This article examines the Federal Constitution of Malaysia through the lens of Hans Kelsen's Pure Theory of Law. It first demonstrates the utility of the Grundnorm in explaining the supremacy of the Federal Constitution within the Malaysian legal system. In particular, this article establishes that despite Malaysia's colonial past, the Federal Constitution is the Kelsenian ‘historically first constitution’ of the present Malaysian legal system because of the Kelsenian ‘revolution’ that had occurred when the Federation of Malaya attained independence from the British in 1957, as well as the absence of a Kelsenian ‘revolution’ during the formation of Malaysia in 1963. The Grundnorm of the Malaysian legal system can thus be expressed as ‘one ought to obey the prescriptions of the Federal Constitution’. However, this article also argues, using the example of the basic structure doctrine controversy in Malaysia, that while the Pure Theory succeeds in elucidating a measure of legal validity for legal norms, it fails to provide any helpful insight when a constitutional dispute relates to the content of a norm rather than the interaction between hierarchically distinct norms.
Type Article Information Asian Journal of Comparative Law , Volume 17 , Issue 2 , December 2022 , pp. 323 - 343Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the National University of Singapore
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BA(Hons), University of Cambridge. Associate Legal Counsel, Central Bank of Malaysia. This article reflects my own views and not those of the Central Bank of Malaysia. I wish to thank Jefferi Hamzah Sendut, Tan Kian Leong, Shukri Shahizam and two anonymous reviewers for their comments on an earlier draft. All errors are my own.
2 Federal Constitution, art 4(1): ‘This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void’.
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5 Andrei Marmor, ‘The Pure Theory of Law’, in Edward N Zalta (ed), The Stanford Encyclopaedia of Philosophy (Metaphysics Research Lab, Stanford University 2020) accessed 5 Jun 2021.
6 For ease of reference, the term ‘Federal Constitution’ will be used to denote the Federal Constitution of Malaysia which is currently in force.
7 See Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan [2021] 3 MLJ 759 para 72; Hassan bin Abdul Karim v Perdana Menteri, Tan Sri Dato’ Hj Mahiaddin bin Md Yasin & Anor [2021] MLJU 815 para 32; Thamilharasan a/l Narasimulu v Timbalan Menteri Dalam Negeri [2021] MLJU 925 para 19. See also Lim Heng Seng, ‘Malaysia: The Federal Constitution, Islamisation And The Malaysian Legal Order’ (Mondaq, 16 Jun 2016) accessed 2 Feb 2021; Dato’ Dr Cyrus V Das, ‘‘Life’ Under Article 5: What Should It Be?’ (2002) XXXI(4) The Journal of the Malaysian Bar, 68 accessed 12 Jul 2022; Roger Tan, ‘No room for hudud law’ (The Star, 5 Jun 2016); HRH Sultan Azlan Shah, ‘Evolving a Malaysian Nation’, in Visu Sinnadurai (ed), Constitutional Monarchy, Rule of Law and Good Governance: Selected Essays and Speeches (Professional Law Books and Sweet & Maxwell Asia 2004) 331; Shad Saleem Faruqi, The Bedrock of Our Nation: Our Constitution (Zubedy Ideahouse Sdn Bhd 2012) 6.
8 Hans Kelsen, Pure Theory of Law (Max Knight tr, University of California Press 1967) 1. However, as will be seen in the subsequent discussion on the normativity of the Pure Theory, this does not mean that the Pure Theory is a purely descriptive theory with no normative leanings.
12 See HLA Hart's social fact thesis in Scott J Shapiro, ‘What is the Rule of Recognition (And Does It Exist)?’, in Matthew Adler & Kenneth Einar Himma (eds), The Rule of Recognition and the U.S. Constitution (Oxford University Press 2009) 239.
13 Paul Gragl, ‘The Pure Theory of Law and Legal Monism – Epistemological Truth and Empirical Plausibility’ (2015) 70 Zeitschrift für öffentliches Recht 665, 671.
14 Mitchell , Ryan , ‘ International Law as a Coercive Order: Hans Kelsen and the Transformations of Sanction ’ ( 2019 ) 29 Indiana International & Comparative Law Review 245CrossRefGoogle Scholar .
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17 HRH Sultan Azlan Shah (n 7). For further examples of how the Federal Constitution and the Grundnorm have been used interchangeably, see the cases and sources cited in (n 7).
18 Gu Yu, Hong Kong's Legislature under China's Sovereignty: 1998–2013 (Brill Nijhoff 2015) 1. The current de facto constitution of Hong Kong, the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (hereinafter ‘The Basic Law of Hong Kong’), was enacted by the national legislature of the PRC pursuant to the Constitution of the PRC (see The Basic Law of Hong Kong, Preamble).
19 The use of a small letter ‘constitution’ in this article refers generally to the highest positive legal norm of any legal system.
20 HLA Hart, The Concept of Law (Penelope A Bullock & Joseph Raz eds, 2nd edn, Oxford University Press 1994) 293.
21 Kelsen, Pure Theory of Law (n 8) 203.
22 See Conklin , William , ‘ Hans Kelsen on Norm and Language ’ ( 2006 ) 19 Ratio Juris 101, 106CrossRefGoogle Scholar .
24 Hans Kelsen, Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law (Bonnie Litschewski Paulson & Stanley L Paulson tr, Oxford University Press 1997) 58.
25 Hans Kelsen, ‘The Function of a Constitution’, in Richard Tur & William L Twining (eds), Essays on Kelsen (Iain Stewart tr, Oxford University Press 1986) 117.
26 For Vaihinger, ‘“pretending” that certain things are true … can greatly aid our aim of prediction’, even when the fiction is ‘radically false’, and this is particularly true where the objects which are deliberately overlooked or where the assumptions which are falsely made only have a ‘negligible influence’ on the object of study: Timothy Stoll, ‘Hans Vaihinger’, in Edward N Zalta (ed), The Stanford Encyclopaedia of Philosophy (Metaphysics Research Lab, Stanford University 2020) accessed 9 Jun 2021. This would be analogous to how the assumption of ceteris paribus in economics allows for the simplification of the study of economic phenomena.
27 Neil Duxbury, ‘The Basic Norm: An Unsolved Murder Mystery’ (LSE Law, Society and Economy Working Papers 17/2007) 6 accessed 12 Jul 2022. This genuinely fictional norm contradicts reality because the Grundnorm does not exist as a material object. On the other hand, it contradicts itself because the notion that the Grundnorm is a fictional ‘norm’ dabbles in the logical contradiction that this fictional norm does not require higher validation even though, by Kelsenian rules, norms are valid only if they have been authorised by a higher norm. See ibid; Kelsen, Introduction to the Problems of Legal Theory (n 24). In short, it is a norm only in name but not in essence.
28 See Duxbury (n 27) 4.
29 Stewart , Iain , ‘ The Critical Legal Science of Hans Kelsen ’ ( 1990 ) 17 Journal of Law and Society 273CrossRefGoogle Scholar .
30 Duxbury (n 27) 7.
31 Jill Vance Buroker, Space and Incongruence: The Origin of Kant's Idealism (Springer 1981) 1.
32 Reut Yael Paz, A Gateway Between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law (Martinus Nijhoff 2012) 225.
33 Gustafsson , Håkan , ‘ Fiction of Law ’ ( 2010 ) 41 Rechtstheorie 319, 323CrossRefGoogle Scholar .
34 ibid 322. Although these elucidations were provided by Kelsen in the context of the Grundnorm as a presupposition, they are similarly applicable vis-à-vis the Grundnorm as a fiction. Note that most commentators also vary between referring to the Grundnorm as a presupposition or as a ‘thought norm’. See Gustafsson (n 33) 323, 336–337.
35 The distinction between a positive norm and ‘formal norm’ ie, a norm which does not affect the content of the norm being authorised, is also made by Hopton: Hopton , TC , ‘ Grundnorm and Constitution: The Legitimacy of Politics ’ ( 1978 ) 24 McGill Law Journal 72, 84Google Scholar .
36 Kelsen, Pure Theory of Law (n 8) 200.
37 Kelsen , Hans , ‘ On the Theory of Interpretation ’ ( 1990 ) 10 Legal Studies 127CrossRefGoogle Scholar .
38 Torben Spaak, ‘Kelsen and Hart on the Normativity of Law’, in Peter Wahlgren (ed), Perspectives on Jurisprudence: Essays in Honor of Jes Bjarup (Stockholm Institute for Scandinavian Law 2005) 405.
39 For example, by establishing state organs, providing for the form and manner of law creation and regulating the distribution of powers between state organs: Faruqi (n 7) 1–5.
40 As Bindreiter explains, the Grundnorm merely indicates the ‘highest norm-creating authority’ without indicating ‘the content of the issued norms’: Uta Bindreiter, Why Grundnorm?: A Treatise on the Implications of Kelsen's Doctrine (Kluwer Law International 2002) 35.
41 Kelsen, Pure Theory of Law (n 8) 50. While Kelsen conceived of the law as a coercive order which forcibly deprives one of fundamental values of life and freedom in the face of disobedience, he did not see coercion as the only motivator for compliance with legal directives: see Kelsen, Pure Theory of Law (n 8) 35. See cf John Austin, Lectures on Jurisprudence: Or, The Philosophy of Positive Law, Volume 1 (Robert Campbell ed, 4th edn, London 1873) 89: ‘A command is distinguished from other significations of desire … the power and the purpose of the party commanding to inflict an evil or pain in case the desire be disregarded’.
42 Stewart (n 29) 296.
43 Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2010] 5 MLJ 145 para 49.
44 Zaidi bin Kanapiah, para 75.
45 See Jane Stapleton, Three Essays on Torts (Oxford University Press 2021) 1 (for the notion that tort law is a human construct); Sonia Waisman, Bruce A Wagman & Pamela D Frasch, Animal Law: Cases and Materials (Carolina Academic Press 2006) 66 (for the notion that property laws are a human construct).
46 George W Rainbolt, ‘Book Review: International Law as Social Construct: The Struggle for Global Justice’ (Notre Dame Philosophical Reviews, 20 Jun 2013) accessed 5 Mar 2021. See also Edmonson , William A , ‘ Why Legal Theory Is Political Philosophy ’ ( 2013 ) 19 Legal Theory 331, 332Google Scholar (‘law doubtlessly is an artifact, a human device or family of devices that is meant to serve and is thought to serve a kaleidoscopic variety of human purposes’). Note that this is different from saying that law is a social construct in the sense that law consists only of social facts: see Priel , Dan , ‘ Law as a Social Construction and Conceptual Legal Theory ’ ( 2019 ) 38 Law and Philosophy 267CrossRefGoogle Scholar . The notion of law as a human construct makes a claim not on the content of law, but on its epistemological origins, viz whether law is discoverable by observation or if it is an object to be formulated. This is undisputed even by natural law theorists: see Duncan Spiers, Jurisprudence Essentials (Edinburgh University Press 2011) 5.
47 Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford University Press 2012) 35.
48 Peters , Christopher J , ‘ Book Review: The Vantage of Law: Its Role in Thinking about Law, Judging and Bills of Rights by James Allan ’ ( 2013 ) 32 Law and Philosophy 339CrossRefGoogle Scholar .
49 Leduox , Stephen F , ‘ Defining Natural Sciences ’ ( 2002 ) 5 Behaviorology Today 34Google Scholar .
50 For example, however much one wishes for water to boil at room temperature and pressure, this will not change the reality that water will only ever boil at a temperature of 100 degree Celsius at an atmospheric pressure of 1 atm.
51 John Finnis, Human Rights and Common Good: Collected Essays Volume III (Oxford University Press 2011) 1.
52 Ronald Dworkin, Law's Empire (Harvard University Press 1986) 176.
53 Hart (n 20) 193.
54 Kari Saastamoinen (ed), The Law of Nations and Natural Law 1625–1800 (Brill 2019) ch 5.
55 Amin George Forji, ‘The Correlation Between Law and Behaviour as Pillars of Human Society’ (2010) 6 International Journal of Punishment and Sentencing 84, 85.
56 Hans Kelsen, ‘The Law as a Specific Social Technique’ (1941) 9 University of Chicago Law Review 75, 79.
57 JW Harris, ‘When and Why Does the Grundnorm Change?’ (1971) 29 Cambridge Law Journal 103, 108.
58 Matthew H Kramer, ‘John Austin on Punishment’, in Leslie Green & Brian Leiter (eds), Oxford Studies in Philosophy of Law: Volume 2 (Oxford University Press 2013) 103.
59 Harris (n 57) 106.
60 James Penner et al, McCoubrey & White's Textbook on Jurisprudence (4th edn, Oxford University Press 2008) 53.
61 Kelsen, Pure Theory of Law (n 8) 200.
62 András Jakab, European Constitutional Language (Cambridge University Press 2016) 328.
63 University College London, ‘Law in ancient Egypt’ (Digital Egypt for Universities, 2003) accessed 10 Mar 2021; Kathleen Kuiper, Ancient Egypt: From Prehistory to the Islamic Conquest (Britannica Educational Publishing 2011) 37. See also Nicolaas J van Blerk, ‘The emergence of law in ancient Egypt: The role of Maat’ (2018) 24 Fundamina 69.
64 Constitution of the Arab Republic of Egypt 1971, art 73.
65 Constitution of The Arab Republic of Egypt 2014, art 4.
66 Kelsen, Pure Theory of Law (n 8) 200, 209.
67 After all, as pointed out by Cohen, the Grundnorm is the ‘single synthesizing principle from which discrete judgments can be logically deduced’: Julius Cohen, ‘The Political Element in Legal Theory: A Look at Kelsen's Pure Theory’ (1978) 88 The Yale Law Journal 1, 12.
69 As pointed out by Spagnolo, these individual legal norms are ‘the most important set of legal materials’ determining the what the Grundnorm is: Benjamin Spagnolo, The Continuity of Legal Systems in Theory and Practice (Bloomsbury Publishing 2015) 102.
70 Harris (n 57) 118.
71 Spagnolo (n 69) 103.
72 See Anthony Dillon, ‘A Turtle by Any Other Name: The Legal Basis of the Australian Constitution’ (2001) 29 Federal Law Review 241.
73 For example, see Simeon CR McIntosh, Kelsen in the ‘Grenada Court’: Essays on Revolutionary Legality (Ian Randle Publishers 2008) 79. McIntosh pointed out that Pakistan, as a former member of the British Empire, was previously subject to the British constitutional principle of ‘what the Crown in Parliament enact is law’.
74 Halsbury's Laws of Malaysia, Constitutional Law (Volume 3(3)) (LexisNexis Malaysia 2021) para 100.003.
75 The Federation of Malaya Order in Council 1948, Preamble.
77 RH Hicking, ‘Preface – The Malayan Constitution’ Unannotated Statutes of Malaysia - Subsidiary Legislations (Kuala Lumpur 17 June 1958). In ex p Tan Kheng Long [1958] 3 MC 205, Article 124(1)(b) of the FMA 1948 was juxtaposed with and assessed in relation to Article 9 of the Federal Constitution of Malaya of 1957, implying that the FMA 1948 was considered to have a status equivalent to the Federal Constitution of Malaya before 1957. The fact that the original Schedule 12 of the Federal Constitution of Malaya 1957, which was nonetheless later repealed by the Constitution (Amendment) Act 1963 (Act No 25 of 1963), contained a list of provisions of the FMA 1948 applicable to the Legislative Council after Merdeka Day further indicates that the FMA 1948 was the hierarchically supreme legal norm within the 1948 Federation, the content of which was subsequently transposed to its successor.
78 Owing to the lack of a centralised, written constitution in the British legal system, a distinction should be made between the British Parliament or the British Crown being the legally superior norm of the United Kingdom legal order. As will be seen shortly, this will depend on the type of legal instrument used to promulgate a local law.
79 Halsbury's Laws of Malaysia (n 74).
80 FM Order in Council (n 75).
81 Richard Moules, ‘Judicial Review of Prerogative Orders in Council: Recognizing the Constitutional Reality of Executive Legislation’ (2008) 67 The Cambridge Law Journal 12, 12–13.
82 See FM Order in Council (n 75), Preamble. Under section 11 of the FJA, Orders in Council which were made pursuant to the FJA did not have to be passed by the British Parliament and only needed to be put before it for them to ‘have effect as if [they] were enacted in [the FJA]’.
83 R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41. Since the discussion relates to events occurring before the United Kingdom's ascension into the European Union in 1972, the issue of whether the national legal norms of the United Kingdom can be disapplied by European legal norms is not relevant.
84 George Winterton, ‘Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends’, in Charles JG Sampford & Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (The Federation Press 1996) 136.
85 For example, although the FMA 1948 provided that all three of the Colonial High Commissioner, the Secretary of State for the Colonies in the United Kingdom and the Conference of Rulers comprising of the Malay Rulers had veto power where legislation was concerned, the powers of the Conference of Rulers were limited as it did not play an important role in the formulation of federal policy. See Martin Rudner, ‘The Structure of Government in the Colonial Federation of Malay’ (1976) 13 South East Asian Studies 495, 503.
86 See Karl Zemanek, ‘State Succession After Decolonization’, in Académie de Droit International de la Ha (ed), Recueil Des Cours, Collected Courses Volume 116 (Brill 1968) 192; Charles Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain's Overseas Territories (Oxford University Press 2007) 99; Zelman Cowan, ‘The Emergence of a New Federation in Malaya’ (1958) 1 Tasmanian University Law Review 46, 49.
87 Examples include Pakistan (see McIntosh (n 73)), Kenya (JO Rachuonyo, ‘Kelsen's Grundnorm in modern Constitution-Making: The Kenya Case’ (1987) 20 Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America 416), Southern Rhodesia (JM Eekelaar, ‘Splitting the Gunrdnorm’ (1967) 30 The Modern Law Review 156), Canada (ibid 157), Uganda (Hopton (n 35) 72) and Australia (Dillon (n 72)).
88 Parliamentary Education Office & Australian Government Solicitor, Australia's Constitution: With Overview and Notes by the Australian Government Solicitor (7th edn, Department of the Senate 2010).
89 Legislative Department, The Constitution of India (5th Pocket Size edn, Ministry of Law and Justice 2022) accessed 15 Aug 2022.
90 Although there are those who have ‘expressed interest in finding an autochthonous source for the Australian constitutional system’ (Nicholas Aroney, ‘A Public Choice? Federalism and the Prospects of a Republican Preamble’ (1999) 20 University of Queensland Law Journal 262, 284), the more convincing view is that the legal source of the Constitution is the United Kingdom Parliament, because Australia's constitutional arrangements are still legally derived from, but not subordinate to, the United Kingdom Parliament which enacted the Constitution as part of (not merely a schedule to) one of its statutes (Dillon (n 72)).
91 See Dillon (n 72). This is a predicament which was prevalent among ‘nations whose constitutions are the product of continuous legal devolution from the constitution imposed by the parent nation’ (Aishwarya S Bagchi, ‘Exploring constitutional legitimacy’ (2015) 2 Public Interest Law Journal of New Zealand 165, 165; 169; 173), such as New Zealand (ibid) and Canada (Sebastian Schmid, ‘The Retransfer of Legislative Competences by the UK Parliament’ (2014) 74 Heidelberg Journal of International Law 223, 235).
92 ibid. For the distinction between a ‘legal’ and ‘political’ revolution, see Michael S Green, ‘Legal Revolutions: Six Mistakes About Discontinuity in the Legal Order’ (2005) 83 North Carolina Law Review 331, 333.
93 Despite the fact that the IIA contained a provision empowering the Constituent Assembly to create the Indian Constitution: see IIA, s 8(1).
94 Anupama Roy & Michael Becker, ‘Dimensions of Constitutional Democracy’, in Anupama Roy & Michael Becker (eds), Dimensions of Constitutional Democracy: India and Germany (Springer 2020) 10.
95 Cyrus Vimalakumar Das, ‘Emergency Powers and Parliamentary Government in Malaysia: Constitutionalism in a New Democracy’ (PhD thesis, Brunel University 1994) 71.
96 The 1957 Act, Preamble; FMA 1957, s 3.
97 The 1957, s 3; FMA 1957, s 6. Notwithstanding that the prohibition on the Malay Rulers from entering into ‘any negotiation relating to the cession or surrender of the State’ under the pre-independence state constitutions of the Malay states was amended in time to render the revocation of the FMA 1948 and the State Agreements lawful (Ahmad Ibrahim, Malaysian Legal History (Faculty of Economics & Administration, University of Malaya 1970) 151), because the FMA 1957 did not authorise the creation of the Federal Constitution, it cannot be said that a there was any legal continuity between the pre-independence state constitutions and the present-day Federal Constitution. It follows that when the Federal Constitution took its place as the new supreme legal norm, the Malay Rulers’ source of constitutional authority changed accordingly. That the Malay Rulers’ residual powers and sovereignty under the Federal Constitution were entirely derived from and subject to the Federal Constitution can be seen from the caveat in Article 181(1) of the Federal Constitution of ‘Subject to the provisions of this Constitution’.
98 This is analogous to how, during the French Revolution, the legal validity of the Declaration of the Rights of the Man and of the Citizen of 1789 did not depend on King Louis XVI's acceptance and recognition; rather, it stemmed from the authority of the French National Constituent Assembly, which ‘no longer depended upon the royal will’ (Green (n 92)). King Louis XVI's recognition therefore ‘merely acknowledged an established legal fact’, ie, the legal revolution brought about by the National Constituent Assembly (ibid).
99 FMI Order in Council, Preamble.
100 ibid, Preamble; s 2 (emphasis added).
101 FMA 1948, pt V.
102 See JM Eekelaar, ‘Splitting the Grundnorm’ (1967) 30 Modern Law Review 156, 168: ‘a lawful authority acting ultra vires is equally a usurper’. See also Dato’ Seri Mohd Hishamudin Yunus et al, MP Jain's Administrative Law of Malaysia (LexisNexis 2020) 96: ‘If power is conferred to legislate only with respect to certain topics, or for certain purposes, or in certain circumstances, the limits of the power must not be crossed.’
103 FMA 1948, s 48, para 1(2)(a) of the Second Schedule.
104 Briefly, ‘internal sovereignty’ relates to the state's ‘authority over all internal persons and entities’ whereas ‘external sovereignty’ refers to the state's relationship with ‘external powers’: Christopher W Morris, An Essay on the Modern State (Cambridge University Press 1998) 174. See also Andrew J Williams, Amelia Hadfield & J Simon Rofe, International History and International Relations (Routledge 2012) 113.
105 Note that because the FMA 1957, as explained above, did not have the object of giving legal effect to the Federal Constitution, the Federal Legislative Council could not leverage on paragraph 1(2)(a) of the Second Schedule of the FMA 1948 in conjunction with the FMA 1957 to implement a change to the Federation's internal sovereignty.
106 Under section 100(1)(a) of the FMA 1948, the Councils of State had the power to pass laws on ‘any subject’ other than those over which the Federal Legislative Council had power.
107 Kelsen, Pure Theory of Law (n 8) 208, 211.
108 Cohen (n 67) 12.
109 This distinguishes Kelsen from legal positivists such as Hart or Austin whose legal theories are premised on and derived from observations of social phenomena: Jules L Coleman, ‘Rules and Social Facts’ (1991) 13 Harvard Journal of Law & Public Policy 703.
110 Kelsen, Pure Theory of Law (n 8) 212.
111 In referring to the monarchic heads of the Malay states, the term ‘Malay Ruler’ will be used, which for the purpose of this article includes a reference to Negeri Sembilan's Yang di-Pertuan Besar.
112 Owing to constraints on the discussion space, it is not possible to carry out an ad infinitum backward-tracing exercise. Instead, the start of the British colonisation period is chosen as the stopping point, and it will be presumed that prior to the relocation of the Malayan supreme legal norm to the British Parliament, supreme legal power resided locally. The period of Japanese occupation (1941–1945) will also not be examined, because the omission does not affect the analysis that a change in the Grundnorm occurred when the Malayan Union Order in Council was promulgated.
113 See Barbara Watson Andaya & Leonard Y Andaya, A History of Malaysia (MacMillan Education Ltd 1982) 172; Jim Baker, A Popular History of Malaysia and Singapore (Marshall Cavendish International (Asia) Private Limited 2008) 147.
114 For states other than Johor and Terengganu (which had established their state constitutions in 1895 and 1911 respectively), the state constitutions were introduced only in 1948 upon the creation of the 1948 Federation: Cheah Boon Kheng, Malaysia: The Making of a Nation (Institute of Southeast Asian Studies 2002) 18. Moreover, a clear distinction needs to be made between the hierarchically supreme legal norm and the other subsidiary norms which existed along the legal chain (such as Islamic laws and the local Malay customs). As the supreme legal norms of the Malay states changed (for example, from the autocratic decisions of the Malay Rulers to British Parliamentary enactments), so would the source of legal validity of these subsidiary norms.
115 See generally Hasbollah Mat Saad, A Brief History of Malaysia: Texts and Materials (2nd edn, Pena Hijrah Resources 2018) 62–85.
116 MU Order in Council, Preamble
117 See HP Lee, Constitutional Conflicts in Contemporary Malaysia (Oxford University Press 2017) 6.
118 See Cheah, Malaysia: The Making of a Nation (n 114) 16.
119 Cheah Boon Kheng, ‘The Erosion of Ideological Hegemony and Royal Power and the Rise of Postwar Malay Nationalism, 1945–46’ (1988) 19 Journal of Southeast Asian Studies 1, 23.
120 Whether an autocratic ruler's self-imposed limitation on their powers amount to an unauthorised change depends on the extent of the limitation. As Green ((n 92) 383) points out, when the limitation is so great such that it ‘chang[es] the very axiom that gives it authority’, then a revolution would have occurred. This is why the limitation of the Malay Rulers’ powers during the period of British indirect rule could be distinguished from the Malay Rulers’ surrender of sovereignty under the Malayan Union. When the Malay Rulers agreed to accept or be guided by the advice of the Residents or British Advisors, or indeed to accept the formation of State and Federal Councils which limited the practical lawmaking role of the FMS Malay Rulers, these did not involve a complete negation of their sovereignty; practically speaking, the Malay Rulers must have had ‘some authority to self-limit [their] lawmaking powers’ (ibid 388). However, under the Malayan Union, in allowing the British Crown to claim ‘full power and jurisdiction’ over the Malay States (MU Order in Council (n 116), Preamble), save for matters relating to the ‘Muhammadan religion’ (ibid, s 75), the Malay Rulers were effectively using ‘[their] authority to change the axiom itself’ (Green (n 92) 388), the very axiom which was the Malay Rulers’ source of authority in the first place. This would, in Green's view (ibid), amount to a legal revolution.
121 First Charter, Preamble.