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ON July 9, 1963 an agreement was concluded among “the Federation of Malaya, the United Kingdom of Great Britain and Northern Ireland, North Borneo, Sarawak and Singapore.” It was a historic pact known as the Malaysia Agreement (MA63) to form Malaysia.

Article 1 of the agreement reads as follows:

“The Colonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existing States of the Federation of Malaya as the States of Sabah, Sarawak and Singapore in accordance with the constitutional instruments annexed to this Agreement and the Federation shall thereafter be called ‘Malaysia’.”

Among the constitutional instruments mentioned in the article was Annex A which takes the form of a parliamentary bill. A bill in those terms was subsequently introduced into Parliament – to amend, among others, article 1(1) and (2) of the constitution of 1957 (commonly referred to as the Merdeka Constitution) – and was passed under the title of the Malaysia Act. This received the royal assent on August 26, 1963 and was to come into effect on September 16, 1963 – Malaysia Day.

On September 10, 1963 the government of the state of Kelantan commenced proceedings for declarations that the Malaysia Agreement and the Malaysia Act were null and void or alternatively were not binding on the state. It was argued for the Kelantan government that:

• the Malaysia Act would abolish the “Federation of Malaya” thereby violating the federation of Malaya Agreement 1957;

• the proposed changes needed the consent of each of the constituent states, including Kelantan, and this had not been obtained;

• the ruler of Kelantan should have been a party to the Malaysia Agreement;

• the constitutional convention called for consultation with rulers of individual states as to substantial changes to be made to the Merdeka Constitution; and

• the federal Parliament had no power to legislate for Kelantan in respect of any matter regarding which that state had its own legislature.

On September 11, 1963, Kelantan gave notice of motion that pending the ultimate disposal of their suit, the court should by order restrain the federal government and prime minister from carrying into effect any of the provisions of the Malaysia Act. The question then for decision was whether on the facts before the court there was a probability that the Kelantan government was entitled to the relief it sought.

Chief Justice Thomson, sitting as a High Court judge, had “a little more than twenty-four hours” to decide and the magnitude of the task was not lost on him as he said, “Never, I think, has a judge had to pronounce on an issue of such magnitude on so little notice and with so little time for consideration.”

In his judgment, the learned chief justice said:

“The two things which are attacked in the present proceedings are the action of Parliament in enacting the Malaysia Act and the action of the government in concluding the Malaysia Agreement.

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