1. HISTORICAL
DEVELOPMENTS OF
MALAYSIA’S
CONSTITUTION

2. PRE-COLONIAL
CONSTITUTIONAL HISTORY



i) Malay Constitutional Ideas in General
ii) The Constitutional Legacy of the Melaka
Sultanate
iii) Negeri Sembilan and the Minangkabau
Constitution

3. i) Malay Constitutional Ideas in
General


The constitutional ideas of the Malay states
stem from the Melaka sultanate.
Apart from the Undang-Undang Melaka,
which contains some constitutional rules, the
traditional Malay constitutions were unwritten,
being customary in nature.

4. The community were actually
extremely rich and complex to the
point of obscurity, depending
largely on a combination of
precedent, political circumstance
and opinion.

5. However, there are differences of
law between states.
Negeri Sembilan, for example, was
a federation under the nominal
sovereignty of a Sumatran prince,
and had very complex rules of
succession.

6. ii) The Constitutional Legacy of the
Melaka Sultanate


The three texts, Undang-Undang Melaka,
Ninety-Nine Laws of Perak and Sejarah
Melayu gave broad conceptions of
sovereignty.
From these texts, they seek to establish the
dignity of the Raja as a focus of unity and
security.

7. iii) Negeri Sembilan and the
Minangkabau Constitution


Constitutional ideas were taken much further
in Negeri Sembilan than in any other state.
This State (originally nine States which
merged later into four) was formed by
immigrant Minangkabau Malays from West
Sumatra, whose constitutional ideas were
based on consensual democracy and
federalism.

8. The emphasis on judicial powers is
due to the importance of adat in
Minangkabau culture.
It was not merely a basis for
resolving disputes, but the basis of
all governmental activity.

9. CONSTITUTIONAL DEVELOPMENTS
DURING THE COLONIAL PERIOD



i) The British Residential System
ii) The Introduction of Written Constitutions
iii) The Federated Malay States

10. i) The British Residential System


The British intervention was precipitated by a
number of commercial and strategic factors.
The Pangkor Engagement of 1874, under
which Perak accepted a British Resident, set
the precedent for and the style of the British
intervention and the residential system
throughout Malaya.

11. The Ruler accepted a British
Resident as adviser, but retained
control over matters pertaining to
Islam and Malay custom.

12. ii) The Introduction of Written
Constitutions

Another result of British intervention was
the innovation of the written constitution,
which occurred in Johor and Terengganu.

Terengganu was granted its own written
constitution by the Ruler in 1911.

13. Johor, on the other hand, recognized
as an entirely independent state by a
Treaty of 1885, was granted a
written Constitution in 1895 by
Sultan Abu Bakar shortly before his
death.

14. It is to the Johor constitution that
Malaysia owes the principle of
equal treatment of all races under the
law.
Johor was also the first state to adopt
a British-style governmental
structure.

15. iii) The Federated Malay States

It was thought that the administrative
centralization in Kuala Lumpur under a
Resident-General would prove more
economical in terms of communications and
administration, and more uniform in terms of
policy.

16. In 1895, the four protected states
(Selangor, Negri Sembilan, Pahang
and Perak) were grouped together
into a federation by a short
“Treaty of Federation”.

17. Although it purported to constitute
the four states into a federation,
there was no surrender of
sovereignty, and the government was
to be administered under the advice
of the British Government.

18. The Emergence of the Modern
Constitution






i) The Malayan Union (1946-1948)
ii) The Federation of Malaya (1948-1957)
iii) The Reid Commission 1957
iv) The Debate on the Reid Commission’s
Proposals
v) The Malaysian Federation 1963
vi) Crisis I: The 13 May 1969 Riots and NOC
Rule

19. i) The Malayan Union (1946-1948)

Following the reoccupation of Malaya
and Borneo by British and empire forces
on the Japanese surrender in 1945, it
was a clear political necessity to move
from military administration to some
form o f self-government.

20. The result of deliberation over
these problems was the Malayan
Union Plan, which was introduced
by the Malayan Union Order-inCouncil on 1 April 1946, but never
came fully into operation due to
fierce Malay opposition.

21. Its general shape can be seen
from the following summary:
A) Unitary state
 B) Executive power
 C) Legislative power
 D) The States
 E) Judicial power


22. A) Unitary state


The Malay States (FMS and UMS), together
with the Settlements of Penang and Melaka,
but not Singapore, were joined in a unitary
state.
To make this happen, the Rulers had to sign
the MacMichael Treaties of 1945, which
ceded sovereignty and all legal authority in
the Malay States to the Crown.

23. B) Executive power


Executive power was to be exercised by a
Governor, appointed by the Crown and
advised by an appointed Executive council
which included three ex officio members.
The Governor was aided by an Advisory
Council consisting of three ex officio
members and other members and other
members appointed by the Governor.

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

25. The Governor retained the power
to legislate, after consulting the
Advisory Council, ‘for the peace,
order and good government’ of the
Union.

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

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

28. ii) The Federation of Malaya
(1948-1957)

At Working Committee of 12, comprising
six British officials, four representatives of the
Rulers, and two representatives of UMNO,
formulated a new federal plan which had the
following features:

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

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

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

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

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

34. iii) The Reid Commission 1957


The modern Malaysian constitution has its
more precise origins in the Report of the
Constitutional Commission of 1957, chaired
by Lord Reid (the Reid Commission).
Later, constitutional developments have been
in essence departures from the “Reid
Constitution”, as the Merdeka Constitution of
1957 is often called.

35. Cont.









i) Appointment of the Commission;
ii) The legislature
iii) The executive
iv) The Rulers
v) The States
vi) The judiciary
vii) Special privileges and the national language
viii) Fundamental rights and judicial review
ix) Emergency powers

36. i) Appointment of the Commission;

Following the first federal elections in 1955,
the prospect of imminent independence
raised, for the third time in ten years,
important constitutional issues.

37. A Constitutional Conference on the usual
imperial pattern was held in London
in January and February 1956 between
representatives of the British
Government, the Rulers (four
representatives), the Chief Minister (the
Tunku), three Ministers of the
Federation Government, and the High
Commissioner,

38. This important Conference
proposed independence for the
Federation by August 1957 and
the appointment of a
Constitutional Commission. The
proposal having been accepted by
the Rulers and the British
Government, the Commission
submitted its Report about one year
later, in February 1957.

39. Members of The Reid Commission





i) Lord Reid (the Scottish judge);
ii) Sir Ivor Jennings (the Cambridge jurist);
iii) Sir William McKell (a former Judge
Governor-General of Australia);
iv) Mr. Justice B. Malik (an Indian Judge);
v) Mr. Justice Abdul Hamid (a Pakistani
Judge).

40. The appointment of such a
Commission was preferred to the
appointment of a constituent
assembly as occurred in India.

41. Although this enabled independence to
be reached probably sooner than might
otherwise been possible, and although
the Commission consulted widely and
sympathetically and the Reid
Constitution was accepted by all the
relevant institutions in Malaya, the
Malaysian Constitution has probably
suffered from the fact that it was not
drafted by the representatives of the
people.

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

43. ii) The legislature



The Reid Commission recommended as the
federal legislature a Parliament consisting of:
a) Dewan Rakyat (House of Representatives)
of 100 members, similar to the House of
Commons in the United Kingdom; and
b) A Dewan Negara (Senate).

44. iv) The Debate on the Reid
Commission’s proposal

The principle topics for debate concerning
the Constitution were of course the central
concerns of the social contract, citizenship,
language and special privileges.

45. v) The Malaysian Federation 1963


Accordingly, federation proceeded on 16
September 1963, despite the persistence of
objections.
With the formation of Malaysia, true
independence was attained by the former
British territories in the region.

46. vi) Crisis I: The 13 May 1969 Riots
and National Operation Council
(NOC) Rule

The race riots of 13 May 1969 and the
emergency proclamation and emergency rule
which followed constituted the most
traumatic episode in the post-independence
history of Malaysia, and affected the nature
of Malaysia constitutionalism.