The following article was originally published in the New Straits Times on 23 Aug 2014, ref.
The 1948 Federation of Malaya Agreement
A precursor and a template for the Merdeka Constitution
By Dr Malik Munip
1. Independence and Tunku Abdul Rahman are inseparable — so much so that each time a Malaysian hears the word “merdeka’, an image of our first Premier reading the Proclamation of Independence will invariably come to mind.
Indeed for many Malaysians, the Independence Movement started with the birth of the Alliance coalition he led — which was initiated by an Umno-MCA pact in the Kuala Lumpur Municipal Elections in 1952, extended in 1955 when the MIC joined and cemented in the same year when they won a landslide victory in the first peninsula-wide elections for the Federal Legislative Council.
2. Invigorated by such a mandate, the Tunku demanded that the date for Merdeka be brought forward. And as everyone knows within two years the Tunku got what he wanted. The Tunku after all is not immortalised as Bapa Kemerdekaan for nothing.
3. But what is less well known was the nature of the constitutional landscape in which the Alliance negotiated Merdeka: its ethos was geared towards decolonization. Highlighting this fact is not to stress the importance of historical context, but more to point out that the ‘logic of decolonization’ was ingrained in the 1948 Federation of Malaya Agreement (FMA). Indeed its preamble read:
“And whereas it is the desire of His Majesty and Their Highnesses that progress should be made towards eventual self-government and…….as soon as circumstances….permit, legislation should be introduced for the election of members to the several legislatures to be established pursuant to this Agreement.”
4. What this means is that though winning those elections was purely the achievement of the Alliance, yet the very fact that elections existed in the first place was not. As can be read in the Preamble, elections and other trappings of self-government was very much expected (if not demanded) by the then highest law of the land: the FMA.
5. Unfortunately, the importance of the 1948 FMA in preparing the ground for Merdeka is often overlooked. Thus, as we are about to celebrate our 57th Merdeka Day, there is merit in us revisiting briefly some of its fundamental tenants [tenets].
The 1948 Federation of Malaya Agreement (FMA): Features
6. Chronologically, the 1948 FMA was the successor to the abrogated 1946 Malayan Union Constitution (MU). Nine years later the FMA was in turn replaced by the 1957 Federal Constitution (Merdeka Constitution). Yet, both of these constitutional predecessors to the Merdeka Constitution were not superseded for the same reasons.
7. Within the country’s constitutional tradition the MU was an aberration — most of her principles and provisions was never implemented. By contrast, many of the basic provisions and underlying principles embodied in the 1948 FMA were adapted into the Merdeka Constitution.
8. The creation of the FMA began in July 1946 with the setting up of a Working Committee (WC) to propose a new constitutional framework to replace the MU. The membership of this WC represented the officially recognized political authorities of the day — the British, the Malay Rulers and Umno. Thus, unlike the MU that was unilaterally imposed upon the Malay Rulers by the British, the FMA was a joint Anglo-Malay design. Additionally, using the pre-war Johor Constitution as a template, they also drafted a modal State Constitution.
9. In drafting their constitutional proposals, the WC had to follow certain basic principles: (i) that there should be a strong central government, (ii) that the individuality of each Malay State and Settlement should be clearly expressed and maintained, (iii) that the arrangement should offer the means towards ultimate self-government, (iv) that a common form of citizenship should be introduced for all those who regard Malaya as their real home and objects of their loyalty and (v) that the Malays occupy a special position
10. During the WC’s discussions, three contenders emerged for the title of the proposed federation: Malayan Federation, Malayan Federal Union and the Federation of Malaya (FOM). According to legal scholar RH Hickling, the Malayan Federation was rejected because the word ‘Malayan’ meant people who were associated with Malaya but did not include Malays while the Malayan Federal Union was rejected because it did not put enough emphasis on the sovereignty of each state. Additionally both could not be adequately translated into Malay.
11. On the basis of such rejections, it would appear that the title FOM — a strict translation of the Malay title Perseketuan Tanah Melayu — wanted to project a very literal meaning: the coming together into Federation of pre-existing Malay states that had sovereign status.
12. It should be noted that from the viewpoint of law, the FMA did not signify the start of the Malay States sovereign status; rather it was the expression of a pre-existing one. This pre-existing sovereign status has been documented and reaffirmed by the rulings of the British Courts: Mighell v Sultan Abu Bakar (1893), Duff Development Company v Kelantan Government (1924), Pahang Consolidated Company v State of Pahang (1933) and Anchom v Public Prosecutor (1940).
13. Unsurprisingly due to the distrust generated by the Malayan Union, emphasizing this pre-existing sovereignty became a constant theme in the WC deliberations: it influenced the aforementioned naming of the Federation; it dictated the legal mechanism used to bring it into effect; it explained why citizenship and immigration policy were restrictive and interlocked. Indeed it even influenced the need for the constitutional proposals to be styled an ‘Agreement’.
14. The proposals of the Working Committee was published and conditionally approved on 24 December 1946. Although subsequently the proposals went through various committees for the purpose of soliciting feedback and fine-tuning, nonetheless the Revised Constitutional Proposals that was finally published in July 1947 was substantively similar to the original December proposals. Accordingly in January 1948 the Federation Agreement was signed between the Sultans and the British and on 1st February 1948 the Federation of Malaya was established (along with Federal and State Constitutions).
15. Unfortunately — due to the communist insurgency that broke out in 1948 — translating into reality the FMA’s expectation that ‘progress should be made towards self-government’ was delayed. Nonetheless, beginning in 1951, a quasi-ministerial structure dubbed the ‘Membership system’ was instituted; this system appropriated some of the Chief Secretary’s functions and responsibilities. Additionally, at the end of 1951 elections were introduced and this was quickly followed by the relaxation of citizenship requirements in 1952.
16. In fact in 1948 a Council of Rulers had already been established and according to Martin Rudner was “intended to confer traditional legitimacy to federal policy and serve as the ultimate guardian of Malay and State rights”. Although their agreement had to be obtained on immigration policies, nonetheless, the Council’s formation is not generally treated by conventional literature as an example of ‘self-government’.
17. At this juncture it should be noted that on paper, the 1948 constitutional arrangements appeared contradictory: on the one hand it expressed the desire that progress should be made towards self-government (i.e. decolonization), yet at the same time it vested almost overriding authority to the Federal government — and especially so in the colonial office of the High Commissioner. For example, the Federal Government was given legislative powers for 144 subjects under the Second Schedule while the States, according to Rudner, had exclusive jurisdiction in about 10 subjects.
18. Yet it would be a mistake to deduce the nature of the FMA purely from a reading of such contents; for what the FMA is on paper and what the FMA is when translated into practice are virtually two different things. Indeed the Reid Commission (a commission appointed to recommend a draft for the 1957 Merdeka Constitution) described it thus “….the Federation Agreement is not operated in a way that a study of that document might lead one to expect”. They further elaborated that “…in practice the Federal Government has never introduce either a major change of policy or a legislative measure without first obtaining the agreements of all the State Governments concerned. Thus, while the Federation authorities have the powers to carry out almost any policy they wish, the convention has developed that they do not exercise these powers”.
19. Or to put it differently, the spirit of decolonization that inhibited the FMA regulated the practical application of its body of text.
FMA: Post-Merdeka Relevance
20. From the above sketch of the FMA’s nine year lifespan, it would be clear that by the time the Alliance came into being, many of the building blocks towards self-government was already established. Indeed one can even say that the 1948 Federation of Malaya was constitutionally designed to decolonize.
21. Although in and of itself this did not guarantee Merdeka, nonetheless, it greatly empowered the Alliance’s ability to negotiate it.
22. Additionally, the FMA would also have an equally noteworthy impact post-Merdeka. How? By being a reference point for the drafting of the 1957 Federal Constitution (the Merdeka Constitution). Indeed the need to refer to the 1948 FMA was implicit in the Reid Commission’s terms of reference :
“To examine the present constitutional arrangements throughout the Federation of Malaya, taking into account the position and dignities of Her Majesty the Queen and Their Royal Highnesses the Rulers…….” (Italics added).
23. The words “To examine the present constitutional arrangements throughout the Federation” meant that the drafting of the Reid proposals will use — whether by adherence, departure or modification — the FMA and the various state constitutions as a guide and a reference point.
24. And since from the viewpoint of law, the FMA did not signify the start of the Malay States sovereign status, but was rather the continuation of a pre-existing one, hence the key identity indicators that together make up their sovereign DNA — the individuality of the Malay States, the Malay Sultanate, Islam, the Malay language— became part of the constitutional legacy that was inherited by the FMA and re-seeded into the Merdeka Constitution.
25. And lest the FMA is accused of lacking inclusiveness, it needs to be remembered that it was the FMA that provided a constitutional impetus for the creation of a multi-racial citizenry. Indeed according to Tun Suffian, prior to the FMA, there was no citizenship encompassing the entire country — one was either a subject of a Malay Ruler or if born in the Settlements, a British subject.
26. Thus at a fundamental level, the FMA was not only a reference point for the Merdeka Constitution but also a template for it.