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SOVEREIGN KING FOUNDER OF THE FEDERATION

The position of the Malay rulers in Malaysia is enshrined in two of the country's highest legal documents. In the context of the state of Selangor, firstly, the position of His Majesty the Sultan of Selangor as the sovereign ruler is stated in the Selangor Constitution 1959. Before 1959, there was already a modern Selangor constitution which was proclaimed as the Selangor Constitution 1948 which was later amended after the formation of the Federation of Malaya on 31 August 1957. Second, the position of His Majesty the Sultan of Selangor as the Malay ruler is stated in the Constitution of the Federation of Malaya.

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The legal establishment of the Federation of Malaya began with the Federation of Malaya Agreement dated 5 August 1957, signed by nine sovereign Malay rulers. Attached to the Agreement was the Constitution of the Federation of Malaya, which was subject to the final approval of His Majesty the Sultan of Selangor and other Malay rulers through the drafting of State enactments after consultation with their respective State Councils and then a Federal Ordinance which had to be signed by the Yang di-Pertuan Agong. [1]

[1] Federation of Malaya Agreement 1957, Clause 6.

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The Federation of Malaya Agreement of 1957 aimed to form an independent and sovereign Federation within the Commonwealth headed by the Yang di-Pertuan Agong, a Malay monarch representing the rulers of the nine sovereign Malay States, thus terminating the agreement with the British Government. [1]

[1] See the Federation of Malaya Independence Bill 1957.

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The Federation of Malaya Agreement and the 1957 Constitution of the Federation of Malaya, followed by the Malaysia Agreement never meant the surrender and disposal of the sovereignty (ceding of sovereignty) of the Malay rulers as claimed by GK Ganeson, which was published in a website called Paradox. On the contrary, the sovereignty of DYMM Sultan of Selangor and other Malay rulers remains sovereign as enshrined in the respective State Constitutions and is even stated in Article 181(1) of the Federal Constitution. Article 181(1) which reads:

Subject to the provisions of this Constitution, the sovereignty, prerogatives, powers and jurisdiction of the Rulers, and the prerogatives, powers and jurisdiction of the Ruling Authority of Negeri Sembilan within their respective territories as they have existed and enjoyed until now are permanent and unaffected.

GK Ganeson's allegations are very serious because they have distorted the country's legal history and laws to deny the sovereignty of the Malay rulers which is guaranteed by constitutional law.

Malaysia's position as a Federation and the guarantee of the sovereignty of the Malay rulers by the Federal Constitution is an important aspect in interpreting the basic structure of the Federal Constitution.

If we examine the method of constitutional interpretation adopted by the Supreme Court of Canada Indira Gandhi A/P. Mutho v. Director of the Islamic Religious Department of Perak & Ors and other appeals,  interpretation according to history, law and local context is a requirement while federalism is acknowledged as one example of the basic structure of the constitution.

[1] The constitution implements a structure of government and must be understood by reference to the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning…. The rules of constitutional interpretation require that constitutional documents be interpreted in a broad and purposive manner and placed in their proper linguistic, philosophic, and historical contexts… Generally, a constitutional interpretation must be informed by the foundational principles of the constitution, which include principles such as federalism, democracy, the protection of minorities, as well as constitutionalism and the rule of law ….

These rules and principles of interpretation have led this Court to conclude that the Constitution should be viewed as having an ‘internal architecture’, or ‘basic constitutional structure’ … The notion of architecture expresses the principles that the individual elements of the Constitutional are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole’ … In other words, the Constitution must be interpreted to discern the structure of government that it seeks to implement. The assumptions that underlie the text and the manner in our interpretation understanding and application of the text. 

[2] [2018] MLJU 69

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Before the Federation of Malaya was established in 1948, all legislative, executive and judicial powers were vested in the Malay States, except for some powers granted by the Federated Malay States to the Federal Council.[3]

Article 181(1) which touches on the preservation of the sovereignty of the Malay rulers and the Yang di-Pertuan Agong as the Head of State of the Federation was born from the terms of reference of the establishment of the Reid Commission which was agreed by the Malay rulers to create a strong Federation. Furthermore, through Articles 38(4) and 159(5), the traditional elements which are the identity of the nine Malay States, namely Islam as the State religion, the sovereignty of the Malay monarch, the Malay language, the special position of the Malays and Malay customs are elevated to the identity of the Federation of Malaya which is enshrined and protected in various constitutional provisions.

The relationship between the States and the Federation within the framework of federalism is explained in Part V, Part VI and the Ninth Schedule. When the Malaysia Agreement 1963 was signed, several provisions were amended to recognise the jurisdiction of the new States of the Federation, Sabah and Sarawak without affecting the existing position of the Malay rulers and Malay States. 

[3] Please read Wan Ahmad Fauzi Wan Husain, Malaysian Sovereignty, the Main Government of the Nation, Selangor: Abad Sinergi Sdn. Bhd. - Universiti Malaysia Pahang Publishers, 2022.

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Since the power and jurisdiction of the Federation comes from the Malay States, originating from the sovereignty of the Malay king who is the head of the Islamic religion, the position of Islam in the legislative, executive and judicial powers delegated to the Federation is still preserved.[4] Local laws also require the application of common law principles and equity methods to be subject to local conditions, namely the practice and position of traditional elements.[5]

Based on the legal history and constitutional law presented, the Federal authorities only have the powers and jurisdiction granted within the limits of the Federal Constitution. In the context of federalism as the basic constitutional structure in Malaysia, among the principles of legitimate separation of powers is the distribution of jurisdiction between the Federation and the States which still supports the position of Islam as local law at both levels.  

[4] Read the Proposed Constitution for Malaya dated 19 December 1946, the Proposal of His Majesty the Malay Rulers dated 12 September 1956 and Article 3 of the Federal Constitution.

[5] Section 3, Civil Law Act 1956 (Revised 1972).

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Therefore, the position of His Majesty the Sultan of Selangor as the ruling monarch and religious leader in this state has great influence in terms of the Federal Constitution. The role of the Conference of Rulers should not be viewed narrowly with what is literally stated in Article 38. The role of His Majesty the Sultan of Selangor as the head of the Islamic Religion should be viewed in the same way as the position guaranteed by Article 181(1) of the Federal Constitution.

Date of Input: 20/01/2025 | Updated: 20/01/2025 | asmunir

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