3 historical development lecture


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3 historical development lecture

  2. 2. PRE-COLONIAL CONSTITUTIONAL HISTORY    i) Malay Constitutional Ideas in General ii) The Constitutional Legacy of the Melaka Sultanate iii) Negeri Sembilan and the Minangkabau Constitution
  3. 3. i) Malay Constitutional Ideas in General   The constitutional ideas of the Malay states stem from the Melaka sultanate. Apart from the Undang-Undang Melaka, which contains some constitutional rules, the traditional Malay constitutions were unwritten, being customary in nature.
  4. 4. The community were actually extremely rich and complex to the point of obscurity, depending largely on a combination of precedent, political circumstance and opinion.
  5. 5. However, there are differences of law between states. Negeri Sembilan, for example, was a federation under the nominal sovereignty of a Sumatran prince, and had very complex rules of succession.
  6. 6. ii) The Constitutional Legacy of the Melaka Sultanate   The three texts, Undang-Undang Melaka, Ninety-Nine Laws of Perak and Sejarah Melayu gave broad conceptions of sovereignty. From these texts, they seek to establish the dignity of the Raja as a focus of unity and security.
  7. 7. iii) Negeri Sembilan and the Minangkabau Constitution   Constitutional ideas were taken much further in Negeri Sembilan than in any other state. This State (originally nine States which merged later into four) was formed by immigrant Minangkabau Malays from West Sumatra, whose constitutional ideas were based on consensual democracy and federalism.
  8. 8. The emphasis on judicial powers is due to the importance of adat in Minangkabau culture. It was not merely a basis for resolving disputes, but the basis of all governmental activity.
  9. 9. CONSTITUTIONAL DEVELOPMENTS DURING THE COLONIAL PERIOD    i) The British Residential System ii) The Introduction of Written Constitutions iii) The Federated Malay States
  10. 10. i) The British Residential System   The British intervention was precipitated by a number of commercial and strategic factors. The Pangkor Engagement of 1874, under which Perak accepted a British Resident, set the precedent for and the style of the British intervention and the residential system throughout Malaya.
  11. 11. The Ruler accepted a British Resident as adviser, but retained control over matters pertaining to Islam and Malay custom.
  12. 12. ii) The Introduction of Written Constitutions  Another result of British intervention was the innovation of the written constitution, which occurred in Johor and Terengganu.  Terengganu was granted its own written constitution by the Ruler in 1911.
  13. 13. Johor, on the other hand, recognized as an entirely independent state by a Treaty of 1885, was granted a written Constitution in 1895 by Sultan Abu Bakar shortly before his death.
  14. 14. It is to the Johor constitution that Malaysia owes the principle of equal treatment of all races under the law. Johor was also the first state to adopt a British-style governmental structure.
  15. 15. iii) The Federated Malay States  It was thought that the administrative centralization in Kuala Lumpur under a Resident-General would prove more economical in terms of communications and administration, and more uniform in terms of policy.
  16. 16. In 1895, the four protected states (Selangor, Negri Sembilan, Pahang and Perak) were grouped together into a federation by a short “Treaty of Federation”.
  17. 17. Although it purported to constitute the four states into a federation, there was no surrender of sovereignty, and the government was to be administered under the advice of the British Government.
  18. 18. The Emergence of the Modern Constitution       i) The Malayan Union (1946-1948) ii) The Federation of Malaya (1948-1957) iii) The Reid Commission 1957 iv) The Debate on the Reid Commission’s Proposals v) The Malaysian Federation 1963 vi) Crisis I: The 13 May 1969 Riots and NOC Rule
  19. 19. i) The Malayan Union (1946-1948)  Following the reoccupation of Malaya and Borneo by British and empire forces on the Japanese surrender in 1945, it was a clear political necessity to move from military administration to some form o f self-government.
  20. 20. The result of deliberation over these problems was the Malayan Union Plan, which was introduced by the Malayan Union Order-inCouncil on 1 April 1946, but never came fully into operation due to fierce Malay opposition.
  21. 21. Its general shape can be seen from the following summary: A) Unitary state  B) Executive power  C) Legislative power  D) The States  E) Judicial power 
  22. 22. A) Unitary state   The Malay States (FMS and UMS), together with the Settlements of Penang and Melaka, but not Singapore, were joined in a unitary state. To make this happen, the Rulers had to sign the MacMichael Treaties of 1945, which ceded sovereignty and all legal authority in the Malay States to the Crown.
  23. 23. B) Executive power   Executive power was to be exercised by a Governor, appointed by the Crown and advised by an appointed Executive council which included three ex officio members. The Governor was aided by an Advisory Council consisting of three ex officio members and other members and other members appointed by the Governor.
  24. 24. C) Legislative power  Legislative power was to be exercised by the Governor with the advice and consent of a Legislative Council consisting of the Governor as President, three ex officio members, and up to 18 official and up to 21 unofficial members appointed by the Crown.
  25. 25. The Governor retained the power to legislate, after consulting the Advisory Council, ‘for the peace, order and good government’ of the Union.
  26. 26. D) The States  At the state level, legislative power was to be severely curtailed, consisting only of matters declared by the Governor to be of purely local nature in the State or Settlement and matters delegated by the Legislative council.
  27. 27. E) Judicial power  Unlimited civil and criminal jurisdiction was vested in a Supreme Court, consisting of a High Court and Court of Appeal, presided over by a Chief Justice and staffed by judges appointed by the Crown.
  28. 28. ii) The Federation of Malaya (1948-1957)  At Working Committee of 12, comprising six British officials, four representatives of the Rulers, and two representatives of UMNO, formulated a new federal plan which had the following features:
  29. 29. i) There would be established a Federation of the Malay States and the Settlements of Penang and Melaka, the Rulers being retained as constitutional monarchs;
  30. 30. ii) The Head of Government would be a High Commissioner with powers over all matters except Malay custom and religion;
  31. 31. iii) The Malays would be recognized as the indigenous people, and citizenship for the non-Malay communities would be based on 15 years’ residence, not five years as under the Malayan Union;
  32. 32. iv) There would be Federal Legislative and Executive Councils, but the identity of the states and the States Councils would be retained;
  33. 33. v) The Legislative Council would be chaired by the High Commissioner and be composed of officials, including the nine Malay Presidents of the State Councils, and 50 unofficials representing the various races.
  34. 34. iii) The Reid Commission 1957   The modern Malaysian constitution has its more precise origins in the Report of the Constitutional Commission of 1957, chaired by Lord Reid (the Reid Commission). Later, constitutional developments have been in essence departures from the “Reid Constitution”, as the Merdeka Constitution of 1957 is often called.
  35. 35. Cont.          i) Appointment of the Commission; ii) The legislature iii) The executive iv) The Rulers v) The States vi) The judiciary vii) Special privileges and the national language viii) Fundamental rights and judicial review ix) Emergency powers
  36. 36. i) Appointment of the Commission;  Following the first federal elections in 1955, the prospect of imminent independence raised, for the third time in ten years, important constitutional issues.
  37. 37. A Constitutional Conference on the usual imperial pattern was held in London in January and February 1956 between representatives of the British Government, the Rulers (four representatives), the Chief Minister (the Tunku), three Ministers of the Federation Government, and the High Commissioner,
  38. 38. This important Conference proposed independence for the Federation by August 1957 and the appointment of a Constitutional Commission. The proposal having been accepted by the Rulers and the British Government, the Commission submitted its Report about one year later, in February 1957.
  39. 39. Members of The Reid Commission      i) Lord Reid (the Scottish judge); ii) Sir Ivor Jennings (the Cambridge jurist); iii) Sir William McKell (a former Judge Governor-General of Australia); iv) Mr. Justice B. Malik (an Indian Judge); v) Mr. Justice Abdul Hamid (a Pakistani Judge).
  40. 40. The appointment of such a Commission was preferred to the appointment of a constituent assembly as occurred in India.
  41. 41. Although this enabled independence to be reached probably sooner than might otherwise been possible, and although the Commission consulted widely and sympathetically and the Reid Constitution was accepted by all the relevant institutions in Malaya, the Malaysian Constitution has probably suffered from the fact that it was not drafted by the representatives of the people.
  42. 42. It has often been seen or presented as a foreign document rather than an indigenous one.
  43. 43. ii) The legislature    The Reid Commission recommended as the federal legislature a Parliament consisting of: a) Dewan Rakyat (House of Representatives) of 100 members, similar to the House of Commons in the United Kingdom; and b) A Dewan Negara (Senate).
  44. 44. iv) The Debate on the Reid Commission’s proposal  The principle topics for debate concerning the Constitution were of course the central concerns of the social contract, citizenship, language and special privileges.
  45. 45. v) The Malaysian Federation 1963   Accordingly, federation proceeded on 16 September 1963, despite the persistence of objections. With the formation of Malaysia, true independence was attained by the former British territories in the region.
  46. 46. vi) Crisis I: The 13 May 1969 Riots and National Operation Council (NOC) Rule  The race riots of 13 May 1969 and the emergency proclamation and emergency rule which followed constituted the most traumatic episode in the post-independence history of Malaysia, and affected the nature of Malaysia constitutionalism.