OCTOBER 15 — On September 10, 1963, six days before the Federation of Malaya would be abolished and a new Federation of Malaysia established, the Government of the State of Kelantan commenced proceedings in the High Court for declarations that the Malaysia Agreement 1963 (MA63) and the Malaysia Act 1963 (Act 1963) were null and void or alternatively were not binding on the State of Kelantan.

The State of Kelantan contended that (a) Act 1963, which received the Royal Assent on August 26, 1963, violated the Federation of Malaya Agreement 1957 (Malayan Agreement); (b) the proposed changes needed the consent of each of the constituent States, including Kelantan, and this had not been obtained; (c) the Ruler of Kelantan should have been a party to MA63; (d) constitutional convention called for consultation with Rulers of individual States as to substantial changes to be made to the Federation of Malaya Constitution 1957 (Merdeka Constitution); and (e) the Federal Parliament had no power to legislate for Kelantan in respect of any matter regarding which that State had its own legislature.

In the course of his judgment, the first Chief Justice of Malaya James Beveridge Thomson (later Lord President of the Federal Court) said as follows:

“[T]he two things which are attacked in the present proceedings are the action of Parliament in enacting [Act 1963] Act and the action of the Government in concluding MA63.

“In each case the [challenge] lies [against] the admission of the three new States and the change of name without the [Government of the State of Kelantan] 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 [Malayan 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! [Let justice be done, though the heavens fall]

“Let us examine the relevant powers of Parliament and of the Executive as they are set out in the [Merdeka] Constitution.

“By Article 2 Parliament may by law ‘admit other States to the Federation’. Then by Article 74, as read with the Ninth Schedule, Parliament may, without prejudice to any power to make laws conferred on it by any other Article, make laws relating to a large number of subjects.

“Among these are external affairs (including the making of treaties, agreements and conventions) defence, internal security and the machinery of Government. If any State law is inconsistent with any law made by Parliament then, by reason of Article 75, the law made by Parliament is to prevail and the State law is pro tanto void, and by Article 76 Parliament may make laws on subjects which would otherwise be out with its competence if they are made for the purpose of implementing any treaty or agreement between the Federation and any other country.

“By Article 160 the [Merdeka] Constitution itself is a written law and by Article 159 Parliament may make laws amending its provisions. This power is subject only to the restriction that a Bill to amend the [Merdeka] Constitution requires to be passed by a majority of each House of Parliament consisting of two-thirds of the total number of members and by reason of Article 159(5) a law amending Articles 38, 70 or 71(1), which deal with the position of Their Highnesses the Rulers, or amending Article 153, which relates to the special position of the Malays, shall not be enacted without the consent of the Conference of Rulers.

“It is, however, to be noted that by reason of Article 159 the requirement of a two-thirds majority does not apply to any amendment of the [Merdeka] Constitution made for or in connection with the admission of any State.

“It has not even been suggested that [Act 1963] was not passed strictly in accordance with the provisions of the [Merdeka] Constitution relating to Acts amending the Constitution.

“It amended Article 1(1) which provides that ‘the Federation shall be known by the name of Persekutuan Tanah Melayu (in English the Federation of Malaya)’ by providing [in Section 4(1)] that ‘the Federation shall be known, in Malay and in English, by the name Malaysia’.

“It amended Article 1(2) by adding [in Section 4(2)] the States of Sabah, Sarawak and Singapore to the States originally enumerated in Article 1(2).

“In doing these things I cannot see that Parliament went in any way beyond its powers or that it did anything so fundamentally revolutionary as to require fulfilment of a condition which the [Merdeka] Constitution itself does not prescribe — that is to say a condition to the effect that the State of Kelantan or any other State should be consulted.

“It is true in a sense that the new Federation is something different from the old one. It will contain more States. It will have a different name. But if that state of affairs be brought about by means contained in the [Merdeka] Constitution itself and which were contained in it at the time of the [Malayan Agreement], of which it is an integral part, I cannot see how it can possibly be made out that there has been any breach of any foundation pact among the original parties.

“In bringing about these changes Parliament has done no more than exercise the powers which were given to it in [Malayan Agreement] by the constituent States including the State of Kelantan.”

Two more provisions of the Merdeka Constitution were referred to by the Chief Justice in the following paragraphs:

“[B]y Article 39 the executive authority of the Federation is vested in the Yang di-Pertuan Agong and is exercisable, subject to the provisions of any federal law and with certain exceptions, by him or by the Cabinet or any Minister authorised by the Cabinet.

“By Article 80(1) the executive authority of the Federation extends to all matters with respect to which Parliament may make laws which, as has been seen, includes external affairs including treaties and agreements.

“[MA63] is signed ‘for the Federation of Malaya’ by the Prime Minister, the Deputy Prime Minister and four other members of the Cabinet. There is nothing whatsoever in the [Merdeka] Constitution requiring consultation with any State Government or the Ruler of any State.

“[Accordingly], a power has been lawfully exercised by the body to which that power was given by the States in 1957.”

In the circumstances, the Chief Justice refused the declarations that the State of Kelantan sought – that is, that MA63 and Act 1963 were null and void or alternatively were not binding on the State of Kelantan.

The decision was delivered on September 14 — two days before Malaysia Day. (See the case of The Government of the State of Kelantan v Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj [1963])

What needs to be highlighted from the judgement as set out in extensio above is this: no provision of a written law or a clause in an agreement can be read in isolation.

When the Chief Justice said “Let us examine” it means examining the relevant provisions as they are set out in the written law — that is, the Constitution, Act, Ordinance and Enactment.

Thus, Article 1(1) (on the name of the Federation) and Article 1(2) (on the States of the Federation) must be read together with Article 159 (on amendment of the Constitution).

In the case Re Datuk James Wong Kim, Minister of Home Affairs, Malaysia & Ors v Datuk James Wong Kim Min, it was a pre-Malaysia state Ordinance that must not be read in isolation but read together with Article 159A of the Constitution (on operation of transitional provisions of the Malaysia Act 1963).

In the case of Reddy v Employees Provident Fund Board [1967], it was a pre-Merdeka state Ordinance that must not be read in isolation but together with Article 160 (on interpretation of words).

The same goes for agreement: read an agreement wholly — that is, to the full or entire extent. Don’t read its clauses in isolation.

No provision of a written law and no clause in an agreement can be read in isolation.

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