Wong on the Federated Malay States

Federated Malay States (1895 to 1946) -- Perak, Negeri-Sembilan, Pahang, Selangor. 

Law and government in the Federated Malay States; last updated, 24 November 2024

[A] Introduction

• See, H Conway Belfield (British Resident, Selangor), Handbook of the Federated Malay States (Edward Stanford, 1902) <https://www.sabrizain.org/malaya/library/handbookfms.pdf>, archived at <https://perma.cc/YY2W-24DS>.  

• Cuthbert Woodville Harrison, An Illustrated Guide to the Federated Malay States (The Malay States Information Agency, 1919) <https://www.sabrizain.org/malaya/library/fms.pdf>, archived at <https://perma.cc/2ETM-MZ5J>. 

• Colonial Office Original Correspondences, Federated Malay States, UK National Archives, Kew (CO 717), 1920-1951: <https://discovery.nationalarchives.gov.uk/details/r/C4906>. 

• Sabri Zain's Library on Malaya: <https://www.sabrizain.org/malaya/library/> (Full text database). 

• UPenn, Federated Malay States: <https://onlinebooks.library.upenn.edu/webbin/book/lookupname?key=Federated%20Malay%20States>. 

[B] Laws of the Federated Malay States (FMS): 

• Treaty of Federation of 1895: Protected Malay States:

> See Eunice Thio, 'Some Aspects of the Federation of the Malay States, 1896-1910' (1967) 40(2) Journal of the Malaysian Branch of the Royal Asiatic Society 3. 

> Philip Loh Fook-Seng, 'Malay Precedence and the Federal Formula in the Federated Malay States. 1909 to 1939' (1972) 45(2) Journal of the Malaysian Branch of the Royal Asiatic Society 29. 

• "English law, as such, does not prevail in these Courts except in so far as it has been adopted": Ong Cheng Nee v Yap Kwan Seng [1900] Straits Settlements Law Reports, supplement, p 5, quoted in J R Innes, 'Some Notes on the Constitution and Legislation of the Federated Malay States' (1916) 16(1) Journal of the Society of Comparative Legislation 24, 29. See <https://fiqh.um.edu.my/index.php/JMCL/article/download/15256/9146/30107> at pp 26-32 for discussion of this position at law.

> but see, Civil Law Enactment 1937 (FMS), application of English Law in the FMS. 

> Yong Joo Lin and Ors v Fung Poi Fong [1941] 1 MLJ 63, 64-5: "Principles of English Law have for many years been accepted in the Federated Malay States where no other provision has been made by statute (see for instance, Motor Emporium v Arumugam 13 SSLR 39. Section 2 (i) of the Civil Law Enactment, therefore merely gave statutory recognition to a practice which the Courts had previously followed. The material parts of the section read as follows: “Save in so far as other provision has been or may hereafter be made by any written law in force in the Federated Malay States, the Common Law of England, and the rules of Equity, as administered in England at the commencement of this Enactment, other than any modifications of such law or any such rules enacted by Statute, shall be in force in the Federated Malay States; Provided always that the said Common Law and rules of Equity shall be in force in the Federated Malay States so far only as the circumstances of the Federated Malay States and its inhabitants permit and subject to such qualifications as local circumstances render necessary.–It will be seen that there are three qualifications to the adoption of the English Common Law in the Federated Malay States: (1)It only applies if there is no other statutory provision in the F.M.S. (2)If it applies, it applies unmodified by any English Statute.(3)It must be applied only so far as the circumstances of the Federated Malay States and its inhabitants permit, and subject to such qualifications as local circumstances render necessary. ..."

• (Penang, Crown Colony): Ong Cheng Neo v Yeap Cheah Neo and Ors (1872) 1 Ky 326 (UKPC): "[I]t is really immaterial to consider whether the Prince of Whales’ Island, or as it is called, Penang, should be regarded as ceded or newly settled territory, for there is no trace of any laws having been established there before it was acquired by the East India Company. In either view, the law of England must be taken to be the governing law so far as it is applicable to the circumstances of the place, and modified in its application by these circumstances." (p. 331)

• Case Law: 

> Law Reports of the Federated Malay States (some cases reproduced in the Straits Settlements Law Reports and the Malayan Law Journal). 

> 1906-41, Law Reports of the Federated Malay States: <https://llmc.com/titledescfull.aspx?type=2&coll=179&div=495&set=11123>. OCLC Number: 767920702.

> Kyshe's Report (Straits Settlements).

-> Kyshe's Report, Vol 1 (1808-1884): <https://www.sabrizain.org/malaya/library/courtcases1.pdf>. 

-> Kyshe's Report, Vol 3 (1808-1884): <https://www.sabrizain.org/malaya/library/courtcases3.pdf>. 

-> Kyshe's Report, Vol 4 (1885-1890): <https://www.sabrizain.org/malaya/library/courtcases4.pdf>. 

• Legislation: 

>Local Enactments, see 1921 compilation of enactments in the FMS by A B Voules, The Laws of the Federated Malay States 1877-1920 (Hazell, Watson & Viney Ltd, 1921) Vols I-III. 

> Vol 1: <https://www.sabrizain.org/malaya/library/lawsfms1.pdf>, archived at <https://perma.cc/VQ2M-4DJ7>. 

> Vol 2: <https://www.sabrizain.org/malaya/library/lawsfms2.pdf>, archived at <https://perma.cc/Z2D8-KQAK>. 

> Vol 3: <https://www.sabrizain.org/malaya/library/lawsfms3.pdf>, archived at <https://perma.cc/D6QQ-9NW2>. 

> Enactments passed during the year 1909-1935 and rules thereunder: together with rules, etc., under enactments passed prior to 1910-1935 (FMS Government, 1910-36) <https://catalog.hathitrust.org/Record/010426689>. 

• Local Customs: 

> Richard James Wilkinson and James Rigby(tr), The Ninety Nine Laws of Perak (FMS Govt Press, 1908) <https://catalog.hathitrust.org/Record/100472833>, <https://lawcat.berkeley.edu/record/197225?ln=en>. 

> see also, Mohamad Hazizie Sulkafle, 'The The Influence of Islam on the Statecraft of the Perak Sultanate: The Case of the Ninety-nine Laws of Perak' (2020) 2(3) Asian Journal of Research in Education and Social Sciences 104 <https://myjms.mohe.gov.my/index.php/ajress/article/view/10782>. 

> E N Taylor, 'The Customary Law of Rembau' (1929) 7(1) Journal of the Malayan Branch of the Royal Asiatic Society xxxiv <https://www.jstor.org/stable/41559728>. 

> Custom having the force of law: 

> "Under section 184 (iii) of the Probate and Administration Enactment the Collector shall distribute the estate "according to the law or custom having the force of law applicable to the deceased." Section 173 (f) refers to "Rules of Muhammadan law as varied by local custom in respect of the distribution of … the estate of a deceased person." Section 2 of the Distribution Enactment reads:– "Nothing in this Enactment shall apply to the estate of any person professing the Muhammadan religion or shall affect any rules of Muhammadan law as varied by local custom in respect of the distribution of the estate of any such person." It is clear then that the distribution is to be governed either by the law i.e. Muhammadan law or custom having the force of law i.e. unwritten law, or by some combination of the two. There has been, and is still, beyond any doubt, a body of unwritten law, that is customary law known as Adat, in existence in certain parts of Negri Sembilan. Such adat or customary law provides rules for the distribution of land of deceased persons belonging to the tribes of Malays amongst whom that custom exists as law. Such a body of unwritten law, that is customary law, must be presumed to continue to exist until the contrary is established. Such unwritten law may be destroyed in whole or in part by legislation which must be express or be by necessary implication. Except where it is shown that such adat or unwritten law has been so repealed, that law must be given effect to within the sphere of its operation. Part of such customary law referred to land, and the question which is raised in this reference is as to whether or not that customary law has been repealed, or its sphere of operation limited by the provisions of the Customary Tenure Enactment. It is necessary therefore to consider and construe the provisions of this Enactment.": In Re Haji Mansur bin Duseh Alias Matso bin Duseh Dec'd [1940] 1 MLJ 110, 111 (Cussen J). 

> "It was admitted by both sides for the purposes of this case that the deceased was domiciled in Perak. In the first instance consideration must be given to the question as to the extent to which Chinese custom has the force of law in the Federated Malay States. For a considerable period the Perak Order in Council No. 23 of 1893 gave statutory effect to certain Chinese customs or alleged customs therein set out. No similar provision was made for the other States, but in the absence of any written law effect was given to part of this Order in Council in other States. In the case of Yam Tham Thai v Low Hup Neo 1 FMSLR 383 an explanation is given of the attitude of the Courts. See also Yap Kon Keow v Low Hup Neo 6 FMS LR 13. During the period 1899-1932 the Secretary for Chinese Affairs Enactment gave that officer jurisdiction to deal with cases of a domestic nature according to Chinese custom. Both these have been repealed and nothing has been substituted. In dealing with Chinese custom, there is no question of dealing with a body of law such as Hindu or Mohammedan Law nor is there anything so definite as the custom of a manor. It is more in the nature of a trade custom, the recognition of the habits of a particular body of people in dealing with particular matters. Where it can be shown that the Chinese follow settled practices the Courts will give effect to those practices where no provision is made in local legislation, so far as these practices are of a character, not being contrary to reason or natural justice, to which effect can be given with propriety. Until recently no system of law had been applied in the Federated Malay States except so far as Mohammedan Law might be applicable. Enactment 3 of 1937, however, made English Common Law applicable "so far as the circumstances of the Federated Malay States and its inhabitants permit and subject to such qualifications as local circumstances render necessary–. I think it is clear that the question of marriage is one in which the English Common Law is inapplicable (otherwise no one who did not believe in the Apostolic Succession could get married at all), and therefore if this matter is regulated at all, it must in the case of the Chinese population be regulated by custom. In order to ascertain Chinese custom, there are a few decisions in cases in the Federated Malay States and in the Colony. Apart from this it is a question of fact to be proved by the evidence of witnesses. There are also certain books which have been cited in this and other cases and which have acquired a certain degree of recognition. In addition to the custom of the Chinese, there has been in China a body of written law. This was known as the Ta Ching Lu Li. Certain parts of it are given in translation in the work by Jamieson which was cited before me. In the form of Staunton's translation it was also cited with approval in the case known as the Six Widows' Case. This part is in a form purely penal and so not directly applicable here. It will be seen that it is not a Code. It is merely a series of prohibitions in connection with matters which are primarily regulated otherwise, that is by custom.": Wong Ngee Yew & Ors v Ng Yoon Thai & Ors [1941] 1 MLJ 37, 37-8 (Murray-Aynsley J). 

> "There is a wealth of authority as to how a custom must be established and the effect of those authorities is concisely stated in the 9th edition Law of Evidence ( Woodroffe and Ameer Ali), page 175: “‘Custom’ as used in the sense of a rule which in a particular district, class, or family has from long usage obtained the force of law must be ancient, continued, unaltered, uninterrupted, uniform, constant, peaceable and acquiesced in, reasonable, certain and definite, compulsory and not optional to every person to follow or not. The acts required for the establishment of customary law must have been performed with the consciousness that they spring from a legal necessity …”": Haji Saemah v Haji Sulaiman [1942] 1 MLJ 17, 18 (Horne J); [1948] 1 MLJ 108.

> "This raises the general question of the effect of Chinese adoption and a more particular question as to the effect of the repeal of the Recognition of Chinese Laws Order in Council of 1893. The learned trial Judge was of opinion that the repeal of that Order in Council swept away the whole of the law of China, except as to persons domiciled there, and made every local Chinese subject in his personal relations to “the local law.” But there is no local law in the sense of a body of personal law applicable generally to people locally domiciled. Take, for example, one of the commonest questions arising in daily life — How is a marriage registered? It cannot be answered by reference to locality. No one can say, “In Perak, marriages are registered thus.” There are different laws for different racial and religious groups. The history of the matter can be stated briefly. In 1875 there was no effective law in Perak; the country was in a state of disturbance and, literally, of anarchy. In the eighties almost everybody in the State, who was not a riverine kampong Malay, was an immigrant; almost every estate, therefore, was the estate of a person domiciled abroad and the Courts, applying the ordinary rule of the English conflict of laws, decided questions of succession to the estates of Chinese, Indians and Europeans, according to the laws and customs of their respective countries. As these immigrants became settled here the situation changed — at first imperceptibly. A deceased might be held to have acquired a domicil of choice in the State but local society was communal; he was still a member of a distinct community who retained and practised the religious and social customs of the district or group from which they came. There was no Malayan personal law and it would have been impossible to frame one. The situation was comparable to that in India where one and the same Court applied Hindu law to the estate of a Hindu and Mohammedan law to the estate of his next-door neighbour. In short, India and the Malay States dealt with local questions of personal law on the same fundamental principle as English Courts deal with the personal law of foreigners — that is, they applied the law of the community in every case. There was no difficulty in principle but there was a constantly recurring difficulty in practice. It is feasible to ascertain the general principle of Chinese family custom, which are described by well-known writers and were then uniform throughout China, but when it comes to deciding a specific case — say of disputed succession — these general statements are often too vague and uncertain to furnish a ratio decidendi, and if a special or local variation is alleged it is impossible to find any authority on the point. Consequently, in 1893 the State legislature enacted an Order in Council formally giving recognition to Chinese Family Law and specifying its main provisions. In effect this was a codifying statute. The other States never codified but they followed the same principles. Where groups of emigrants establish themselves abroad as a community they tend to retain and conserve their laws and customs more strictly than does the mother country. In Bali, ancient Hindu customs and ceremonies were crystallised and preserved for centuries during which the system changed almost out of recognition in India. The Parsees in Bombay have kept up a tradition which long ago disappeared in Persia and there are many other instances. On the other hand, an immigrant society in contact with other cultures may be absorbed and lose its identity; much depends on the degree to which relations with the homeland are maintained. Some of the Chinese families who became settled in Malaya kept up the old traditions but the community was constantly augmented by new immigrants and, after the Chinese Revolution of 1910, more and more of these brought with them the ideas of modern China. A remarkable example of the conflict between the old and new views of family government is described by Terrell, J, in Choi Wai Ying v Cheong Weng Chan and others (1933–34) FMSLR 191 at p 201. In the case of a Chinese who was domiciled in China it became more difficult than ever to ascertain his personal law on any specific point because, while it could be said that the old customs were no longer strictly followed in China, the Revolution had not replaced them by any generally effective and certain body of personal law. Comparable, though less marked, sociological changes affected the various Indian communities. By the year 1930 a much higher proportion of the non-Malay population had become domiciled in the Malay States and the practical difficulty of administering a variety of personal laws, especially in relation to intestate succession, had greatly increased. This and other causes led to the passing of the Distribution Enactment (Now, Cap. 71) which repealed the Recognition Order in Council and introduced the main provisions of the English Statute of Distribution, 22 & 23 Charles II, Cap. 10, to govern succession to the estate of every intestate (other than a Moslem) who died locally domiciled. This was not in any sense an attack on Chinese custom or on any other personal law. Testamentary freedom is absolute. The Chinese property-owning classes are accustomed to making wills and the practice is not uncommon among the Indian and other communities. They were all put on the same basis and, granted a local domicil, there was no room for uncertainty. Everybody could give full effect by his will to his own personal views on family succession, customary or otherwise, and if he did not make a will, then the one statute applied irrespective of the community. But as regards other matters within the domain of the personal law, such as marriage, adoption and guardianship, the law of Perak reverted to the state in which it was before 1893 and the law of the other States remained in the same state as it had been in throughout — namely, that in the absence of any statutory provision, the Courts applied the personal law of the community concerned.": In Re Tan Soh Sim, Deceased; Chan Lam Keong and 4 Others v Tan Saw Keow & 3 Others [1951] 1 MLJ 21, 24-6 (Taylor J, CA FMS).

• Administration

> Jagjit Singh Sidhu, Administration in the Federated Malay States, 1896-1920 (Oxford University Press, 1980).

> Elizabeth Washburn Wright, 'One Way of Governing Malays' (1908) 188(632) The North American Review 81-91.

• Historical revision: 

> "Before the British came to Malaya, which was then known as Tanah Melayu, the sultans in each of their respective states were the heads not only of the religion of Islam but also as the political leaders in their states, which were Islamic in the true sense of the word, because, not only were they themselves Muslims, their subjects were also Muslims and the law applicable in the states was Muslim law. Under such law, the sultan was regarded as God's vicegerent (representative) on earth. He was entrusted with the power to run the country in accordance with the law ordained by Islam, i.e. Islamic law and to see that law was enforced. When the British came, however, through a series of treaties with the sultans beginning with the Treaty of Pangkor and through the so-called British advice, the religion of Islam became separated into two separate aspects, viz. the public aspect and the private aspect. The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler's power and sovereignty. The ruler ceased to be regarded as God's vicegerent on earth but regarded as a sovereign within his territory. The concept of sovereignty ascribed to humans is alien to Islamic religion because in Islam, sovereignty belongs to God alone. By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat. Although theoretically because the sovereignty of the ruler was absolute in the sense that he could do what he likes, and govern according to what he thought fit, the Anglo/Malay Treaties restricted this power. The effect of the restriction made it possible for the colonial regime under the guise of “advice” to rule the country as it saw fit and rendered the position of the ruler one of continuous process of diminution. For example, the establishment of the Federated Malay States in 1895, with the subsequent establishment of the Council of States and other constitutional developments, further resulted in the weakening of the ruler's plenary power to such an extent that Islam in its public aspect had become nothing more than a mere appendix to the ruler's sovereignty. Because of this, only laws relating to family and inheritance were left to be administered and even this was not considered by the court to have territorial application binding all persons irrespective of religion and race living in the state. The law was only applicable to Muslims as their personal law. Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only. (See M.B. Hooker, Islamic Law in South-east Asia, 1984.) In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam” in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.": Che Omar bin Che Soh v Public Prosecutor; Wan Jalil bin Wan Abdul Rahman & Anor v Public Prosecutor [1988] 2 MLJ 55, 56 (Salleh Abas LP). 

> "The facts of the case are largely not in dispute and these are as follows: On January 19, 1888 corresponding to 6th day of Jamadil Awal 1305 the Sultan of Pahang, Sultan Ahmad Muadzam Shah, by a document bearing the same date made a gift inter vivos of a large tract of land described as “all that river district being the basin of Sungei Tembeling and all the tributaries from their sources to their mouths and situate in the State of Pahang” to his daughters Tengku Long and Tengku Dalam. The first appellant is the son of Tengku Long, whilst the second appellant is her grandson, being the son of the first appellant. Both appellants claim that they are lawfully entitled to the land described in the said royal document, which they maintained to be a valid document of title and still subsisting. They filed a suit which is the subject matter of this appeal in the High Court asking for a declaration to that effect. The respondents denied the gift and any knowledge of it and in their application to strike out the suit they gave four reasons why the court should do so; two of which are — (1) their Statement of Claim does not disclose any reasonable cause of action and (2) the suit is statute-barred. Their application was heard by L.C. Vohrah J. who held that there was a reasonable cause of action, but the suit is caught by the Statute of Limitation. We think however that the question of the reasonableness of the appellants' cause of action which the learned judge seemed to have passed over and accepted as being established without much discussion is of primary importance and should first be examined by us before any consideration of the applicability or otherwise of the Statute of Limitation. For unless and until the appellants can show that they have a reasonable cause of action, any discussion on the applicability of the statute to their claim would be premature and irrelevant. We therefore propose to examine the legal effect of the royal document of January 19, 1888 purporting to give the said land to Tengku Long and Tengku Dalam. For this purpose it is necessary to look back into the state of affairs prevailing in Pahang at the time when the gift was made. Historical perspective It is a matter of history that Pahang was an independent State before she came under the British protection in 1889. Sultan Ahmad Muadzam Shah, otherwise known as Wan Ahmad, became the undisputed ruler of Pahang after defeating his brother Tun Mutahir following the death of their father, Bendahara Tun Ali in 1857. Sultan Ahmad Muadzam Shah was a single-minded ruler and opposed to British influence in his State. The British on the other hand were keen to have some measure of control over the government of Pahang with a view of safe-guarding their commercial interests, which they feared were in jeopardy by indiscriminate concessions, often ill-defined and overlapping, given by the Sultan to various people. Their interests in gaining political control of the State was further heightened by rumours of Pahang's great mineral wealth. Unwilling as the Sultan was, in 1887 through the urging of Hugh Clifford and persuasion of the Sultan of Johor, who two years earlier had signed a similar treaty, Sultan Ahmad Muadzam Shah finally relented and agreed to sign an Anglo-Pahang Treaty. Under this treaty Hugh Clifford became a British Agent in Pahang with consular status. This was the beginning of the British intervention in the State. In the following year (1888) the murder of a Chinese name Jo Hui (Go Cui) who was allegedly a British subject provided a first class opportunity for Clementi Smith, the Governor of the Straits-Settlements, to seize upon the incident to extract a sort of recapitulation letter from the Sultan. In this letter dated August 24, 1888 the Sultan acknowledging responsibility for the murder, requested the British Government to send a British officer to assist him “in matters relating to the Government of Pahang on similar system to that existing in other Malay States under British protection” and in return the Sultan asked for British guarantee to him and his successors of all their privileges and powers and also an undertaking not to interfere with Malay custom and Islamic religion. In 1889 Sultan Ahmad Muadzam Shah abdicated the throne in favour of his son Tunku Mahmud (See ‘A Collection of Treaties affecting the States of Malaysia 1761–1963,’ Vol. 1, pages 347–355). There can be no doubt that before the British intervention, the Sultan was an absolute ruler of his State in whom powers to make laws and to govern the State were vested, and that he exercised these powers presumably after advice of or more appropriately, consultation with his Orang-Orang Besar (ministers), was sought or held. After the British intervention, however, he still remained an absolute ruler but was required to administer the State with the advice of a British Resident. But in practice as shown in the judgment of the Privy Council Appeal No. 27 of 1932 in The Pahang Consolidated Company Limited v The State of Pahang [1931–32] FMSLR 390; [1933] MLJ 247, it was the British Resident who exercised the powers on behalf of the Sultan. In this case, a mining lease in respect of a large tin mine in Pahang which was the subject matter of the suit was granted on December 8, 1898 by the British Resident on behalf of the Sultan. One of the primary reasons of the British intervention in Pahang was their concern at the indiscriminate concessions of agricultural lands given out by the Sultan to all and sundry in order to boost-up the State's revenue. The British were fearful that unless the grant of concessions was exercisable on a rational basis there would be chaos and disputes would arise which would finally affect their commercial interests adversely. Hence once they obtained control over the government they lost no time in introducing their system of administration. A number of regulations were soon made and the most important one is the Government Land Regulations dated December 31, 1889. The Regulations were the beginning of the present system of land administration in Pahang. Until then the land law applicable was Shariah Law of the Shafie school. Eight years later the Regulations were repealed and replaced by the Land Enactment 1897, and the Registration of Title Enactment 1897 which came into force on November 29, 1887 and December 24, 1897 respectively. The 1897 Land Enactment was subsequently replaced by the Land Enactment 1903 which came into force on July 1, 1903, and this Enactment was later superseded by FMS Land Code 1926 on December 24, 1926 and finally by the present National Land Code in 1965. ...": Tengku Haji Jaafar Ibni Almarhum Tengku Muda All & Anor v Government of Pahang [1987] 2 MLJ 74, 77-8 (Salleh Abas LP).

• Status of Rules having "force of law": 

> "The question as to whether the rules are ultra vires remains to be dealt with. Now, the rules have been made under section 130 of the Mining Enactment. This section further provides as follows:– “(ii) All rules made under this section shall be published in the Gazette and shall therefore have the force of law. (iii) All such rules shall be laid before the Federal Council at the first meeting after such publication and may be amended or disallowed by resolution of the said Council.” Sub-sction (iii) has since been repealed, but was in force at the time when rules were approved. The rules when made and published in the Gazette become law unless objected to. They therefore have statutory authority [see Dato's case (1881) 6 QBD 376]. It has been contended that the validity of rules which have so become law may be canvassed. The case of King v Broad [1915] App Cas 1110 has been cited in support of this contention. In reading that case I cannot find it stated anywhere that the by-laws in question had obtained statutory authority. There is of course a distinction between rules or by-laws which have been made under a statute and those which have statutory authority. In the case of Slattery v Naylor 13 App Cas 446, this very question was raised. Lord Hobhouse in his judgment said:–“We are dealing with the proceedings of a local authority in a colony, where the extent of area is large and population grows fast. The Act of 1867 provides methods for the more effectual establishment of local institutions. It creates a representative council, elected annually by the constituency and gives to it jurisdiction over the large range of affairs enumerated in section 153 and some other sections. By section 158 it is enacted that all by-laws ‘consistent with the provisions of this Act, and not repugnant to any other Act or law in force in the Colony of New South Wales, shall have the force of law when confirmed by the Governor, and published in the Government Gazette, but not sooner or otherwise.’ And provision is made for laying copies of such by-laws before both Houses of Parliament. It is certainly not clear that Courts of Law are not precluded by section 158 from enquiry wether or no a by-law is reasonable.”": The Raub Australian Gold Mning Co Ltd v Public Prosecutor [1936] 1 MLJ 155, 156-7 (Thomas J).

> "This is an application made on behalf of a Disciplinary Committee calling upon the Respondent, an Advocate and Solicitor of the Supreme Court, to show cause why he should not be struck off the Rolls, suspended from practice or otherwise dealt with. The facts of the case are simple. The Respondent did not keep a separate client's account with a Bank as required by the Rules regulating the Practice and Etiquette of the Singapore Bar. These rules were made under Section 31 (1) (a) of the Advocates and Solicitors Ordinance and have the force of law. ... It has already been mentioned that the Respondent did not keep a clients' account. This appears to us to be a grave breach of Rules which have the force of law, and we consider that the breach of these Rules requiring separate clients' account to be kept amounts to improper conduct or practice on the part of the Respondent. We have already expressed an opinion that the Respondent's transactions with his client's money did amount to a misappropriation thereof.": In Re S Fung, A Solicitor [1941] 1 MLJ 173, 174-5 (McElwaine CJ). 

> "The facts set out in the petition, and which for the purposes of this motion must be accepted as correct, admit of a very brief statement. In February, 1920, the suppliant acquired, at the price of $6,000, some rubber-bearing lands situate at Tanjong Minyak in the Settlement of Malacca. At all material times there were on the land quarters for coolies and a store containing various articles commonly used by, or found in the possession of, planters. These articles included a latex jar, mangles, buckets, baskets, plank beds and sheets of rubber. They were of sufficient value to liquidate the claim on the part of the Government now to be mentioned. That claim was for quit-rent in respect of the year 1921, which the suppliant confessedly omitted to pay. But no written notice of demand was served as required by section 4 of Ordinance No. 35 (Land Revenue Collection), and no attachment of the moveables was issued, as required by section 5 of that Ordinance, before resort is had to the lands. Nevertheless the Collector of Land Revenue (hereafter called the Collector), in supposed exercise of the power conferred upon him by section 7 of the Ordinance, sold the land on the 7th of March 1922, for $45. The suppliant prays for a declaration that the sale was illegal and that an enquiry may be directed as to the amount of compensation payable for the loss sustained by her in consequence of the ransacking operation of the sale. It is desirable to offer no comment upon the acts charged in the petition. Letters written by the Collector, and set out in the petition, traverse the imputation of irregularity on his part, and evidence, if given may establish a defence to the prayers. For these reasons I propose simply to dispose of the point of law raised, and earnestly pressed by the Solicitor-General. His contention is that the acts or defaults charged in the petition were not in law the acts or defaults of His Majesty's Local Government, but those of a person uncontrolled by that Government and acting in pursuance, or intended pursuance of duties imposed on him by the Legislature. "The position of the Collector," said the Solicitor-General, "may be likened to that of a Judicial Officer whose position excludes any right of Governmental interference." On turning to the Ordinance it will be found that the obligation with reference to demands, notices, attachments and sales are cast upon the Collector and not upon any of the superior officials of the Colony. The Governor in Council is authorised to frame rules which, subject to the usual condition, have the force of law; but nothing done by that authority has any connection in point of fact with the conduct attributed to the Collector. In my opinion the short question is: was the Collector, when selling the suppliant's land, acting as an executive officer of the Sovereign, or as a statutory entity invested with rights and duties as regards particular debtors, but irresponsible to the Sovereign as such. If he is to be looked upon as an executive officer, this case must proceed to trial. If on the other hand he is merely a statutory entity, it must stand dismissed ...": Attorney-General for the Straits Settlements v Pang Ah Yew [1934] 1 MLJ 184, 184-5 (Barrett-Lennard J). 

> "The following provisions of the Johore Land Enactment 1910 and/or the rules made thereunder are material. ... Section 18. The Sultan in Council may, from time to time, make rules for fully and effectually carrying out and giving effect to the various purposes, provisions and powers in this Enactment contained and such rules, when published in the Gazette, shall have the force of law.": headnotes to Tan Baw v The Public Prosecutor of Johore [1933] 2 MLJ 133. 

> "Held, on appeal to the Privy Council, that Enactment No. 23 of 1931 overrides any special rights claimed by the appellants to have been conferred upon them by the Lease of 1898, and that there is sufficient indication on the face of the Enactment of an intention that the rules to be made thereunder should be wide enough to apply to every case. Held further, that the suit against one of the Federated Malay States in respect of a matter or thing arising under or resulting from the operation of the Enactment or the Rules made thereunder is barred by Section 5 of that Enactment. ... The Judgment of their Lordships (Lord Tomlin, Lord Thankerton and Sir Lancelot Sanderson) was delivered by– The appellants are a mining company incorporated in England under the English Companies Acts. As assigns of the original lessees who were the Pahang Corporation the appellants are entitled to the benefit of a lease of a large tin mine in Pahang, granted on the 8th December, 1898, by the British Resident in Pahang on behalf of His Highness the Sultan of Pahang. The respondent is the State of Pahang which is one of the four Federated Malay States. The appellants seek in the action out of which this appeal arises to have it declared that a certain enactment of the Federated Malay States passed in the spring of 1931, limiting the production and export of tin in and from the Federated Malay States, has no application to their mine, or, if it has, to recover damages from the State on the ground that the State in concurring in passing the enactment in question committed a breach of the lessors' covenants in the lease. ... The enactment contained a preamble to the effect that an international agreement had been arrived at between the Governments of the principal tin-producing countries of the world, that it was desirable that the production and export of tin should be subjected for a period to control in order that an economic balance between production and consumption should be restored; that the Federated Malay States was a party to this agreement, that a scheme had been agreed to by the parties aforesaid to give effect to this policy of control and that it was necessary for the implementing of this agreement and scheme that legislative sanction and authority should be given. The operative part of the enactment was in the following terms:– “1. This Enactment may be cited as ‘The Tin and Tin-ore (Restriction) Enactment, 1931,’ and shall be deemed to have commenced and come into operation upon the 1st day of March, 1931, and shall remain in force until the Chief Secretary to Government shall by notification in the Gazette order that the same do cease to be in force. “2. (i) The Chief Secretary to Government, Federated Malay States, may from time to time make rules for any of the following purposes:– (a) to restrict and regulate the production, possession, sale, purchase and export of tin and tin-ore; (b) to provide for the appointment of officers and other persons to carry out the provisions of any rules and to prescribe their duties; (c) to prescribe fees to be charged for anything to be done under any rules; (d) to prescribe the penalty with which the contravention of any rule made under this Enactment shall be punishable. “(ii) All such rules shall be published in the Gazette and shall thereupon have the force of law. “(iii) All such rules shall be laid before the Federal Council at the first meeting after such publication and may be amended or disallowed by resolution of the said Council. “(iv) Any rules so amended shall come into force as amended from the date of the passing of such resolution and any rule disallowed shall cease to have any force or effect from the date of such resolution. “3. Nothing in this Enactment or in any rules made thereunder shall affect the provisions of ‘The Mineral Ores Enactment, 1923,’ and all rules made under this Enactment shall be additional and auxiliary to the provisions of the said Mineral Ores Enactment and any rules made thereunder. “4. No decision made in exercise of the powers conferred by this Enactment of any officer or other person appointed under this Enactment regarding the quantity of tin or tin-ore which may be produced, sold, purchased, exported, or be in the possession of any person shall be called in question in any Court of Law. “5. No suit shall be instituted in any Court against the Chief Secretary to Government or against the Government of the Federated Malay States or of any of them or against any public officer in respect of any matter or thing arising under or resulting from the operation of this Enactment or the Rules made thereun.”: The Pahang Consolidated Company Ltd v The State of Pahang [1933] 2 MLJ 247, 247, 249 (Lord Tomlin, Privy Council). 

> "Under section 90(1) of the Ordinance the Governor in Council may make rules for any of the following purposes:– (q) to prescribe the restrictions under and the conditions on which licences may be issued under this Ordinance, and (s) to prescribe the liquors which may not be sold. Section 90(3) and (4) provide that the rules (after publication in the Gazette) shall be laid before the Legislative Council and shall remain in force until disapproved or altered by a resolution of the Legislative Council. Section 90(5) reads as follows:– Any rule altered by a resolution of the Legislative Council shall come into force as altered from the date of the passing of such resolution, and shall have the same force and effect as if enacted in this Ordinance. From this it would appear that only when a rule has been altered by a resolution of the Legislative Council has it the force of law. Any other rule which has been merely tabled must therefore be consistent with the provisions of the Ordinance itself." : Rex v Ng Chim Poh [1938] 1 MLJ 132, 133 (Terrell J). 

> (Certiorari): "Again looking at the case from another point of view it appears to me that prohibition should never issue in a case where at no stage of the proceedings could certiorari issue. Certiorariissues to quash the operative order of a judicial or quasi-judicial body which has acted without jurisdiction, and the remedies of certiorari and prohibition are really complementary to one another. As Atkin, L.J. said at page 206 in Rex v. Electricity Commissioners "I can see no difference in principle between certiorari and prohibition except that the latter may be invoked at an earlier stage." Prohibition may also be granted in certain cases which will be referred to later, to prevent the further execution of an operative order made without jurisdiction. Both in the case of the Electricity Commissioners and in the case of Rex v The Minister of Health 1929 1 KB p 619 there would have been an order by the Electricity Commissioners or by the Minister of Health, which would prima facie have been subject to certiorari, if the Commissioners or the Minister had exceeded their jurisdiction. It was only because the particular wording of the statutes gave such orders, when made, the force of law, that certioraricould not issue, and this was one of the grounds upon which prohibition was granted in both of these case. In the present case, however, the remedy of certiorari is not available against the Board, not because anything in the Ordinance itself would render it nugatory, but because the Board never makes an operative order upon which certiorari could operate. ...": In the Matter of an Application for a Writ of Prohibition and in the Matter of Singapore Improvement Ordinance 1927 [1935] 1 MLJ, 217, 232 (Terrell J). 

• Treaties, Conventions: 

> Convention between the Commonwealth of Australia and the Federated Malay States for the Exchange of Money Orders (Kuala Lumpur-Melbourne, 7 September 1920-24 January 1921), entry into force 1 April 1921. [1921] ATS 2 <https://www.austlii.edu.au/au/other/dfat/treaties/ATS/1921/2.html>. 

> Agreement between the Postal Department of the Commonwealth of Australia and the Postal Department of Malaya for the Exchange of Money Orders [1935] ATS 9 <https://www.austlii.edu.au/au/other/dfat/treaties/1935/9_notes.html>. 

> Agreement with Siam and the Malay States respecting Customs (Bilateral) [1922] UKTS 9993.

[C] Natural-born Subject Status (of the Sultan), Naturalisation, in the FMS (1895 to 1946) etc: 

• Naturalisation in the FMS, see A B Voules, Vol 1 at p 487-8: An Enactment to provide for the Naturalisation of Aliens. 

• Natural born subject, Chinese: Ho Chik Kwan v The British Resident, Selangor; The Gaoler Pudu Goal, Kuala Lumpur [1931-2] Federated Malay States Law Reports 271 et seq (FMS Court of Appeal, Elphinstone CJ); [1932] 1 MLJ 99 et seq (also reported as Ho Chick Kwan v The British Resident, Selangor). 

> "there had been no specific legislation in any Malay State defining the status of a subject of a Ruler. But in the absence of nationality legislation it had been accepted practice to classify all Chinese born and resident in a State along with the Malays as subjects of the Rulers by jus soli. This had been recognised as the law on nationality in the States by the decision of the F.M.S. Supreme Court, upheld by the F.M.S. Court of Appeal in Ho Chik Kwan v. The British Resident, Selangor, in 1931, when in a case involving the banishment from Malaya of a Chinese born in Negri Sembilan but resident in Selangor, it was held that a Chinese born and resident in a Malay State, "according to the general principle of international law became a natural born subject of the Ruler of that State." This was the law applied in all the States up to 1948. It was indeed by being subjects of the Rulers that the locally born Chinese were classified along with the Malays as British protected persons.": F G Carnell, 'Malayan Citizenship Legislation' (1952) 1(4) International and Comparative Law Quarterly 504, 510. 

> [1932] 1 MLJ 99: 

> 102-4 (Elphinstone CJ): "The applicant was born in the State of Negri Sembilan and according to the general principle of international law became a natural born subject of the Ruler of that State. It was, however, contended that the applicant by reason of his birth in the State of Negri Sembilan acquired what was called "Federated Malay States nationality," and so became a subject of each of the States in the Federated Malay States. In my opinion this contention is based on a misconception of the nature of the Federation existing between the several States. The Federation was created by the Treaty of Federation, 1895, which is to be found in volume 1 of "Treaties and engagements affecting the Malay States and Borneo" by Maxwell and Gibson, at page 70. Previous to that treaty each of the States had by separate agreements agreed to place themselves under the protection of the British Government. ... It is clear that the treaty of 1895 did not confer on the "Federation" the status of a separate State having an existence independent of the constituent States. The word "Federation" occurs only in clauses 2 and 5. By clause 2 the Rulers and Chiefs agreed "to constitute their countries a Federation, to be known as the Federated Malay States, to be administered under the advice of the British Government." By clause 5 the Rulers agreed to give to those States in the Federation which require it such assistance in men, money, or other respects as the British Government may advise. Construing the treaty as a whole I am of opinion that the four States constituted themselves into a "federation" solely for the purpose of affording each other mutual assistance under clause 5. Clause 5 expressly saves the authority of each Ruler in his own State, which is inconsistent with the idea that the subject of one Ruler thereby becomes the subject of all the Rulers, jointly. It is unnecessary to deal at length with the Agreements of 1909, 1912, 1924, and 1927, constituting the Federal Council. It is sufficient to say that none of these documents supports the idea that the Federation has any separate existence apart from the States. ... This is not the form of words which would be adopted if the Federation had a separate existence. It is plain that in this Agreement the word "Federation" is used in a collective sense as a convenient word for denoting the four States. It was also argued that the Naturalization Enactment 1904, impliedly recognises that a natural born subject of any Ruler is also the subject of each of the other Rulers. This argument was based on the fact that a person who had resided for 5 years within the Federated Malay States is thereby qualified to be naturalized in the State in which he resides at the time when he presents his memorial praying for naturalization, although his qualifying residence may have been in a different State. It was also said that section 2 confers the privilege of applying for naturalization only on "any person not being a natural born subject of the Ruler of any of the Federated Malay States," and that this showed that a person who is a natural born subject of any of the Rulers could not apply for naturalization, and that the reason for this was that a natural born subject of any of the States was also the subject of each of the other States, so that there was no occasion for him to apply for naturalization. But I think the more probable explanation is that the legislature wished to discourage the acquisition of dual nationality in the Federated Malay States, and has for this reason prevented the subject of one State from being naturalized in another State. For the above reasons I am of opinion that "Federated Malay States nationality" is not recognised by the law and does not exist, and the applicant is not a subject of the Ruler of Selangor. ...".

> 106 (Thorne Ag CJ): "... I am of the opinion that the powers of the Resident under the provisions of the Banishment Enactment are statutory and involve in their exercise direct interference with the liberty of the subject. Unless the steps preliminary to the creation of the statutory power to be exercised by the Resident are strictly complied with, the statutory power does not arise. In my view, upon the true interpretation of section 373 of the Criminal Procedure Code, this Court is cast with the duty of satisfying itself that the necessary preliminary steps conferring the right upon the Resident to exercise that statutory power have been taken and to that end of examining the facts. Once the Court is satisfied that those preliminary steps have been lawfully taken, then the jurisdiction of the Court ceases. It is contended for the appellant that he is not a person to whom the Banishment Enactment applies, because he is not "a person" within the meaning of section 3, because he is a subject of the State of Selangor. In my view the appellant has failed entirely in this case to establish the fact that the appellant is a subject of His Highness the Sultan of Selangor, and for that reason that argument fails entirely. It is then said that, if not a subject of His Highness the Sultan of Selangor, the appellant is a subject of the Ruler of the State of Negri Sembilan, and because he is a subject of the Ruler of the State of Negri Sembilan, he becomes a subject of all the Rulers of all the four States of the Federation. It is then contended for the appellant that according to the comity of nations, or what is known as natural justice, no Ruler can banish from his State a natural born subject, and that therefore no ruler of any of the States of the Federation can banish from his State either one of his own subjects or the subjects of any of the other Rulers. That argument proceeds upon the hypothesis that the natural born subject of one Ruler is necessarily to be regarded as the natural born subject of every other Ruler of every other State of the Federation. It is conceded by counsel for the appellant that prior to the Treaty of Federation, the Sultan of any State could banish from his State the subject of any other State of the Federation. Counsel for the appellant has entirely failed to satisfy me that the arrangement made by the Rulers of the States, which is commonly spoken of as the Federation, has in any way affected the relations subsisting on that date between each of the Rulers and his own subjects. On the other hand it seems to me that the Treaty of Federation is careful in its language to preserve the rights and powers of the Sultans as between themselves and their subjects. In my opinion, therefore, this argument fails entirely, because counsel for the appellant has failed to establish that by reason of the Federation the natural born subject of one State becomes the natural born subject of each of the other Rulers of the other States of the Federation. The position then seems to me to be that His Highness the Sultan of Selangor at the time of these proceedings, had taken through the Resident proceedings under the Banishment Enactment to banish from his State a subject of the Ruler of the State of Negri Sembilan. It seems to me that it was entirely competent for the Ruler of Selangor to take that action. The order of the learned Chief Justice refusing a rule absolute is right. I am of the opinion that this appeal must stand dismissed with costs to the Crown."

> 106 (Mudie J): "I am of the same opinion. I only wish to add with regard to the argument which was put forward that the natural born subject of one State becomes the subject of the Federation, it seems that it is impossible, because he would then become the subject of four Sultans, and that is repugnant to the conception of sovereignty. If that were possible, you would have the position that all the subjects of the four States would be the subjects of the four Sultans, and the four Sultans would then be the sovereigns of all the subjects of the four States. Of course, they are in fact sovereigns only of their own States. For that reason that contention cannot be maintained. I agree that the appeal should be dismissed."

> see also, interestingly, banishment of natural born subject of Perak struck down: Megat Ibrahim v The British Resident of Perak [1933] 2 MLJ 154.

> About Megat Ibrahim: <https://orangduabelas.wordpress.com/2011/02/04/my-8th-wedding-anniversary/>, archived at <https://archive.is/9WSNP>.  

> Helen Ting, 'Chinese were once 'subjects of the Ruler' (Malaysiakini. 30 January 2007) <https://www.malaysiakini.com/letters/62789>, archived at <https://archive.is/lo5ad>: "Chinese who were born in the Malay States before World War II were recognised legally as 'subjects of the Ruler' of their respective states. It is by virtue of this recognition that they were also regarded as 'British-protected persons' as the Malay States were 'Protected states' of the British empire. They were entitled to be issued passports as British-protected persons. A landmark court case which confirmed this legal status of local-born Chinese residents was the case of Ho Chik Kwan vs The British Resident, Selangor in 1931 which concerned the banishment from Malaya of Ho who was born in Negri Sembilan but was a resident of Selangor."

• Natural-born Subject of a State in which he was born. No FMS "nationality": 

> "the question of whether there is a Malayan nationality, or rather a Federated Malay States nationality, is necessarily answered in the negative. There is no municipal law of nationality in the States. According to principles of law, any person born in the States is a subject of the Ruler of the state concerned. Each State is an independent sovereign State, and the Treaty of Federation of 1895 had not curtailed any power of the Rulers or altered their existing relations. The contention that by reason of his birth in one of the Federated States a person acquires what is called "FMS nationality" has been rejected.  (Ho Chink Kwan v Public Prosecutor (1932) FMS 271). A person born in any of the States is a natural-born subject of the state in which he was born, and not a subject of the other States. Nor is he a subject of the Federation. ... ": Tsen Ming Huang, 'The Legal Status of the Chinese Abroad' (PhD Thesis, London School of Economics and Political Science, 1935) 348 <https://etheses.lse.ac.uk/4004/1/Huang__Legal-status-chinese-abroad.pdf>. 

> See [1932] 1 MLJ 99, above.

• Natural-born Subject of the Sultan, to be contrasted with those of 'Chinese Nationality': 

> "In 1899 a Banishment Enactment appeared in the State of Perak: and we can take that State as reasonably reflecting what was going on elsewhere in the region. Under that Enactment banishment on various grounds was possible: and any banishee who unlawfully returned to the State could, if he was “of Chinese nationality”, be prosecuted by or with the authority of the Secretary for Chinese Affairs, an officer who had sprung from the ground fully armed, as it were, only the year before. The definition of a person “of Chinese nationality” had not, it seems, occasioned any especial difficulty: although in our own day, it could cause many a headache. The Secretary for Chinese Affairs Enactment defined “a person of Chinese nationality” as “any person bearing a Chinese surname, commonly called a Seh or Sing, who is a Chinese subject owing natural allegiance to the Emperor of China, or who has his domicile in the Empire of China or its dependencies.” The concept of “natural” allegiance takes us, pretty closely, to the concept of the jus sanguinis that shaped the subsequent Chinese law; and the notion of domicile imports a realistic concept into the definition. Even more startling, perhaps, is the principle that “Christian Chinese shall not be deemed to be of Chinese nationality”: [s 40(iii)] a principle unlikely to have been acceptable to at least one Malaysian judge. [Re Loh Toh Met decd [1961] MLJ 234] Finally, the Enactment ruled that when “it is shown that [a person] has habitually used the Chinese dress or language or followed Chinese customs”, he would be presumed to be of Chinese nationality. Name, language and custom: these are interesting tests indeed.": R H Hickling, 'The Influence of the Chinese Upon Legislative History in Malaysia and Singapore' (1978) 20 Malaya Law Review 265, 273 <https://law.nus.edu.sg/sjls/wp-content/uploads/sites/14/2024/07/828-1978-20-mal-dec-265.pdf>. 

• Kesultanan Pahang v Sathsak Realty Sdn Bhd [1998] 2 MLJ 513, 539-43 (Mohd Azmi FCJ). -- see below.

• HF McNair, 'Chinese Acquisition of Foreign Nationality' (1923) 7 Chinese Social and Political Science Review 1.

• Developments post 1945: 

> see eg, Cheah Boon Kheng, '1945–57. Malay Dominance and the Making of a “Malay” Nation-State' in Malaysia: The Making of a Nation (ISEAS, 2002). 

[D] Protected Malay States: British Protected Persons, Not British Subjects

• "This case is complicated by the fact that the accused is not a British Subject but is a British Protected Person. ... The accused was born in the Federated Malay States and was, therefore, as has been said, a British Protected Person. ... It has been argued by Mr. Sharma that the allegiance of the accused to the British Crown and its Armed Forces was severed when the contractual obligation of the British Crown to protect the Federated Malay States was not fulfilled. That may be. But the accused is not charged with treason against the British Crown but with an offence of assisting the enemy of the Federated Malay States. The fact that the accused was born and bred and made his money in the Federated Malay States and the fact that he joined the Local Defence Corps surely must mean that he recognised an allegiance to the Government of the Federated Malay States. That being the case, he still owes the normal duties of a citizen to the Government of the Federated Malay States and as has been pointed out above, the occupation by the Japanese of Malaya did not absolve him from those rights and duties because the effect of occupation does not establish the right of the occupier to exact allegiance from the subjected peoples. ...": In re Loh Kai Fatt [1946]1 MLJ 91, 92 (Lt Col JG Adams) -- Decision of a Court in the Malay States under British Military Administration.  

• Post FMS (post-1948): 

> "22. The delineation of any status of citizenship relating to the United Kingdom, and the identification of those to whom it applies are relatively recent phenomena. Historically, those who owed allegiance to the British crown following the Act of Union 1707 were simply British subjects. That category extended not only to those owing allegiance because of their origins or residence in the British Islands, but, as time went on, to people all over the world who became subject to the rule of the United Kingdom as a colonial power. Any person who was not a British subject was an alien. (The only modification of that dichotomy was that some aliens had the protection of the British crown without their countries being colonies. These people were called ‘British Protected Persons’: they were not British subjects.) The rights and duties of British subjects were governed solely by common law. The acquisition and loss of British subject status came to be governed partly by statute, most recently the British Nationality and Status of Aliens Act 1914 as amended. ... 31. The border of the Kingdom of Siam, at the north of the Malayan Peninsula, was finally established by the Treaty of Bangkok in 1909. South of that border, the whole of the Peninsula apart from the Straits Settlements colony consisted of a number of separate states. During the period of 50 years beginning in 1870, all those states became British Protected States. Four of them, Pahang, Perak, Negrisembilan and Selangor, joined to become the “Federated Malay States” in 1896. The other states remained unfederated. ... 33. As we indicated above, the position by 1920 was that the Malayan Peninsula consisted of territories that were British Protected States, together with three small areas, Penang, Malacca and Singapore, that were part of a British Colony. The formation of the Malayan Union and the Federation of Malaya in 1946 and 1948 respectively did not affect that position. The Federation of Malaya itself, however, had provisions for citizenship of the Federation, granted to the subjects of the rulers of the various Malay States, and to those born in Penang and Malacca (it will be remembered that Singapore was not part of the Federation). 34. On the coming into force of the British Nationality Act 1948 Penang and Malacca (but not the rest of the Federation) counted as part of the “United Kingdom and Colonies”. Those in these territories who had been British subjects became CUKCs; and the provisions of the 1948 Act relating to the acquisition of that citizenship applied to Penang and Malacca as to other colonies. The Malay States were Protectorates and the subjects of their rulers became British Protected Persons under an Order in Council, 1949/140, made under s 30(1) of the 1948 Act.": AL and Others (Malaysia BOCs) [2009] UKAIT 26 <https://tribunalsdecisions.service.gov.uk/utiac/2009-ukait-26>. 

> "The first question is whether the plaintiff was a British subject at the time of her birth, that is, in 1942, as envisaged by Article 124 (1) (c) (ii) of FMA [Federation of Malaya Agreement]. ?. That she was born in Perak, one of the territories comprised in the Federation, is not disputed.In this respect guidance may be sought from‘ Report of the Federation of Malaya Constitutional Commission 1957‘ where at paragraph 52 it is stated “ A child born in a foreign country is a British subject if his father was a British subject by birthbut not if his father was only a British subject by descent unless his birth was registered in accordance with the provisions of the Act of 1948 (refering to the British Nationality Act, 1948). The Malay States are not foreign countries for the purpose of thisdistinction because they are places “ where by treaty capitulation grant usage sufferance or other lawful means “ the Crown exercised jurisdiction over British subjects. So a person residing in a Malay State may be a citizen of the United Kingdom andColonies though his ancestral connection with British territory is remote “ The next question to consider is whether the plaintiff’s father was a British subject at the time of her birth in 1942 ?. The plaintiff’s father was bornin India in 1910 in Lahore, Punjab is not disputed ( see enclosure.11). He acquired the Federal citizenship by registration only in 1951 ( see exhibit‘ KK2‘ ). What then was the status of the plaintiff’s father in 1942 ?. It would appearthat he was without citizenship of any country, though he could potentially be a citizen of India as it is not disputed that Punjab was part of India and that India was under the British at the material time. However, for the purposes of British nationality law no citizenship law came into force in India, so that potential citizens of India remained British subjects without citizenship unless they acquired some other nationality. India had their own citizenship law of course, but only laws designated by the Secretary of State fulfilled the definition of‘ citizenship law‘ for the purposes of British nationality and no such designation was ever made in the case of India. ( see paragraph 54 of Halsbury’s laws of England, 4th Edition). The Indian citizenship lawsonly came into existence on 26.11.1949, that is, on the day the constitution was passed. As at 1942 it would appear that the plaintiff’s father was a British Subject until he obtained a Federal Citizenship by registration under Article 125 (1) (a) (ii) of FMA in 1951. I, next have to consider the issue of “ permanently resident in such territories “, that is, Perak under Article 124(1) (c) (ii) of FMA. “ Permanently resident“ under Article 124 (3) (c) of FMA statesthat a person shall be deemed to be “ permanently resident “ in the territories now to be comprised in the Federation who has completed a continuous period of fifteen years residence in any or more of them, whether such period be completed before, onor after the appointed day, that is, 1.2.1948. Article 124 (1) (c) (ii) of FMA would seem to have been satisfied otherwise the plaintiff’s father would not be granted citizenship by registration under Article 125 (1) (a) (ii) of FMA, as residence is oneof the essential requirements for citizenship by registration. In any event, the fact pertaining to the period of the plaintiff’s father’s residence in Perak would appear to be not seriously disputed by the defendants except that the defendants assertedthat he was not a Federal citizen at the date of birth of the plaintiff in 1942. In a nutshell, the facts show that as at the date of her birth the plaintiff was a British subject as her father was a British subject and she was born in oneof the territories comprised in the Federation, that is Perak and further her father was a permanent resident of Perak. It would seem clear that the plaintiff has satisfied the requirements set out in Article 14 (1) (a) of the Constitution read withArticle 124 (1) (c) (ii) of the FMA for her to seek a declaration that she is a citizen or entitled to Federal citizenship by operation of law. The defendants opposed this originating summons by going on the wrong premises, that is, relying on Article 124 (1)(f) of FMA, saying that her father is not a Federal citizen as at the date of her birth, that is, 1942. Further, the learned Federal Counsel for the defendants relied on the cases of Mohan Singh v. Attorney General (1987) 2 MLJ 595 and J. Annathurai v. AttorneyGeneral (1987) 2 MLJ 585, both Singapore cases, to say that by the plaintiff using Indian passport, she had deprived her right to be a Federal citizen. However, in the Singapore cases, orders for termination of citizenship were made whereas in the present casethe plaintiff’s status as a Federal citizen is still unascertained and therefore the question of deprivation of her citizenship does not arise as yet. In any event if she succeeds in getting the declaration of her status as a Federal citizen, it is stillwithin the discretion of the defendants to invoke the powers vested in them by subsequently making an order to deprive her of the citizenship if satisfied that by her conduct of using the Indian passport she had voluntarily claimed and exercised rightsavailable to her under the law of India, being rights accorded exclusively to citizens of India. I am of the opinion that the plaintiff has satisfied the requirements of the relevant provisions of the laws relating to citizenship by operationof law. In the circumstances, this is a proper case where I should allow for the declaration sought by the plaintiff in this originating summons and I do so declare accordingly. (see Datuk Syed Kechik v. Goverment of Malaysia & Anor (1979) 2 MLJ 101). Costsof this originating summons to the plaintiff.": Kalwant Kaur A/P Rattan Singh v Kementerian Dalam Negeri Malaysia @ Anor [1993] MLJU 211.

• JJ Paskin, Report on the status of British Protectorates, Colonial Office, CO 323/1105/6, file 71376, 1930: 

> "A British Protectorate is not part of His Majesty’s dominions. The native inhabitants are not, by reason of birth there, British subjects, but are under His Majesty’s protection, and are generally known as British Protected Persons. No authoritative definition of the term “Protectorate” has ever been enacted by the Imperial Parliament, but the following general descriptions (which must not be taken to be legal definitions) may be regarded as representing the classification adopted by the Colonial Office:- ... States in which there is a recognised Sovereign Ruler, but which, being under His Majesty’s protection, have no political relations with Foreign Powers except through or by permission of His Majesty’s Government. These States are usually referred to as “Protected States”. They may be roughly classified as follows:- (a) States in which His Majesty does not possess jurisdiction (e.g. the various Malay States and Sarawak). In certain of these States, although de jure, His Majesty may have no control over the internal affairs of the State, such control is de facto exercised through the medium of British Residents or Advisers."

> See quoted passage of Paskin's report in Mandy Banton, Administering the Empire, 1801-1968 (University of London Press, 2nd ed, 2015) <https://library.oapen.org/bitstream/handle/20.500.12657/55745/9781912702787.pdf;jsessionid=ECABC6D234B3069D86267E52C955413B?sequence=1> at p 13-14.

• "In Arnerich v The King [1942] NZLR 380 (CA), it was held that anyone who, for the time being owes allegiance to the sovereign and enjoys his protection, is fairly described as a subject, so long as the duty of allegiance and the right to protection exist. In that case, Callan, J referred to the case of Jeffreys v Boosey (1854) 4 HL Cas 815 ; 10 ER 681 where the Lord Chancellor (Lord Cranworth) having used the word ‘subjects’ in his judgment, then interpreted it as including resident friendly aliens. The Lord Chancellor actual language was, ‘when I say that the legislature must prima facie be taken to legislate only for its own subjects, I must be taken to include under the word “subjects” all persons who are within the Queen's dominion, and thus owe to her a temporary allegiance’. In Johnstone v Pedlar [1921] 2 AC 262 , Viscount Finlay said (at p 272): … An alien in British territory is normally regarded as a British subject for the time being in virtue of local allegiance …. With respect, the above statement is based on the questionable legal premise that nationality and citizenship are synonymous. The concept of subject of the Ruler has existed in Pahang even before all the Malay States, which came together and formed part of the present Federation of Malaysia, became part of the then British Empire. So it is relevant to look briefly into the British Nationality and Status of Aliens Act 1914 as amended in 1943, and as well as the British Nationality Act 1948, enacted in anticipation of the breaking up of the Empire. For our purpose, it is sufficient to quote once again Hidayatullah J at p 1828 of State Trading Corp of India's case: The statutes on the subject are collected by Clive Parry in his Nationality and Citizenship Laws and need not be referred to in detail here as we are really not concerned with them except as the background of our laws. In 1914, the British Nationality and Status of Aliens Act 1914 was passed which was later amended in 1943. The definition of a natural-bom British subject in that Act shows the classes of persons who were regarded as British subjects by birth. The word ‘subject’ need not be considered in a sinister sense. It only meant a citizen though the feudal concept of subjection seemed to persist in the world. The Act of 1914 as amended in 1943 made one significant departure and it was the limitation of British nationality on birth to the first foreign-born generation. The Act of 1914 as amended in 1943 ruled the field till the British Nationality Act 1948 was passed. By that time, the problem of British-born subjects underwent a cataclysmic change along with the changes in the British Empire. A new conception, namely that of Commonwealth citizenship came to be recognized but it was obvious that the members of the Commonwealth countries were about to enact their own citizenship and nationality laws. The Act of 1948 did two things with which we are concerned. It laid dawn rules by which the status of British subjects was conferred on persons who were citizens of certain countries named in the Act. India was one of such countries. This new citizenship was Commonwealth citizenship. In the same Supreme Court of India case, Shah J quoted the observation of Waite CJ in VL Muror v R Happerseti (1875) 21 Wall 162 ; 22 Law Ed 627: There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance, and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. For convenience, has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose, the words ‘subject’, ‘inhabitant’ and ‘citizen’ have been used, and the choice between them is sometimes made to deposit upon the form of the Government. Citizen is now more commonly employed, however, and as it has been considered, better suited to the description of one living under a republican government, as it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more. Nowadays, although under International Law, the status of subjects of Pahang may have little significance internationally, the Municipal Law of this country, particularly State Laws such as the Sultanate Lands Enactment, do give certain rights to the subjects of each state forming the Federation. In return for such rights, the obligation of the subjects is to give local allegiance to the Ruler of the State. Thus, Hidayatullah J at p 1832 laid out a clear distinction between the nationality of corporations and the subject or citizenship of individual persons: There may be some analogy between an individual and a corporation but as Mr Vaughan Williams said 49 LQR 334) in an article which has been of great assistance to me, it is not ‘necessary to ride the analogy to death’. The English Law was summed up by Mervyn Jones (British Nationality Law (Revised Ed)): ‘A corporation is a judicial person, but could not be a subject at common law, because allegiance, being essentially a personal bond, was a conception limited in its application to individuals. Nor have corporations been recognized as statutory British subjects or as citizens of the United Kingdom and colonies.’ Oppenheim also points out (International Law, Lauterpacht Edition) p 642 n 3 — ‘The nationality of corporations is mainly a matter for Private International Law, and considerations of public policy have a decisive influence upon the attitude of every State with regard to it.’ Citizenship depends upon Municipal Law and the same learned author says (ibid p 643): ‘It is not for International Law but for Municipal Law to determine, who is, and who is not, to be considered a subject.’ Hyde in his International Law Vol (2nd Ed) p 1066 also says: ‘Citizenship as distinct from nationality, as a creature solely of domestic law. It refers to rights which a State sees fit to confer upon certain individuals who are also its nationals.’ I am therefore of the opinion that the circumstances in which the word ‘persons’ is used in the Enactment and particularly in s 6(i)(b) connection with the words ‘subject’ and ‘Ruler’ must mean only natural persons and cannot be intended by the legislature to include juristic or legal person like a company, for the simple reason that a legal person cannot possibly be a subject of any Ruler as it is incapable of giving allegiance however local or temporary. In the circumstance, the phrase ‘persons not being Malay subjects of the Ruler’ in s 6(i)(b) are limited to natural persons, and so it cannot include the respondent company. Short of being repetitive, the word ‘persons’ in s 6(i)(b) is not used by the legislature without qualification. It is expressly qualified by the term ‘not being Malay subjects of the Ruler’ which can only mean living non-Malay subjects, having regard to the definition of the word ‘Malay’ under s 2 of the Enactment. Within the context of s 6 read together with the rest of the Enactment, particularly ss 2, 4 and 5, the majority of the Court of Appeal had clearly erred in law in interpreting the word ‘persons’ in s 6(i)(b) in isolation for the purpose of bringing in the aid of the interpretation legislation to defeat the unambiguous and restrictive meaning of the word. In the context of the Enactment under review, to include legal or juristic persons in the word ‘persons’ instead of confining it only to living persons and living non-Malay subjects of the Ruler, would be repugnant and inconsistent with the provisions of the specific and special Sultanate lands Enactment, particularly s 2 and the concept of ‘subjects’ of the Ruler of Pahang. A juristic or legal persons like the respondent company is therefore not entitled to a grant of leases of Sultanate lands under the Enactment. Under section 4, the lease in dispute is therefore null and void ab initio and of no effect. As the two words ‘Malay’ and ‘subject’ must plainly and clearly relate to living persons, the court must fearlessly say so without regard to its consequences to the housing development company. In the context of the Enactment as a whole, the word ‘persons’ can only mean living persons. The duty of the courts in this case is merely to interpret the words ‘persons’ in the circumstances in which it was used in relation to the qualifying words ‘not being Malay subjects of the said Ruler’, and to determine the intention of the legislature in the context of the whole Enactment, and not what the legislature might think the words meant when they used them, at the time they were enacted.": Kesultanan Pahang v Sathsak Realty Sdn Bhd [1998] 2 MLJ 513, 539-43 (Mohd Azmi FCJ). 

[E] Sovereignty of the States in the FMS

• "As regards the second point argued by Mr. Murphy it is true that the Federal Legislature has power to legislate on the long list of matters set out in the Second Schedule to the Agreement, and that by clause 100 the legislative power of the Council of State in each Malay State is restricted to matters of Muslim religion, Custom of the Malays and matters not mentioned in the Second Schedule. Such an argument is really part of another contention put forward by Mr. Murphy that the Sultan of Johore destroyed his sovereignty by agreeing to the State of Johore entering a Federation. I reject such an argument for two reasons. First, it is negatived by the third recital to the Federation of Malaya Agreement, 1948, which reads:— And whereas His Majesty has accordingly entered into a fresh Agreement with each of Their Highnesses and in the case of Negri Sembilan with His Highness the Yang di-Pertuan Besar and the Ruling Chiefs (which Agreements are hereinafter referred to together as ‘the State Agreements’) for the purpose of ensuring that power and jurisdiction shall be exercised by Their several Highnesses in their several States and it is in each of such Agreements provided that it shall come into operation on the appointed day: The words to which I attach particular importance in that recital are “for the purpose of ensuring that power and jurisdiction shall be exercised by Their several Highnesses in their several States”. Secondly, reference to the decision of Their Lordships of the Privy Council in the case of The Pahang Consolidated Company Limited v The State of Pahang (1931–1932) FMSLR 390 shows that when the State of Pahang entered the Federated Malay States in 1895 the Sultan of Pahang remained an absolute ruler. This is so stated by Lord Tomlin, at page 391:— The constitutional position in Pahang so far as it is material to the matters under consideration in this appeal may be summarised thus: (1) The Sultan of Pahang is an absolute ruler in whom resides all legislative and executive power, subject only to the limitations which he has from time to time imposed upon himself in the circumstances hereinafter mentioned. Mr. Murphy endeavoured to get over that part of the opinion of the Privy Council by suggesting that the question of the sovereignty in that case was never really raised and was not an issue in the case. I am unable to agree with that suggestion because an examination of the report of the proceedings in the Court below and in the Court of Appeal, at pages 131 to 228 of (1931-1932) FMSLR, shows that the constitutional position of the Sultan of Pahang was argued by counsel on both sides and was considered by the various Judges. The Agreement for the Constitution of a Federal Council, 1909, which can be found at page 71 of Maxwell and Gibson's Treaties and Engagements, Malay States and Borneo, provided, by clause 9 thereof, that each State Council of the States of Perak, Selangor, Pahang and Negri Sembilan could only legislate on questions “connected with Mohammedan Religion, Mosques, Political Pensions, Native Chiefs and Penghulus and any other questions which in the opinion of the High Commissioner affect the rights and prerogatives of any of the above-named Rulers or which for other reasons he considers should properly be dealt with by the State Councils”. Thus in the Federated Malay States practically all legislation which had the force of law throughout those States — i.e. in Perak, Selangor, Pahang and Negri Sembilan — was enacted by the Federal Council, and, despite that, Their Lordships of the Privy Council held, as already stated, that the Sultan of Pahang was an absolute ruler. I have examined the whole of the Federation of Malaya Agreement, 1948, and it is sufficient to say, without making reference to each clause thereof, that I can find nothing therein, construing that Agreement as a whole, which destroys the independent sovereignty of the Sultan. ... Jurisdiction is certainly not determinative of sovereignty. The Crown exercised jurisdiction in Turkey and China as to whose sovereignty there was never any doubt. Jurisdiction similar to that exercised by the British Crown under the Foreign Jurisdiction Act 1890 was acquired in the former country at a time when it was one of the greatest military powers and arose from the impossibility of dealing with Christians under Islam where law and religion are one. So too the Slave Trade was suppressed by grants of jurisdiction to British courts or to mixed courts by states whose sovereignty was never questioned. The apparent assumption therefore that the statement in the letter of 12th November 1948 amounts to an assertion that the Sultan was Sovereign prior to 20th October 1945 is without foundation. There is however an earlier recognition of the sovereignty of the state of Johore in the case of Mighell v Sultan of Johore (1894) 1 QBD 149. This is expressly referred to in the last paragraph of the letter of 9th June 1948 with a warning that the position has now materially altered. In that case the Secretary of State's letter stated “Johore is an independent state and territory in the Malay Peninsula and that His Highness Abu Bakar is the present sovereign ruler thereof, that the relations between himself and His Majesty the Queen which are relations of alliance and not suzerainty, are now regulated by treaty, wherein he is called the Maharajah of Johore; that the Sultan has raised and maintains armed forces by sea and land, has organised a postal system, dispenses justice through regularly constituted Courts of Justice, and generally speaking exercises, without question, the usual attributes of a Sovereign ruler”. Paragraph 2 of the letter of 9th June is an emasculated redraft of this. The state is no longer described as “independent” nor the ruler as “sovereign”, and he is now only said to exercise “attributes of sovereignty”. — The later paragraphs may be added as an explanation of the varied opinion. The fourth of those paragraphs might suggest to a Moslem prince a wide exception, and to imply, for the reason above referred, no sort of interference between Moslem and Moslem, or Moslem and Ruler. This is however a common provision in Protectorate Treaties and has been given a narrower interpretation than elsewhere.": The Sultan of Johore v Tungku Abubakar & Ors [1950] 1 MLJ 3, 15-16 (Willan CJ, FMS), 26 (Evans J).

> See also, The Sultan of Johore v Abubakar Tunka Aris Bendahar and Others (Singapore) [1952] UKPC 6 <https://www.bailii.org/uk/cases/UKPC/1952/1952_6.pdf>. -- Federation and effect on Immunity.

• (Singapore's later incorporation into Malaysia; post-FMS): "Article 74 of the Constitution provides that Parliament may make laws with respect to any of the matters enumerated in the First List in the Ninth Schedule and, as has been said, these include extradition and fugitive offenders. If in exercise of that power Parliament were to pass an Act in terms which were exactly the same as those of sections 13 to 19 of the 1881 Act except for the substitution for the expression “British Possession” some such expression as “territory whose law makes similar provision for the return of persons alleged to have committed offences in Malaysia” how could it be said that there was anything in such a law inconsistent with the Constitution? The words “Her Majesty” would be read as referring not to Her Britannic Majesty but to the Yang di-Pertuan Agong so there would be no question of infringement of sovereignty. There could be no question of inconsistency with article 5 (liberty of the person) for a person deprived of his personal liberty under such a law would be so deprived in accordance with law. Nor could there be any question of inconsistency with article 8 (equality) for the law would apply equally to all persons alleged to have committed offences to which it applied. Nor would there be any question of ouster of the judicial power as vested in the courts for there would be nothing to prevent any person affected having recourse to the coups either as an appellant or as a suitor for a prerogative writ.As regards whether such a law was fundamentally inconsistent with the very existence of national sovereignty it may well be that arguments might be advanced against the making of such a law. It might be argued that the safeguards embodied in it were inadequate and left too much to the discretion of another power and that these should include something of the nature of a preliminary judicial enquiry. It might be argued that the question of what states should be included in the proposed arrangements should be decided by Parliament and not by the Government. It might be said that the love of Malaysia for even her erring children was such that it would be intolerable that she should do anything to facilitate their correction by an alien power even for their sins committed abroad. On the other hand it might be argued that it was of paramount importance to prevent this country becoming a den of unconvicted thieves. All these arguments, and no doubt there might be many others, may or may not have substance. But they are arguments to be addressed to Parliament and not to the courts. The courts, when their assistance is invoked, must be vigilant to ensure that the rights of a suitor are not affected by any trespass by the legislature beyond the limits placed on its powers by the Constitution, though it may well be that those limits are wider than is generally happened. But the courts must be equally vigilant that they themselves do not trespass the limits set to their powers by the Constitution.... For these reasons, notwithstanding the decision in Menon's case, execution in Singapore of processes issued in a British possession pursuant to Part II of the 1881 Act and the Order-in-Council of 1918 is not at the present time an infringement of the sovereignty of Malaysia.": Public Prosecutor v Anthony Wee Boon Chye & Anor [1965] 1 MLJ 189, 193-4 (Thomson LP), 200 (Wylie CJ). 

• (Johore): "The case is an important one because we were informed that should Enactment No. 47 of 1937 be declared to be invalid, several other Enactments of the legislature of Johore would for the same reasons be invalid. The offence of which these persons were convicted would, had it been witnessed in its entirety by four witnesses, have been the crime of Zinnah punishable under Mohammedan law by stoning to death. The questions of law argued before us were first, can the Court interpret the constitution? secondly, if the first question is answered in the affirmative, can the Court declare an enactment of the legislature to be invalid if it infringes the constitution and thirdly, does Enactment 47 of 1937 infringe the constitution? Dato Braddell for the State argued that the Court had no power to pronounce on the validity or invalidity of any Enactment of the State of Johore. This argument really followed from his second argument that the Court had no power to interpret the constitution in any way though the Court had power to apply the constitution. I am unable to see how the Court can apply the constitution without interpreting it and I think these two arguments may be reduced to this, that the Court must accept an Enactment as being valid until His Highness the Sultan by and with the aid and concurrence of the Council of State places an interpretation upon the constitution which shews that the Enactment infringes the constitution, and that it is only His Highness with the aid and concurrence of the Council of State who can declare an Enactment to be ultra vires. The Sultan of Johore is an independent Sovereign prince save to such extent as he may by treaty, sufferance or usage have surrendered any of his sovereignty. In the year 1895 the Sultan His Highness Abu Bakar, an absolute sovereign prince, executed the document which is known as the Constitution of Johore. The preamble to the Constitution recites that it was made with the advice, concurrence and assent of all the Members of the Council of Ministers and of the Council of State and other Chiefs and Elders of the country. It proceeded to declare that it was proper and expedient that His Highness "should make, create, found and institute, and grant, give, bestow upon and present to and for the use of the Government, subjects and inhabitants of Our Country, a Law and Regulation for the administration and management of the State to be instituted the Laws of the Constitution of the State, which, enduring and continuing from generation to generation, shall become and form the law of Our State, Country, and people, and be an inheritance which cannot be altered, varied, changed, annulled, infringed or in any way or by any act whatsoever repealed or destroyed." The enacting clause reads "We do make and enact the things stated hereunder as true, real, firm, fixed and settled Law of Our Country and State, that is to say, it shall be unlawful, unmanly, rebellious and criminal for any person to refuse to acknowledge and neglect to obey it". There is no doubt the Constitution is part of the law of Johore. As Dato Braddell says at p. 23 of his informative Essay on the Legal Status of the Malay States–a work which I hope will long remain unauthorative–"it is binding on the Sultan and the State". I think this is correct, although, as Whitley J. pointed out in Wong Ah Fook v State of Johore 6 MLJ 128, the unrestricted right of the Sultan in appointing and dismissing ministers enables many of the restrictions imposed upon his authority to be removed. ... In the course of the argument we were given a most interesting outline of the history of Johore and its constitution. The State of Johore, as the English Courts have recognised, is an independent State and the relations between the Sultan and His Majesty are relations of alliance regulated by treaty and not relations of dependency. Prior to 1895 there was no written law, only proclamations, customary and unwritten law, and the Sultan's power was absolute. On the 14th of April 1895 Sultan Abu Bakar abrogated his absolute sovereignty, and granted the inhabitants of his State the constitution, the effect of which we are now called on to decide. ... The constitution of Johore is not, therefore, a rigid constitution. It is in the nature of an Enactment which can at any time be amended or varied, and therefore has the force of law. In view of its terms I have no hesitation in coming to the conclusion that this Court has no power to pronounce on the validity or invalidity of any Enactment passed by the Council of State and assented to by the Sultan, any more than the English Courts could pronounce an Act of Parliament to be invalid. To hold otherwise would be to ignore the sovereignty of the Sultan and the legislature and to treat Enactments of the Johore Legislature as the English Courts treat by-laws. Further, if there were any doubts as to the competence of the Sultan and State Council to interpret the constitution, such doubts have been removed by the July amendment of this year which lays down, in the clearest possible terms, that only the Sultan with the concurrence of the Council of State can determine the interpretation and meaning of Article XLIX of the Constitution. It follows, therefore, that even if Enactment No. 47 of 1937 is contrary to the provisions of the constitution, this Court cannot hold it to be so. I would only add that the Mohammedan Law was never adopted, in its entirety, in the State of Johore. Mr. Braddell referred us to the early customary Laws which establish this proposition. Such laws are set out in the Translation of the Malayan Laws of the Principality of Johore, prepared by the late Thomas Braddell in 1855 and published in volume IX of the Journal of the Indian Archipelago. The following is an example:– "If a person who receives a blow on the face kill the assailant it shall be deemed no offence should he kill him within three days, but if after this period, the slayer shall be fined one catty, for by so doing he has conducted himself in an unmanly manner and this is the law of custom. But by the law of God the slayer in this case shall be put to death."In recent years too, the majority of Enactments probably contain provisions which are not in accordance with Mohammedan Law. Enactment No. 47 of 1937 is one of such Enactments, for under Mohammedan Law the penalty for adultery is death, but under the Johore law only imprisonment and fine. I would dismiss the appeals. ... It will be seen, therefore, that these grounds of appeal put in issue the Constitution of the State of Johore and the powers thereunder, including the power to prescribe by law rules of conduct by Muhammedans and others. It would be unprofitable in this Judgment to attempt to go into the past history of the State of Johore and the prior sovereignty of its Rulers and it is sufficient to state that according to an agreement or Treaty between the Government of the United Kingdom and Sultan Abu Bakar dated the 11th Dec. 1885 the United Kingdom clearly recognized Johore as being an Independent State. There had been previous Treaties and there were subsequent Treaties which defined the respective relations of the two Governments and which, inter alia, provided for mutual assistance and co-operation and limited the dealings of the State with foreign powers. On the 14th April 1895, the then Sultan, His Highness Abu Bakar, granted a written Constitution to the State. .. As a starting point, it must, I think, be conceded that prior to 1895, the Sultan, (or Maharajah as he was previously called) was an absolute Monarch and whatever Council of Elders, Ministers, or Chiefs there may have been, such acted in an advisory capacity only and that full sovereign power rested and remained in the Sovereign. The earlier Treaties with the United Kingdom fully support this view, as does the Privy Council Judgment in the Pahang Consolidated Co Ltd v the State of Pahang (1931–1932) FMSLR 390; 2 MLJ 247. Then in 1895 a progressive and enlightened Ruler granted a written Constitution to the State whereby and under which he voluntarily became a Constitutional Ruler in terms of that written Constitution. It is desirable to comment briefly on this remarkable document. It deals comprehensively with the Succession and the Royal House and provides that the Ruler shall be of the Mohammedan Faith. It provides for a Council of Ministers and prescribes their duties, comparable to His Majesty's Privy Council. It provides for a Council of State which is mainly a legislative body, the principal duties thereof being set out in Article XLIX. In 1912, an Executive Council was added comparable to the Cabinet in England and the Executive Council ordinarily to be found existent in Colonies. It declares that the State Religion is the Mohammedan Religion but at the same time tolerates other religious beliefs, and the concluding Article LXIV provides for amendments and additions to the Constitution and its interpretation. It is desirable to set out this Article as it is relevant, and reads as follows:–"LXIV. At the end of this Law … and never be called in question." As regards the Council of State and its legislative functions, the sanction and approval of the Ruler is required before any legislation can come into operation and it is interesting to note that provision is even made (vide Article LV) in case the Ruler feels himself unable to approve or sanction any enactment or other matter. In such case, if the enactment or matter is brought up again and is approved by the Council at three successive meetings, then on the fourth occasion "it shall be expedient on the part of the Sovereign to approve and sanction the same, because the moral responsibility of the Sovereign then entirely ceases". It is, I think, quite clear that this Constitution of 1895, with its subsequent Supplements, has the force of law. It is part of the law of the State and is binding on the Sultan and the State and the Sultan himself is subject thereto (vide Wong Ah Fook v State of Johore 1916 6 MLJ 128. It is clear also that the Constitution can be amended or added to by the means provided therefor in the Constitution itself. It would appear, therefore, that the Constitution was framed not only to regulate and set on record certain essential matters of State, but also to relieve, to some extent, the Ruler of the increasingly heavy burden of onerous governmental duties and responsibilities by creating and establishing a Council of State and a body of Ministers who would, in proper and regular form, act as the Ruler's advisers and take a share in such duties and responsibilities. It would be inappropriate in this Judgment to consider or discuss the rights, duties an responsibilities which might be contained in this written Constitution. Reverting, however, to the submissions before us, I think that it is quite clear that it is not competent for any Court in the State to hold that any Enactment duly passed by the Council of State and assented to by the Ruler is ultra vires the Constitution and therefore void. Neither, particularly in view of the Supplement of the 18th July 1939, is it competent for this or any other Court, to interpret or construe the meaning or intent of any particular article or part of the Constitution. This Supplement has removed an alleged ambiguity in one respect and clearly provides that the purport, meaning, intent of or construction to be placed upon any article or part of the Constitution is reserved to His Highness and the Council of State. It is unnecessary to speculate whether or not this Court would have come to the same conclusion, apart from such Supplement. It follows, therefore, that it is not competent for this Court to say that the Enactment No. 47 is either ultra vires or invalid and it is for His Highness and the Council of State to say to what extent Mohammadan Law is one of the branches or ingredients of the law of the State of Johore. It might, however, be observed that there are many of the local enactments which abrogate or appear to abrogate the strict letter of Mohammedan Law and in regard to the offence of adultery known as Zinnah, the penalty under Mohammedan Law is death by stoning, whereas under the Offences by Muhammadans Enactment No. 47, sections 4 and 6 respectively, the maximum punishment is three months simple imprisonment, and 12 months imprisonment of either description and a fine of $250.": Anchom binte Lampong v Public Prosecutor; Hussin bin Mandot v Public Prosecutor [1940] 1 MLJ 22, 24-5 (McElwaine CJ), 27-8 (Poyser CJ), 28-9 (Gordon-Smith AG JA).

• State of Selangor, FMS, placed at war with Germany, 1939: "Held, that the Federated Malay States were at war with Germany and therefore the general rule of law that an enemy alien cannot sue as a plaintiff in English Courts applied but that as the action was properly and validly instituted and proceeded so to the commencement of the war it should be stayed during the continuance of hostilities, and not dismissed. ... Seeing that the Suzerain or protecting Power has, and alone has, the power to place the protected State at war or peace, it is clear I must examine the acts of the Protecting Power, and if such examination does not clearly answer the question then the source of information to which I must address myself is to the Executive Government where lies the power to make war or not to make war and in the present instance that means the British Government whose Representative is the High Commissioner. Up to the beginning of September there is no doubt that these States were at peace with Germany. What has happened since then to place these States at war with Germany. War is a fact of a public nature and so, as provided by section 37 of the Evidence Enactment I turn to the various notifications of the Government of these States appearing in the Gazette. The evidence to decide this question is to be found in the various Gazette Notifications published on and after 2nd September last. There is first Notification No. 4359 of 2nd September-the “Emergency Regulations 1939.” I do not propose to set out my examination of these Regulations but I might point to the definitions of “allied power”, “enemy alien”, “the War”, and “War offence.” Next there is Gazette Notification No. 4368 of 4th September-the Proclamation by the High Commissioner for the Malay States notifiying that a state of war exists between Great Britain and Germany; referring to the measures required for the defence of Malaya, persons subject to military law, and enjoining scrupulous courtesy to all enemy nationals. Then there is Gazette Notification No. 4387 of 5th September-the “Trading with the Enemy Regulations 1939.” Lastly there is Gazette Notification No. 4401 of 7th September-the Declaration under Section 123 of the Malay Regiment Enactment. In that the High Commissioner declares that:- “by reason of the imminence of active service it is necessary for the public service that the Regiment should be temporarily subject to the Enactment as if it was on active service.” There we have a declaration by the High Commissioner that active service is imminent. Section 123 (1) defines “on active service” as follows:- “the expression ‘on active service’ as applied to a person subject to military law means whenever he is attached to or forms part of a force which is engaged in operations against the enemy or is engaged in military operations in a country or place wholly or partly occupied by an enemy, or is in military occupation of any foreign country.” These acts of the High Commissioner, which are the acts of the Suzerain or Protecting Power, are clear and unequivocal; they place the Federated Malay States at war with Germany. It follows therefore that all German nationals are alien enemies.": Hendrik Christiaan van Hoogstraten v Low Lum Seng [1940] 1 MLJ 138b, 144-5 (Cussen J). 

• See also, FMS placed at war by Britain, WW1: Ahmad Kamal Ariffin Mohd Rus, 'The Federated Malay States' Tacit Involvement in the First World War, 1914-1918' (2009) 24(1) Jurnal Sarjana 102 <https://ejournal.um.edu.my/index.php/SARJANA/article/view/10353/7367>. 

• Westel Woodbury Willoughby and Charles Ghequiere Fenwick, Types of Restricted Sovereignty and of Colonial Autonomy (Washington, Government Printing Office, 1919) 40-1 -- on the FMS. 

• Charles G Fenwick, Wardship in International Law (Washington, Government Printing Office, 1919).

[F] Law in the FMS

• Resealing of Probate: "In cases where Letters of Administration, which have been granted in the United Kingdom or any other part of the British Dominions, are brought to this Court for resealing, an Administrator acquires his rights only on the date when the Letters of Administration are resealed. ... It is clear to me that until the Penang Letters of Administration had been sealed by the seal of this Court, the Administrator had no rights whatever in the Federated Malay States. ... I think one must draw a hard and fast line in the case of resealing; just as much as in the grant of ordinary Letters of Administration. It is beyond dispute that in the ordinary way, an Administrator is not entitled to sue as such until he has obtained the grant of Letters of Administration. At the time when the plaint was filed, the Plaintiff had no administrative capacity, so far as the Federated Malay States were concerned. The plaint might just as well have been signed by a stranger to the intestate —the plaintiff having no more rights in the intestate's property in the Federated Malay States than a stranger. That being so, I consider that the defence is good, namely, the Plaintiff had no power at the time of the issue of the plaint to institute this suit. There will therefore be judgment for the Defendant with costs.": Issar Singh v Samund Singh [1941] 1 MLJ 28, 28-9 (Howes J); Chung Kok Yeang v Public Prosecutor [1941] 1 MLJ 163, 164-5 (Howes J). 

• Frustration of Contract of Employment by reason of Japanese Occupation: V Kandiah v The Government of the Federation of Malaya [1952] 1 MLJ 97. Cf Leases: Pelepah Valley (Johore) Rubber Estates Ltd v Sungai Besi Mines Ltd [1954] 1 MLJ 241.

• Japanese Occupation: Payment of $31,189.52 in occupation currency made by the defendant to the Japanese Custodian of the property of the plaintiff and apart from any statutory Enactment brought into force after the 31st March 1946 was a good and valid payment of the whole of the debts: The Planters' Loans Board v S Mangalam [1951] 1 MLJ 100, undisturbed on appeal: S Mangalam v The Planters' Loans Board [1951] 1 MLJ 178, 179 (Foster Sutton, CJ). 

• Wartime marriages: "Accordingly, since the act of the Japanese Authorities in appointing Mr. Samuel a Marriage Registrar for the State of Selangor was an act which it was within their competence to do and which was done in accordance with the existing law, and since this marriage was solemnised in accordance with the provisions of the Christian Marriage Enactment (Cap. 109), I hold it was valid at the time it was solemnised and also that it still remains valid.": De Alwis v De Alwis [1947] 1 MLJ 131, 132 (Willan CJ). 

[G] Life in the FMS

• Indentured Labour in the FMS: Claire Lowrie, 'Exceptions to the Abolition of Chinese Indenture: Chinese workers on rubber estates in Interwar British Malaya' (2024) 45(3) Slavery & Abolition 541 <https://www.tandfonline.com/doi/full/10.1080/0144039X.2024.2344393>: "... The failure to end indenture in Kedah and Johore was attributed to miscommunication and inadequacies in processes of administering Chinese labour. In the case of Johore, dishonest Chinese labour contractors were also attributed blame, a tactic often used by colonial administers seeking to avoid responsibility for a system that enabled such abuse. ...".

• Banishment Enactment: Draft copies of the Enactment, 1900, Resident-General FMS: <https://ofa.arkib.gov.my/lores/hq/digitdoc_10/19570092603d02.pdf>. 

> Yap Hon Chin v G. L. Jones (Malay) [1911] UKPC 73.

• Market Prices of Produce, 1925, Vol XVII No. 25: FMS Government Gazette, Dec 11, 1925, pp 2072-2073: <https://core.ac.uk/download/pdf/141719121.pdf>, archived at <https://perma.cc/398K-XN5G>. 

[#] Misc

•  John Leyden (tr), Malay Annals (Longman, Hurst, Rees, Orme and Brown, 1821) <https://www.sabrizain.org/malaya/library/leydenannals3.pdf>, archived at <https://perma.cc/L2H5-QL8R>.

• Commonwealth of Australia, Report of the Commissioner - Royal Commission on Java and the East Indies, Singapore and the Straits Settlements [1917-18] <https://www.austlii.edu.au/cgi-bin/viewdoc/au/other/cth/AURoyalC/1918/4.html>. 

• House of Commons Debates, 25 July 1946, Vol 426 cc237-82, Malay States <https://api.parliament.uk/historic-hansard/commons/1946/jul/25/malay-states>. 

Archived: <https://archive.is/jiCBO> (1 Nov 2024); <https://perma.cc/B74L-52LU> (23 Nov 2024).

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