UNIVERSITI TEKNOLOGI MARA

MALAYSIAN LEGAL SYSTEMLAW 750

SEMINAR QUESTION 1

GROUP 1

MOHD AZHAR BIN MOHD SHARIF 2014980543MOHAMMAD FAIZAL BIN AHMAT ZAINURI 2014715035KHAIRUL NAIM BIN AHMAD SAUFY 2014514209

Master of Enforcement Law

Faculty of Law

QUESTION 1 : GROUP 1

At the end of World War II, after the brief occupation by the Japanese, the British sought to regroup the Malay States by regrouping them under a new political umbrella: the Malayan Union. The concept was aborted by the British because it was bitterly opposed by the Malays, who saw in it serious threats to their identity and culture. Their objections were based on two grounds: That the Malay Rulers were assigned minor roles as merely social and religious leaders and The recent immigrants could qualify for equal citizenship alongside the Malays.The idea of the Malayan Union was replaced in 1948 by the Federation of Malaya Agreement which recognised the misgivings of the Malays.Discuss critically the legal legacy of the British in the pre-independence era. Are the Malay rights still protected today?

1.0 The legacy of the British in the pre-independence era

1.1 Introduction

In the years before World War II, the British were concerned with finding the balance between a centralised state and maintaining the power of the Sultans in Malaya[footnoteRef:1]. There were no moves to give Malaya a unitary government, and in fact in 1935 the position of Resident-General of the Federated States was abolished, and its powers decentralised to the individual states[footnoteRef:2]. With their usual tendency to racial stereotyping, the British regarded the Malays as amiable but unsophisticated and rather lazy, incapable of self-government, although making good soldiers under British officers. They regarded the Chinese as clever but dangerousand indeed during the 1920s and 1930s, reflecting events in China, the Chinese Nationalist Party (the Kuomintang) and the Communist Party of China built rival clandestine organisations in Malaya, leading to regular disturbances in the Chinese towns. The British saw no way that Malayas disparate collection of states and races could become a nation, let alone an independent one[footnoteRef:3]. [1: Andaya, Barbara Watson; Andaya, Leonard Y. (1982). A History of Malaysia. London: MacMillan Press Ltd. pp. 2628, 61, 151152, 242243, 254256, 274. ISBN 0-333-27672-8.] [2: Ibid.] [3: Ibid.]

Malaya saw little action during World War I, except for the sinking of the Russian cruiser Zhemchug by the German cruiser Emden on 28 October 1914 during the Battle of Penang[footnoteRef:4]. [4: Ibid.]

The outbreak of war in the Pacific in December 1941 found the British in Malaya completely unprepared. During the 1930s, anticipating the rising threat of Japanese naval power, they had built a great naval base at Singapore, but never anticipated an invasion of Malaya from the north. Because of the demands of the war in Europe, there was virtually no British air capacity in the Far East. The Japanese were thus able to attack from their bases in French Indo-China with impunity, and despite stubborn resistance from British, Australian, and Indian forces, they overran Malaya in two months. Singapore, with no landward defences, no air cover, and no water supply, was forced to surrender in February 1942, doing irreparable damage to British prestige. British North Borneo and Brunei were also occupied.

The Japanese had a racial policy just as the British did. They regarded the Malays as a colonial people liberated from British imperialist rule, and fostered a limited form of Malay nationalism, which gained them some degree of collaboration from the Malay civil service and intellectuals. (Most of the Sultans also collaborated with the Japanese, although they maintained later that they had done so unwillingly. The Malay nationalist Kesatuan Melayu Muda, advocates of Melayu Raya, collaborated with the Japanese, based on the understanding that Japan would unite the Dutch East Indies, Malaya and Borneo and grant them independence[footnoteRef:5]. The occupiers regarded the Chinese, however, as enemy aliens, and treated them with great harshness: during the so-called sook ching (purification through suffering), up to 80,000 Chinese in Malaya and Singapore were killed. Chinese businesses were expropriated and Chinese schools either closed or burned down. Not surprisingly the Chinese, led by the Malayan Communist Party (MCP), became the backbone of the Malayan Peoples' Anti-Japanese Army (MPAJA), which with British assistance became the most effective resistance force in the occupied Asian countries[footnoteRef:6]. [5: Graham, Brown (February 2005). "The Formation and Management of Political Identities: Indonesia and Malaysia Compared" (PDF). Centre for Research on Inequality, Human Security and Ethnicity, CRISE, University of Oxford.] [6: Ibid.]

Although the Japanese argued that they supported Malay nationalism, they offended Malay nationalism by allowing their ally Thailand to re-annex the four northern states, Kedah, Perlis, Kelantan, and Terengganu that had been surrendered to the British in 1909. The loss of Malayas export markets soon produced mass unemployment which affected all races and made the Japanese increasingly unpopular[footnoteRef:7]. [7: Ibid.]

During occupation, ethnic tensions were raised and nationalism grew[footnoteRef:8]. The Malayans were thus on the whole glad to see the British back in 1945, but things could not remain as they were before the war, and a stronger desire for independence grew[footnoteRef:9]. Britain was bankrupt and the new Labour government was keen to withdraw its forces from the East as soon as possible. Colonial self-rule and eventual independence were now British policy. The tide of colonial nationalism sweeping through Asia soon reached Malaya. But most Malays were more concerned with defending themselves against the MCP which was mostly made up of Chinese, than with demanding independence from the British; indeed, their immediate concern was that the British not leave and abandon the Malays to the armed Communists of the MPAJA, which was the largest armed force in the country. [8: Hock, David Koh Wee (2007). Legacies of World War II in South and East Asia. Singapore: Institute of Southeast Asian Studies, Singapore. p. 48. ISBN 978-981-230-457-5.] [9: Mahathir Mohamad (31 May 1999). "Our Region, Ourselves". TIME. Retrieved 26 October 2010.]

In 1944 the British drew up plans for a Malayan Union, which would turn the Federated and Unfederated Malay States, plus Penang and Malacca (but not Singapore), into a single Crown colony, with a view towards independence. The Bornean territories and Singapore were left out as it was thought this would make union more difficult to achieve[footnoteRef:10]. There was however strong opposition from the Malays, who opposed the weakening of the Malay rulers and the granting of citizenship to the ethnic Chinese and other minorities[footnoteRef:11]. The British had decided on equality between races as they perceived the Chinese and Indians as more loyal to the British during the war than the Malays[footnoteRef:12]. The Sultans, who had initially supported it, backed down and placed themselves at the head of the resistance[footnoteRef:13]. [10: Andaya, Barbara Watson; Andaya, Leonard Y. (1982). A History of Malaysia. London: MacMillan Press Ltd. pp. 2628, 61, 151152, 242243, 254256, 274. ISBN 0-333-27672-8.] [11: Time magazine (19 May 1952). "MALAYA: Token Citizenship". TIME. Retrieved 26 October 2010] [12: Andaya, Barbara Watson; Andaya, Leonard Y. (1982). A History of Malaysia. London: MacMillan Press Ltd. pp. 2628, 61, 151152, 242243, 254256, 274. ISBN 0-333-27672-8] [13: Ibid.]

In 1946 the United Malays National Organisation (UMNO) was founded by Malay nationalists led by Dato Onn bin Jaafar, the Chief Minister of Johore[footnoteRef:14]. UMNO favoured independence for Malaya, but only if the new state was run exclusively by the Malays[footnoteRef:15]. Faced with implacable Malay opposition, the British dropped the plan for equal citizenship. The Malayan Union was thus established in 1946, and was dissolved in 1948 and replaced by the Federation of Malaya, which restored the autonomy of the rulers of the Malay states under British protection[footnoteRef:16]. [14: Ibid.] [15: Ibid.] [16: Ibid.]

Meanwhile the Communists were moving towards open insurrection. The MPAJA had been disbanded in December 1945, and the MCP organised as a legal political party, but the MPAJAs arms were carefully stored for future use. The MCP policy was for immediate independence with full equality for all races. This meant it recruited very few Malays. The Partys strength was in the Chinese-dominated trade unions, particularly in Singapore, and in the Chinese schools, where the teachers, mostly born in China, saw the Communist Party of China as the leader of Chinas national revival. In March 1947, reflecting the international Communist movements turn to left as the Cold War set in, the MCP leader Lai Tek was purged and replaced by the veteran MPAJA guerrilla leader Chin Peng, who turned the party increasingly to direct action. These rebels, under the leadership of the MCP, launched guerrilla operations designed to force the British out of Malaya. In July, following a string of assassinations of plantation managers, the colonial government struck back, declaring a State of Emergency, banning the MCP and arresting hundreds of its militants. The Party retreated to the jungle and formed the Malayan Peoples Liberation Army, with about 13,000 men under arms, all Chinese.

The Malayan Emergency as it was known, lasted from 1948 to 1960, and involved a long anti-insurgency campaign by Commonwealth troops in Malaya. The British strategy, which proved ultimately successful, was to isolate the MCP from its support base by a combination of economic and political concessions to the Chinese and the resettlement of Chinese squatters into New Villages in white areas free of MCP influence. The effective mobilisation of the Malays against the MCP was also an important part of the British strategy. From 1949 the MCP campaign lost momentum and the number of recruits fell sharply. Although the MCP succeeded in assassinating the British High Commissioner, Sir Henry Gurney, in October 1951, this turn to terrorist tactics alienated many moderate Chinese from the Party. The arrival of Lt.-Gen Sir Gerald Templer as British commander in 1952 was the beginning of the end of the Emergency. Templer invented the techniques of counter-insurgency warfare in Malaya and applied them ruthlessly. Although the insurgency was defeated Commonwealth troops remained with the backdrop of the Cold War[footnoteRef:17]. Against this backdrop, independence for the Federation within the Commonwealth was granted on 31 August 1957,[footnoteRef:18] with Tunku Abdul Rahman as the first prime minister[footnoteRef:19]. [17: "Malaya: Siege's End", Time, New York, 2 May 1960] [18: "A New Nation", Time, New York, 9 September 1957] [19: "Malaysia". State.gov. 14 July 2010. Retrieved 14 September 2010.]

2.0 Legal Legacy Of The British In The Pre-Independence Era

2.1 Origins of English Law

English law comes under the title Common Law and Principles of Equity together with English statutory laws and it has been in practice in England right from the 11th century[footnoteRef:20]. Wherever British colonized countries, they introduced English law for governance and administration of the affairs of the people[footnoteRef:21]. Practice of English law continued in colonial countries comfortably till the countries achieved their independence[footnoteRef:22]. After independence, countries started enacting their own laws but generally under the form and style of English law taking into account the local needs and national goals and objectives[footnoteRef:23]. [20: Rau & Kumar. (2014). General Principles of the Malaysian legal System: International Law Book Services.] [21: Ibid.] [22: Ibid.] [23: Ibid.]

After centuries of British rule in Malaysia, as in other colonial countries, the English law had been so well entrenched and deep rooted in society that it could not be sidelined.Several statues provided the authority for the reception of the law of England into the country[footnoteRef:24]: [24: Wan Arfah Hamzah. (2009). A First Look at the Malaysia Legal System: Oxford Fajar Sdn Bhd.]

1. In Malaysia, it was the Civil Law Ordinance 19562. in Sabah, the Application of Laws Ordinance 19513. and in Sarawak, the Application of Laws Ordinance 1949

which made way for the application of English laws.

Several statutes provided the authority for reception of English Law of England in to Malaysia. By virtue of section 3(1) of the Civil Law Act (1956):(1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall(a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956; (b) in Sabah, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 1 December 1951; (c) in Sarawak, apply the common law of England and the rules of equity, together with statutes of general application, as administered or in force in England on 12 December 1949, subject however to section 3(1): Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.

The application of the Common Law of England and Rules of Equity in West Malaysia poses little problem as these have already been applied since the days of colonization[footnoteRef:25]. Penang and Malacca, being British colonies, applied Common Law because of the maxim that the Common Law of the colonies is the Common Law of England[footnoteRef:26]. In the rest of West Malaysia, (FMS and UFMS) English judges and subsequently, a predominantly English-trained judiciary have liberally applied the Common Law of England and Rules of Equity, particularly in the areas of tort and commercial law[footnoteRef:27]. [25: Hickling, R. H. (2001). Malaysian Public Law: An Introduction to the Concept of Law in Malaysia: Pelanduk Publications.] [26: Ibid.] [27: Ibid.]

As far as West Malaysia is concerned, the term Common Law as explained in Section 3 (1)(a) of the Civil Law Act 1956 refers essentially to judge-made law as opposed to statutory law. Thus, where the Common Law of England has been modified or replace by statute, such modification or replacement would not be applicable in West Malaysia, because it would then result in the application of the statutory law of England to West Malaysia, whereas paragraph (a) expressly refers only to the Common Law and Rules of Equity.

In Malaysia, The Motor Emporium v. V. Arumugam [1933] MLJ 276, and Leong Bee & Co v. Ling Nm Rubber Works [1970] 2 MLJ 45 are some of the cases where the Common Law and Equity were applied[footnoteRef:28]. The way in which the English Law was introduced was through decisions of the judges in the courts. Most of the judges were English or English-trained and they naturally resorted to the English law to fill the lacuna in the law. In this way, the principles of the law of tort and of equity were introduced into the Malay States[footnoteRef:29]. [28: Rau & Kumar. (2014). General Principles of the Malaysian legal System: International Law Book Services.] [29: Ibid.]

In Motor Emporium v Arumugam Terrell Ag CJ said: It is said that the English rules of equity, as administered by the Court of Chancery, have no application in the Federated Malay States, as the Court has not given the jurisdiction of the Court of Chancery, nor is there any Civil Law Enactment incorporating into the law of the Federated Malay States the equitable principles applied in England. This is perfectly true as it goes. But under section 49(1) of the Courts Enactment, the Supreme court has the widest possible jurisdiction in all suits, matters and questions of a civil nature, and although the legislature has given no indication on what principles such jurisdiction is to be exercised, every court must have inherent jurisdiction to do justice between the parties, and apply such principles as are necessary or desirable for attaining such object, and for giving decisions which are in conformity with the requirements of the social conditions of the community where the law is administered. Looked at in this way, it would hardly be reasonable to exclude in the Federated Malay States a principle of natural justice merely because a not less civilized community, namely England, has adopted such a principle as part of its recognized legal system. On the contrary, it is a cogent reason for adopting the same principle in the Federated Malay States. The Courts in the Federated Malay States have on many occasions acted on equitable principles, not because English rules of equity apply, but because such rules happen to conform to the principles of natural justice

The applicability of the English law in commercial matters, in Malaysia as a whole, differs in its applicability to the former Malay States with Penang, Malacca, Sabah and Sarawak. In the event of non-availability of any local statutes, governing a particular commercial matter, to fill in the vacuum, section 5 of the Civil Law Act 1956 provides as follows[footnoteRef:30]: [30: Section 5, Civil Law Act 1956.]

(1) In all questions or issues which arise or which have to be decided in the States of Peninsular Malaysia other than Malacca and Penang with respect to the law of partnerships, corporations, banks and banking, principals and agents, carriers by air, land and sea, marine insurance, average, life and fire insurance, and with respect to mercantile law generally, the law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law.

(2) In all questions or issues which arise or which have to be decided in the States of Malacca, Penang, Sabah and Sarawak with respect to the law concerning any of the matters referred to in subsection (1), the law to be administered shall be the same as would be administered in England in the like case at the corresponding period, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law.

3.0 Are the Malay rights still protected

3.1 Malay Supremacy

Ketuanan Melayu is a political concept emphasising Malay pre-eminence in present day Malaysia. The Malays of Malaysia claimed a special position and special rights owing to their long domicile[footnoteRef:31] and the fact that the present Malaysian state itself evolved from a Malay polity.[footnoteRef:32] The oldest political institution in Malaysia is the system of Malay rulers of the nine Malay states. British colonial government transformed the system and turned it first into a system of indirect rule, then in 1948, using this culturally based institution, they incorporated the Malay monarchy into the blueprints for the independent Persekutuan Tanah Melayu.[footnoteRef:33] [31: Ooi Keat Gin (2008). Historical Dictionary of Malaysia. The Scarecrow Press, Inc. p. 154. ISBN 0-8108-5955-6.] [32: K.Das (1987). Malay Dominance? The Abdullah Rubric. K Das Ink. p. 34. ISBN 978-0-9679999-0-6] [33: Amy L. Freedman (2000). Political Participation and Ethnic Minorities: Chinese Overseas in Malaysia, Indonesia, and the United States. Routledge. p. 74. ISBN 978-0-415-92446-7.]

The term Tanah Melayu in its name which literally means "Malay homeland", assumes proprietorship of the Malay states. In this way Britain strengthened Malay ethno-nationalism, Malay ethnicity and culture and Malay sovereignty in the new nation-state. Though other cultures would continue to flourish, the identity of the emerging political community was to be shaped by the "historic" political culture of its dominant Malay ethnic group.[footnoteRef:34] The Chinese and Indian immigrants who form a significant minority in Malaysia, are considered beholden to the Malays for granting them citizenship in return for special privileges as set out in Article 153 of the Constitution of Malaysia. This quid pro quo arrangement is usually referred to as the Malaysian social contract. The concept of ketuanan Melayu is usually cited by politicians, particularly those from the United Malays National Organisation (UMNO), the most influential political party in Malaysia. [34: Wang Gungwu (2005). Nation Building: Five Southeast Asian Histories. Institute of Southeast Asian Studies. p. 99. ISBN 978-981-230-320-2.]

Although the idea itself predates Malaysian independence, the phrase ketuanan Melayu did not come into vogue until the early 2000s decade. Historically, the most vocal political opposition towards the concept has come from non-Malay-based parties, such as the Malaysian People's Movement Party (Parti Gerakan Rakyat Malaysia) and Democratic Action Party (DAP); in the 2000s decade, the multiracial People's Justice Party (Parti Keadilan Rakyat, or PKR) also positioned itself against ketuanan Melayu, advocating instead ketuanan rakyat (supremacy of the people). The idea of Malay supremacy gained attention in the 1940s, when the Malays organised themselves to protest the Malayan Union's establishment, and later fought for independence. During the 1960s, there was a substantial effort challenging ketuanan Melayu led by the People's Action Party (PAP) of Singapore which was a state in Malaysia from 1963 to 1965 and the DAP after Singapore's secession. However, the portions of the Constitution related to ketuanan Melayu were "entrenched" after the race riots of 13 May 1969, which followed an election campaign focused on the issue of non-Malay rights and ketuanan Melayu. This period also saw the rise of "ultras" who advocated a one-party government led by UMNO, and an increased emphasis on the Malays being the "definitive people" of Malaysia i.e. only a Malay could be a true Malaysian.

The riots caused a major change in the government's approach to racial issues, and led to the introduction of an aggressive affirmative action policy strongly favouring the Malays, the New Economic Policy (NEP). The National Culture Policy, also introduced in 1970, emphasised an assimilation of the non-Malays into the Malay ethnic group. However, during the 1990s Prime Minister Mahathir bin Mohamad rejected this approach, with his Bangsa Malaysia policy emphasising a Malaysian instead of Malay identity for the state. During the 2000s decade politicians began stressing ketuanan Melayu again, and publicly chastised government ministers who questioned the social contract.

3.2 Possible origins of Malay Supremacy

According to many historians, the root cause of ethnic strife and ketuanan Melayu was a lack of mixing between the Malays and non-Malays. An exception to this were the Straits Chinese, who managed to assimilate reasonably well, despite the assimilation taking 600 years including intermarriage. According to the Ming Shi-lu, the ancestors of the Straits Chinese were "gifts" given to the Sultan of Malacca as a recognition of both bilateral ties between the Ming Dynasty and the sultanate, and of Malay sovereignty. At the time, most were rich merchants during British rule instead of manual labourers and many habitually spoke Malay, dressed in the Malay style, and preferred Malay cuisine.[footnoteRef:35] [35: Hwang, In-Won (2003). Personalized Politics: The Malaysian State under Mahathir, Institute of Southeast Asian Studies. ISBN 981-230-185-2]

The British educational policies segregating the different races providing minimal public education for Malays, and leaving non-Malays to their own devices did not help matters. The Malays, predominantly rural-dwellers, were not encouraged to socialise with the more urban non-Malays.[footnoteRef:36] The economic impoverishment of the Malays which set them apart from the better-off Chinese also fanned racial sentiments. [36: Ibid.]

Another contributing factor to ketuanan Melayu was the World War II Japanese occupation. The war "awakened a keen political awareness among Malayan people by intensifying communalism and racial hatred". Japanese policies "politicised the Malay peasantry", intentionally fanning the flames of Malay nationalism. Two Malay historians wrote that "The Japanese hostile acts against the Chinese and their apparently more favourable treatments of the Malays helped to make the Chinese community feel its separate identity more acutely..." A foreign commentator agreed, stating that "During the occupation period, Malay national sentiment had become a reality; it was strongly anti-Chinese, and its rallying cry [was] 'Malaya for the Malays'

3.3 Malay Rights

During 1955 and 1956 UMNO, the MCA and the British hammered out a constitutional settlement for a principle of equal citizenship for all races. In exchange, the MCA agreed that Malayas head of state would be drawn from the ranks of the Malay Sultans, that Malay would be the official language, and that Malay education and economic development would be promoted and subsidised. In effect this meant that Malaya would be run by the Malays, particularly since they continued to dominate the civil service, the army and the police, but that the Chinese and Indians would have proportionate representation in the Cabinet and the parliament, would run those states where they were the majority, and would have their economic position protected. The difficult issue of who would control the education system was deferred until after independence. This came on 31 August 1957, when Tunku Abdul Rahman became the first Prime Minister of independent Malaya[footnoteRef:37]. [37: Wu, M. A. (1982). An Introduction to Malaysian Legal System (3rd ed.): Heinmann.]

The Education Act of 1961 put UMNOs victory on the education issue into legislative form. Henceforward Malay and English would be the only teaching languages in secondary schools, and state primary schools would teach in Malay only. Although the Chinese and Indian communities could maintain their own Chinese and Tamil-language primary schools, all their students were required to learn Malay, and to study an agreed Malayan curriculum. Most importantly, the entry exam to the University of Malaya (which moved from Singapore to Kuala Lumpur in 1963) would be conducted in Malay, even though most teaching at the university was in English until the 1970s. This had the effect of excluding many Chinese students. At the same time Malay schools were heavily subsidised, and Malays were given preferential treatment. This obvious defeat for the MCA greatly weakened its support in the Chinese community.

What special position of the Malays that is protected by the Constitution?, Under Article 153 of the Yang di Pertuan Agong required, within the bounds of the constitution and federal law, to implement policies to protect the special position of the Malays and natives of Sabah and Sarawak to prepare for their In terms of positions in the public service, the award of scholarships, and grants or other educational facilities and permits and licenses required for business and commerce[footnoteRef:38]. [38: Article 153, Federal Constitution Of Malaysia.]

The special position of the Malays which include the provisions of Articles 89 and 90 which give effect to the constitutional law legislation that protects existing reserve land of the Malays held by non-Malays[footnoteRef:39]. [39: Article 89 & 90, Federal Constitution Of Malaysia.]

The special position of the Malays was not absolute, that it is in balance with the legitimate interests of other communities, which generally includes the right to citizenship of Malaysia in accordance with the provisions of kewaganegaraan in the constitution, the right to profess and practice their own religion, the right to use the mother tongue and the elevations Importantly, the right to equal treatment.

Article 153 of the Malaysian Constitution gives the responsibility to the Yang di-Pertuan Agong maintain special privileges of the Malays and the natives of Malaysia, a group referred to as natives. The article explain how the federal government specifically protect the interests of these groups by setting up a quota entry into the public service, scholarships and public education. It is also usually considered part of the social contract, and is usually regarded as legal defense for Malay supremacy, the trust of the Malays that they are the original inhabitants of Malaysia. Article 153 of the Constitution of Malaysia[footnoteRef:40]. [40: Article 153, Federal Constitution Of Malaysia.]

1. It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate interests of other communities in accordance with the provisions of this Article.2. Notwithstanding anything in this Constitution, but subject to the provisions of Article 40 and of this Article, the Yang di-Pertuan Agong shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special provision of the Malays and natives of any of the States of Sabah and Sarawak and to ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of positions in the public service (other than the public service of a State) and of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by the Federal Government and, when any permit or licence for the operation of any trade or business is required by federal law, then, subject to the provisions of that law and this Article, of such permits and licences.3. The Yang di-Pertuan Agong may, to ensure in accordance with Clause (2) the reservation to Malays and natives of any of the States of Sabah and Sarawak of positions in the public service and of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to any Commission to which Part X applies or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.4. In exercising his functions under this Constitution and federal law in accordance with Clauses (1) to (3) the Yang di-Pertuan Agong shall not deprive any person of any public office held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.5. This Article does not derogate from the provisions of Article 136.6. Where by existing federal law a permit or licence is required for the operation of any trade or business the Yang di-Pertuan Agong may exercise his functions under that law in such manner, or give such general directions to any authority charged under that law with the grant of such permits or licences, as may be required to ensure the reservation of such proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable, and the authority shall duly comply with the directions.7. Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorised a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant might reasonably be expected in the ordinary course of events.8. Notwithstanding anything in this Constitution, where by any federal law any permit or licence is required for the operation of any trade or business, that law may provide for the reservation of a proportion of such permits or licences for Malays and natives of any of the States of Sabah and Sarawak; but no such law shall for the purpose of ensuring such a reservation- (a) deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him; (b) authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with the other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business; or (c) where no permit or licence was previously required for the operation of the trade or business, authorise a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona fide carrying on, or authorise a refusal subsequently to renew to any such person any permit or licence, or a refusal to grant to the heirs, successors or assigns of any such person any such permit or licence when the renewal or grant might in accordance with the other provisions of that law reasonably be expected in the ordinary course of events.8A. Notwithstanding anything in this Constitution, where in any University, College and other educational institution providing education after Malaysian Certificate of Education or its equivalent, the number of places offered by the authority responsible for the management of the University, College or such educational institution to candidates for any course of study is less than the number of candidates qualified for such places, it shall be lawful for the Yang di-Pertuan Agong by virtue of this Article to give such directions to the authority as may be required to ensure the reservation of such proportion of such places for Malays and natives of any of the States of Sabah and Sarawak as the Yang di-Pertuan Agong may deem reasonable, and the authority shall duly comply with the directions.1. Nothing in this Article shall empower Parliament to restrict business or trade solely for the purpose of reservations for Malays and natives of any of the States of Sabah and Sarawak.9A. In this Article the expression "natives" in relation to the State of Sabah or Sarawak shall have the meaning assigned to it in Article 161A.1. The Constitution of the State of any Ruler may make provision corresponding (with the necessary modifications) to the provisions of this Article.

Referring to the old agreement, the rights of the Malays as the land for the right to Malays Malays gain ground with permission from the State Government for the opening of the land is under the regulating State. The State Government shall open a special ground for the French and conditions. The State Government has allocated land for the public opening (Gentile) similar area of land to the public must not exceed the area of the Malays. Malays owned land can not be taken for the purpose of the non-Malays. Both senior positions in the Government of the Federation of Malaya, must be allocated in a specific ratio to the Malays and non-Malays. All three provisions of scholarships or grants more for the Malay students from non-Malay students. Seen also in terms of economic aid should follow rules made to enable the Malays get licenses or certain truths to enable them to carry out its activities and other economic activities. Special privileges of the Malays are under the protection of the Yang di-Pertuan Agong. Yang di-Pertuan Agong must listen to the advice of the Prime Minister and Cabinet, and all the new changes based on the privileges of the Malays is based on the consent of the Malay Rulers. Special privileges of the Malays in the Malay states were guaranteed other than the privileges of the Malays in the Federal Constitution. The provisions of the special position of the Malays as provided for in Article 89 relating to the Malay Reservations[footnoteRef:41] [41: Article 89, Federal Constitution Of Malaysia.]

(1) Any land in a State which immediately before Merdeka Day was a Malay reservation in accordance with the existing law may continue as a Malay reservation in accordance with that law until otherwise provided by an Enactment of the Legislature of that State, being an Enactment (a) passed by a majority of the total number of members of the Legislative Assembly and by the votes of not less than two-thirds of the members present and voting; and(b) approved by resolution of each House of Parliament passed by a majority of the total number of members of that House and by the votes of not less than two-thirds of the members voting. (1A) Any law made under Clause (1) providing for the forfeiture or reversal to the State Authority, or for the deprivation, of the ownership of any Malay reservation, or of any right or interest therein, on account of any person, or any corporation, company or other body (whether corporate or unincorporate) holding the same ceasing to be qualified or competent under the relevant law relating to Malay reservations to hold the same, shall not be invalid on the ground of inconsistency with Article 13.

(2) Any land in a State which is not for the time being a Malay reservation in accordance with the existing law and has not been developed or cultivated may be declared as a Malay reservation in accordance with that law: Provided that (a) where any land in a State is declared a Malay reservation under this Clause, an equal area of land in that State which has not been developed or cultivated shall be made available for general alienation; and

(b) the total area of land in a State for the time being declared as a Malay reservation under this Clause shall not at any time exceed the total area of land in that State which has been made available for general alienation in pursuance of paragraph (a).

(3) Subject to Clause (4), the Government of any State may, in accordance with the existing law, declare as a Malay reservation (a) any land acquired by that Government by agreement for that purpose; (b) on the application of the proprietor, and with the consent of every person having a right or interest therein, any other land, and shall, in accordance with the existing law, immediately declare as a Malay reservation, in a case where any land ceases to be a Malay reservation, any other land of a similar character and of an area not exceeding the area of that land.

(4) Nothing in this Article shall authorize the declaration as a Malay reservation of any land which at the time of the declaration is owned or occupied by a person who is not a Malay or in or over which such a person has then any right or interest.

(5) Without prejudice to Clause (3), the Government of any State may, in accordance with law, acquire land for the settlement of Malays or other communities, and establish trusts for that purpose.

(6) In this Article Malay reservation means land reserved for alienation to Malays or to natives of the State in which it lies; and Malay includes any person who, under the law of the State in which he is resident, is treated as a Malay for the purposes of the reservation of land.

(7) Subject to Article 161a, this Article shall have effect notwithstanding any other provision of this Constitution; but (without prejudice to any such other provision) no land shall be retained or declared as a Malay reservation except as provided by this Article and Article 90.

(8) The provisions of this Article shall apply to the Federal Territories of Kuala Lumpur and Putrajaya in the like manner that they apply to a State, save that Clause (1) in its application to the Federal Territories of Kuala Lumpur and Purtrajaya shall be modified to read that any land in the Federal Territory of Kuala Lumpur or the Federal Territory of Putrajaya which immediately before Merdeka Day was a Malay reservation in accordance with the existing law may continue as a Malay reservation in accordance with that law until otherwise provided by an Act of Parliament passed by a majority of the total number of members of each House of Parliament and by the votes of not less than two-thirds of the members present and voting in each House.

Article 90 : Special provisions relating to customary land in Negeri Sembilan and Malacca, and Malay holdings in Terengganu

90. (1) Nothing in this Constitution shall affect the validity of any restrictions imposed by law on the transfer or lease of customary land in the State of Negeri Sembilan or the State of Malacca, or of any interest in such land.

(1a) For the purpose of Clause (1) (a) transfer includes any charge, transmission or vesting, or creation of any lien or trust, or entry of any caveat, description or nature; and (b) lease includes any tenancy of whatever form or duration.

(2) Notwithstanding anything in this Constitution, the existing law in the State of Terengganu with respect to Malay holdings shall continue in force until otherwise provided by an Enactment of the Legislature of that State passed and approved as described in Clause (1) of Article 89.

(3) Any such Enactment of the Legislature of the State of Terengganu may make provision for Malay reservations corresponding with the existing law in force in any other State of a Ruler; and in that event the said Article 89 shall have effect in relation to Terengganu subject to the following modifications, that is to say: (a) in Clause (1), for the reference to land which immediately before Merdeka Day was a Malay reservation in accordance with the existing law, there shall be substituted a reference to land which, immediately before the passing of the said Enactment, was a Malay holding; and (b) subject as aforesaid, any reference to the existing law shall be construed as a reference to the said Enactment.

Article 2 : Admission of new territories into the Federation2. Parliament may by law (a) admit other States to the Federation; (b) alter the boundaries of any State,but a law altering the boundaries of a State shall not be passed without the consent of that State (expressed by a law made by the Legislature of that State) and of the Conference of Rulers

Article 38 of the Constitution of Malaysia : Conference of Rulers

(4) No law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers.

Article 159 of the Constitution of Malaysia : Amendment of the Constitution

(5) A law making an amendment to Clause (4) of Article 10, any law passed thereunder, the provisions of Part III, Article 38, Clause (4) of Article 63, Article 70, Clause (1) of Article 71, Clause (4) of Article 72, Article 152, or 153 or to this Clause shall not be passed without the consent of the Conference of Rulers.

Article 152 of the Constitution of Malaysia : National language152. (1) The national language shall be the Malay language and shall be in such script as Parliament may by law provide: Provided that (a) no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language; and (b) nothing in this Clause shall prejudice the right of the Federal Government or of any State Government to preserve and sustain the use and study of the language of any other community in the Federation.

(2) Notwithstanding the provisions of Clause (1), for a period of ten years after Merdeka Day, and thereafter until Parliament otherwise provides, the English language may be used in both Houses of Parliament, in the Legislative Assembly of every State, and for all other official purposes.

(3) Notwithstanding the provisions of Clause (1), for a period of ten years after Merdeka Day, and thereafter until Parliament otherwise provides, the authoritative texts (a) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament; and (b) of all Acts of Parliament and all subsidiary legislation issued by the Federal Government, shall be in the English language.

(4) Notwithstanding the provisions of Clause (1), for a period of ten years after Merdeka Day, and thereafter until Parliament otherwise provides, all proceedings in the Federal Court, the Court of Appeal or a High Court shall be in the English language: Provided that, if the Court and counsel on both sides agree, evidence taken in the language spoken by the witness need not be translated into or recorded in English.

(5) Notwithstanding the provisions of Clause (1), until Parliament otherwise provides, all proceedings in subordinate courts, other than the taking of evidence, shall be in the English language.

(6) In this Article, official purpose means any purpose of the Government, whether Federal or State, and includes any purpose of a public authority.

3.0 References

Andaya, Barbara Watson; Andaya, Leonard Y. (1982). A History of Malaysia. London: MacMillan Press Ltd. pp. 2628, 61, 151152, 242243, 254256, 274. ISBN 0-333-27672-8.

Fatimah Halim, The transformation of the Malaysian State (1990) 20 JCA 64; Jomo, K.S., Whither Malaysias Economy Policy (1990-1) 63 Pacific Affairs 469.

Hickling, R. H. (2001). Malaysian Public Law: An Introduction to the Concept of Law in Malaysia: Pelanduk Publications.

Hock, David Koh Wee (2007). Legacies of World War II in South and East Asia. Singapore: Institute of Southeast Asian Studies, Singapore. p. 48. ISBN 978-981-230-457-5.

Mohd Rizal bin Mohd Yaakop, The British Legacy on the Development of Politics in Malaysia

Rau & Kumar. (2014). General Principles of the Malaysian legal System: International Law Book Services.

Civil Law Act 1956.

Stockwell, A. J. The white mans burden and brown humanity: Colonialism and ethnicity in British Malaya Asian Journal of Social Science 10.1 (1982): 44-68

Wan Arfah Hamzah. (2009). A First Look at the Malaysia Legal System: Oxford Fajar Sdn Bhd.

Yew Chee Wai, Wan Iqmal, Ros Maria Chin, James Chen, & Chan Chai Hock. (2015). Nexus @ Bijak Sejarah SPM Tingkatan 4 & 5: Sasbadi.

Wu, M. A. (1982). An Introduction to Malaysian Legal System (3rd ed.): Heinmann.

Federal Constitution Of Malaysia.

Time magazine (19 May 1952). "MALAYA: Token Citizenship". TIME. Retrieved 26 October 2010"A New Nation", Time, New York, 9 September 1957

"Malaya: Siege's End", Time, New York, 2 May 1960

Govermnet Of Malaysia, Second Malaysia Plan. 1971-5 (Kuala Lumpur, Government Printer. 1971), 1; Lim Mah Hui, Ethnic and Class Relations in Malaysia (1980) 10JCA 130.Mahathir Mohamad (31 May 1999). "Our Region, Ourselves". TIME. Retrieved 26 October 2010.

Graham, Brown (February 2005). "The Formation and Management of Political Identities: Indonesia and Malaysia Compared" (PDF). Centre for Research on Inequality, Human Security and Ethnicity, CRISE, University of Oxford.

"Malaysia". State.gov. 14 July 2010. Retrieved 14 September 2010.

Ooi Keat Gin (2008). Historical Dictionary of Malaysia. The Scarecrow Press, Inc. p. 154. ISBN 0-8108-5955-6.Hwang, In-Won (2003). Personalized Politics: The Malaysian State under Mahathir, p. 24. Institute of Southeast Asian Studies. ISBN 981-230-185-2