What is Johore’s constitutional position within Malaysia?

The answer comes from history and the Constitution itself. Ready for some stories?

[1].  Hon. Hassan Karim MP’s 4-Point argument

Last week, Pasir Gudang’s MP, the Hon. Hassan Karim called for changes in the federal system.1 https://www.freemalaysiatoday.com/category/nation/2024/06/17/tmjs-call-for-johor-to-be-treated-as-equal-partner-not-nonsensical-says-mp/

He made four points:

(a). that ‘Johor was not part of the Straits Settlements’;

(b). that ‘Johor should be treated as a ‘partner’ by Putrajaya’.

(c). That ‘historically Johore stood at a different footing, and therefore Johore should be treated differently.’

(d).  that, “at least 20% to 30%” of Johor’s revenue should go back to Johore in future”.

There is a huge leap of logic over the enormous gap between the first point and the last one.

[2].  Is the Hon. Hassan MP, right?

I think not.

[3].  Two sources provide the answer:

The first is history; the other is the way the Federal Constitution came to be framed.

The crucial question is: what is the legal consequence of these Constitutional provisions?

We start with the historical and legal existence of the different States that comprise the Federation of Malaysia.2For the moment I will leave Kuala Lumpur out of it. KL legally came into existence on February 1st 1974

[4].  The Unfederated Malay States (UFMS)

The ‘Unfederated Malay States’ were states in the northern part of the Malay Archipelago: Perlis, Kedah, Kelantan and Terengganu.

These states, which did not work together, fell under Siamese hegemony at some point.

The British intervened. So the Siamese relented, and signed the 1909 Anglo-Siamese Treaty.

In this way, UFMS states were freed from Siamese dominion.3 Dato James Foong, ‘The Malaysian Judiciary – a record’, p. 25

UFMS did not include Johore. Shortly, we will find out why.

[5].  Then, on to the formation of the 1895 Federated Malay States (‘FMS’)

In 1895, the rulers of Perak, Selangor, Pahang and Negeri Sembilan entered into a ‘confederation’. It was called the ‘Federated Malay States’ (‘FMS’).4Treaty of Pangkor, 1874, between Perak and His Britannic Majesty, see Harding & Lee, ‘Constitutional Landmarks in Malaysia: the first 50 years’, 2007, Lexis Nexis; p. 4 Johore was not part of the FMS.

[6].  Meanwhile, Johore’s Diplomatic manoeuvres

Johore found itself hemmed in between FMS to the north, and Singapore to the south. Singapore was, at that time, the headquarters of the British Straits Settlements.

And the British set their rapacious eyes upon Johore.

One must credit the Maharajah of Johore for his acumen. Out-manned and outgunned, for a time, he managed to thwart British intrusion: that too through purely diplomatic manoeuvres.5Dato James Foong J, ibid, p.26  

It was no easy feat.

However, these strategies brought but momentary respite; for things came to a head in 1885.

[7].  What does the 1885 Johore Agreement show?

On 11 December 1885, the Maharajah of Johore signed an ‘agreement’ with the Government of the ‘Straits Settlements’.6The ‘Straits Settlements’ states were Penang, Malacca and Singapore.  Frederick Arthur Stanley, the then Secretary of State for the Colonies, signed the Agreement on behalf of the Queen Empress.

The document speaks of eight concepts:

(a).  ‘peaceful population’ as between ‘neighbouring territories’;7Article 1

(b).  the facilitation of ‘overland communication and trade’;8Article 2;

(c).  that if the British wished to appoint a Resident in Johore, the Maharajah was to provide free land to accommodate him;9Article 3

(d).  that if the British would supply coinage for Johore at the same cost as other ‘Malay Protected States’;10Article 4

(e). that the British would protect Johore from external aggression, for which purpose the British had ‘free access’ to Johore waters;11Article 5

(f).  that the Maharajah could not to enter into any treaty with anyone without British consent;12 Article 6

(g).  that any correspondence between the Maharajah and any foreign states were to be conducted only through the British to whom the Maharajah ‘made over the guidance and control of his foreign relations’;13 Article 6 and,

(h). in return, the Maharajah asked that he his successors should be acknowledged as ‘His Highness the Sultan of the State and Territory of Johore’.14 Article 7

[8].  Does the 1885 agreement give Johore actual sovereign control?

To function as a sovereign entity, a state must have the independence to engage in state-like activities: e.g. to trade freely, or to communicate, establish or break diplomatic ties with other nations. Or to mint its own currency instead of relying on FMS coinage.

Did Johore have these facilities? The questions answer themselves.

On a plain reading, the agreement displays the imbalance of power between two unequal parties.

One cannot infer any concept of ‘sovereignty’ or ‘independence’ from the 1885 Johore Agreement.

[9].  Johore’s British Advisor made directly answerable to the British, not the Sultan

Three decades later, and by 1914, Johore’s British Advisor became directly answerable to the British High Commissioners of the FMS, rather than the Sultan.

The Sultan had to accept the British Advisor’s advice on all matters – except those touching on Islam or Malay custom.15Dato James Foong J, Ibid at p. 26.  This is the genesis is of Article 40(1A): it is a British. invention.  Article 40(1A) (in the current Federal Constitution) states that the King must accept – and act on according to the advice of the Cabinet, or the Ruler the Chief Minister of a state – as the case may be – except for, e.g on matters touching on the religion of Islam, or on matters of the appointment of the royal successor, etc.

[10].  The Malay States

Between 1885 and August 1957, the states led by Malay rulers all came together. This union was called, as one might expect, ‘the Malay States’.

The nine Malay States were: Johore, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak, Perlis, Selangor and Terengganu.

So Johore was definitely present in this diplomatic league.

Which authority proves that? There are two.

The first is the ‘Malaya Agreement’.

On the 5th of August 1957, the British Sovereign entered into an agreement with the Settlements of Melaka and Rulers of the nine Malay States.16The Government of the State of Kelantan v. The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj [1963] MLJ 355  It included Johore.

With the consent of all the Malay Rulers, the terms of that agreement led directly to the 1957 Merdeka Constitution.

Article 1(1) Merdeka Constitution describes the name of the Federation:

‘The Federation shall be known by the name of Persekutuan Tanah Melayu (in English the Federation of Malaya).’

Art. 1(2) of the 1957 Constitution describes the ‘Malay States’:

‘[The] States of the Federation are Johore, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak, Perlis, Selangor and Terengganu (formerly known as ‘the Malay States’).

[11].  Thus, on Merdeka Day, the ‘Federation of Malaya’ was born: ‘plus two’

On 31 August 1957, when the Federation of ‘Malaya’ was formed, two ‘Settlement States’ were added to the nine ‘Malay States’.

These were the ‘Settlement of Malacca’ and ‘Penang’.

Thus ‘Malaya’ comprised in 11 States.

[12].  1963: ‘Federation of Malaysia’ is established by entry of Borneo States and Singapore

Six years after Merdeka, on 16th September 1963, the Federation of Malaysia was established.17Parliament passed Act 26/1963 to enable this. That Act established the formation of the Federation of Malaysia.

The two ‘Borneo States’, North Borneo (or ‘Sabah’) and Sarawak, joined Malaya.18 ‘British Borneo’ comprised the four northern parts of the island of Borneo. These are currently known as Brunei, Sabah, Sarawak and Labuan. See: George Lawrence Harris (1956). North Borneo, Brunei, Sarawak (British Borneo); and W. H. (William Hood) Treacher, Sir (December 2012). British Borneo Sketches of Brunai, Sarawak, Labuan, and North Borneo. Tradition Classics. The British exercised control over the external relations and defense of the Borneo States, but the local rulers maintained domestic authority and control over their internal affairs. Although they were under ‘British protection’ the Borneo States retained their legal sovereignty.This distinction is crucial to understand the ‘Johore Argument’.

So also Singapore. Before it joined Malaysia, Singapore had been a Crown Colony for 144 years.19 Sir Stamford Raffles founded it in 1819.

Section 4 of Act 26/1963 stipulated that there were only three ‘States’ that made up the ‘Federation of Malaysia’. First, the ‘States of Malaya’ (as stated earlier, comprised 11 States); then the two ‘Borneo States’, (Sabah and Sarawak), and third, Singapore.

So Article 1(2) was drafted to read thus:

‘[The] States of the Federation shall be—

(a) the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Terengganu;

(b) the Borneo States, namely, Sabah and Sarawak; and

(c) the State of Singapore.’

However, the union with Singapore was unstable. Ideological fissures deepened between the two sides. They disagreed over finance, politics, and racial policies.20Soon there arose a huge deficit of trust between the leaders of Singapore and the Federal Government of Malaysia. In 1964 there was a racial riot in Singapore. If you need to read more, see: Rahim, L.Z. (2008). “Winning and losing Malay support: PAP-Malay community relations”. In Barr, M.; Trocki, C. A. (eds.). Paths not taken: Political pluralism in post-war Singapore. Singapore: NUS Press. pp. 95–115.

Eventually, (and sadly) on 09 August 1965, Singapore negotiated its exit from the Federation.21Its name was removed from the Malaysian Constitution by sec. 2 of Act 59/1966 The rest is history.

[13].  Are historical documents reliable tools for constitutional interpretation?

No, they are not. For example, if teams participating in a soccer competition agree to abide by modern FIFA rules,22 https://www.sportingnews.com/us/soccer/news/new-soccer-rules-2023-2024-season-ifab-changes/kluqhqcyoor1g8chgwirwipr they cannot fall back on the old rules.23 The 1848 Cambridge Rules, or the Football Association Rules of 1863 written by Ebenezer Cobb Morley. 

[14].  How far back does one wish to go back into history?

Hassan Karim MP claimed that, “[History] and historical records noted that Johor was an independent state”.

This argument is irrelevant. First, this open-ended statement invites several obvious questions.

The further back one delves into the mists of time, the existence of sovereign rights merge into a haze of uncertainty. How far should one go back? Two centuries? A millennia?

[15].  The next question is, ‘Whose history?’

Each nation writes history through its own lenses. The British did. As did the Portuguese and the Dutch. Who is right? We have heard complaints of recent attempts by some local, self-styled ‘historians’. They try to supplant historical facts with unproven, often pathological ideas perpetuated by regimes in charge. This is what Hitler did. Other examples can be given. But the point is made.

[16].  First ceding of sovereignty on 05.08.1957

‘Ceding’ means, ‘giving up’.

The First Schedule to the 5th of August 1957 Agreement later became part of the 1957 first (and original) Federal Constitution.

Clause 3 of that Agreement stated:

“As from the thirty-first day of August, nineteen hundred and fifty-seven, the Malay States and the Settlements shall be formed into a new Federation of States by the name of Persekutuan Tanah Melayu, or in English, the Federation of Malaya, under the Federal Constitution set out in the First Schedule to this Agreement:”

The moment Johore agreed to be ‘federated’ with the other States,24To use the words of Thomson CJ in the Kelantan Case, supra, at p.356, right, paragraph ‘H’ to ‘I’ into the then ‘Federated States of Malaya’  (or ‘Persekutuan Tanah Melayu’), constitutionally, it ceded sovereignty to a larger Federation.

[17].  Second ceding of sovereignty on 09.07.1963

When each of the Rulers of the Malay states, including His Majesty the Ruler of Johore, assented to the Formation of Malaysia in 1963, for the second time, sovereignty was, again, voluntarily transferred to the larger Federation.

Only in certain areas was power retained: over religious issues; and over matters related to the running of the royal households.25 Article 3(2), Constitution

[18].  Is the argument that Johore was a ‘Sovereign State’ – correct? The Kelantan story

No. Way back in 1963, the court rejected this argument.

On 10th September 1963, six days before the formation of the Federation of Malaysia, the Government of the State of Kelantan sued the Federal Government of Malaya and Tunku Abdul Rahman Al-Haj, the Prime Minister.26The Government of the State of Kelantan v. The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj [1963] MLJ 355

Kelantan asked for a declaration that the terms of the 1963 Malaysia Agreement were void; because the MA63 was ‘not binding on Kelantan’.

Kelantan argued that the ‘changes’ proposed by MA63 were made ‘without Kelantan’s consent’; and that its Ruler had not been ‘made a party to’ the MA63. 

It complained that ‘constitutional convention’ required the ‘Ruler of each State to be consulted’. That convention had, allegedly, been breached.

Consequently, the MA63, and the Malaysia Act, which was premised on it – contended Kelantan –  were void and of no effect.

Kelantan claimed that MA63 had ‘abolished’ the Federation of Malaya, and was ‘contrary to’ the ‘1957 Agreement’. The State asked for an ‘interim order’, i.e. that the Federal Government should be restrained from ‘carrying into effect’ any ‘provisions of the Malaysia Act 1963’.

In effect Kelantan was asking for an interim injunction against the Government of the Federation.27 The law is, one cannot ‘injunct’ a government.

Barely two days before the hour appointed for the formation of the Federation of Malaysia, the Court gave its decision. It had asked itself only one question: “Had Parliament or the Executive (government) trespassed, in any way, the limits placed on their powers by the Constitution?”

A crucial ruling that the court made as that because of the 1957 Agreement, ‘a very large proportion of the powers that made up Kelantan’s sovereignty before 1957, had passed into the hands of the Government of the Federation’.28Ibid, p 358 para C to E left

The court held that the Federal Constitution ‘formed an integral part of the Federation of Malaya Agreement, 1957;’29Ibid, p. 359 right, paragraphs ‘C’ observing that the State of Kelantan had been ‘a party to the 1957 Agreement’.30Ibid, p. 358 left, paragraphs ‘C’

The court went on to note that ‘the Constitution itself does not prescribe … a condition to the effect that the State of Kelantan or any other state should be consulted’.31Ibid, p. 359 right, paragraphs ‘B’ and ‘F’ to ‘G’

That answered, and continues to answer, most of the questions.

[19].  The Federal Constitution removed major sovereign powers from individual States

The Kelantan case ruled that a state’s powers are ‘subject to’ the Federal Constitution.32Ibid, p. 359. See also Harding & Lee, ‘Constitutional Landmarks in Malaysia: at p. 50, paragraphs 3

We discuss that now.

The Federal Constitution itself carved out three areas of power under which Parliament, or each State Legislative Assembly, could pass laws. These lists of powers are called the ‘Legislative Lists’.33 See Ninth Schedule to the Federal Constitution

[20].  The ‘Federal List’

Under the Constitution, some powers could only be exercised by laws passed by Parliament. This list was called the ‘Federal List’.34 Articles 74, 76A, 77 It included the power to sign treaties with foreign countries, the enforcement of penal laws, judicial power, citizenship, internal security, immigration, finance, trade, shipping, communication, roads, public works, surveys, education, health, labour, etc.

[21].  The Federal List removes major sovereign powers from the individual States

That could not have been possible without the consent of each Ruler. And such consent hands over the territories of the State to the new nation. That consent creates a new sovereign power, in the form of a ‘federated’ nation.35See ‘Constitutional Law of India’, Vol.1, H.M. Seervai, Universal Law Publishing Co., 1996, citing Field J, in DeGeofroy v Riggs (1889) 133 U.S. 258, 33 L. ed 642; per White J in Downes v. Bidwell (1900) 182, U.S. 244, 45 L. ed. 1088

[22].  Could a State withdraw its consent? And thereby secede?

‘Secede’ means, to ‘withdraw from an alliance’. Could a Malaysian State walk away from the Federation? The answer is, ‘No’.

Why?

Once a territory is assimilated by consent, and a Parliamentary law ratifies it, the ceded territory forms part of the nation’s indivisible whole.36Ibid, Seervai, Volume-1, part 1, pp 307, at p. 308; up to p.314

Indeed, only Parliament has the constitutional power to ‘admit’ new states, or ‘to alter the boundaries of any state’.37Article 2(a) and (b), Constitution

[23].  The ‘State List’

On the other hand, the State List includes such matters as the practice and procedure of Islamic Law, wakafs, Malay reservations, burial and cremations, and state holidays.  Only the state legislatures had exclusive powers over that.

[24].  The ‘Concurrent List’

Both Parliament and the State legislatures could make laws on the subjects listed in the Concurrent List. Examples include social welfare, protection of wildlife, country planning, public health, drainage and irrigation, and culture and sports.

[25].  The sovereign right of the Federation to make laws for States

Malaysia is a sovereign nation. The constituent States of the Federation do not enjoy any separate ‘national sovereignty’. It is for Parliament to make laws for the entire nation; while the States may, through their elected representatives, make laws for the State.38Article 73 If a State law clashes with a national law, the national law prevails. The State law is, to that extent, void.39Article 75 In some cases, the Constitution allows Parliament to make laws for the state: e.g. to implement any international treaty, or to promote uniformity between the laws of several States. But Parliament cannot interfere with a State’s power over its Islamic laws.40Article 76

[26].  So to answer the question:

Johore has the same rights, duties and liabilities as any other State. Despite all that, Johore’s position is not the same as that of the Borneo States. Sabah and Sarawak joined the Federation because they were given a constitutional guarantee for the return of 40% of their state revenue. Their Majesties the Rulers agreed with that term, as did her Brittanic Majesty.

[27].  Is Johore a ‘partner’ to the Federation of Malaysia?

This is not a legal question. And so, it requires no legal answer.

Behind this question lies an assumption. To put it simply, Hassan’s assertions amount to the proposition that ‘Johore is equal to the Federation of Malaysia’. 

If we accept this as true, are the States of Kelantan, Terengganu, Pahang, Melaka, or even Sabah,  ‘junior’ members of the Federation?

[28].  Such debates are unhelpful

These one-sided debates do not assuage old problems. They merely open new wounds.

What is needed is dialogue. 

[The author expresses his gratitude to Professor Shad Faruqi, Ms KN Geetha, Ms Pavaani, Miss JN Lheela, and En Basiir Kohar]

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