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ALLY WITHOUT PERMISSION OF THE BF REPRODUCED. PHOTOGRAPHIC - COPYRIGHT PHOTOGRAPH-NOT TO

| PUBLIC RECORD OFFICE, LONDON,

MALAY STATES.

PAPERS 1931 TO 1933 RELATING TO THE POLICY OF DECENTRALIZATION AND CONSTITUTIONAL REORGANIZATION.

L FEDERATION AND DEVOLUTION IN THE MALAY STATES AND PROPOSALS FOR THE DECENTRALIZATION OF CERTAIN PUBLIC SERVICES.

C. 72483/30 [No. 6A].

No. 1.

MEMORANDUM BY MR. W. S. GIBSON, LEGAL ADVISER, FEDERATED MALAY STATES, ON THE CONSTITUTIONAL HISTORY OF THE MALAY STATES.

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IN July, 1895, the Rulers and Chiefs of Perak, Selangor, Negri Sembilan, and Pahang constituted their countries a Federation to be known as The Protected Malay States. The official name was still-born, and the popular name by which the countries have been known, sanctioned now by legal and international usage, has from the first been the "Federated Malay States." The popular name has the advantage, or dis- advantage, of concentrating attention on the particular nature of the constitution of the country.

Mr. Dicey

2. "Federation" in constitutional law is practically a term of art. explains it as follows in his classic Law of the Constitution: "A Federal State is a political contrivance intended to reconcile national unity and power with the main- tenance of State rights.' The end aimed at fixes the essential character of federalism. For the method by which federation attempts to reconcile the apparently inconsistent claims of national sovereignty and of State sovereignty consists of the formation of a constitution under which the ordinary powers of sovereignty are elaborately divided between the common or national Government and the separate States. The details of the division may vary under every different federal constitution, but the general prin- ciple on which it should rest is obvious. Whatever concerns the nation as a whole should be placed under the control of the national Government. All matters which are not primarily of common interest should remain in the hands of the several States." He continues by analysing the conditions precedent to the successful founding of a federal system and pointing out the leading characteristics of such a system. These charac- teristics are the supremacy of the constitution, the distribution among bodies with limited and co-ordinate authority of the different powers of Government, and the authority of the Law Courts to act as interpreters of the Constitution. It may be of some interest and use to examine our Constitution in the light of Mr. Dicey's comments and remarks, and to consider whether our present difficulties are due in any way to faulty constitution making in the past or to misinterpretation of a satisfactory working constitution.

3. The cause of the Treaty of 1895, and in particular of its very peculiar form, are to be found in the previous constitutional history of the States tion was simple. The Moliammedan Sultans were theoretically absolute rulers who had In theory the posi- undertaken to exercise their powers, except in matters affecting the Mohammedan religion or Malay custom, in accordance with the authoritative advice of a Resident. The earliest Treaty, the Treaty of Pangkor, was the most detailed and explicit in its statement of the functions of a Resident. The theory proved unworkable from the beginning and Mr. Birch, the first Resident of Perak, found himself compelled to assume the actual administration of the country. He attempted to secure authority for this by forcing the Sultan to sign a proclamation transferring to the Resident the administra- tion of the State, and was murdered while distributing this proclamation. The Home authorities, after the Perak war, repudiated Mr. Birch's action and restated and emphasized the theoretical position, writing that "Her Majesty's Government define the functions of the Resident to be the giving of influential and responsible advice to the Ruler, a position the duties of which are well understood in the East," that "the Resi- dents are not to interfere more frequently or to a greater extent than is necessary in the minor details of Government," and that "the Residents have been placed in the Native States as advisers not as rulers."

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I. Federation and Devolution in the Malay States and Proposals for the Decentralization of certain Public Services ..

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II. Finance Committee-Recommendations of

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III. State Councils-Reconstitution of

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IV. Working of the Advisory System in Kedah and Trengganu

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V. Legal Status of the Malay States

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VI. Postal Services-Reorganization of

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VII. Drainage and Irrigation Department Creation of

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VIII. Appointment of Inspector of Prisons for the Straits Settlements and the Federated Malay States and creation of a new appointment of Superintendent of the Singapore Prison

139

IX. Reconstitution of the Office of Colonial Engineer and the

Reorganization of the Public Works Department

141

X. Reorganization of Departments of Chinese Affairs in the Straits

Settlements and Malay States

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XI. Railway Administration-Reconstitution of

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XII. Medical Services-Proposed reorganization and amalgamation of

156

XIII. Proposals for Judicial Reorganization in Malaya..

161

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4. The sentiments and instructions of the Home authorities, which would have been unimpeachable as applied to Native States which had reached such a stage of development as the States of Kedah and Johore at the date when Advisers were appointed to those States, took no account of the stage in which the States now composing the Federation were at the date of such instructions, and ignored the fact that the local Governments in each State maintained a precarious existence and were devoid of form and organization. Though the Residents, with Mr. Birch's fate before their eyes, did not require formal recognition of their position as de facto rulers, they found them- selves, in spite of warnings, compelled to take the administration into their own hands and to govern the States themselves with little or no reference to the nominal Rulers.

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6. Writing in 1903 (Perak 8184/03) Sir W. H. Treacher, then Resident-General, says, I point out that long before the date of federalization the Sultan had ceased to ask and take the advice of the Resident on all questions other than those touching Mohammedan religion and Malay custom, but that on the contrary it had become the practice for the Resident, with the sanction of the Governor of the Straits Settlements (now the High Commissioner, Federated Malay States), to frame annual estimates of Revenue and Expenditure, to undertake Public Works and Railways, to make official appointments and to do a hundred and one other things, not touching Mohammedan religion and custom without reference to the Sultan; and this is a correct statement. The position has in fact been reversed: instead of the Sultan carrying on the administra- tion with the advice of the Resident (Mohammedan religion and custom excepted) the Resident carries on the administration with reference, when he considers it necessary, for the advice of the Sultan. Whether that is right or wrong I need not now inquire, but it is an incontestable fact.”

6. The fact that the Residents had themselves acquired complete control over the administration rendered possible the Treaty of 1895. If the Sultans had retained the administration in their own hands and continued to be de facto rulers of their States it is not easy to see what authority could have been established to secure uniformity in the administration of the States of four independent sovereigns. But the Residents were from the first under the Governor of the Straits Settlements, and there was no difficulty in providing a deputy to the Governor to reside on the spot and exercise a more efficient and adequate control than could be exercised from Singapore, and in giving him a con- stitutional position by making him an Adviser to each of the States separately.

7. The form of the Treaty itself is remarkable in two ways. In the first place it evades recognition of the existing fact that the Residents had become rulers and places the newly-created Resident-General in the same theoretical position of an adviser offer- ing authoritative advice, but not actually governing himselt.

8. Sir Frank Swettenham in his British Malaya gives the following curious account of the Treaty. "The Treaty of Federation was a very short document, and what it did was to make the States one for all general purposes of administration: but in agree- ing to the appointment of a Resident-General it was for the first time plainly stated that he should have executive control, under the Governor of the Straits Settlements, who was in future to be styled High Commissioner, Federated Malay States, and in his letter to the Malay Mail of 31st October, 1925, he repeats this assertion and refers to scheme of federation and administration which for the first time recognized the control instead of the advice of British Officers."

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9. With the greatest respect to Sir Frank's experience and local knowledge it is quite impossible to find any justification for this statement in the wording of the Treaty itself. Clause 4, which is the only clause in which the Resident-General is mentioned, runs as follows:-" The above-named Rulers agree to accept a British Officer, to be styled the Resident-General, as the agent and representative of the British Government under the Governor of the Straits Settlements. They undertake to provide him with suitable accommodation, with such salary as is determined by His Majesty's Govern- ment, and to follow his advice in all matters of administration other than those touching the Mohammedan religion. The appointment of the Resident-General will not affect the obligations of the Malay Rulers towards the British Residents now existing or to be There is no hereafter appointed to offices in the above-mentioned Protected States.

the word here of control or of any change in the constitutional position; on the contrary, theory that the British representative is an adviser only is expressly reaffirmed. But Sir Frank Swettenham's account of the intention of the Treaty is enlightening in view of the trend of subsequent events.

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10. Secondly, the Treaty uses the term federation," but does not attempt to create any real federation in the proper sense of the term. The basic idea of federa- tion is the surrender of certain State rights to a central Government and a definite

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division of powers between bodies with limited and co-ordinate authority. The Treaty does not establish any central Government and makes no attempt at a division of powers, while its last clause expressly preserves all former State rights. There can be no federa- tion without a surrender of some State rights, and the term federation, as applied to the form of union established by the Treaty of 1895, is a misnomer.

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A third point to be noted in the Treaty of 1895 is that the constitution thereby established could only be temporary. It was created to meet the special needs of the As administration became more stereotyped, the pace of development slackened, and, above all, communications improved, the necessity for the Governor to have an understudy on the spot, and the Resident-General was never intended to be more, became less and less. Again the position assigned to the Federal Heads in the Scheme for Federation which preceded the Treaty was vague and ill defined, and was bound to prove a fruitful source of trouble.

12. The temporary nature of the Constitution seems to have been recognized at the time. Sir W. H. Treacher, replying to the protest of Sir John Rodger, the Resident of Perak, as to the manner in which the Railways Enactment, 1903, was forced upon the States and the infringement of State rights contained in some of its sections, writes in Perak 8184/03, already quoted, Mr. Rodger constantly refers me to the Consti- tution' of Perak, based on the Pangkor engagement and modified by the Federal Engagement. But as in the case of Great Britain the Constitution' is not tied down within the terms of written engagements, but fortunately is capable of growth and expansion with the approval of the Ruler for the time being as conditions change and the prosperity of the State increases," and goes on to quote Sir Frank Swettenham to the effect that" references to the Treaty of Pangkor are somewhat out of date and out of place

"with regard to a trunk railway running through the whole peninsula. William Treacher cites the fifth article of the Treaty of Pangkor, collected and all appointments made in the name of the Sultan

That all revenue be which the provisions of that Treaty have been abrogated. Sir William Treacher's refer- as an instance in ence to the Constitution of Great Britain shows a complete failure to grasp the nature of a federal constitution, which must from its very nature be rigid, written and not capable of the unconscious development which has marked the growth of the British Constitu- tion. In the same paper Sir Frank Swettenliam writes, "I understood that the Residents

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Sir

in conference had already expressed a decided opinion that certain Federal Depart- ments should be constituted and placed under Federal Officers. Of all such Depart- ments the Railway and Telegraphs should come first as necessitating the guidance of a single hand, subject of course to the direction of the Resident-General."

13. This quotation from Sir Frank Swettenham indicates the line of subsequent development. The Federal Heads, originally intended to be advisory officers, acquired control of their various departments and administered them subject to the control of the Resident-General and not of the Residents. Federal Departments were established in increasing numbers, while statutory powers were constantly being conferred upon the Resident-General at the expense of the Residents. The result was a system which exhibited one, and the principal characteristic of federalization, the division of between the States and the central Government, the Resident-General representing the powers latter, but it was not the system to which the Rulers had agreed and which the Residents bad supported when the Treaty of 1895 was signed. It developed in spite of rather than because of that Treaty. As the Treaty had not contemplated such a develop- ment it made no attempt to define the division of powers between the Central and State Governments. As the Resident-General was also, through his control of the Residents,

In

the virtual head of the State Governments there was nothing to protect the States against the encroachment of the Central Government, and State rights became more and more diminished. The development did not proceed without friction and discontent. addition to Sir John Rodger's protest in 1903 the Sultan of Perak sounded a warning note at the Rulers Assembly of the same year, pleading for the maintenance of State rights, but centralization continued unabated until in 1910, Sir John Anderson roundly told the Federal Council that it had been established to curb the central authority because "both the Rulers and the Residents felt more and more keenly that matters which are to them of the greatest importance were removed entirely from their control." While the Treaty of 1895 did not effect and did not profess to effect a real federation the Agreement for the Constitution of a Federal Council in 1909 was a definite attempt at the creation of a genuine federal system and will be seen to exhibit Mr. Dicey's criteria in varying degrees of completeness. The first of these characteristics

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