SEPTEMBER 11 — As Prime Minister Datuk Seri Anwar Ibrahim, Sabah Chief Minister Datuk Seri Hajiji Noor and Sarawak Premier Tan Sri Abang Johari Tun Openg as well as other state leaders gather for the key Malaysian Agreement (MA63) talks at the Sabah International Convention Centre (SICC), I am reminded of the Federation of Malaya Agreements, the first of which is the Agreement of 1948.

The Federation of Malaya Agreement 1948 established the Federation of Malaya consisting of the Malay States and Melaka and Penang. Part III of the Agreement made provisions for the federal executive authority which “shall extend to all matters set out in the first column of the Second Schedule to this Agreement” (Clause 16).

But the federal executive authority could be entrusted “either conditionally or unconditionally, to the Government of any Malay State with the consent of His Highness the Ruler of that State, or to the Government of Settlement, or to their respective officers, functions in relation to any matter to which the executive authority of the Federation extends” (Clause 18).

The aforementioned clause was referred to forty years ago in the case of Ramasamy a/l Shanmugam v State Government of Penang and Government of Malaysia [1986]) where an application was made to the Supreme Court (as the apex was then known) for a declaration that the Hindu Endowments Ordinance 1906 (Straits Settlements Cap. 175) was invalid and void.

The applicant was the Vice-Chairman of the Hindu Sangam, Seberang Perai, Penang. He applied for leave under Article 4(4) of the Federal Constitution, which read as follows:

Article 4(4)

Proceedings for a declaration that a law is invalid on the ground mentioned in Clause (3) (not being proceedings falling within paragraph (a) or (b) of the Clause) shall not be commenced without the leave of a judge of the Supreme Court; and the Federation shall be entitled to be a party to any such proceedings, and so shall any State that would or might be a party to proceedings brought for the same purpose under paragraph (a) or (b) of the Clause.

In his averments before the Court, the applicant said that there was originally the Mohammedan and Hindu Endowments Ordinance 1906 which came into force on January 1, 1906. The Ordinance was enacted by the British Colonial Government of the Straits Settlements of Penang and Malacca to administer Mohammedan and Hindu religious and charitable endowments.

Insofar as it affected Muslim endowments, the Ordinance was repealed in the State of Penang by the Muslim and Hindu Endowments Ordinance (Repeal) Proclamation 1967 vide Penang Legal Notification No. 4 dated February 23, 1967. Since that date the statute was known only as the Hindu Endowments Ordinance.

By Article 74(1) and item 15© of the Federal List in the Ninth Schedule of the Federal Constitution, Parliament may make laws in respect of Hindu endowments, but there was no provision in the Constitution of the State of Penang for the State Legislature to enact laws pertaining to the practice or propagation of the Hindu religion.

It was therefore argued that the Ordinance was anachronistic and unconstitutional and ceased to be in force on or after Merdeka Day. Further, since the State Legislature had no power to enact laws pertaining to religion other than Islam, the Ordinance was inconsistent with Articles 3, 11 and 12 of the Federal Constitution and was void pursuant to Article 75 which provides that if “any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.”

The applicant’s argument was clearly based on the assumption that the Ordinance was State law and therefore unconstitutional as there was no question that Parliament and not the Legislature of the State of Penang was competent to legislate law on “Hindu Endowments” under item 15© of the Federal List.

But the Ordinance was not State law. By reasons of items 74 and 78 of the Second Schedule of the Agreement, the Ordinance became a federal law. It remained so despite the executive authority of the Ordinance being transferred to the State vide Legal Notification No. 152 dated April 7, 1949.

The transfer of executive power to the State was in accordance with the aforementioned Clause 18.

On Merdeka Day, the federal status of the Ordinance was extended by Article 162(1) read with Article 160. These two provisions state as follows:

Article 162(1)

Subject to the following provisions of this Article and Article 163, the existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day, with such modifications as may be made therein under this Article and subject to any amendments made by federal or State law.

Article 160

Existing law means any law in operation in the Federation or any part thereof immediately before Merdeka Day.

After Merdeka Day, His Majesty the Yang di-Pertuan Agong as Head of the Islamic religion in Penang under Article 5 of the State Constitution and Article 3(2) and (3) of the Federal Constitution, amended the Ordinance by proclamation vide the aforementioned Penang Legal Notification No. 4 of 1967, putting an end to its application to Muslim endowments.

According to Supreme Court Judge Mohamed Azmi (as he then was), the Ordinance was an ‘existing law’ which should be dealt with in accordance with Article 162(1).

The term ‘pre-Merdeka law’ is otherwise used to refer to ‘existing law’.

On  the ground that the Ordinance was an ‘existing law’, the learned apex court judge was satisfied that the application had “no merit whatsoever and the notice of motion for leave should accordingly be dismissed”.

In the course of his judgment, the learned apex court judge said:

“The architect of our Constitution recognised that not all pre-Merdeka Day legislation could readily be slotted into the three newly established compartments of legislative powers as provided in the Ninth Schedule [that is, the Federal List, State List and Concurrent List], nor were all such legislation expected to be prophetically consistent with the provisions of the Federal Constitution as required in the case of law passed after Merdeka Day by Article 4(1).

“Accordingly, various provisions are introduced in Article 162 of Part XIII of the Constitution for modification of ‘existing law’ to enable them to continue in operation after Merdeka Day.

“Article 160(6) even empowers any court or tribunal to apply the provision of any existing law which has not been modified on or after Merdeka Day, provided it is applied with such modifications as may be necessary to bring it into accord with the provisions of the Constitution.”

The learned apex court judge then referred to the case of Assa Singh v Mentri Besar Johor [1969] where Chief Justice of Malaya Ong Hock Thye, in accepting the argument of Solicitor-General Salleh Abas (as he then was) with reference to the Restricted Residence Enactment as a pre-Merdeka law, said:

“I agree that, since Article 4 speaks only of laws passed after Merdeka Day, the validity or otherwise of the pre-Merdeka Restricted Residence Enactment will have to be considered solely by reference to Article 162.

“As to post-Merdeka law, the Constitution is supreme and if any of that law is inconsistent with the provisions of the Constitution, to the extent of such inconsistency that law shall be void – Article 4(1). But as regards pre-Merdeka law, such law shall continue to be in force until repealed.

“In the meantime, its continuity and enforceability is subject to modification, firstly by a Legislative Act or Enactment or, secondly, by process of judicial interpretation, the executive order of the Yang di-Pertuan Agong to modify the same having expired – Article 162(1) and (6).

“It must be noted that Article 162 does not use the expression that the pre-Merdeka law shall be void to the extent of the inconsistency but, instead, it expressly states that the law shall continue to be in force’.”

So, when there is a conflict between existing law and the supreme law, it is the duty of the court to apply the existing law with such modifications as may be necessary to bring it into accord with the Federal Constitution. (See the judgment of Lord Denning in the Privy Council case of B Surinder Singh Kanda v The Government of the Federation of Malaya [1962])

Now, by definition, existing law or pre-Merdeka law does not include the laws of each of the States of Sabah and Sarawak passed or made before Malaysia Day.

What about these laws then?

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