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laws passed by the State Council at meetings which he did not attend. That he authorized or permitted the Council to pass laws in his name without his knowledge implies a delegation of legislative power which is inconsistent with the contention that the Council was merely advisory, and it would be more satisfactory if the judgment had gone more carefully into the facts.

7. The views of the learned Judge on the Council Agreement of 1927 do not seem altogether correct. There is no question of States in federal legislation. The four States form a territorial unit and the Rulers enact laws jointly for that unit. The force of a federal law in Pahang is derived as much from the assent of the Rulers of Perak, Selangor and Negri Sembilan as from the assent of the Ruler of Pahang since the refusal of any one Ruler to assent would prevent the law coming into force have not surrendered any of at all. And it can hardly be said that the Rulers " their prerogatives when they have undertaken not to exercise the prerogative of legislation except with the advice and the consent of a body whose members they do not appoint. The learned Judge himself later qualifies the statement quoted above, and his final conclusion is somewhat indefinite.

8. The fullest of the judgments on the constitutional question is that of Mudie, J. The relevant passages are as follows:-

Pabang.

it is desirable to review the constitutional position of the Ruler of the State of After he threw off his allegiance to the Sultan of Jobore, the Ruler of the State of Pahang was an absolute sovereign both politically and legally. In 1887 British protection was extended on a similar system to the State of Pahang, and in 1888 a British Resident was appointed

The system was that the to that existing in the Malay States under English protection.' Resident's advice must be asked and acted upon on all questions other than those touching Malay religion and custom.

The effect of this arrangement was that political sovereignty on all matters other than Malay religion and custom was transferred to the British Crown. Legal sovereignty remained in the Sultan. By legal sovereignty I mean the exercise of sovereign power. By political sovereignty I mean the power to control the exercise of sovereign power by the legal sovereign. Though the political position was entirely changed, the legal position remained the same.

A State Council was formed in the year 1889, and henceforth all legislation is by the Powers were not dele- Sultan in Council. The Council was set up in an informal manner. gated to it by written instrument. Though s! legislation thereafter is by the Sultan in Council, there seems to be nothing to prevent the Sultan from enacting laws without its advice or consent. In the absence of a written constitution the position is obscure. It is probable that the State Council is merely advisory, and that the legislative power in the State of Pahang

resides in the Sultan."

"In 1909 the Federal Council was created, for the joint arrangement of all matters of common interest to the Federation or affecting more than one State and for the proper enactment of all laws intended to have force throughout the Federation or in more than one State.' These words are taken from the preamble. Curiously enough, express words are wanting in the Agreement to give power to the Council to legislate, though it is obvious that every law that was the intention of the Agreement, and is implied in clause 8, which refers to proposed to be enacted by the Council and in clause 9, which refers to any law passed by the Federal Council.' Clause 11 provides that Nothing in this Agreement is intended to curtail any of the powers of authority now held by any of the above-named Rulers in their respective States, nor does it alter the relations now existing between any of the States named and the British Empire as established by previous Treaties.'

It is contended for the appellants that this clause shows that the Federal Council is purely advisory, and has no legislative powers, and that Federal Enactments derive their force from the ament of the Rulera.

If Clause 11 is construed literally, the whole Agreement is & nullity. The Rulera cannot set up a Federal Legislature without curtailing their own powers. If legislative power has not been given to the Federal Council, the enactments of the Council are null and void. The sment of the Rulers cannot make them valid. The power of each Ruler is confined to his own State.

No Ruler baa power, if clause 11 is strictly construed, to assent to legislation affecting States other than his own. Clause 11 must be construed so as not to overrule the earlier provisions. The rules for the interpretation of treaties are not so well defined as those for the interpretation of statutes. According to Wheaton (6th Ed., 522) The general principle is that treaties, being compacts between nations, are not to be subjected to the minute inter- pretation which in private law may result in defeating through technical construction the real purpose of the negotiators,' and' The intention of the parties must prevail over defective wording, where the intentions were clearly expressed.' I do not think there can be any doubt that the intention of the treaty was to set up a Federal Council with islative power. In 1927 the Federal Council was re-constituted. Clause 10 of the Agreement for that purpose provides that 'The Council shall pass all laws intended to have force throughout the Federation. Laws passed by the Council shall be enacted in the following words: "It is hereby enacted by the Rulers of the Federated Malay States by and with the advice and consent of the Federal Council," and shall be signed by each of the Rulers before coming into force, provided that the Yang di per Tuan Besar of the Negri Sembilan shall sign on behalf of the Undang of the Negri Sembilan.'

It is clear that nothing can be a law which has not been passed by the Federal Council, and assented to by the Rulers. The contention of the appellants that the Federal Council is a purely advisory body, and that its Enactments derive their legal force solely from the sament of the Rulers, is not well founded. The Rulers can only asent to measures which have been passed by the Council. If they assented to a measure, which had not been passed

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by the Council, auch measure would not be law, and would have no legal effect. Clause 10 makes it clear that the Council is a legislative, as well as an advisory body. Clause 14 confirme my view that the powers of the Federal Council were the same before its reconstitution in 1927. It provides that Nothing in this Agreement shall affect the validity of any aut done or law passed by the Federal Council as constituted before the execution of the Agreement." distinctly refers not only to any act done,' but also to any law passed by the Federal Council. I am of opinion, therefore, that the Federal Council is a constituent part of the Legislature of the Federation.

It

The Agreement of 1909 for the constitution of a Federal Council and the Agreement of 1927 for its reconstitution were made between the High Commissioner for the Malay States, acting on behalf of the Government of His Majesty the King, Emperor of India, and the Rulers of the Federated Malay States of Perak, Selangor, Negri Sembilan and Pahang. The Agreements were between the political sovereign and the legal sovereigns. The effect was to limit the absolute sovereignty of the Rulers by transferring a part of their legislative power to the Federal Council. They retain a limited legislative power in their own States. Ruler may enact laws in his own State, provided that the said laws are not repugnant to the Each provisions of a Federal Enactment. Their legislative power in the Federation is limited to assenting to measures which have been passed by the Federal Council. From 1909 the Rulers are constitutional sovereigns."

This gives a clear and direct decision against the plaintiffs' point (d), while as regards (a) and (b) it recognizes the difficulty of coming to a definite conclusion in a matter where theory and practice were inconsistent. The portion of the judgment which deals with the Federal Council is clear and well expressed and there is nothing in it to which exception can be taken.

W. S. GIBSON,

2nd April, 1932.

Enclosure 3 in No. 41.

LEGAL STATUS OF THE MALAY STATES.

Legal Adviser, F.M.S.

Sir F. Swettenham replies to Mr. Braddell.

MR. ROLAND BRADDELL's pamphlet on the legal status of the Malay States is the best and most illuminating presentment yet published of the case which the writer set out to describe and explain, writes Sir Frank A. Swettenham, G.C.M.G.. C.H., in the January issue of British Malaya. The reader must, however, never lose sight of the following words in the preface to the pamphlet: I wish to make it very clear that this is not an essay in politics; it is an attempt to throw a new light upon a much canvassed problem," and Mr. Braddell proceeds to explain that the problem is the legal status and legal rights of the parties to the various engagements which have been made at different times between the British Government and the various Malay States now under its protection.

Very properly, Mr. Braddell lays all the stress he can upon that cardinal point, and if the reader of this most interesting and instructive pamphlet forgets the warning -as he might easily do he will almost certainly draw wrong conclusions, and form a mistaken opinion on the far more important political questions involved in the con- sideration of such matters as the internal administration of the various States, the relation of their Rulers to the High Commissioner, to the British Residents and Advisers, to the State and other Councils, and finally to the British Government.

The value of Mr. Braddell's pamphlet is that he has set out of the defects and inconsistencies in the various Treaties and Engagements which purport to define the relationship between the Malay States-Federated and Unfederated-and the British Government as the protecting Power. He suggests a general revision of these Agree- ments to secure consistency and uniformity, and he advises the adoption of form and method to define clearly the legal status of the States, the position and authority of the Rulers, their Councils, their British Advisers, and the British Government as represented by the High Commissioner. At least that is how I understand the pamphlet and the intention of its author.

Not free from Mistakes.

All this is to the good. It is well to have the facts marshalled together; to be able to compare the different methods of treatment of apparently similar cases; the extraordinary errors in the drafting of certain agreements, and the notable differences in the wording of others; especially perhaps the omission of important provisions from all of them.

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