legitimate interests of the others. What we have in mind is not to
give Malay special rights by taking away the legitimate rights of other people.
Chairman: I think what you mean
here—the Malays have certain rights at this moment, and of course every
additional privilege is, to some extent, prejudicing the others because it is
limiting the amount of land or the number of jobs they could get and so on; and
I think what you have in mind was that there should be no substantial increase
in the present rights and privileges but that they should gradually be
diminished and that it should be the responsibility of the Prime Minister, in
Federal matters, to regulate the way in which it should be diminished?
Dato Abdul Razak: In certain cases it
should be increased—in business or trade the Malays have very few permits, and
they should be given more, but by giving more we should not take away from what
the non-Malays now have. That is the idea.”
Further, Tunku Abdul Rahman
stated during the submissions:
“Tunku Abdul Rahman: The suggestion
is that there should be a review every 15 years.
Chairman: That would not mean, I
suppose, that it was wrong to do anything before that?
Tunku Abdul Rahman: No. The present
system of doing it is this: for instance there is a condition that there should
be three Malays appointed to every one non-Malay, but that particular rule has
been relaxed from time to time … the main thing is that we say here under
general terms of the special position of the Malays that it should be reviewed
every 15 years, but that does not prevent the government of the day from relaxing
the rule from time to time.”
Certain points are clearly borne
out from the above. The special position of the Malays was never intended to
affect or diminish the rights that were then available to the other
communities. Further, such privileges were not intended to be permanent.
The Reid Commission Report and the aftermath
The Reid Commission made its
recommendations on 21.02.1957 (with a draft Constitution). However, there was
dissatisfaction with some of the recommendations.
1. Citizenship
– Malay organisations felt that citizenship by registration or naturalisation
should be discretionary. People not born in the country should not have an
automatic right to be citizens. The Chinese groups were unhappy that the
principle of jus soli for citizenship was not made retrospective. The principle
of dual citizenship was criticised.
2. Malay
privileges – The Reid Commission recommended that Malay privileges would
continue for 15 years, where after that it would be reviewed, and then either
continued, reduced or discontinued. This position was close to that taken by
the Alliance as stated above, except insofar that the Reid Commission provided
that the quotas could only be reduced and not increased. This proposal created
uproar among the Malays. UMNO, through its General Assembly, decided that there
should be no time limit for the privileges. Some Chinese groups criticised the
concept as it would create two grades of citizenship.
3. Malay
land reservation – The recommendations placed restrictions on the creation of new
reservations and made it compulsory that an equivalent amount of land was set
aside for non-Malays. UMNO wanted more versatility in creating more Malay
reserve lands and also an extension of the same to Penang and Malacca.
4. Official
religion – UMNO was dissatisfied that no official religion was prescribed. The
Reid Commission decided that religion should be left as a State matter, as per
the Rulers request. UMNO objected to this recommendation.
5. Role
of the Rulers – The Rulers were unhappy that the role of the Conference of
Rulers was merely symbolic, particularly on the area of finance.
The Tripartite Working Party
As a result of the
dissatisfaction stated above, a tripartite Working Party (the “Working Committee”) was appointed to
examine the Reid Commission’s report. The Working Committee comprised of four
members of the colonial government (High Commissioner MacGillivray as Chairman,
the Chief Secretary Sir David Watherston, the Attorney General T V A Brodie and
the Secretary, E O Laird), four representatives of the Malay Rulers (Keeper of
the Rulers’ Seal Haji Mustapha Albakri Haji Hassan, Shamsuddin Nain, Tunku
Ismail and Neil Lawson, QC), and four representatives of the Alliance (Chief
Minister Tunku Abdul Rahman, Dato Abdul Razak, Ong Yoke Lin and V T
Sambanthan).
The Working Committee held 23
meetings between 22.02.1957 and 27.04.1957. It is important to note that the
Alliance and the Malay Rulers were very much involved in the drafting of the
Constitution at this stage. Ultimately, the Working Committee’s report made
significant changes to the Reid Commission’s report.
1. The
15-year limit for Malay privileges was removed. Malay privileges were made an
integral part of the Constitution, but clear provisions were added so that the
existing rights of the non-Malays will not be extinguished. It is important to
note that the Malay Rulers took the position that they preferred to stick with
the Reid Commission’s proposal of a 15 year periodic review, as a removal of the
same would render the guarantee of equality under Article 8 illusory.
Ultimately, the position of the Alliance was adopted.
2. Islam
was prescribed as the religion of the Federation. However, other communities
were guaranteed the full freedom to practise their own faiths. This will be discussed
further below.
3. The
role of the Conference of Rulers was enhanced.
4. The
permission to use Tamil and Chinese in the legislatures was replaced with the
provision that these languages could be used for non-official purposes.
5. The
provision on citizenship by registration was re-worded to confer some
discretion on the Government to grant the same.
6. Persons
with double nationality were to be given a period of one year to decide which
nationality to choose.
The London Conference
Some issues still remained
unresolved after the Working Committee submitted its proposal. The issue on
dual citizenship was resolved by an agreement that those holding two
citizenships would be able to continue doing so but must choose one or the
other within one year. In regards to Malay reserve land for Penang and Malacca,
it was proposed that the Governments of these States may set up trusts to buy
land for the settlement of Malays.
The Federal Constitution and its founding principles
At the stroke of midnight on
31.08.1957, the Federal Constitution was established upon the declaration of
independence. As it stood in 1957, the Federal Constitution provided for, and
was founded upon, amongst others, the following core principles:
1. Supremacy
of the Constitution as guaranteed under Article 4 of the same. No body or organ
is above the Constitution. As Tun Suffian, Lord President had observed in Ah
Tian v Government of Malaysia [1976] 2 MLJ 112, at p. 113:
“The doctrine of
the supremacy of Parliament does not apply in Malaysia. Here we have a written
constitution. The power of Parliament and of state legislatures in Malaysia is
limited by the Constitution, and they cannot make any law they please.”
2. The
doctrine of separation of powers was pivotal to provide an effective check and
balance system. There was no doubt on the applicability of this doctrine back
then. As Suffian, Lord President pithily observed in Merdeka University Berhad v
Government of Malaysia [1982] 2 MLJ 243, at p. 252:
“The fact that
the Federal and High Courts are excluded from the definition of public
authority does not affect the question before us. It is due to the need to
maintain judicial independence, and to make clear that these courts are not
part of the Executive.”
3. That
although Islam is the official religion, the public sphere of the nation would
be secular in nature. The Reid Commission took pains to clarify that:
“This will in no way affected the present
position of the Federation as a secular State, and every person will have the
right to profess and practise his own religion and the right to propagate such
religion, though this last right is subject to any restrictions imposed
by State law relating to the propagation of any religious doctrine among persons
professing the Muslim religion”
This position
was further maintained in the Working Committee’s report. It is important to
reiterate here that, the Alliance and the Rulers played a substantial role in
the outcome of this report, which clearly states:
“There has been
included in the proposed Federal Constitution a declaration that Islam is the
religion of the Federation. This will
in no way affect the present position of the Federation as a secular State, and
every person will have the right to profess and practice his own religion and
the right to propagate his religion, though this last right is subject
to any restrictions imposed by State law relating to the propagation of any
religious doctrine or belief among persons professing the Muslim religion.”
The Constitution
in itself guaranteed that other religions “may be practised in peace and
harmony in any part of the Federation”. The fact that Islam is the official
religion of the Federation cannot be applied or interpreted in such a way as to
deprive the rights of other communities. Article 3(4), a much forgotten
sub-article, provides:
“Nothing in this
Article derogates from any other provisions of this Constitution”
4. A
guarantee of non-discrimination on grounds of, amongst others, religion, race
or descent as provided for under Article 8 of the Constitution. The Malay
privileges were eventually codified under Article 153 of the Constitution.
However, the same article provided for safeguards against discrimination, where
it would not affect any existing holder of any public office or scholarship,
etc; and would not allow discrimination on the grounds of race among Federal
employees (in promotions, etc.) once they had joined the public service.
Further, Article 136 of the Constitution provides:
“All persons of
whatever race in the same grade in the service of the Federation shall, subject
to the terms and conditions of their employment, be treated impartially”
That Article 153
was not to be applied in such a manner as to deprive the rights of other
communities was clarified by the Working Committee, where it stated:
“He (Yang
di-Pertuan Agong) will be required to exercise his functions under the
Constitution and federal law in such a manner as may be necessary to safeguard
the special position of the Malays and to ensure the reservation for Malays of
such quotas as he may deem reasonable; and he will be entitled to give general
directions to the appropriate authorities for the purpose of ensuring the
reservation of these quotas. In the
exercise of these functions, the Yang di-Pertuan Agong will be required to
safeguard also the legitimate interests of other communities.”
Further,
although the 15-year periodic review of the Malay privileges was removed, the
Working Committee made it clear that the Yang di-Pertuan Agong should, however,
cause a review of the same from time to time.
“The Commission
recommended that their proposal for continuing the present preferences should
be reviewed after 15 years. This recommendation was given careful consideration
but it was not considered necessary to include such a provision in the
Constitution. It was considered preferable that, in the interests of the
country as a whole, as well as of the Malays themselves, the Yang di-Pertuan Agong should cause a review of the revised
proposals to be made from time to time.”
I have singled out the above features of the Federal
Constitution as I believe that they are very much now under threat.
The formation of
Malaysia
On 27.05.1961, Tunku Abdul Rahman, the then Prime Minister
of the Federation, suggested the formation of Malaysia, a Federation comprising
of his country, Singapore, Sarawak, Brunei and North Borneo (Sabah). Brunei
initially showed interest to join but eventually decided to back out at the
closing stages.
In April 1962, a joint British-Malayan commission known as
the Cobold Commission was formed and reported that the people of the Borneo
States wished to join Malaya. It is pertinent to point that the Report of the
Cobold Commission reiterated the position that Malaya was to be effectively a
secular state.
“Taking these points fully into consideration,
we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no
way jeopardizes freedom of religion in the Federation, which in effect would be
secular”
Ultimately, on 16.09.1963, the Federation was transformed
into the Federation of Malaysia, consisting of the existing States with the
addition of Sabah, Sarawak and Singapore. However, Singapore was expelled from
Malaysia in 1965 via the Constitution and the Malaysia (Singapore Amendment) Act
1965.
Conclusion
As can be seen clearly, the founding fathers of this nation
had a very clear picture on what this country was supposed to be, and how it is
to be developed. Ultimately, the nation was to be built on secular principles,
with no elements of discrimination against any race. Assistance was to be
provided those in need of assistance, and not solely on the account of race. It
is a complete shame on how far we have strayed from the path in which our
founding fathers have set us on.
