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9. The careful student of Malayan history will not allow the spot-light of juristry to blind his eyes to the essential difference in fact and circumstance between the intervention by Britain in the affairs of Perak, Selangor, Negri Sembilan, and Pahang during the internecine and chaotic seventies or early eighties and her assumption, later by three decades, of suzerainty or protection over the other Malay States. The system of administration set up in the four Federated States was frankly British, for it was the first real administration that those States had ever enjoyed; and there was no pre- British system which could have been evolved as representative of the genius of the people. Johore, Kedah and Kelantan, however, were profoundly affected by develop- ments in the neighbouring four States; consciously or unconsciously, and with the aid of British officials recruited by themselves, they copied and adapted. The result was a Malay copy in the Unfederated Malay States of the British original in the Federated Malay States; and the Malays cannot be quarrelled with for preferring their own adaptation to our imposition. But the former depended for its existence on the latter, and the idea that we should or could have proceeded in 1879 as we did later in 1909 is fallacious because it postulates the impossible.
28th September, 1931.
A. CALDECOTT,
Acting Chief Secretary to Government, Federated Malay States.
Enclosure 2 in No. 41.
MEMORANDUM.
In this case the constitutional points pleaded and argued by the plaintiffs were (a) That the State Council of Pahang was a merely advisory body.-Para-
graph 17 of plaint.
(b) That laws enacted by the Sultan of Pahang in Council owed their force
solely to the assent of the Sultan.-Paragraph 18 of plaint.
(c) That no defined powers of legislation have been delegated to the Federal
Council. Paragraph 23 of plaint.
(d) That enactments passed by the Federal Council have force, if at all, by virtue of the assent of the Sultan of Pahang and have no force in Pahang until such assent is given.-Paragraph 24 of plaint.
2. The trial judge, Elphinstone, C.J., held that the question was irrelevant and did not give any decision, contenting himself with remarking that the Sultan of Pahang had assented to the Tin Restriction Enactment. I think his attitude is correct and that for the purposes of this case there was no need for the Court to express any opinion on the points raised. The first two are clearly irrelevant, since the Enact- ment in question was not passed by the State Council, the Court has recognized laws passed by Federal Council far too long to listen to any argument as to its power to legislate (though none such was in fact put forward), and in view of the fact that the Sultan of Pahang has assented in this case there is no room for a decisión on the fourth point.
3. The arguments were however repeated on the appeal and the judges on this occasion gave them more consideration. The judgment of Prichard, J., President of the Court, dealt with the matter very shortly. After referring to the Treaty of Federation and the two Federal Council Agreements he says—
"Therefore it is quite clear to me that prior to the Treaties the Sultan of Pahang was an absolute sovereign and the sole repository of executive and legis- lative power in the State. He used to rule by means of titahs or proclama- He has by treaty delegated his authority and powers with reference to legislation to the joint Rulers and the Federal Council.'
tions.
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4. This appears to be hardly a correct statement of the position since the words quoted imply that the Sultan ruled by means of " titahs or proclamations until he delegated his legislative authority by treaty. This did not happen until 1909 whereas the last instance of a
" titah
was in July, 1889, shortly before the constitution of a State Council. After that Council was established no and sovereign powers were exercised through the Council.
"
44
titah " was ever issued
The evidence also showed
that legislation was enacted by the Council without the actual knowledge or assent of the Sultan, though in his name. But the last sentence quoted seems to be intended as a finding against the plaintiffs' contention (d).
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5. The other judgments are fuller. The relevant passages in the judgment of Burton, J., are as follows:-
Before 1888 the State of Pahang was an independent sovereign state, and the Ruler of Pahang a deepotic monarch, ruling by his will alone without Legislative or Executive Council. He combined in himself, and in himself alone the supreme legislative and executive authority, and he was the fountain of justice and honour. I do not think that the difference between executive and legislature was in any way recognized, but the more important acta whether legislative or executive were embodied in Royal Proclamations (known locally as
titah ') which had full force and validity throughout the State."
"In the following year a State Council was constituted.
The constitution of Pahang is not written, and the functions of the State Council have never been defined. But as a matter of usage ever since its formation all enactments have been formally passed by it, and even at the present day after the formation of the Federal Council, State enactments which are intended to operate in Pahang alone are so passed.
But I do not think that either the appointment of the British Resident to the Court of the Sultan or the constitution of the State Council had any derogatory effect upon the sovereign power of the Sultan. The appointment of the Resident did not confine the Sultan's prerogative but merely guided its use by advice which must be taken, and the State Council attempted to direct its use by advice which might or might not be taken. The enacting clause of Palang lawa after a period of variation-and some enactments even appear to contain no enacting clause settled down into the form-
'It is hereby enacted by His Highness the Sultan in Council as follows.'
As a matter of usage the Sultan has never legislated without the formal assistance of his Council, though it might be argued with considerable force that even now in a matter affecting only the State of Pahang atitah would have full legislative effect.
The position remained unaltered until the constitution of the Federal Council in 1909. except that the title Order in Council was altered to Enactment in 1896, in which year we have two numbered series, a series of enactments following a series of Orders in Council."
"The Federal Council was first established by the Treaty of 1909. It consisted in the first instance of the High Commissioner, the Resident-General, the four Rulers, the four British Residents and four unofficial members. This Treaty gave rise to a strange position. The Council was under the Presidency of the High Commissioner and the Rulers were ordinary members of it, each with one vote. There is no indication that they had to give their assent to legislation as Rulers, and presumably even if a Ruler voted against a Bill in Council, which I do not suppose ever happened, and it was passed in spite of such adverse vote, the Enactment, when duly promulgated, would have the force of law in the State of the dissenting Ruler as fully as anywhere else in the Federation. But there is nothing that could give it such force except the prerogative of the dissenting Ruler. The Enactments of this period contain the enacting clause
It is hereby enacted by the Rulers of the Federated Malay States in Council as follows.'
and they are signed by the High Commissioner us President of the Council. The effect of this Treaty would appear to be that each Ruler has delegated his prerogative of legislation in matters affecting the Federation to the four Rulers in Federal Council, because they have each given the Council power to legislate in a particular State in defiance of the will of the Ruler of that State."
"This anomalous position does not greatly concern us, for it ended in 1927 when an Agreement was made for the reconstitution of the Federal Council and the Rulers ceased to be members of the Council. This Treaty again radically altered the constitutional position of the Rulers, and I think restored to them the exercise of the prerogative of legislation which was, as I have said, delegated by the Treaty of 1909, though henceforth they agreed to exercise it only with the advice and consent of the Federal Council. By clause 10 of the Treaty a new enacting clause is provided :---
The Council shall pass all laws intended to have force throughout the Federation. Laws passed by the Council shall be enacted in the following words: It is hereby enacted by the Rulers of the Federated Malay States by and with the advice and consent of the Federal Council" and shall be signed by each of the Rulers before coming into force.'
It is clear that this clause is modelled on the enacting clause of Statutes of the Parliament of Great Britain, but the significant words and by the authority of the same are omitted. The legislative authority issues from the Rulers. Moreover the signature of the Ruler is essential; and although the failure of any single Ruler to sign would prevent the Enactment from coming into force throughout the whole Federation, yet an Enactment of the Federal Council must derive its force in any particular State from the prerogative of the Ruler of that State; for a consideration of the cumulative effect of the Treaties makes it clear that the Rulers have not surrendered any of their prerogatives; the most that they have done is to consent to exercise them under the advice of British Officers and to legislate in matters common to all with the advice and consent of the Federal Council. The Restriction Enactment therefore derives its force in Pahang from the Sultan's prerogative, though I think that prerogative itself was exercised by a species of delegation when the four Rulers jointly enacted it with the advice and consent of the Council. If the Rulers can be at all regarded as having abrogated their prerogative, they have, I think, done so only in favour of themselves acting jointly and not individually in matters that concern the whole Federation, though it would seem that any individual Ruler by refusing assent could definitely veto any proposed piece of legislation."
6. Though the learned Judge does not give a definite decision upon the points pleaded the effect of his judgment seems to be that he agrees with the plaintiffs' contention on the first two points. But he does not comment on the evidence and makes no mention of the circumstance that the Sultan did not in actual fact ever assent to