CO885-(11-12) — Page 590

THALI

PECORD OFFICE

Reference --

C.O.882/12

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-)

COPYRIGHT PHOTOGRAPH-NOT TO.

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Enclosure 2 in No. 40.

LEGAL STATUs of the MaLAY STATES.'

MR. BRADDELL'S

I.

FEDERATED MALAY States.

Page 9, line 23.

"British intervention in the affairs of the Malay Peninsula began in Perak after the Perak War of 1874." Actually Great Britain and Perak signed the Treaty of Pangkor on 20th January, 1874, before any blood had been shed, and the Perak War began with the murder of the first British Resident on 2nd November, 1875. Page 9, line 38. By the Agreement of 13th July, 1889, it was not the present Negri Sembilan (whose component States Mr. Braddell cites in the sentence before) that confederated and in confirmation of various written and unwritten agreements placed themselves under the protection of the British Government," but the "old" Negri Sembilan, which did not include the two important States of Sungei Ujong and Jelebu! The present Negri Sembilan were confederated by the Treaty of 1895. Mr. Braddell has omitted to mention the earlier Sungei Ujong State Council and the extension of its scope to cover the State of Jelebu. He is indeed (pages 12 and 13) singularly ill-informed on Negri Sembilan history, ancient and modern, and especially on the ancient matrilineal and tribal constitution of those States, which has never absolute monarchs." For recognized either the, Yam Tuan or any of the Chiefs as many centuries the States composing the Negri Sembilan have had an elaborate con- stitution which to the Malay (though not to Mr. Braddell) is " juristically much higher and by many centuries older than that of Johore (page 26)! Mr. Braddell is quite unaware of this and therefore so far as the domestic constitution of Negri Sembilan and its relation to Great Britain are concerned his pamphlet is worthless.

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Page 12. Mr. Braddell claims that the instruction that Residents should not rule but advise was scrupulously followed up to 1895, the year of Federation; that the control of the Governor of the Straits Settlements was slight and that the Malay Sultans ruled! Now the main cause of the Perak War was that the first Resident insisted on ruling, and the instructions to Residents quoted on pages 11 and 12 of this pamphlet were issued in consequence. But, as Mr. Caldecott, the acting Chief Secretary, writes, "if Mr. Braddell had read, as I have recently had to read, the pre- Federation files in the Negri Sembilan and Perak Secretariats he would recognize that his golden age when Sultans ruled and British Residents advised is quite imaginary. Equally imaginary is the statement that the control of the Governor of the Straits Settlements was slight. Not a public work could be put in hand in Sungei Ujong without reference to the Colonial Secretary nor could any important measure or policy be inaugurated without similar reference. The Residents in those days had to keep a detailed journal of everything they did, and it was sent to Singapore for, so to speak, gubernatorial audit.”

After the Perak War and the newly framed State Council (with its Chairman and Ruler) met at "Her Majesty's Residency"! And as late as 1880 the appointment of its members was confirmed by the Secretary of State. Among its early members not only were there minor Malay Chiefs whose titles would never have qualified them for membership of any pre-British Malay Council, but (to Malays an unheard of and rather humiliating novelty) Chinese business men as well. Its de jure framer, the Sultan, was allowed to pay no attention to rank or race. He had to act on the advice of a de facto ruler, the British Resident, who in those troubled times knew little of Malay custom, and whose only care was to secure a council (on the Colonial model) competent to advance peace and progress. In Negri Sembilan the British-made State Council brought together for the first time the Yang di-pertuan (Yam-tuan) and four very reluctant territorial Chiefs (Undang), who under their own constitution were independent and need never meet or consult the Yang di-pertuan; it excluded the headmen of the tribes and it included Chinese and British foreigners. It is not surpris- ing that the word used in the Federated Malay States for a Resident's

advice " has from the earliest dates been the word used for the advice of a father or teacher to a child, whereas in the Unfederated Malay States it is an Arabic term meaning honeyed words." All the evidence is against Mr. Braddell's theory that in pre- Federation days "the Malay Rulers ruled and the British Residents advised weak and ignorant were the then Rulers, that the Residents had no choice except to " rule."

Page 13, line 7.

"These (State) Councils," says Mr. Braddell, "have no written constitution; no powers have been delegated to them; they are and always have been purely advisory bodies. The only legal force possessed by an executive act performed by or any legislative enactment passed by a State Council is derived from the assent

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"The truth is,' as Mr. Caldecott writes,

thereto of the Rulers."

6. that the Ruler has always taken his part as an ordinary voter in the divisions of the State Councils and that decisions have been by majority of votes and not by assent of the Rulers.'

Such

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a division is recorded as early as 1879 in the Perak State Council, when the Ruler, the President, and two Malay Chiefs voted for, and the Assistant Resident and two Chinese against the motion that land leases should be for 99 years only. "The most startling and recent division," Mr. Caldecott adds, Council of 1929 on the revocation of a game reserve, when the Yam Tuan and the was in the Negri Sembilan State Senior Chief voted in the minority against the measure." "There are even cases where Bills have been passed by a State Council without reference to the Ruler and in his absence, and after being passed have been signed by the Resident without the assent of the Ruler being sought! This entirely controverts Mr. Braddell's contention (page 17, lines 8 and 9) that laws are in reality enacted by the Ruler in Council and the State Councils being purely advisory bodies do not pass laws at all: they merely advise for them.' The modern Europeanized constitution of Johore was drawn up in 1885 by a Singapore legal firm, and is deemed by Mr. Braddell to give the Sultan the highest juristic status in the Peninsula, but even that constitution provides that "if there shall be any enactment, or regulation, or matter, or thing not approved or sanctioned by the Sovereign it may be introduced again at the next meeting of the Council, of State, and if for three times successively it shall not have been approved, the said matter may not again be introduced until one year has elapsed from the time it was last considered. Should the matter be again decided in the same manner by the Council of State for the fourth time, it shall be expedient on the part of the Sultan to approve and sanction the same, because the moral responsibility of the Sovereign then entirely ceases (Article IV, page 22 of the Reprint) and because in Malay times, the reign of the Sultan who did not act in concert with his Chiefs was short.

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Page 16, line 21. Mr. Braddell states Council was to be a purely advisory body.'

it must be understood that the Federal This again is contrary to fact and usage. Enactment I of 1914 "The Public Emergency Enactment " momentous of laws passed by the Federation, seeing that it was the sanction for nearly is historically the most everything done during the Great War, but this Enactment was introduced in type- script, without previous publication as a Bill, and in the absence of the Rulers; it was passed in their absence and gazetted without their knowledge. Braddell, each Ruler has recognized both the Federal Council and his State Council Unlike Mr. not as advisory but as legislative bodies.

Page 19, lines 1-8. Mr. Braddell objects to the phrase "powers now vested in the Chief Secretary and contends that “ in that officer were only vested the authority and duty to advise." In view of the powers of action actually vested in the Chief Secretary by many Federated Malay States Enactments this is a curious error for a lawyer to make.

Page 19, lines 30-40. Mr. Braddell would apparently leave it entirely to the Rulers to decide what are State and what are Federal matters, but this contradicts his more reasonable attitude on pages 8, 9 and 34 and his admission on page 9 that "international law, of course, leaves it entirely to the protecting power to interpret its engagements with the State which it protects.'

II. JOHORE.

Page 21, line 25. "In considering the case of Johore, it must be remembered that the condition and the circumstances in which she came under British protection were entirely different from those of any of the Federated Malay States." extent this statement by Mr. Braddell is correct.

To a large There was no internal anarchy in Jchore; there was never war between Johore and Great Britain. Johore was an enlightened and benevolent autocrat, with no hereditary Chiefs to The first Sultan of curb his power and a large number of relatives to fill all the public offices. He had, in fact, usurped sovereignty in the nineteenth century and started with a new con- stitution drawn up on an English model by Messrs. Rodyk and Davidson, a legal firm in Singapore. The relic of the old days remained and is enshrined in Article XXV of the Constitution (page 13 of the Reprint). "With regard to the sovereign, who, by the grace of God the Most High and the blessing of the Prophet Mahomed-on whom be the benediction and peace of God-is still reigning, that is to say We, Abubakar, Sultan of the State and Territory of Johore voluntary approval and consideration of our Council of State determined that no it is with the fixed sum of money should be put aside for our expenses on account of Our Royal

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