Tag: JWW Birch

Delegation of Authority

141 years ago Perak became the first sovereign state in the Malay peninsula to come into a treaty with the British for the latter to provide the former with protection, while the former has the “right” to interfere in the internal administration of the state – by the appointment of a Resident or Adviser to the Sultan, on the payroll of the Sultan, and whose “advice” must be asked and “acted upon” in all matters other than the ones affecting the Malay religion and custom (C.D Cowan, 1961; Emily Sadka, 1968; Eunice Thio, 1969).  Between 1874 and 1930, similar but not identical treaties were signed with the other Sultans and Head of States. The treaties notwithstanding, the Sultans and Head of States remain the sovereign ruler of their respective sovereign state. De facto however, the British assumed the unstated “right” to administer the states as well with the exception of Kelantan through the Kelantan Treaty of 1910 (signed in Kota Bharu on 22 October 1910) when the government of King George V undertook not to interfere in the “internal administration” of the state or to curtail the “administrative authority” of the Ruler.

Sovereignty of the Rulers

Although the Rulers had divested much of their independence, both they and their state remained sovereign.  Independence is not equal to sovereignty.  As a principle of international law, sovereignty denotes, in its purest form, the concept of a ‘supreme authority’ be it an individual or a collective unit and implied power to exercise independence both internationally and domestically. Paradoxically, inherent in this conception of sovereignty is the possibility that the sovereign state could also impose limits on its own independence without suffering a diminution of its inherent sovereignty (L Oppenheim, 1928 pp 135 and 250; Albert Lau, 1991).  In other words, the Anglo-Malay treaties in no way compromised the de jure sovereignty of the Malay Rulers.

There were three test cases to determine the sovereignty of the Rulers and the State they ruled:

1. The infamous Mighell v Albert Baker a.k.a Mighell v The Sultan of Johore (1894) which I have also covered in a previous article when the issue of the Ruler’s immunity as a sovereign was raised in an English court, it was ruled that, although the Sultan by treaty had bound himself not to exercise some of the rights of a sovereign ruler, this did not deprive him of his character as an independent sovereign.
2. In Duff Development Company Limited v The Government of Kelantan (1924), the House of Lords similarly upheld the sovereignty of Kelantan and its Ruler was not intended to be qualified by the terms of the treaty.
3. In Pahang Consolidated Company Limited v State of Pahang (1933), the Privy Council summarised the constitutional position in Pahang as follows: subject to the limitations which the Sultan had from time to time imposed upon himself, he remained ‘an absolute ruler in whom resides all legislative and executive power.’ (See, 1894; Q.B 1924; A.C and M.L.J)

The above implied that Britain could do nothing in these states contrary to the terms of the existing treaties.  W. Ormsby-Gore, the Under-Secretary of State for the Colonies put it in 1928:

“Our (Britain’s) position in every State rests solemnly on treaty obligations….We neither have the right nor the desire to vary this system of government or to alter the type of constitution or administration that now obtains.” (W Ormsby-Gore report, 1928).

This was later echoed by Sir P. Cunliffe-Lister, the 1st Earl of Swinton and a prominent British Conservative politician,  on 14 July 1933:

“There is no question at all of altering in any degree, even by a comma, the Treaties which bind us…and which are charters of the agreements with the Rulers both of the Federated and Unfederated Malay States.”

Interesting, however, is that the Colonial Office came close to discussing the deposition of two Sultans namely the Sultan of Johore (1906) and the Sultan of Terengganu (1919).  In the case of the Sultan of Johore, the Colonial Office was told that unless Sultan Ibrahim of Johore complied with His Majesty’s Government’s wishes, he must “retire from the business altogether.”  In 1914, Sultan Ibrahim was brought to task again for allowing conditions in Johore to deteriorate “to that which called for decided action in 1906” and warned that, unless the administration improved, “the only alternative is his removal from the State.”  In 1919, Malayan officials, increasingly piqued by the obstructive nature of Sultan Muhammed of Terengganu, similarly recommended that “sufficient pressure” should be put on him to “compel his resignation.” (Minute by Lucas, 30 March 1906 CO 273/324 no. 10619; Young to Harcourt, 19 March 1914, CO 273/406 no. 13282; and report by J. Humphreys, 3 December 1919, CO 537/797 no. 5002).

Having said that, it frustrated the British that they had no jurisdiction whatsoever by virtue of the treaties signed, and a movement was initiated by Edward Gent, to change all that.

Willan’s Mission and the Malayan Union

Among the thorny problems of pre-WW2 Malay States is the question of the Chinese immigrants brought in by the British. In the Strait Settlements of Penang, Melaka and Singapore, they could be given the status of British Protected Persons. In both the Federated Malay States (FMS) and the Unfederated Malay States (UMS) the British have no jurisdiction to apply the same rule to them, nor are they citizens of their respective host state.  As far as the Malay Rulers were concerned, only the Muslim Malays are their subjects, not those who are alien, non-native and are non-Muslims.  The British tried to convince the Rulers and also by asking the Chinese to pledge loyalty to the Rulers.  However, the Chinese were disinclined to accept the Malay Rulers as theirs.

The problem arose when in 1929 the Chinese government passed the Chinese Nationality Law stating that all persons of the Chinese race, wherever born, were considered as subjects of China.  As such, the Chinese government could intervene in cases where the Chinese are not being fairly treated.

In 1911, the Malays made up 53% of the population. By 1931, they were already outnumbered and in 1941 formed only 41% of the population.  The Chinese community was at 43%, displacing the Malays as the dominant racial group. The Malays were in a disadvantageous position and this proved explosive in 1946 during the Bekor tragedy.  The Malays remained as the minority until 1970.

The only solution out of this is for the Chinese in the Malay states to be declared as British Protected Persons, but such move is against the treaties.  To put this into effect, Malaya has to come under a federation or a union where power is central, and the Anglo-Malay Treaties be reviewed and replaced by a new one.

Following the Fall of Singapore on 15 February 1942, the British saw that it was no longer possible to return to the pre-war system as they had failed to provide the Malay states the protection from the Japanese.  Edward Gent saw this as an opportunity to streamline all the Malay States and the Strait Settlements excluding Singapore under one administration to be based in Kuala Lumpur.  A month after the Fall of Singapore, he set up a team to quickly work out a solution and framework even though it was still not known then how the war would end.

When the war ended, this plan was quickly put in place. Between 8 to 29 September 1945, the Deputy Chief Civil Affairs Officer of Malaya, HC Willan, accompanied by the Senior Civil Affairs Officer for Johor, Colonel MC Hay, made his way to the Pasir Pelangi palace and interviewed the Sultan Ibrahim. Having studied files and found proof of Sultan Ibrahim collaborating with the Japanese, his task was to assess the Sultan’s reception of the British.  Not once, noted Willan, did Sultan Ibrahim hinted that the British had let him down by losing Johor.  More remarkably, Sultan Ibrahim wrote to Colonel Hay the very next day intimated his willingness to “serve under the British Military Administration.”  Willan opined that Johor would sign the new treaty.

Of all the Malay Rulers, only the Sultan of Perak proved difficult. Willan proposed that Johor, Selangor, Negeri Sembilan and Pahang should be approached in that order to sign the revised treaty. Once the rest have signed, there would not be any reason for Perak not to sign. When Harold MacMichael arrived in Johor, Sultan Ibrahim offered no resistance although he produced a memorandum containing points relating to the Sultan’s personal prestige and the status of Johor reproduced as Annex I in MacMichael’s report – Albert Lau, 1991). This is the “1946 agreement” made in conjunction with the signing of the Malayan Union agreement between the government of Johor and the British Military Administration that has been played up in the social media of late as the Federated Malay States agreement of 1948 had yet to be formulated. Johor was the first state to submit to being colonised by the British.

As expected, Sultan Abdul Aziz of Perak became the stumbling block.  For Sultan Abdul Aziz, the central issue was still sovereignty.  He wrote:

“It is true that under the Treaties I was bound to accept the advice of the British Resident, but nevertheless I was a Sovereign in my State having power to assent or withhold assent to legislation. I am now invited to sit as a member at an Advisory Council with the Governor assuming the function which rightly belongs to me. Being a member of the Advisory Council with authority over the other States is a doubtful honour. I neither desire to have any influence over the other States nor welcome any other Ruler to have influence within my State.”

The Sultan was also further incensed that under the new agreement the Malays in Perak would no longer swear allegiance to him but to the Malayan Union, thus in effect reducing him to the position of a Sultan without subjects:

“All these facts tend to show that my sovereign rights are in real danger. You can well imagine my feelings. I have no status, no State and no subjects.”(Sultan Abdul Aziz to Alexander Newboult, 20 February 1946, CO 537/1548 no. 50823/34 Pt.1)

By the latter half of February 1946, there was more cohesiveness amongst the Rulers in going against the Malayan Union.  The Rulers had tactically rallied behind an informal united front presided by the Sultans of Perak and Kedah.  In a concerted display of solidarity, the Rulers of Perak, Kedah, Pahang, Selangor and Negeri Sembilan jointly petitioned to defer the implementation of the new Malayan Union constitution until an independent commission had first visited the country and consulted local opinion. (Newboult to Hall, 22 February 1946, CO 537/1548 no. 50823/34 Pt.1).

The movement against the Malayan Union was born and so was UMNO. The discussions on the formation of the Federation of Malaya began with the British, the Rulers and UMNO taking part in the discussions.

Epilogue

The Anglo-Malay treaties were left relatively intact with more power given to the people to effect some degree of self-governance, the Rulers continued with their ceremonial roles and duties.  The Federation of Malaya came into effect on 1 February 1948, replacing the Malayan Union.

On 31 August 1957, the Federation of Malaya became independent, not from colonisation, but from feudalism.  Executive powers that were given to the British have been given to the people of Malaysia to determine how they are to be governed and by whom. All agreements and treaties made between the Rulers and the British since 1874 became void. Professor Datuk Dr Ramlah Adam said all agreements inked during the British colonial period are considered void automatically after Aug 31, 1957.

“These issues are over. The powers of the Malay royalty are now included in the Federal Constitution.”

There is no more “state citizenship” but only “federation citizenship,” which makes Malaysians who they are irrespective of where they were born.  The Federal Constitution too does not provide for any state to secede from the Federation. This was further enhanced in Sabah where the Malaysia Agreement of 1963 specifically says the state cannot secede.

Unsolicited remarks should not be made and the spirit of history has to be understood in order to understand why are we where we are, and why are we who we are.  Such talks only put the sacrifices of our predecessors in vain.