ON July 9, 1963 an agreement was concluded among “the Federation of Malaya, the United Kingdom of Great Britain and Northern Ireland, North Borneo, Sarawak and Singapore.” It was a historic pact known as the Malaysia Agreement (MA63) to form Malaysia.

Article 1 of the agreement reads as follows:

“The Colonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existing States of the Federation of Malaya as the States of Sabah, Sarawak and Singapore in accordance with the constitutional instruments annexed to this Agreement and the Federation shall thereafter be called ‘Malaysia’.”

Among the constitutional instruments mentioned in the article was Annex A which takes the form of a parliamentary bill. A bill in those terms was subsequently introduced into Parliament – to amend, among others, article 1(1) and (2) of the constitution of 1957 (commonly referred to as the Merdeka Constitution) – and was passed under the title of the Malaysia Act. This received the royal assent on August 26, 1963 and was to come into effect on September 16, 1963 – Malaysia Day.

On September 10, 1963 the government of the state of Kelantan commenced proceedings for declarations that the Malaysia Agreement and the Malaysia Act were null and void or alternatively were not binding on the state. It was argued for the Kelantan government that:

• the Malaysia Act would abolish the “Federation of Malaya” thereby violating the federation of Malaya Agreement 1957;

• the proposed changes needed the consent of each of the constituent states, including Kelantan, and this had not been obtained;

• the ruler of Kelantan should have been a party to the Malaysia Agreement;

• the constitutional convention called for consultation with rulers of individual states as to substantial changes to be made to the Merdeka Constitution; and

• the federal Parliament had no power to legislate for Kelantan in respect of any matter regarding which that state had its own legislature.

On September 11, 1963, Kelantan gave notice of motion that pending the ultimate disposal of their suit, the court should by order restrain the federal government and prime minister from carrying into effect any of the provisions of the Malaysia Act. The question then for decision was whether on the facts before the court there was a probability that the Kelantan government was entitled to the relief it sought.

Chief Justice Thomson, sitting as a High Court judge, had “a little more than twenty-four hours” to decide and the magnitude of the task was not lost on him as he said, “Never, I think, has a judge had to pronounce on an issue of such magnitude on so little notice and with so little time for consideration.”

In his judgment, the learned chief justice said:

“The two things which are attacked in the present proceedings are the action of Parliament in enacting the Malaysia Act and the action of the government in concluding the Malaysia Agreement.

“In each case the gravamen of the charge lies in the admission of the three new states [Sabah, Sarawak and Singapore] and the change of name without the Kelantan government having been consulted. It is conceded that it has not in fact been consulted although it clearly had prior knowledge (as distinct from notice in the technical sense) of what was proposed. These things, it is said, will in effect transmogrify the present Federation of Malaya into an entirely new and different federation known as Malaysia. This may or may not be true.

“In my view, however, it is beside the point and is nothing but a playing with words. The real question is not whether any such radical change will in fact result from what has been done by Parliament and the executive government but whether Parliament or the executive government has trespassed in any way the limits placed on their powers by the (Merdeka) constitution. These powers were given by the signatories to the 1957 agreement and they have not been taken away. If the steps that have been taken are in all respects lawful the nature of the results they have produced cannot of itself make them unlawful. Fiat justitia, ruat coelum!”

In the circumstances, the court held as follows:

1) Parliament in enacting the Malaysia Act so as to amend inter alia Article 1(1) and (2) of the Merdeka Constitution acted within the powers granted to it by article 159 of the constitution. The Constitution which formed an integral part of the Federation of Malaya Agreement 1957 (to which Kelantan was a party) did not require consultation with any state as a condition to be fulfilled;

(2) the Malaysia Agreement was signed for the “Federation of Malaya” by the prime minister, deputy prime minister and four members of the cabinet. This was in compliance with articles 39 and 80(1) of the Merdeka Constitution and there is nothing whatsoever in the constitution requiring consultation with any state government or the ruler of any state.

Thomson CJ’s decision has reportedly been referred to by a “prominent former Federal Court judge” to say that “it is not essential for the Yang di-Pertuan Agong (the King) to sign off on a cabinet decision to revoke the emergency ordinances”. The former judge was also reported to have said:

“If you read carefully the judgment by Thomson in that case, it is clear that the cabinet is vested with the ultimate authority in all things.

As lawyers would say, I beg to differ. The learned chief justice’s decision must be confined to the facts of the case. The case did not decide on emergency powers under article 150 of the federal constitution, which has had a facelift since Merdeka. No fewer than six amendments were made by Parliament: Act 10/1960 (1960); Act 26/1963 (1963); Act 68/1966 (1966); Act A514 (1981); Act A566 (1983); and Act A584 (1984).Arguably, the amendments in 1981 are by far the most significant as they introduced clauses (2A) – (2C). The last provides that an emergency ordinance has the “full force and effect as if it is an act of Parliament.” Read “It’s a conundrum”

In 1963, Thomson CJ did not lose sight of the magnitude of the question he had to decide on the executive authority of the federation which “extends to all matters with respect to which Parliament may make laws which includes external affairs including treaties and agreements.”

Yes, on that matter there is nothing whatsoever in the constitution requiring consultation with any state government or the ruler of any state.

But today, let’s not lose sight of the concluding remarks of His Royal Highness Sultan of Perak Sultan Azlan Shah in his essay “The role of constitutional rulers”.

A King is a king, whether he is an absolute or constitutional monarch. The only difference between the two is that whereas one has unlimited powers, the other’s powers are defined by the Constitution. But it is a mistake to think that the role of a king, like a president, is confined to what is laid down by the constitution. His role far exceeds those constitutional provisions.”

Daulat Tuanku! – July 31, 2021.

* Hafiz Hassan reads The Malaysian Insight.

*Notes for history buffs

Thomson CJ went on to become the first and only expatriate Lord President of Malaysia (1963-1966). Syed Sheh Al-Haj Syed Hassan Barakbah succeeded Thomson, becoming the first Malaysian to hold the office (1966-1968). CM Sheridan was the attorney-general (A-G) who appeared for the federal government. An expatriate like Thomson, Sheridan was the last A-G of Malaya (1959-1963). Abdul Kadir Yusuf took over as the first AG of Malaysia (1963-1977).

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.