Introduction
Constitution-making does not spring from a textbook or code of guidance as to how it should be done. It is a product of time and circumstance, and often, unfortunately, heavily determined by the politics of the moment rather than the politics of the future.1
Accordingly, we should perhaps be wary of drawing conclusions as to what, as a general proposition, or even in a single instance, ‘works' in constitution-making.
Even judging what has worked or not worked regarding a single issue arising in such instance may well be a matter of pure conjecture. And over what period is such judgement to be made, and taking account of how much in terms of the possibility or actuality of subsequent development? There appears to be no smooth causal relationship between the process adopted for drafting a constitution and the durability (perhaps the best substitute for assessing success) of a constitution. The Japanese Constitution of 1947 was drafted by an occupying power within a single week, with no public participation, and has endured, unamended, until today.2 The Indian Constitution was drafted over several years, has been amended many times, but has survived for a similar period of time.3 It would therefore be rash1 Sujit Choudhury, Michael Heyman, and Tom Ginsburg (eds), Constitution-Making (Elgar, 2016); Andrew Arato, ‘Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution Making' (2012) Global Constitutionalism 1 (1) 173-200; Claude Klein and Andras Sajo, ‘Constitution-Making: Process and Substance' in Michel Rosenfeld and Andras Sajo, The Oxford Handbook of Constitutional Law (Oxford University Press, 2012) Ch 20.
2 Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart Publishing, 2010) Ch 1.
3 Arun Thiruvengadam, The Constitution of India: A Contextual Analysis (Hart Publishing, 2017) Ch 1.
to assert that any particular process is a tried and tested form of constitutionmaking. Just as a constitution must be drafted so as to be fit for purpose, so a constitution-making process too must be fit for purpose. The problem of judging constitution-making processes is especially intractable when the process lies far in the past, the product of long expired ideas as to how a constitution should be drafted and what should go into it, and whose original conception may well be greatly obscured by later developments or understandings (or, to be sure, even misunderstandings).This chapter on the Constitution of the Federation of Malaya 1957 is therefore cautious in its judgements as to the decisions made and their general significance for our understanding of constitution-making, and attempts a contextual understanding that is neither overly and uncritically descriptive nor overly and critically judgemental in terms of applying modern standards in an ahistorical manner. The particular context of Malaya in 1957 will become apparent in detail as we work through the issues, but some general background is required by way of introduction.
In the case of Malaya in 1957, as with other territories in the British Empire, there was little in the way of a preconceived idea of constitution-making as a mode of decolonisation, as the main Asian precedent at that time was India, while Pakistan’s process had simply split off from India's as a result of partition.[477] The process for drafting India’s Constitution was controlled by Indians themselves in a constituent assembly, and the same thing occurred with Burma’s Constitution of 1947, which, like Pakistan’s, was heavily influenced by the Indian precedent.[478] In many ways the Federation of Malaya’s Constitution of 1957 was also influenced by the Indian example - in substance even if not in process. Malaya also presented special problems in terms of its issues in the areas of ethnicity, religion, and traditional monarchy.
No other similar constitutional process in the Commonwealth had involved a monarchy system set to survive the process of building a new nation. Federalism on the other hand was by now a familiar problem in the common-law constitution-making world.[479]As had occurred with other decolonisation processes, a constitutional conference was held in London, taking place in January-February 1956, and involving representatives of the British Government, the Malay Rulers, and the Government of Malaya.[480] The latter had been elected in 1955, and was led by Tunku Abdul Rahman, who was to become the first Prime Minister of an independent Malaya. The conference proposed that the Federation of Malaya should become independent by August 1957, and that a constitutional commission be appointed. The Constitutional Commission (often referred to as the ‘Reid Commission', after its chair, Lord Reid) was accordingly appointed and it submitted its Report in February 1957.[481] The Reid Commission had about a year to do its work - a timeframe that came close to being breathlessly hasty - as time would be needed for debate and consideration of its work before independence, which had been set by the conference for August 1957. The Commission's Report was submitted with a draft constitution in early 1957, was debated, and then scrutinised by a Working Party, consisting of the Rulers, the Alliance leaders, and two British officials, which met during February-April 1957 to consider and negotiate the draft constitution.[482] The resulting document was debated publicly, approved by the Government of Malaya, agreed by the Conference of Rulers in June 1957, and debated in and approved virtually unanimously in the federal legislature and all of the 11 state legislatures. It was given effect by the Federation of Malaya Agreement 1957, the Federation of Malaya Independence Act 1957 (UK) and Orders-in-Council thereunder, the Federal Constitution Ordinance 1957 (Malaya), and State Enactments in all of the nine Malay States.
The Constitution was finally brought into effect on 31 August 1957, the event celebrated by an impressive ceremony at the Padang, now known as Dataran Merdeka (Independence Square) in Kuala Lumpur, the Tunku famously raising his fist with repeated cries of ‘Merdeka! (Freedom).The 1957 Constitution, suitably amended, became the Constitution of the Federation of Malaysia, with the addition of North Borneo (Sabah), Sarawak, and Singapore, by virtue of the Malaysia Agreement 1963,[483] although Singapore left the Federation in 1965. The 1957 Constitution remains in effect, and is one of the longest lasting of all the constitutions dating from the period of decolonisation. Although (or perhaps because) it has been frequently amended, and often criticised (albeit from radically different perspectives), after 65 years it can be said to have stood the test of time. Despite hotly competing interpretations of the text, there is currently no credible or cogent demand for its replacement.
The constitution-makers of 1957[484] faced issues that still exercise the polity today, principally: the role of the monarchy; Malay special privileges versus equal citizenship; the status of Islam; federalism; emergency powers; and judicial independence. As Kumarasingham expresses it, they faced a ‘complex polity enmeshed in rebellion, racial divisions, peculiar legal relations with Britain, esoteric governing structures, indigenous rulers with varying privileges, precarious geo-political position and pronounced religious and ethnic sensitivities’.[485] In their dispensations regarding these matters they made decisions that created a framework within which not just government but constitutional debate itself is conducted; even those who wish to see a radical realignment of constitutional concepts do not dispute that the Constitution as it is provides the framework within which debate is conducted.
In 1957, to be more specific, the constitution-makers faced the uncertainties attending the creation of a new nation, a communist insurgency, and an everpresent threat of inter-ethnic disturbance. These conditions existed in addition to the difficulties of simply deciding on the form of government to be adopted, a matter that, in the event, did not provoke so much controversy compared to the issues of ethnicity, religion, and fundamental rights. The fourth section of this chapter focuses on these three controversial issues in the context of the issue of autochthony.
II.