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A playmaker and moderator: Lord Reid and the framing of the Malayan federal constitution
Published online by Cambridge University Press: 12 September 2019
Abstract
Lord Reid played a vital role as chairman in a Commonwealth commission in framing the Malayan Independence constitution between 1956 and 1957. The Scottish Lord of Appeal sought to ensure the commission's impartiality and to achieve a fair balance between the demands of the various interest groups. The Federation of Malaya was a complex emerging nation-state with a diverse population and the framers had to manage competing interests and demands. This article, through a close examination of the primary constitutional documents, considers Reid's influence on the framing of the Malayan (and hence, Malaysian) federal constitution. The article begins with a brief discussion of Lord Reid's appointment to head the commission and then considers in some depth areas where his influence on the framing of the draft constitution is evident. The article argues that Reid was the main playmaker and moderator during the constitution-framing process and played a critical role in ensuring a balance was achieved between the competing demands of the federal government and the states, safeguarding the fundamental rights of the citizens against the state, and in moderating the various communal demands.
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- Copyright © The National University of Singapore 2019
References
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8 See further Fernando, ‘Sir Ivor Jennings and the Malayan Constitution’.
9 Note on citizenship by Sir Ivor Jennings, Colonial Office (CO) 889/2, 31 July 1956, The National Archives, Kew, London, p. 89. Of the total population of 6,153,000 in Malaya at the end of 1955, Malays comprised 3,003,000; Chinese 2,326,000; Indians 729,000; and Others 93,000.
10 See Fernando, Joseph M., The Alliance road to independence (Kuala Lumpur: University of Malaya Press, 2009), pp. 11–26Google Scholar.
11 Ibid., pp. 35–49.
12 Ibid., pp. 42–5.
13 See F.A.K. Harrison to MacKintosh, 11 Feb. 1956, CO 1030/129 (34).
14 See Report of the Federation of Malaya Constitutional Commission (Kuala Lumpur: Government Printers, 1957), p. 2Google Scholar.
15 For details on the composition of the constitutional commission see CO 1030/129.
16 See Minute by Newsam, 10 Jan. 1956, CO 1030/129 and 26 Jan. 1956. See also Murphy, Philip, Alan Lennox-Boyd: A biography (London: I.B. Tauris, 1999), p. 132Google Scholar.
17 See Minute by MacKintosh, 15 Feb. 1956, CO 1030/129.
18 See Minute by MacKintosh, 15 Feb. 1956, CO 1030/120. See also Minute by J.M. Martin, 27 Jan. 1956, CO 1030/129.
19 See Malayan Constitutional Commission, CO1030/136 (7).
20 See The Times, 31 Mar. 1975. Drem is about 32 km from the city of Edinburgh.
21 Ibid.
22 Ibid.
23 Ibid.
24 Ibid.
25 Ibid.
26 The Times, 14 Jan. 1975.
27 Ibid.
28 Ibid.
29 Ibid.
30 The Times, 31 Mar. 1975; 14 Jan. 1975.
31 Summary record of First meeting of Constitutional Commission, 19 June 1956, CO 889/1, p. 14. Malik attended the sixth meeting of the commission on 30 June 1956. See also Summary record of Sixth meeting of Constitutional Commission, 30 June 1956, CO 889/1, p. 28.
32 See Summary record of First meeting of Constitutional Commission, 19 June 1956, CO 889/1, pp. 12–19.
33 See Memoranda by members of the commission, CO 889/2, pp. 112–79.
34 See Summary record of First meeting of Constitutional Commission, 19 June 1956, CO 889/1, p. 14.
35 See Secretary of State to Reid, 2 Aug. 1956, CO 1030/136 (2).
36 See Secretary of State to Reid, 2 Aug. 1956, CO 1030/136 (1 and 2).
37 See FCO 141/7473 for details on the new appointment. See also CO 889/1, Summary record of 12th meeting of Constitutional Commission, 30 July 1956. K.J. Henderson, who was Assistant Secretary from the 7th meeting on 9 July 1956, took over from Hall at the 12th meeting as Acting Secretary on 30th July 1956. The minutes of the 11th and 12th meetings do not state anything on the dismissal of Secretary Hall. E.O. Laird appears as the Secretary to the Commission for the first time at the 20th meeting of the commission on 22 Aug. 1956.
38 See Minutes by R.W. Newsam, 2 Oct. 1956 and 3 Oct. 1956, CO 1030/133. See also Laird to Johnston, 31 Aug. 1956, CO 1030/133.
39 Straits Times, 26 Oct. 1956.
40 Laird to Johnston, 31 Aug. 1956, CO 1030/133, pp. 75–6. In the letter from the commission to the Colonial Office, written by Commission Secretary E.O. Laird, the commission reiterates that the commission was independent and should submit its report to the Queen and the Rulers jointly.
41 Johnston to E.O. Laird, 7 Jan. 1957, CO1030/519, pp. 118–19.
42 MacGillivray to John Martin, 28 Sept. 1956, CO 1030/133, p. 64. MacGillivray notes in the letter that he was unable to persuade Lord Reid to send the commission's report in the first instance to the Secretary of State: ‘I found Lord Reid was quite uncompromising on this point.’
43 See CO 889/1 for a record of the commission's meetings and hearings given to organisations and individuals.
44 Reid and his colleagues examined closely the Alliance's memorandum before the meeting with its leaders. See Summary record of 34th meeting of Constitutional Commission, 26 Sept. 1956, CO 889/1, pp. 108–12. See also Record of Commission's hearing given to Rulers’ representatives, 14–15 Sept. 1956, CO 889/1.
45 See Summary record of 28th meeting of commission, 6 Sept. 1956, CO 889/1.
46 Ibid., p. 93. Onn wrote six articles in the newspaper on his views on the constitution between 24 and 30 Apr. 1956.
47 See Summary record of 53rd and 54th meetings of commission on 15 Oct. 1956, CO 889/1, pp. 170–72. The Emergency provision drew from the Indian Constitution.
48 Report of the Federation of Malaya Constitutional Commission, p. 4. See also Straits Times, 21 Feb. 1956.
49 See Minutes of hearing given to Alliance Party by Reid Commission, 27 Sept. 1956, CO 889/6, p. 281.
50 Ibid., p. 298.
51 Reid to Secretary of State, 8 July 1956, CO 1030/486 (20).
52 Ibid.
53 See Reid to Secretary of State, 1 Aug. 1957, CO 1030/486 (20) and Jennings to Reid, 6 July 1957, CO 1030/486 (E/16).
54 See Summary record of 18th meeting of Constitutional Commission, 6 Aug. 1956, CO 889/1, pp. 64–9. See also Summary record of 34th meeting of Constitutional Commission, 26 Sept. 1956, CO 889/1, pp. 108–12. This meeting with the Alliance Party leaders focused considerably on the organisation of the system of governance.
55 See Summary record of 53rd meeting of Constitutional Commission, 15 Oct. 1956, CO 889/1, p. 6. See also Summary record of 54th meeting of commission, 15 Oct. 1956, CO 889/1, pp. 1–2. See Summary record of 18th meeting of Constitutional Commission, 6 Aug. 1956, CO 889/1, pp. 64–9.
56 Ibid.
57 See Report of the Federation of Malaya Constitutional Commission, p. 181.
58 See Summary record of 54th meeting of Constitutional Commission, 15 Oct. 1956, CO 889/1, p. 1.
59 Memorandum submitted by various organisations, CO 889/6, pp. 249–52.
60 See Report of Alliance hearing, 27 Sept. 1956, CO 889/6, p. 251.
61 Ibid., pp. 254–66.
62 Ibid., pp. 254.
63 See ibid., pp. 406–8.
64 Memorandum submitted by various organisations, Report of Alliance hearing, 27 Sept. 1956, CO 889/6, p. 265. Tunku told the commission: ‘The object of having a second House is that we want the interests of minorities to be represented and have a say in the legislature. We have reserved for the Lower House for the representatives to be fully elected.’
65 Report of Alliance hearing, 27 Sept. 1956, CO 889/6, p. 265.
66 Report of the Federation of Malaya Constitutional Commission, p. 24.
67 See Summary record of 34th meeting of commission, 26 Sept. 1956, CO 889/1, p. 109. See also Report of the Federation of Malaya Constitutional Commission, pp. 23–4.
68 See Summary record of 51st and 52nd (12 Oct. 1956) and 53rd (15 Oct. 1956) meeting of Constitutional Commission, CO 889/1, 159–170. Hamid prepared the initial list containing the division of federal and state powers. See Summary of 51st meeting of commission, 12 Oct. 1956, CO 889/1, pp. 159–62.
69 See Minutes of hearing given to Alliance Party by Constitutional Commission, CO 889/6, pp. 269–70.
70 See ibid., p. 270.
71 See ibid., pp. 272–6.
72 See ibid., pp. 272.
73 Ibid.
74 See Summary record of 34th meeting of Constitutional Commission, 26 Sept. 1956, CO 889/1, pp. 108–12. See Minutes of hearing given to Alliance Party by Constitutional Commission, CO 889/6, 27 Sept. 1956, pp. 2–30. See also Report of the Federation of Malaya Constitutional Commission, pp. 22–54.
75 See Minutes of hearing given to Alliance Party by Constitutional Commission, CO 889/6, 27 Sept. 1956, pp. 34–5.
76 Ibid., pp. 2–30. See also Report of the Federation of Malaya Constitutional Commission, pp. 22–54.
77 See Minutes of hearing given to Alliance Party by Constitutional Commission, CO 889/6, 27 Sept. 1956, p. 284.
78 Report of the Federation of Malaya Constitutional Commission, p. 14.
79 See ibid., pp. 14–18, 96–8. The main differences were over Articles 15 and 17. In regard to Article 15(1) on the continuation of application of Clause 126 of the Federation Agreement as to who was entitled to be registered as citizen under the Federation Agreement, Hamid felt the article gave preference to citizens of the United Kingdom and Colonies born in the federation over others who were required to pass further tests and should be omitted. On Article 17, Hamid felt that the federal government should have discretion on registration of citizenship and it should not be claimed as of right by residents who had lived in the federation for eight years.
80 See Report of the Federation of Malaya Constitutional Commission, pp. 27–8. See also 29th meeting of commission, 11 Sept. 1956, CO 889/1, pp. 97–9.
81 See Minutes of hearing given to Alliance Party by Constitutional Commission, 28 Sept. 1956, CO 889/6, p. 283.
82 See Memorandum on citizenship by Her Majesty's Government, CO 1030/134, October 1956.
83 See Summary of minutes of first plenary meeting at London constitutional conference on 13 May 1957, CO 1030/496 (1).
84 See Summary of minutes of first (13 May 1957) and second (14 May 1957) plenary meeting at London constitutional conference in May 1957, CO 1030/496 (1 and 2).
85 See Minutes of hearing given to Alliance Party by Constitutional Commission, 28 Sept. 1956, CO 889/6, pp. 293–4.
86 Report of the Federation of Malaya Constitutional Commission, 173. Article 140 (3) reads: ‘Notwithstanding the provisions of Clause 1, for a period of ten years after Merdeka, and thereafter until Parliament otherwise provides, if in either House of Parliament or the Legislative Assembly of a State any person requests permission to speak in any of the Chinese and Indian languages, the presiding officer shall grant such permission … .’ See also Summary record of 36th meeting of commission, 1 Oct. 1956, CO 889/1, pp. 115–16.
87 Report of the Federation of Malaya Constitutional Commission, p. 74. The Reid Report read: ‘There are many citizens of the Federation who have had little opportunity in the past of learning to speak Malay fluently, and we think it would not be fair to them that Malay should become the sole official language. Moreover we think it would be impracticable to abolish the use of English before 10 years have elapsed. After ten years it should be left to parliament to decide when a change should be made … .’
88 See Minutes of Working Party, 28 Feb. 1957, 8 March and 12 March 1957, CO 941/85.
89 Secretary of State to Reid, 31 May 1957, CO 1030/518 (1).
90 See Hamid's note on ‘State Autonomy’ in Jennings Papers B/X/6, Institute of Commonwealth Studies, London (henceforth Jennings Papers), pp. 10–22. Hamid said that the state list only contained ten subjects and he felt that the field was ‘too narrow’.
91 Report of the Federation of Malaya Constitutional Commission, pp. 56–65.
92 Paper by Jennings entitled, ‘Fundamental Liberties, Etc: Comments on the Drafts’, 21 Sept. 1956, CO 889/2, C.C. 2000/26 (2b). See also Fundamental Liberties, Etc: Second Draft’, 10 Oct. 1956, CO 889/2, C.C. 2000/26.
93 See Minute by Johnston, 18 Feb. 1957, CO 1030/518.
94 See Summary records of the commission's meetings, CO 889/1.
95 Telegram from Reid to Colonial Office, 29 Jan. 1957, CO 1030/519, p. 64.
96 Ibid.
97 Ibid. See also Note by D.C. Watherston, 29 Jan. 1956, CO 1030/519, p. 49.
98 See Note by Watherston, 29 Jan. 1956, CO 1030/519, p. 50.
99 Ibid.
100 Ibid., pp. 50–51. Hamid had asked permission from Reid to talk to Watherston when he met the commission's members at the Eden Hotel lobby, and Reid agreed to this request. Hamid then told Watherston about his differences with the commission's report and his insistence on submitting a minority report.
101 See Note by Watherston, 29 Jan. 1956, CO 1030/519, pp. 50–51.
102 See Note on Hamid's dissent by Jennings, January 1957, B/X/6, /X/7/III, Jennings Papers.
103 See Note by Watherston, 29 Jan. 1956, CO 1030/519, pp. 49–51. See also minute by J. B. Johnston, 18 Feb. 1957, CO 1030/518.
104 See Hamid's note of dissent, 28 Jan. 1957, pp. 1–9 in B/X/6, Jennings Papers. See also Jennings’ note of response to Hamid's note of dissent at B/X/6, Jennings Papers, p. 2. Jennings in his note of response says that Article 15(1) was unanimously inserted in the draft constitution at its first reading in early December 1956. Jennings: ‘The number of persons to whom it applies is small, since the great majority of persons to whom Clause 126 of the Federation Agreement might have applied are citizens by operation of law under Clause 125 (6), (c), (d) and (e), and their rights are protected by Article 14, not article 15(1).’
105 See Note by Watherston, 29 Jan. 1956, CO 1030/519, pp. 51–2.
106 See Alliance memorandum to the Reid Commission, 27 Sept. 1956, 19, UMNO/SUA 154/156, Arkib Negara, Kuala Lumpur. See also Report of the Federation of Malaya Constitutional Commission, p. 73.
107 See Proposals of Their Highnesses the Rulers made to the Constitutional Commission, 12 Sept. 1956, B/X/5/III (93), Jennings Papers.
108 See Comments on the Reid Report, by Ivor Jennings, undated, 2, B/X/7/III, Jennings Papers.
109 Ibid.