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CUBLIC

RECORD OFFICE

Reference

C.O.882/12

ALLY WITHOUT PERMISSION OF THE BF REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH—NOT TO

PUBLIC RECORD OFFICE. LONDON,

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38.

At the present moment this country is full of amateur constitution makers and one more effort will probably do no harm. The principles which the writer would suggest are:-

(1) Federation-the essence, not necessarily the name-should be retained, i.e., there should be a Central Government and a division of powers. The States would give up certain rights and powers and should be secured in the exercise of all rights and powers not definitely surrendered.

(2) The matters surrendered to the Central Government should not be too numerous. Railways, Customs, Posta, and Telegraphs suggest themselves at once as matters for a Central Govern- ment to administer. Whatever matters are finally so allocated should be the subject of the most rigorous definition.

(3) The matters so surrendered would be administered by officers responsible to the head of the Federal Government only and would be removed entirely from the control of the States. The revenue collected through these officers would form the revenue of the Central Government, and the balance after providing for the expenditure of the Central Government would be divided up among the States.

(4) There should be & Central Council, superseding the present Federal Council, whose duties would be to control the expenditure of the Central Government and to enact the legislation required for the administration of the departments allocated to the Central Government. It would consist of the heads of these departments, the Residents and Unofficial members and the head of the Federal Government.

(5) All powers not surrendered to the Central Government would be exercised by the States. The form of State Government might vary in different cases from a State ruled by a native Government with an Advisor giving advice only to a State directly governed by a Resident. The States would control their budgets, administer as State Departments all Govenment's activities not transferred to the Central Government, and legislate on all except transferred subjects. To ensure unity of legislation without too rigid an insistence on uniformity the State Councile might be strengthened by the addition to each of a law officer. Such officers are available already in three of the States in the shape of the Deputy Public Prosecutors, and these officers might become State Legal Advisers.

(6) It would probably be necessary to have a separate head of the Federal Government under the High Commissioner otherwise the present position where the same officer is the head of the Federal Government and also the head of the State Governments would be reproduced. Such an officer would be the head of the Federal Government only, dealing with the matters transferred to the Central Government, and with no power or authority over the State Governments. He would be co-ordinate with and not superior to the Residents and both he and they would be directly under the High Commissioner.

(7) It might not be possible to make a final and definite division of powers in the first instance and provision should be made for reallocation without having to resort to a new Treaty, This could be effected by establishing a Council consisting of the High Commissioner, the Rulers, the Residents, and the head of the Federal Government with power to allot any particular matter to the States or Federal Government respectively. This body might also be empowered to vary the constitution of the Central Council.

39. The principles suggested above would involve a new Treaty and a consider- able revision of the Statute Book, as well as administrative action, but the settlement of principles must clearly precede consideration of the details of the method to be employed to give effect to them, and the above considerations and suggestions are submitted in the hope that they may be of some assistance in the determination of the guiding principles to be followed in the making of a more satisfactory form of Con-

(Intd.) W. S. G.

stitution.

C. 72483/30 [No. 6B).

No. 2.

DRAFT OF THE PROPOSED NEW CONSTITUTION FOR THE MALAY STATES. PREPARED BY MR. W. S. GIBSON, LEGAL ADVISER, FEDERATED MALAY STATES, ON INSTRUCTIONS FROM SIR C. CLEMENTI.

Scope of Constitution.

1. THE Constitution is to include the four present Federated States in any case and as many Unfederated States as can be induced to join. The question of the inclu- sion of the Colony is to stand over for the present. The written constitutional document will be a treaty and this can make provision for the admission of other Unfederated States who may wish to come in later without involving a new treaty.

Constitution to be a Federation.

2. The Constitution is to be a true federation in the technical sense of that word. It will therefore show a rigid and definite division of powers between the States and the Federal Government. To prevent encroachments and disputes the constitutional

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document must contain as exact a statement as possible of the powers that are trans- ferred to the Federal Government and must make it quite clear that the Governments of the various States make a complete surrender of all rights of legislation and administra- tion in respect of the transferred subjects. The Constitution of 1895 suffered from an extreme lack of definite provision on these points, and was only in name a federation.

3. While the Constitution is to be a federation in essence it is not necessary to preserve the actual word " Federation," and in view of the feelings of the Unfederated States toward the Federation, it may be as well to try to find some term which will be more acceptable to them. The special name for the Federation adopted in 1895 was the "Protected Malay States," but it never came into use and was superseded at once by the name " Federated Malay States.' It would not be a suitable name now unless

all the Unfederated Malay States came in at once, and in any case it is an unexciting name and does not connote any form of union. States " or

Such a term as Union of Malay States "

United Malay bilities of an Unfederated State and to make its entrance easier. Similarly the Federal might, however, help to overcome the suscepti- Government might be described in the treaty and in common usance as the "Central Government," though this is a less convenient, term than "Federal."

Effect of Transfer of Subjects.

4. The transfer of the rights of the States with regard to certain specified subjects involves the following consequences: power for the Central Government to legislate in respect of such matters and power for the Central Government to take over the administration of such matters and administer them directly to the exclusion of the State Governments. There will therefore have to be a Federal Legislature and a Federal Executive. While the Federal Legislature will have to legislate in respect of all transferred subjects it will not be necessary for the Federal Executive to take over the administration of all transferred subjects. For instance in such a matter as legal tender, which must obviously be regulated by a Federal law, there is no need for any need for any Federal administration at all. The State Courts will recognise the Federal law and punish breaches of it, and nothing further is required. In other cases the State Governments will be empowered by the Federal law to appoint the necessary officers to enforce that law. Weights and measures, for example, must be uniform and regulated by a Federal law, and the Custodian of the standard weights must be a Federal officer. But the State Governments will be empowered by the Federal law to appoint the Inspectors, whose duty it will be to see that the Federal law is observed. subjects, such as Posts and Telegraphs, the whole administration will be in the hands In other of the Central Government, and the States, except in so far as their Courts are bound to enforce the law, will be excluded from all share in the matter.

Allocation of Subjects.

5. The Constitution of the Federal Legislature, and still more of the Federal Executive, must depend largely on the subjects to be allocated to the Central Govern- ment. Appendix A contains a list of the subjects which it is proposed should be so allocated, together with notes on the legislation and administrative measures required, and it will be seen that direct Federal administration is proposed in very few cases; and it will not therefore be necessary to have any officer in a position corresponding to that which the Chief Secretary now holds as general head of the Federal Government. Commissioner of Customs, the Postmaster-General and the other heads of Central The Departments can be placed directly under the High Commissioner without any inter- mediary officer. There will, of course, be a Central Secretariat, but the Secretary to the Central Government will be a secretary pure and simple without power to make decisions.

6. If all the Unfederated States enter the new Constitution there will arise one difficulty of a somewhat unusual nature. are available the federating States have been in an equal stage of development and the In all past Federations of which particulars Federal Government has been able to apply laws regulating the subjects with its compe- tence through the entire area of the Federation. reached in Selangor or Johore, for example, is far beyond that in which Kelantan or But the stage of development Trengganu are at present. Such matters as bankruptcy and bills of exchange, for instance, should in the interests of commerce be allocated to the Central Government, but there are no courts in Trengganu capable of construing the difficult and technical laws which regulate these matters. To meet the difficulty it is suggested that the treaty should contain a provision whereby the Federal Council might exempt any State