MAY 18 — Until the Constitution of the State of Negeri Sembilan was promulgated in 1959, the state had no written constitution.

The constitutional law of the state could only be found in the various treaties entered into by the Yang di-Pertuan Besar, the Ruling Chiefs and the British Government.

Besides these treaties, customary laws were allowed to continue side by side to govern the political, social and economic life in the respective territories so long as they did not become a hindrance to British policy.

Negeri Sembilan was only constituted as a State by the treaty of July 13, 1889, whereby the parties concerned agreed to form “a Confederation of States to be known as the Negeri Sembilan.”

Six years later in 1895, the Confederated State of Negeri Sembilan joined the Federation of Protected Malay States of Perak, Selangor, Negeri Sembilan and Pahang — better known as the Federated Malay States (FMS).

When the Malayan Union was formed in 1946 and later transformed into the Federation of Malaya in 1948, Negeri Sembilan remained without a separate written constitution.

It was only in 1957 when the Federation of Malaya proclaimed independence, with the Yang di-Pertuan Besar and the Ruling Chiefs desiring that “fresh constitutional arrangements be made for the peace, order Good government and well-being” of the state, that Negeri Sembilan finally got to promulgate its own State Constitution.

Federal Court Judge Salleh Abas in the case of Dato Menteri Othman Bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 described the State Constitution as follows:

“The State Constitution of Negeri Sembilan recognises the continued application of the ancient constitution and ancient custom of the State so long as they are not inconsistent with the State Constitution (Article XXXII). Part of the ancient constitution and ancient custom is the concept of rulership. There exist five Ruling Chiefs (Article XIV) in addition to the royal personage styled as Yang di-Pertuan Besar of the State, and not as Sultan like the royal personage in other states (Article VII).

“The Ruling Chiefs are the Undangs of Sungai Ujong, Jelebu, Johol and Rembau and Tengku Besar of Tampin (Article XIV). The rulership in Negeri Sembilan State Constitution unlike that in other states is a composite concept, consisting of His Highness the Yang di-Pertuan Besar and the five Ruling Chiefs (Article XXVIII).

“For the exercise of functions under the State Constitution, His Highness the Yang di-Pertuan Besar and at least three of the four Undangs must act (Article XXVIII(2)), but for the exercise of functions under the Federal Constitution only the Yang di-Pertuan Besar is required to perform them, although in performing those functions, His Highness is regarded as acting not only on his own behalf but also on behalf of the Ruling Chiefs as well (Article 160(2)).

“The reason why the Undangs are not required to perform the functions under the Federal Constitution must have understandably been due to the question of convenience. Because the definition of ruler is a composite one, the Constitution of the State itself was declared and ordained by His Highness together with the Ruling Chiefs (see preamble to the Constitution of Negeri Sembilan).

“His Highness the Yang di-Pertuan Besar is elected by the four Undangs (Article VII), whilst the Undangs themselves have to be elected in accordance with the custom of their respective territories (luaks) (Article XIV(1)). His Highness and the Ruling Chiefs and a few other persons are members of a Council known as the Dewan Keadilan dan Undang (DKU), (Article XVI and Article XVII). The main function of the DKU “to advise on questions relating to Malay Custom in any part of the State or on other matters which may be referred to it by His Highness or any of the Ruling Chiefs.

“The Dewan is the culmination of the lengthy political and constitutional developments of the State. It is the embodiment of traditional elements and values which are kept alive by the Constitution. It is a machinery to rationalise these elements so as to make them work under a modern democratic constitution.”

According to the learned judge, the main function of the DKU is to “rationalise and make this ancient constitution and custom work and to avoid disputes which could arise from many divergent interpretations of the ancient constitution and ancient custom”.

The expression “to advise on” is not merely confined to the ascertainment and statement of customary law in an abstract and generalised way like a statute or an enactment. Neither is the expression restricted to mean only “to give an opinion”.

The expression must be the ascertainment and the application of law on a given subject to a particular set of facts.

The advice so expressed by the DKU, irrespective of the language used and recorded, whether it is “giving its blessing or approval” or some other words, clearly indicates the thinking and view of the DKU and such opinion, since it comes from the highest and august body, should be worthy of respect and obedience.

It should not be ignored.

Since customary law is, after all, based on the recognition and acceptance that a rule is binding, there is no need for a provision in the State Constitution to state that the advice is binding.

So, there is no higher and better authority that deserves and commands respect in the interpretation and explanation of customary law on a matter than the DKU Dewan itself as it consists of the Ruler of the State and other prominent persons.

An example of an advice being binding is the advice pronounced by the Federal Court under Article 130 of the Federal Constitution when it exercises its advisory jurisdiction on a question referred to the court by the Yang di-Pertuan Agong for its opinion as to the effect of any provision of the Constitution.

Such advisory opinion was expressed by the Federal Court in Government of Malaysia v Government of the State of Kelantan [1968] 1 MLJ 129, as to the meaning of the word “borrow” under Article 112(2) of the Federal Constitution.

There can be no doubt that the Federal Court’s opinion is binding, although there is no provision in the Federal Constitution which says that it is so.

The ancient constitution and ancient custom are not only preserved by the State Constitution but are given federal guarantee in Article 71 of the Federal Constitution.

Clause (1) guarantees “the right of a Ruler of a State to succeed and to hold, enjoy and exercise the constitutional rights and privileges of Ruler of that State in accordance with the Constitution of that State; but any dispute as to the title to the succession as Ruler of any State shall be determined solely by such authorities and in such manner as may be provided by the Constitution of that State.”

Article 71(1) embodies what has been called the principle of strict neutrality as regards a dispute as to the title or right of a particular individual to succeed as Ruler.

The principle is also applicable to a dispute relating to the appointment of an Undang because Clause (2) says that “Clause (1) shall, with the necessary modifications, apply in relation to a Ruling Chief of Negeri Sembilan as it applies to the Ruler of a State.”

Legal history is often overlooked. It is often neglected by lawyers.

According to Professor Russell Sandberg of Cardiff University, when lawyers do refer to history, they misuse it. (See A Historical Introduction to English Law: Genesis of the Common Law, Cambridge University Press, 2023)

Lawyers may do so, but not Salleh Abas. He used legal history to come to a decision that the DKU is the authority to decide on a dispute over the appointment of an Undang.

The decision has stood for more than 40 years now. It is a decision that will continue to stand until reviewed by the highest court of the land.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.