The Drafting Process

The next issue was, what would be the process for drafting the constitution?

The interesting point for comparative purposes is that, rather than following the Indian, Pakistani, and Burmese precedents in using the constituent assembly method, the decision was taken to appoint a constitutional commission to draft the new constitution.

Whose decision, to begin with, was it to use this method? The significant play­ers were the British Government itself, the nine Malay Rulers, and the Alliance coalition, comprising ethnic parties representing the Malays (the United Malays National Organisation, UMNO), the Chinese (the Malayan Chinese Association, MCA), and the ‘Indians’, or those of South Asian heritage (the Malayan Indian Congress, MIC). This coalition was led by the UMNO leader, Tunku Abdul Rahman, who maintained good relations between the ethnic communities, as well as with the British Government, and was himself the son of one of the Malay Rulers. The Alliance had won an overwhelming victory in the 1955 legislative assembly elections, sweeping all but one seat, and was in a powerful position as inevitably providing the country's future leadership, to dictate terms, and they did not hesitate to do so.^[490] These political stakeholders were in agreement about the process to be adopted. Foregrounded was the fact that at the London Conference August 1957 had been set as the date for independence, and a constituent assem­bly, which would have taken years to debate and decide on the constitution, would have meant delaying independence for an uncertain period, or else entering into independence without a proper constitution. Neither of these eventualities was attractive. Moreover, a constituent assembly might well have become mired in inter-ethnic and other issues that would have exacerbated strife and created instability.

The most persuasive reason for not having a constituent assembly, was there­fore that the main positions had already been negotiated amongst the key players, and there would be reluctance to countenance a departure from those positions that might lead to political disarray, and even to the inter-ethnic rioting which was still fresh in memory from the immediate post-war period.^[492] There was no appetite for reopening such precious consensus. The London Conference reflected these considerations by giving the Reid Commission terms of reference that embodied the main positions espoused by the Alliance. The Commission's task was perceived therefore not as being one of settling the Constitution as such, tabula rasa, but of translating into legal and practical terms that which had already been settled via the political process. The job was therefore closer to that of the technical drafting committee of a constituent assembly, albeit somewhat wider than the role of such committee, than that of an assembly itself.

The Tunku himself preferred a commission of jurists drawn from the Commonwealth, due to its collective common-law background and constitu­tional experience, especially with federal systems. He expressed the view of the Government of Malaya in these terms:

In our opinion, only such a Commission would be able to exercise complete impar­tiality in the inquiry into the Constitution. We feel confident that the Commission composed of members, rich in experience of constitutional and political matters, would be able to bring a fresh approach to the problems of our country. They would be able to produce an unbiased report on the constitutional reforms which will fit this country for full responsible self-government and independence in the shortest time possible.^[493]

In line with all of the constitution-making processes in the British Empire thus far (India, Pakistan, Burma, Sri Lanka, and Ghana), the Rulers initially preferred an all-Malayan body; and clearly their view was an orthodox one in light of recent experience.

The striking point about the Reid Commission is of course that none of the members hailed from Malaya itself. At first sight that seems an unusual, even counter-intuitive, position, as presumably local knowledge would be of outstand­ing importance in the drafting process, especially given the sensitivities around ethnicity and religion. It needs to be borne in mind, however, that the choice of one or more Malayans would have been highly controversial, as those members would have been in at the ground floor of constitution-making and could easily have, or be accused of having, their own political partisanship, whereas the members appointed had no axe to grind and were perceived as being objective and open to persuasion.

However, there is a number of other contexts and considerations that make this omission somewhat less significant than it seems at first sight. I address these in turn.

A. The Terms of Reference

First and most importantly, as has been pointed out above, the main outlines of the new constitution had already been determined by the commission’s terms of reference, drawn up by the British Government in consultation with the Rulers and the Alliance.

The Alliance’s overwhelming victory in the 1955 federal elections meant that in essence the choices locked in by the terms of reference were not capable of being rejected by the British Government. As in many other cases of decolonisation, the overall objective was to ensure a safe landing for the newly independent state in the sense of a handing over to leaders who were both competent and supported by the electorate. In addition to that, a strong central government was required in order to deal with the communist insurgency that had begun in 1948.

The terms of reference bear setting out in full, because they indicate the limited extent to which the Commission had freedom of manoeuvre:

To examine the present constitutional arrangements throughout the Federation of Malaya, taking into account the positions and dignities of Her Majesty The Queen and of Their Highnesses the Rulers: and To make recommendations for a federal form of consti­tution for the whole country as a single, self-governing unit within the Commonwealth based on Parliamentary democracy with a bicameral legislature, which would include provision for: (i) the establishment of a strong central government with the States and Settlements enjoying a measure of autonomy (the question of the residual legislative power to be examined by, and to the subject of recommendations by the Commission) and with machinery for consultation between the central Government and the States and Settlements on certain financial matters to be specified in the Constitution; (ii) the safeguarding of the position and prestige of Their Highnesses as constitutional Rulers of their respective States; (iii) a constitutional Yang di-Pertuan Besar^[496] (Head of State) for the Federation to be chosen from among Their Highnesses the Rulers; (iv) a common nationality for the whole of the Federation; (v) the safeguarding of the special position of the Malays and the legitimate interests of other communities.^[497]

A number of immovable or virtually immovable positions are either stated or implied in these terms. The existing structure under the FMA would clearly form a basis for a reformed constitutional system, as opposed to starting with a completely clean sheet.

as it was drafted, and as was expected, reflected existing, not new, structures and assumptions. For example, the federal structure was adopted, not in 1957, but with the FMA, which had divided powers between the states and the federation in a generally similar way to Schedules 8 and 9 of the 1957 Constitution. This structure also involved retention of the nine existing monarchies, another matter that had been settled by the FMA, following the rejection, as a result of popular protests, of a unified state in the form of the Malayan Union in 1946.^[498] The state constitutions adopted in 1948 were also continued in effect.

Provisions for the legislature too were based on an expansion of the existing federal legislature. The norms of an elective parliamentary democracy, with consti­tutional monarchy and a bicameral (a new idea) legislature, would also continue to be operative. Malaya would be a federation but with a strong central government. The Rulers' privileges would be preserved and (this was also new) they would elect the federal head of state from amongst their own numbers. There would be a common citizenship, but the special position of the Malays, as well as the legiti­mate interests of other communities, would be enshrined. There are other ‘givens' that appear unavoidable given these premises: a system of government operating Westminster-type conventions and electoral system; emergency powers (needed due to the ongoing insurgency); and an independent judiciary and civil service, also reflecting the norms of the British system.

By these terms of reference and the sheer inertia of existing governance structures virtually all the major issues had already been agreed upon, whether expressly or implicitly. But not absolutely all, and of course not necessarily in great or even any detail. If we distinguish between major propositions (what should be laid down), and minor propositions (precisely how it should be laid down), there are three matters listed but not prescribed in any detail in the terms of refer­ence, and all of these proved controversial.

B. Consultation

Secondly, the commission was compelled to consult widely on the new constitution, and in fact, despite the shortage of time, received and read 131 written represen­tations, mainly from individuals and civil society organisations, and held 118 meetings. Thus, the commission had as much opportunity as was possible within a tight timeframe to canvass and also respond to local opinions. In particular, it examined documents submitted by political parties, civil society organisations, and individual citizens.^[499] This took up so much time that Jennings considered reading memoranda a poor substitute for meeting Malayan people.^[500]

C. The Alliance Position

Third, the powerful position of the Tunku and his Alliance following the federal legislature elections in 1955, in which the Alliance, representing all three of the main ethnic communities, obtained almost 80 per cent of the vote and all but one seat, made it virtually impossible to reject the Alliance Memorandum setting out its ideas for the constitution. These were, obviously, based on careful considera­tion of, and political alignment around, local factors that are also reflected in the terms of reference. Prior to the London Conference the three Alliance parties had taken great pains to negotiate behind the scenes a common position on the future constitution, and their Memorandum had indeed been submitted to the Conference, in which its leaders were of course also prominently involved. The Memorandum’s most important proposals involved a compromise that has come to be known as Malaysia’s social contract.^[501] The main idea of this contract was that non-Malay citizenship should rise, in return for the retention of Malay special privileges. It also dealt with such issues as the national language and the monar­chy. Implicitly too, religion was also involved in the contract as it bore a strong relation to the special position of the Malays. This agreement is often seen as the cornerstone of the nation and of the Constitution itself. It is a social contract not in Rousseau’s sense of a theoretical contract defining the relationship between the individual and the state, but rather an actual, negotiated contract between three ethnic communities, both indigenous and migrant, attempting to discover how to build a polity held in common and to avoid inter-ethnic conflict.

D. Process Following the Commissions Report

Fourth, it needs to be understood that the Commission’s Report, appending its draft of the Federal Constitution, was not in itself legislative or binding in any sense, but was subject to further consideration, and this consideration incorpo­rated all stakeholders in the Malayan polity. The Commission insisted on its own independence, not just from all Malayan interests but from the British Government too, determining its final draft in a Rome hotel in early 19 57.^[502] In this way the Report was seen as objectively reached, not as dictated by the British Government or under any Malayan direction, although obviously the Commission had to have serious regard to the Alliance’s wishes, as it represented an overwhelming majority and all three main ethnic communities.

Following a period of public debate, the Government of Malaya, as set out above, appointed a Working Party, consisting of four Alliance members, four Rulers, and two British officials, to consider the draft Constitution in detail. Perhaps inevitably, given the political context, this scrutiny brought the draft closer to a Malay vision of the constitution, and some modifications were made by the Working Party, as is discussed below, before the constitution emerged in its final form.

*

Given the context and the process outlined above, it is very difficult to regard the 1957 Constitution as being imposed on an unwilling population and a resistant political structure. The degree of consensus around the 1957 Constitution was in fact quite remarkable, given the political and social problems that had been faced. Therefore, if the Reid Commission made mistakes (and arguably, and perhaps inevitably, it can be argued to have made a number of mistakes^[503]) it can hardly be argued that such mistakes were imposed or that the process afforded no opportu­nity to prevent or correct them. The resulting Constitution was a result of consensus and careful consideration at the time, leaving plenty of scope for changes to be made during the Constitution’s bedding-down, as indeed they were.^[504] Naturally, the experience of the last 65 years may lead to critiques of the Reid Commission’s Report, and expressions of preference cutting against the recommendations; but such critiques cannot essentially impugn the legitimacy of the process that was adopted.^[505]

IV.