Q.
How is the Constitution affected by the history of Malaysia during the independence?
A.
History of Federation of Malaya, the independence on Merdeka day 31st August, 1957 and the subsequent formation of Federation of Malaysia on 16th Sep, 1963 all affected the Laws of the land, The Federal Constitution.
There are three parts:
1. The laws of various states of Malaya thereafter at Merdeka Day was consolidated as The Constitution of Malaya. This is called the Federation of Malaya Constitution 1957 (Merdeka or Independence Constitution). Actually, these can be subdivided into the Straits Settlements (Penang and Melaka), the Federated Malay States and the Unfederated Malay States. Earlier on, this constitution originated from the Federation of Malaya Agreement 1948. And, in turn, out of the Federated Malay States Agreement 1895.
2. The laws of Sarawak, North Borneo, Singapore and Brunei (which pulled out at last minute) which consisted the various states.
3. The laws of federal territories like Kuala Lumpur, Labuan and Putrajaya.
As Malaysia is a federation of thirteen states, it has altogether fourteen constitutions: the Federal Constitution and thirteen State constitutions.
Johor was the first state to have a written constitution, granted in 1895 by Sultan Abu bakar. Trengganu was granted a written constitution by Sultan Zainal Abidin III in 1911. Each of the other states in the Peninsula, apart from Penang and Melaka, was given one constitution under the terms of the respective State Agreement concluded between the United Kingdom and the Malay Rulers just before the conclusion of the Federation of Malaya Agreement (FMA) in 1948. Penang and Melaka
received theirs under the Federation of Malaya Agreement (FMA) 1957. Sabah and Sarawak were each given a new constitution under the Malaysia Agreement 1963.
After the first federal election 1955, Tunku being then the Chief Minister, led a Malayan delegation to London to negotiate for independence. The London Conference, consisted of Malay Rulers, The Alliance Government (UMNO, MCA & MIC) and the British Government agreed on 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 constitutional commission was headed by Lord Reid, a Lord of Appeal in Ordinary. The Reid Commission comprised a constitutional law expert from the following countries: The UK, Australia, India and Pakistan.
The terms of reference were based on:
- Strong central government
- Safeguarding position and prestige of the Malay Rulers as Constitution Rulers of respective states
- A constitutional Yang Di-Pertuan Besar for the Federation, to be chosen among the Malay Rulers
- A common nationality for the whole federation, and
- Safeguard the special position of the Malays and the legitimate interests of other communities.
This Reid Commission Report was later based upon for drafting the Constitution and indeed it became the Independence Constitution. The major achievement of the parties who negotiated for independence, and of 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.
With the coming together of Federation of Malaya, Singapore, Sarawak, North Borneo (later called Sabah) and Brunei, the original idea was to form a bigger Federation. However, Brunei pulled out at 11 hours, opposition by The Philippines and Indonesia, and even at last minute by State of Kelantan,
Malaysia Agreement was signed in London on 9 July, 1963. The Malayan Parliament passed the Malaysia Act 1963 to give effect to that agreement in the Federation of Malaya. That Act effected
amendments to the Merdeka Constitution. These changes raised comments that they really brought
about a new constitution for a new federation.
Essentially, the principles of equality of states underlying the Merdeka Constitution was sacrificed to accommodate the special interests of the newly incorporated states, namely Singapore, Sarawak and Sabah. Thus, the constitution is for the four units comprising of the Federation of Malaya, Sabah, Sarawak and Singapore, and not individual states of the federation with the new states.
With the worsening relations and mounting tensions between Singapore and Malaya, Tunku had to expel Singapore. The Separation of Singapore Agreement was signed on 7 August, 1965. The Malaysian Parliament passed the Constitution and Malaysia (Singapore Amendment) Act 1965, which came into force on 9 August 1965. In that day Singapore became an Independent Republic.
Consequent amendments to the Federal Constitution were later affected by the Constitution (Amendment) Act 1966.
Ref:
Wan Arfah Hamzah (2009) A First Look at the Malaysian Legal System. Oxford Fajar. Pg: 29-39.