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PUBLIC RECORD OFFICE, LONDON

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is the supremacy of the Constitution. This is an essential of every federal State, since such a State derives its very existence from the Constitution. It involves three consequences :-

It (i) The Constitution must almost necessarily be, as it is in our case, a written document.

should also be, if possible, a document of which the terms are open to no misapprehension. This is far from being true of our Constitution, and as it will be seen later the terms of the agreement are inadequate, obscure, and contradictory.

(ii) The Constitution must be a rigid constitution, either legally immutable or capable of being changed only by some authority above and beyond the ordinary legislative bodies, whether State or Federal legislatures existing under the constitution. In our case the Constitution is legally immutable. Changes can be affected only by the means by which the Constitution itself came into being, i.e., by treaty or agreement between the British Government and the Rulers of the States. Even in such an unimportant matter as the appointment of a temporary member of Council to act in the place of a deceased or incapacitated unofficial member, for which the original agreement made no provision, a new agreement had neces- sarily to be made, and the same course had to be followed recently when it was desired to increase the number of unofficial members without at the same time adding official members to balance them. It will be a point for consideration in any future constitution-making whether some provision should not be included for effecting minor alterations in the Con- atitution without the need for recourse to a treaty between all the parties. (iii) The third consequence is that every legislature under a federal constitution is a subordinate law-making body. This is clearly true of the State Councila, since by the terms of the Constitution laws passed by these Councila only have force and effect in so far as they are not repugnant to the provisions of laws passed by the Federal Council. It is also true of the Federal Council since, as already shown, that body cannot legislate in such a manner as to change its own constitution. Both State and Federal Councils approach nearer to Sovereign legislatures than such a body as the Legislative Council of the Colony which can only legislate for certain purposes and whose Ordinances may be disallowed by a higher authority, but there are limits to the legislative power of both, and hence they are sub- ordinate and not sovereign legislatures.

15. It will be more convenient to consider the third of Mr. Dicey's charac- teristics, the authority of the Courts to act as interpreters of the Constitution, before the second characteristics, the distribution of powers since the questions raised are of less difficulty and of less practical importance. Our Constitution contains no such provision as the sixth article of the Constitution of the United States of America, in which it is laid down that the Constitution is the supreme law of the land and the judges shall be bound thereby, nor is our Supreme Court, as it is there, an integral part of the Constitution. Though the question never seems to have been raised in an active form there is one point on which it cannot be doubted that the Courts would act as interpreters of the Constitution. The Constitution provides that a State law is only of force and effect in so far as it is not repugnant to a Federal law, and if a person accused of breach of a State law were to plead its repugnancy to a Federal law the Courts would un- doubtedly be bound to consider the matter and to treat the State law, if the repugnancy were established, as void or as valid in accordance with their interpretation of the inconsistency between the ninth and eleventh clauses of the Agreement for the Con- stitution of a Federal Council. But the Courts have never hitherto held themselves at liberty to disregard the provisions of a Federal Enactment or shown any desire to interpret the Agreement for a Federal Council or attempt a reconciliation of its provisions.

16. The third characteristic of a federal system is the distribution of powers. On this Mr. Dicey writes: "The distribution of powers is an essential feature of federalism. The object for which a federal state is formed involves a division of authority between the national government and the separate States. The powers given to the nation form in effect so many limitations upon the authority of the separate States, and as it is not intended that the Central Government should have the opportunity of en- croaching upon the rights retained by the State its sphere of action necessarily becomes the sphere of rigorous definition."

17. The Agreement for the Constitution of a Federal Council consists of a preamble and eleven clauses. Clause 1 establishes the Council, and Clauses 2 to 8, dealing with its membership and matters of procedure, are not of importance in the present connexion. Similarly the two amending agreements do not now require reference.

18. The objects for which the Council was established are recited in the preamble as being to make provision for-

(i) the joint arrangement of all matters of common interest to the federation

or affecting more than one State; and

(ii) the proper enactment of all laws intended to have force throughout the

Federation or in more than one State.

The Order of these subjects is reversed in the Agreement and it will be convenient to deal with them in the order there followed.

19. The division of the legislative power is to be found in the first part of Clause 9 of the Agreement which reads, State Councils shall continue to have full force and effect in the State except in so far as Laws passed or which may hereafter be passed by the they may be repugnant to the provisions of any law passed by the Federal Council.” This is satisfactory in that it makes adequate provision for the case of a conflict of laws, but is unsatisfactory in that it contains nothing directly conferring a power of legislation on the Federal Council, while no Enactments have been passed by the State Councils to supply the deficiency. The power of legislation has been exercised by the Federal Council, and exercised without being questioned, since 1909, but the authority for its exercise, while perhaps a matter of legitimate reference, is indirect and implied. The Federal Council owes its existence to the Constitution and has no powers except those conferred on it by the Constitution. It seems therefore unfortunate, though it may not now be practical to impugn the validity of all the legislation passed by the Council, that the justification for the exercise of one of its main functions should be a matter of inference and implication only.

20. This point was raised upon the first publication of the Agreement by Mr. Edmonds, then acting as Legal Adviser. He addressed the Government, in H.C.O. Conf. 12/1910, inquiring whether it was assured of the legislative power of the Federal Council, voicing his doubts and pointing out that "the subject will inevitably sooner or later be thrashed out in the Law Courts." The reply which he received, based on

a misunderstanding of his questions, appears to have satisfied him, though it seems to be wholly at variance with the actual facts. The subject was dropped, and it may be noted that the subject never has been thrashed out in the Law Courts and that Mr. Edmonds himself, when he became a Judicial Commissioner, did not question the validity of laws passed by the Federal Council. It is probably too late now for the Court to entertain the question.

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21. At the initial meeting of the Council the President in his opening address told the members that the Council had been established" to control the finances and to direct the course of legislation," and it may perhaps be assumed from this that the control of finance was Sir John Anderson's interpretation of the expression in the preamble," the joint arrangement of all matters of common interest to the Federation or affecting more than one State. definition," to use Mr. Dicey's phrase, but Sir John Anderson's interpretation appears The expression is somewhat lacking in rigorous both too wide and too narrow. Such matters as the general policy to be adopted in the alienation of land, the attracting of foreign capital, the preservation of a local food supply, the importation of labour, the reservation and exploitation of forests, the system of education to be adopted, medical preventive measures, and many similar questions are surely matters of common interest to the Federation, but the Federal Council has no say in them. On the other hand the details of the Taiping Sanitary Board budget or the expenditure on launches of the Harbour Master at Port Swettenham are not matters of common interest and do not affect more than one State.

22. The peculiar provisions relating to the division of powers are to be found in the latter part of Clause 9 and in Clause 10. These require careful consideration as they are the sole authority for the exercise of any powers other than legislative by the Federal Council. The wording is "and questions connected with the Mohammedan religion, Mosques, Political Pensions, Native Chiefs, and Penghulus, and any other questions which in the opinion of the High Commissioner affect the rights and prerogatives of any of the above-named Rulers or which for other reasons he considers should properly be dealt with only by the State Councils shall be exclusively reserved to the State Councils.

The draft Estimates of Revenue and Expenditure of each State shall be considered by the Federal Council but shall immediately on publication be communicated to the State Council,"

The first of these clauses by enumerating a list of subjects which are reserved

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to the States suggests by implication that all other powers of Government are vested in the Federal Council. This would be a reversal of the general practice in Federal con- stitutions. In the United States, Switzerland, and Australia the powers delegated to the national Government are strictly defined and all powers not so delegated remain to the States or cantons. In Canada alone powers are specifically delegated to the Pro- vinces, the residue remaining to the Dominion Government.

24. The nature of the subjects allocated is, however, a strong reason against the drawing of any positive inference from Clause 9. The Mohammedan religion is a matter in which by treaty we are bound not to interfere, and cannot be delegated to a Council