Federation of Malaya Constitutional Commission

“ Most Federal Constitutions guarantee the democratic character of the State Constitutions because, without such guarantee, the State Constitutions unlike the Federal Constitution have not the backing of an armed force. ”

“ Since the States and the local authorities have such limited independent revenues and since it is undesirable that such small borrowing authorities should compete against each other for narrowly limited savings, it seems essential that all loans should be raised by the Federal Government, or by a Central Bank on the security of the federal revenues. On the other hand, we are anxious to avoid the continuance of a tradition, whose existence has been alleged by State Financial Officers, that the States and local authorities should be 'last in the queue' for moneys raised by loan. ”

“ That means that if two States have equal numbers of voters but the population of one is considerably greater than that of the other then the State with the greater population could have a larger quota than the State with the smaller population. ”

“ Eleven of the members of the Senate are to be nominated by the Yang di-Pertuan Besar on the recommendation of the Government, the remaining twenty-two to be elected by the members of the State Legislative Assemblies under a system of indirect election. It will be seen that none of the members of the Senate are to be elected by the people. We consider that a Senate so constituted does not conform to a system of parliamentary democracy, and is not in keeping with the aspirations of a people whose desire it is to enjoy self-government in the real sense and democracy in its purest form. ”

“ In such an emergency we recommend that Parliament should have power to enact any provision notwithstanding that it infringes fundamental rights or State rights. We do not think that it is possible or desirable to set general limits to this power, and we think that it is even necessary to authorise Parliament to extend its own duration for a year, or, if the emergency should last so long, from year to year. If Parliament is not sitting when the Proclamation is made the Government can make ordinances having the force of law. ”

“ There is much to be said in theory for a State being entitled to raise further revenue from land planted with rubber or from royalties on tin mining, but we think that to permit a State to do this might well hamper the development of these industries on which the prosperity of the nation so greatly depends. Nor is it desirable that these industries, whose prosperity is fundamental to the prosperity of the country, should be subjected to taxation by two independent taxing authorities. ”

“ If Malaya is to be a democratic country the Government of each State must be controlled by its elected Legislative Assembly, and we must envisage the possibility that from time to time the party in power in one or more of the States may differ in outlook, and policy from the party in power in the Federation. It appears to us that in such circumstances the present division of powers would probably lead to friction and might well have graver consequences. We therefore recommend that in future legislative power and executive responsibility should always go together. ”

“ Merdeka, to the celebration of which the people of Malaya are looking forward, means to them freedom, freedom to govern themselves through representatives of their own choice under a system in which their parliamentary institutions shall be exclusively representative of the people's will. ”

“ And even if the Parliament of the United Kingdom were willing to alter the law of the United Kingdom, it would obviously not be possible to deprive all persons resident in the Federation of their citizenship of the United Kingdom and Colonies, and we can see no practicable method of enacting that some but not all of such persons should be deprived of that citizenship. The matter is made still more difficult by the fact, which we have already noted, that there must be many persons in the Federation who are citizens of the United Kingdom and Colonies without being aware of their position. ”

“ We do not recommend that applicants should be required to renounce foreign citizenship because under the laws of certain countries a citizen has no power to renounce his citizenship, and therefore all that he can do is to undertake not to exercise his rights as a foreign citizen. We agree that the only conditions which should apply to such an applicant are that he should be over 18 years of age, that he should be of good character, that he should have resided in the Federation for five out of the preceding seven years, and that he should have an elementary knowledge of the Malay language. ”

“ We believe that it is important for the future of Malaya that the Federal Government should have power to set up a soil conservation service as a central authority to work in cooperation with the States in carrying out a soil conservation programme, and we have made provision in the draft Constitution for this purpose. Through such a service the Federation could, by means of discussion and dissemination of information, educate the people on the land in the principles of proper land use. ”

“ It has been represented to us that dual citizenship within the Commonwealth is undesirable in that it may lead to divided loyalty. We do not agree, and we think that this view is based on some misunderstanding. It is well recognised in International Law and custom that a person who has dual citizenship owes undivided loyalty to the country in which he is residing, and that the Government of the other country of which he is also a citizen should not seek to interfere between him and the Government of the country in which he is residing. ”

“ In considering these requirements it seemed to us that a common nationality was the basis upon which a unified Malayan nation was to be created and that under a democratic form of Government it was inherent that all the citizens of Malaya, irrespective of race, creed or culture should enjoy certain fundamental rights including equality before the law. ”

“ Since currencies are no longer tied to gold, and since in any case the control of credit is an essential element in the control of inflation and the maintenance of employment, it is essential that the Federal Government, aided no doubt by central banking institutions, should be able to regulate the exercise of borrowing powers by all public authorities as well as by private persons and limited companies. ”

“ In the old Unfederated States the law is not uniform. The Federation has the power to legislate on land matters to the extent of ensuring common policy and a common system of administration, due regard being paid to customary tenure and usage and other necessary variations in any State or Settlement. We understand that during the years 1948 to 1952 there was considerable discussion as to whether land legislation should be effected by the States and Settlements or whether, under Head 101 of the Second Schedule to the Agreement, it should be by the Federal Legislative Council ”

“ We are recommending a wide extension of the existing qualifications for citizenship with special concessions to those who apply for citizenship within one year after the new Constitution comes into effect. All those who are now entitled to vote will be so entitled in future, but we think that it would be undesirable to hold a Parliamentary election before there has been time for those to whom citizenship will now be open to have their names put on the voters' rolls. A Parliament elected on the present limited franchise would not be truly representative of the people of the Federation. ”

“ The only real effect of leaving the residual power with the States is that if some unforeseen matter arises which is so peculiar that it cannot be brought within any of the items mentioned in any of the Legislative Lists, then that matter is within the State powers. ”

“ The Police Force is a disciplinary service and it is imperative in the interests of the State that its high standards of conduct should be maintained. To ensure this, it is necessary that the Commissioner should have ample powers to regulate and review the behaviour and efficiency of all members of the Force. We think that all powers vested in the Commissioner of Police under existing law should continue to be vested in him and that all powers now vested in the High Commissioner or the Secretary of State should be vested in the Commission. ”

“ It would not be right that a State should have the power to amend any essential provision in its Constitution without the consent of the Federation but if the State Legislature passes a Bill for this purpose by a two-thirds majority then we recommend that that Bill should be submitted to the Federal Legislature and should become law if it is approved by a two-thirds majority in each House of the Federal Legislature. ”

“ No State has attempted to dispossess the Federation or to restrict the use which the Federation makes of the land, but difficulties arise when the Federation wishes to dispose of it. The Federation maintains that it is entitled to sell the land in the open market and keep the price, and that the State is bound to grant a permanent unrestricted title to the purchaser. The States maintain that the land reverts to the State without the Federation having any right to receive any payment either for the land or for improvements made by the Federation. ”

“ We understand that the Federal Government has already improved over 200,000 acres of existing padi land and has in hand a programme for the development of some 60,000 acres of new padi land. But clearing of further land for agriculture must proceed with care and deliberation. Already erosion and soil conservation present formidable difficulties and illconsidered schemes for rapid development might easily have disastrous consequences. If the agricultural possibilities of Malaya are to make their maximum contribution to the nation's welfare, a planned policy appears to us to be essential. ”

“ We have no desire to exaggerate the effects of erosion but the problem appears to us to be of sufficient importance to require urgent attention. There is at present no organisation or department in Malaya with the power or responsibility to exercise a protecting care over the soil. Several authorities have a limited power to deal with some aspects of erosion, but the action which has been taken is of a piecemeal and uncoordinated character and only touches the fringe of the problem. ”

“ The administration of State land is in the hands of the State Government. Subject to various restrictions with regard to revision of rents and other matters, the Ruler-in-Council is free to make such grants or leases or to give such licences as he may think fit and to attach such conditions as to user alienation or otherwise as he may determine. In every State a large part of the State revenue is derived from premiums and rents from alienated land and from profits derived from State land. Compulsory acquisition or resumption of land is also a matter for the State Government. ”

“ We think that there ought to be two general limitations of federal power to promote development by legislating with regard to land or other State subjects. In the first place we recommend that, before the Federation can initiate any scheme of development or conservation which involves interference with State rights, there should be an examination of the scheme and a report on it by an expert body, followed by consultation between the Federation and the States in the National Finance Council. ”

“ The duties of the State Assemblies relate to domestic powers vested in them under the Constitution, but it should not be a part of their function to choose for the people their representatives in the national parliament, whose function it is to exercise powers national in character untrammelled by considerations of local concern. ”