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PECORD OFFR

Reference -

C.O.882/12

PUBLIC RECORD OFFICE. LONDON

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with no difference except for formal changes of name, and to repeat the process again for Negri Sembilan and for Pahang. On the other hand the very convenient device, by which the Federal Council legislates for the States will not be possible under the new Constitution, since it is incompatible with the definition and delimitation of the Central Government's powers which are essential to a true federation and necessary if the present Unfederated States are to come in.

14. Another difficulty in connexion with State legislation will arise over the defederalization of certain departments. The Directors of Forestry and Agriculture have at present statutory executive powers which they will lose. The Supreme Court is a Federal Court in both its appellate and original jurisdiction but is to become a State Court in respect of the former. It may be found necessary to draft some State Enact- ments before the treaty is signed, in the same manner as with the Federal Enactments, and to pass them without waiting for the whole State Statute books. Other difficulties will no doubt arise as the details of the Constitution are worked out and it is not possible to forsee every contingency at this stage or the measures to be taken to meet them.

15. It is now possible to outline roughly the substance of the new treaty which will be the constitutional document of the new union. The parties will be the Rulers of the different States entering the union and also the British Government.

This last is a necessary party as former agreements to which the British Government was a party will be superseded by the new treaty. The articles of this will be to the following effect :-

I. Provision for the continuance of British protection and of the obligations of

the Rulers thereunder, cf., Article 1 Treaty of 1895

II. The constitution of a federation and the official title to be given, cf. Article 2

Treaty of 1895.

III. Perhaps an Article on the lines of Article 3 of the Treaty of 1895, though this

seems hardly necessary.

IV. Allocation of rights of legislation and administration in respect of certain

subjects to the Central Government.

V. Constitution of a Central Legislature, its membership and

generally the Agreement of 1927.

powers, cf.

VI. Provision for the exercise of executive powers in respect of transferred sub-

jects by Federal Officers.

VII. Obligation on the part of the States to enforce Federal laws and appoint

officers for the purpose when so required.

VIII. Financial provision for revenues of Central Government.

IX. Provision for inspection in the case of Malayan Departments.

X. Confirmation to States of all powers not surrendered to Central Government. XI. Perhaps provision for alteration of any of the preceding Articles. The authority empowered to do this might be a special Council consisting of the Rulers in person and the High Commissioner.

XII. Provision for entry of other States, unless all the Unfederated States come

in at once.

Indian Regiment maintained under present Treaty.

16. The last article of the Treaty of 1895 stipulates that the Rulers shall maintain an Indian Regiment, which is to be sent to Singapore in time of war. It will be remembered that the Malay States Guides were sent to Singapore on the outbreak of the Great War in accordance with this provision, and were subsequently sent back to Taiping as being more of a menace than a safeguard. It does not seem likely that Johore, which maintains its own forces, would agree to the maintenance of an Indian Regiment as a federal charge, or that any of the Rulers would be particularly anxious to renew a stipulation which deprives them of the use of their only military force just when it is most likely to be required. The present arrangement relieves the Indian exchequer, but it it difficult to see what advantage accrues from it to the Malay States, and the new treaty affords an opportunity for reconsidering the matter.

Position of Rulers of Federated Malay States.

17. A matter which is not necessarily connected with the new Constitution but is to be dealt with at the same time is the restoration of the Rulers of the present Federated States to a position similar to that of the Rulers of the Unfederated States. This is a matter of internal policy in each State, and the new Treaty cannot deal with

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"

2)

it in any way, except perhaps by the substitution of the title Adviser "Resident." The differences in the respective positions at present are―

for the title

(a) the interposition of the Chief Secretary between the Rulers, and the Resi-

dents of the Federated Malay States and the High Commissioner; (b) the fact that the Residents have taken over the administration of the

Federated Malay States to the practical exclusion of the Rulers.

18. The first of these differences will disappear with the abolition of the office of Chief Secretary, when direct communication will be automatically resumed. The second difference is due to historical causes, and as pointed out by Sir William Treacher in Pk. 8184/1903, the taking over of the administration by the Residents occurred long before the date of Federation in 1895. To remove this difference the Residents will have to transform themselves into Advisers, and to bring before the State Councils for decision those matters of everyday administration which they now decide them- selves. It is to be noted in this connexion that the sovereign power in an Unfederated State resides not in an autocratic Ruler but in the State Council. The Ruler is President of this but no more, and cannot override or dispense with his council. This position was established when the present Regency was constituted in Kedah, and the Regent instead of standing outside and above the State Council, was compelled to become its President.

"

19. The transfer of power from the Resident to the State Council is largely a matter of administration. Legislative action will be necessary to vest the Resident's statutory powers in the President of the State Council, and this can be done by an Enactment ad hoc if it is considered inadvisable to await the completion of the State Statute books. The Unfederated States will afford a guide as to any legislative powers that are still to be left to the Resident. The title " be abandoned, and the old title "Secretary to Government

Secretary to Resident "should might be restored. An Enactment will be required to effect this. But the creation of a Malay Secretariat, and the reference of all decisions to the State Council will not require any specific legislation, and the new system could be introduced by any President with actual experience of the working of an Unfederated State. The problems of strengthening the State Council by the addition of Chinese and European members, remembering that the actual language used in Council will be Malay, of arranging for frequent meetings and yet securing the attendance of Unofficial members and of explaining to members who only know Malay the intricacies of Bills in English will all have to be worked out by the Residents on the spot, and it is of no advantage to try and anticipate their solution.

20. Finally, it must be emphasized that this memorandum represents the sugges- tions of the writer only. They are no more than suggestions and will require to be worked out with the Departmental heads concerned and with the financial experts. It is not likely that the suggestions will be popular. The Federal heads will regret the loss of efficiency that must ensue from the defederalization of their Departments, the Judges will probably resist and the bar will certainly oppose the return to State Courts of original jurisdiction, and the general community will protest against the abolition of the office of Chief Secretary. The suggestions contained herein may in some respects prove impossible on further examination, and will doubtless in other respecta be capable of improvement. But some starting point is necessary from which the details of the new Constitution may be developed, and this memorandum has been prepared in the hope that it may afford such a starting point and prove a basis for the necessary discussions.

6th February, 1931.

Appendix A

SUBJECTS TO BE TRANSFERRED TO THE CONTROL OF THE Central GOVERNMENT.

BEFORE setting out a list of subjects a word may be said as to the principles on which they are to be selected. The general principle has been stated by Mr. Dicey as follows: "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." While this is unimpeach- able as a general principle, there is further consideration in our case.

We are dealing not with States of a normal size, as in America or Australia, but with units