Sir Ivor Jennings and the Malayan Constitution

Abstract

This article examines the role of the British jurist, Sir Ivor Jennings, in the drafting of the Malayan independence constitution. Jennings was part of a five-man constitutional commission appointed in 1956 and led by the Scottish lord of appeal, Lord Reid. Unlike other such commissions, but at the request of Malaya's chief minister, its members were selected from a range of Commonwealth countries. The article discusses the principles which shaped the final document as well as the process of drafting, and argues that, while the constitution was the collective effort of five distinguished lawyers, Jennings' contributions were significantly greater. His working papers on governance served as the basis for the commission's discussion and his influence is most discernible in the provisions relating to the distribution of legislative and financial powers between the federal government and the states and in the section on fundamental liberties. This article concludes that Jennings not only provided the intellectual leadership for the Reid Commission but was also the master draftsman of the new constitution.

Acknowledgements

I would like to acknowledge gratefully the assistance of the Institute of Commonwealth Studies (ICS), School of Advanced Studies, University of London, for providing a research grant under the Chapman Fellowship to undertake this research and the then Director of ICS, Professor Tim Shaw, and the staff of the ICS library for their kind assistance.

Notes

1. Mitchell, CQ's Guide to the U.S. Constitution, 13–14.

2. Pylee, India's Constitution, 45.

3. Sir Ivor Jennings Papers (hereafter IJP), GB 101 (ICS) JENN/125, Institute of Commonwealth Studies, London.

4. Fernando, The Making of the Malayan Constitution.

5. Heng Pek Khoon, Chinese Politics in Malaya, discusses briefly the Reid constitutional proposals while Smith, British Relations with the Malay Rulers from Decentralization to Malayan Independence 1930–1957, touches on aspects of the constitution relating to the Malay Rulers and the principle of constitutional monarchy. Means, Malaysian Politics, discusses the politically contentious constitutional issues such as citizenship, Malay special privileges, the position of the Malay Rulers and the working of the federal system based largely on the report of the Commission. A few political scientists, such as von Vorys, Democracy without Consensus, and Ratnam, Communalism and the Political Process in Malaya, discuss some aspects of the constitutional proposals based on the Reid Report. Some studies on constitutional law, such as Hickling, An Introduction to the Federal Constitution, Sheridan, The Federation of Malaya Constitution, Hashim, An Introduction to the Constitution of Malaya, Trindade and Lee, The Constitution of Malaysia, and Bari, Malaysian Constitution: A Critical Introduction, discuss the constitution from a legal perspective. None of these works deals with the role of the framers. Stockwell, Malaya, contains documents related to the Reid Commission and the introduction (lxxvii–xxviii) discusses some aspects of Malayan constitutional development. Some material on Jennings' contribution to Ceylon's constitution can be found in de Silva, British Documents on the End of Empire.

6. Two recent articles provide an interesting insight into Jennings' contributions to constitutional law and public law in Britain. See Bradley, ‘Sir William Ivor Jennings: A Centennial Paper’, 716–33, and Tonkins, ‘Talking in Fictions: Jennings on Parliament’. Bradley makes a passing reference to Jennings' work with the Reid Commission while Tonkins focuses on Jennings' scholarship on Parliament.

7. The Alliance party won fifty-one of the fifty-two elected seats in the new federal legislature with the other half being filled with nominated members. The Alliance party comprised three communally based parties – the United Malays National Organisation (UMNO), the Malayan Chinese Association (MCA) and the Malayan Indian Congress (MIC) – representing the three main ethnic groups in the country, the Malays, Chinese and Indians.

8. Memorandum by Tunku Abdul Rahman, 1 March 1955, Malayan Chinese Association Files, MCA Headquarters, Kuala Lumpur, PH/A/0084.

9. MacGillivray to Secretary of State, 2 June 1954, CO 1030/310 (80), The National Archives, London (TNA).

10. Straits Times, 16 and 19 May, 1955.

11. The 1948 Federation of Malaya Agreement had created a federal citizenship for Malaya but a large portion of domiciled non-Malays remained stateless and the Alliance hoped the new constitution would address this issue.

12. See Fernando, Malayan Constitution, 73–76. There were concerns among the Chinese and Indian communities about constitutional guarantees for Mandarin and Tamil language schools as the Education Ordinance of 1952 allowed the state to convert vernacular language schools into national type schools.

13. Report of the Federation of Malaya Constitutional Commission, 1957 (Col. 330, London, 1957) (hereafter Reid Report), 71–73. This was a kind of affirmative policy which provided for the allocation of certain quotas to the Malays in employment in the public services, scholarships for educational purposes and certain business licences, and Malay reservations of land. It was a continuation of the provision in Clause 19 (1) (d) of the Federation of Malaya Agreement, 1948, which made the high commissioner responsible for safeguarding the special position of the Malays.

14. Tunku to Lennox-Boyd, 22 Aug. 1955, CO 1030/70 (35). See also Memorandum by the CO Far Eastern Department on the London Conference, 22 Dec. 1955, CO 1030/75 (2).

15. Tunku to Lennox-Boyd, 22 Aug. 1955, CO 1030/70 (35).

16. See Stockwell, British Policy and Malay Politics during the Malayan Union Experiment, 1942–1948, and Lau, The Malayan Union Controversy, 1942–1948, for discussions of the Malayan Union controversy.

17. MacGillivray to MacKintosh, 5 Jan. 1956, CO 1030/132 (3).

18. Ibid.

19. See CAB 129/78 (162) (TNA) for the London conference agenda Macintosh's draft Cabinet paper (undated) on the London Conference, CO 1030/101 (51).

20. Lord Reid, 66, had a distinguished career as an advocate and judge and at the time of his appoint to the constitutional commission was serving as a Lord of Appeal in the Ordinary, a position he held since 1948. He was for many years a member of parliament. He was solicitor-general for Scotland, 1936–41, Lord Advocate, 1941–45 and dean of the Faculty of Advocates, 1945–48.

21. Sir William McKell, 64, was Minister for Justice in the Lang Cabinet, 1925–27 and in the second Lang Cabinet, 1931–32. He was called to the Bar in New South Wales in 1925. He was Premier of New South Wales, 1941–47 and Governor-General of Australia, 1945–53.

22. Justice B. Malik, 61, was Chief Justice of Allahabad High Court. Educated at Law College, Allahabad, and Lincoln's Inn, London, he was called to the bar in 1923. He was a judge of the Allahabad High Court, 1944–47 and Chief Justice from 1949 until his retirement.

23. Justice Abdul Hamid, 54, was educated at Punjab and Lahore universities. He served as secretary of the Legislative Assembly of the North-Western Frontier Provinces (NWFP), 1932–38, and as Senior Civil Judge, 1938–47. He had also served as deputy secretary in the Ministries of Law and Frontier Regions and as joint secretary in the Constituent Assembly and Ministry of Law. He was appointed as judge of the High Court of West Pakistan in October 1955.

24. Report of the Federation of Malaya Constitutional Commission.

25. ‘The Road to Peradeniya’, IJP 14. Jennings' unpublished autobiography, written in 1950, details his childhood, schooling and academic career up to that period. In his autobiography he notes, ‘True, I thought it an unwise decision, for it would diminish the attractions of what will certainly be one of the most popular tourist resorts in the island.’

26. Minute by J. M. Martin, 27 Jan. 1956, CO 1030/129.

27. See Miller, Prince and Premier.

28. Minute by MacKintosh, 15 Feb. 1956, CO 1030/120.

29. Alan Lennox-Boyd to D. Heathcoat Amory, 23 March 1956, IJP 10.7.1.

30. G. L. Wilde to Jennings, 4 April 1956, IJP 10.7.1.

31. See DO 35/6275 (TNA) and CO 1030/129, 130, 153, 173, 244 and 256 for information on the appointment of the members of the Reid Commission.

32. Summary record of 11th Meeting of Commission, 18 July 1956, CO 889/1. The meeting agreed after some discussion that it would be preferable to do the drafting of the report in Rome ‘to enable Sir Ivor Jennings to carry out his commitments with the Royal Commission on Common Land’.

33. Jennings' Diary, IJP 10.7.2.

34. He also published The Queen's Government.

35. Bradley, ‘Sir William Ivor Jennings’, 718–27.

36. Robson in Oxford Dictionary of National Biography.

37. Ibid.

38. Ibid.

39. Bradley, ‘Sir William Ivor Jennings’, 716.

40. Ibid., 727.

41. Robson in Oxford Dictionary of National Biography.

42. Bradley, ‘Sir William Ivor Jennings’, 717.

43. Memoranda by Commission members, CO 889/2.

44. ‘Constitutional Changes Implicit in the Terms of Reference’, by Jennings, 23 Aug. 1956, CO 889/2. See also notes of Meeting of Commission on 27 Aug. 1956, CO 889/1. This meeting accepted his paper on changes implicit in the terms of reference with minor changes.

45. ‘Constitutional Changes Implicit in the Terms of Reference’, by Jennings, 23 Aug. 1956, CO 889/2.

46. Reid Report, 6.

47. ‘Constitutional Experiences in Asia’, by Jennings, undated, IJP 16.9.

48. Ashley Clarke to W. D. Allen, Foreign Office, 21 May 1957, CO 1030/518 (3/E/2). Hall complained to the Colonial Office that he was unable to work with Reid. See also Johnston to Melville, 18 Feb. 1957, CO 1030/518 (4).

49. Jennings' Diary, IJP 10.7.2.

50. Among the working papers prepared by Hamid were those on citizenship of the Federation of Malaya, the list of items on federal and state lists, on drainage and irrigation in Selangor, registration of voters, citizenship of persons born in Penang and Malacca and Special Position of Malays. See CO 889/2.

51. Summary record of 30th meeting of Commission, 12 Sept. 1956, CO 889/1. This meeting discussed Hamid's note on points to be argued on behalf of the Rulers. Jennings was not satisfied with the points made in the paper and, after proposing several changes, said he was in the process of ‘enlarging’ Hamid's analysis for converting the Rulers into constitutional monarchs. See also summary record of 31st meeting of Commission, 12 Sept. 1956, CO 889/1.

52. Reid to Lennox-Boyd, 8 July 1957, CO 1030/486 (16).

53. See IJP 11 and 12 for draft of the constitution of Maldives and Malta. See also Jennings to Reid, 6 July 1957, CO 1030/486 (16).

54. ‘Comments on the Reid Report’, by Jennings, undated, IJP 10.7.3.

55. Reid Report, 95–105. See also Minute by J. B. Johnston, 18 Feb. 1957, CO 1030/518.

56. See Fernando, Malayan Constitution, 136–41, for a discussion of Hamid's note of dissent.

57. ‘Comments on Reid Report’, by Jennings, undated, IJP 10.7.3, 1- 2.

58. Ibid., 2.

59. Ibid., 1–2.

60. See Fernando, Malayan Constitution, 116–23.

61. Ibid., 72–90. Under the 1948 Federation of Malaya Agreement those born in the Federation and resident there for eight years could acquire federal citizenship by application while residents born outside the Federation needed to fulfil a residential requirement of fifteen years. The residential period was reduced to ten years in 1952 but a large number remained non-citizens. In 1953 an estimated 1,281,300 out of a population of 5,705,952 were not citizens. 

62. Ibid., 118–42.

63. ‘Comments on Reid Report’, by Jennings, undated, IJP 10.7.3, 8-9.

64. ‘Constitutional Changes Implicit in Terms of Reference’, by Jennings, 23 Aug. 1956, CO 889/2.

65. Reid Report, 23. Article 3 (1) reads: ‘This Constitution shall be the supreme law of the Federation, and any provision of the Constitution of any State or any law which is repugnant to any provision of this Constitution shall, to the extent of the repugnancy, be void.’

66. ‘Fundamental Liberties’, by Jennings, 21 Sept. 1956, CO 889/2.

67. Ibid. Clause One of the Jennings draft on the Rule of Law reads: ‘This Constitution shall be the supreme law of the Federation, and any provision of the Constitution of any State or of any written law, and any custom or usage having the force of law, shall, in so far as it is repugnant to any provision of this Constitution be void.’ The clause in the Reid Commission's draft constitution reads: ‘This Constitution shall be the supreme law of the Federation, and any provision of the Constitution of any State or of any law which is repugnant to any provision of this Constitution shall, to the extent of the repugnancy, be void.’ Jennings' draft of Clause Two of the same article similarly was adopted by the Commission with minor amendments in phrasing.

68. Summary record of 34th meeting of Commission, 26 Sept. 1956, CO 889/1.

69. Jennings' Diary, IJP 10.7.2. See also summary record of 34th meeting of Commission, 26 Sept. 1956, CO889/1.

70. Fernando, Malayan Constitution, 170.

71. ‘Comments on the Reid Report’, by Jennings, undated, IJP 10.7.3, 2-3.

72. See summary record of 37th and 38th meeting of Commission on 3 Oct. 1956 for a discussion on the distribution of powers between the federal government and the states, CO 889/1.

73. Reid Report, 154–60. See Jennings' papers titled ‘New Financial Scheme’, 31 Aug. 1956; ‘Present Financial Arrangements’, 29 Aug. 1956; ‘New Grant Scheme’, 10 Oct. 1956, in CO 889/2. See also summary record of 30th meeting of Commission, 12 Sept. 1956, CO 889/1.

74. ‘New Financial Scheme’, by Jennings, 31 Aug. 1956, CO 889/2.

75. Summary record of 30th meeting, 12 Sept. 1956, CO 889/1.

76. See papers titled, ‘New Financial Scheme’, 31 Aug. 1956, ‘New Grant Scheme’, 16 Oct. 1956, and ‘Financial Consequences of Recommendations’, 24 Oct. 1956, by Jennings in CO 889/2. See also summary record of 55th and 56th meeting of Commission, CO 889/1.

77. Record of Commission's hearing given to Rulers representatives, 14–15 Sept. 1956, CO 889/1.

78. ‘Comments on Reid Report’, by Jennings, undated, IJP 10.7.3, 4.

79. Minutes of 20th meeting working party, 18 April 1957, and 13th meeting of working party, 25 March 1957, in CO 941/85.

80. Minutes of 17th meeting of working party, 9 April 1957, CO 941/85. See also Federation of Malaya Agreement, 76–78.

81. Reid Report (Fundamental Liberties Part II), 123–27.

82. ‘Fundamental Liberties’, by Jennings, 21 Sept. 1956, CO 889/2,

83. See summary record of the 44th meeting, 8 Oct. 1956, 45th meeting and 46th meeting, 9 Oct. 1956, of the commission for a discussion of Jennings' paper on fundamental liberties, CO 889/1.

84. See, for example, the submissions of the Malayan Tamils Association (6 June 1956, Memorandum), Eurasian Union (31 Aug. 1956, Hearing) and the Straits Chinese British Association, Malacca (7 June 1956, Memorandum), CO 889/1, (2) and (11).

85. ‘Comments on Reid Report’, by Jennings, undated, IJP 10.7.3, 6.

86. The initial ten provisions contained in Jennings' working paper ‘Fundamental Liberties’ were: rule of law, enforcement of rule of law, liberty of person, equality of citizens, freedom of movement, freedom of religion, education, language, rights of property, special position of the Malays.

87. See paper on ‘Fundamental Liberties’ by Jennings. Here Jennings notes that Article 5(2) of the Pakistan Constitution is preferred over United States Amendment 5 and Article 21 of the Indian Constitution

88. Ibid. Jennings article on equality, 4(1) reads: All persons, irrespective of religion, race, sex, language or place of birth shall be equally entitled to the protection of the law. Article 14 of the Indian constitution reads: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 5(1) of the Pakistan constitution reads: All citizens are equal before law and are entitled to equal protection of law. Section 40(1) of the Eire constitution reads: All citizens shall, as human persons, be equal before the law.

89. Ibid. The article on rights in respect of education was drawn from Article 29(2) of the Indian Constitution and Article 13(3) of the Pakistan constitution.

90. ‘Fundamental Liberties’, by Jennings, 21 Sept. 1956, CO 889/2.

91. On the draft Article 2 on ‘Enforcement of Rule of Law’ (Article 3 in the new Malayan constitution), for example, Jennings refers to the judgment of the Sind Chief Court in a case involving one Tamizuddin Khan.

92. ‘Fundamental Liberties’, by Jennings (first and second drafts), CO 889/2, 21 Sept. 1956. See also summary record of 40th meeting of Commission, 8 Oct. 1956, 45th meeting, 9 Oct. 1956, and 46th meeting, 9 Oct. 1956, in CO 889/1.

93. Reid Report, 70–73, 125. The provisions for Malay special privileges were contained in Article 82 and Article 157.

94. ‘Fundamental Liberties’, by Jennings, 21 Sept. 1956, CO 889/2.

95. Jennings to Reid, 6 July 1957, CO 1030/486 (E/16). Articles 73 to 75 deal with the distribution of legislative and executive powers.

96. Secretary of State to Reid, 26 Sept. 1957, CO 1030/486 (21).