Constitutional practice in Brunei as highlighted in the 1955 memorandum of R.H. Hickling
B.A. Hussainmiya’s 2006 article in JMBRAS examines the 1955 memorandum of R.H. Hickling, a British legal officer who visited Brunei in late 1954 to assess the Sultanate’s constitutional status ahead of the introduction of its first written Constitution. Set against the backdrop of Sultan Omar Ali Saifuddin III’s determined bid to renegotiate the 1905/6 Supplementary Agreement and the rising nationalist pressure of the Partai Ra’ayat Brunei, the article argues that Hickling’s report, though less consequential than McArthur’s 1904 Report, shaped the Colonial Office’s cautious approach by cautioning against imposing a Western-style constitution by Order-in-Council under the Foreign Jurisdiction Act.
Summary
Hussainmiya situates the Hickling Memorandum within the broader trajectory of British constitutional engagement with Brunei, drawing a deliberate contrast with McArthur’s 1904 Report, which had determined the very survival of the Sultanate. Where McArthur spent six months on the ground, fully conversant in Malay and immersed in Bruneian society, Hickling had less than two months, limited access to primary sources—many of which had been destroyed during the Japanese Occupation—and no prior experience in the territory. Despite these constraints, the Memorandum made a significant conceptual contribution by arguing that Brunei possessed a living, unwritten constitution rooted in centuries of Malay statecraft, and that the Sultan had always been regarded as a constitutional monarch acting on the advice of his ministers. This framing carried direct implications for how the British should approach constitutional reform: the Sultan, not the Crown, was the proper authority to promulgate a constitution.
The article traces how Hickling’s legal reasoning—particularly his distinction between a Protected State and a Colonial Protectorate, and his conclusion that Brunei’s status under the 1905/6 Supplementary Agreement “approximates more closely to that of a colonial protectorate than to that of a protected State”—created a paradox. On one hand, this classification suggested the Crown could legislate under the Foreign Jurisdiction Act; on the other, Hickling’s political judgment, informed by the Malayan Union debacle of 1945–48, led him to reject that very mechanism as “neat and secure” but ultimately “not the correct solution.” His sympathies, as revealed in later memoirs, leaned toward the Sultan’s prerogative to grant a constitution to his people, with the British confined to an advisory role.
Hussainmiya further explores the tension between the Memorandum and the competing vision of the Brunei Malay Constitutional Committee, which proposed a far more radical transfer of power, including the appointment of a Menteri Besar to replace the British Resident. The British authorities, while acknowledging the Committee’s recommendations were “sound in principle,” resisted the specific mechanisms it proposed. The result was a protracted and ultimately unsatisfying constitutional negotiation that saw the original draft undergo a “metamorphosis” over nearly six years before the Constitution was finally promulgated in September 1959.
Key Findings
- Hickling’s memorandum concluded that under the 1905/6 Supplementary Agreement, Brunei’s status “approximates more closely to that of a colonial protectorate than to that of a protected State,” a classification that technically permitted the Crown to legislate under the Foreign Jurisdiction Act of 1890, yet which Hickling himself advised against using (pp. 12–13).
- Brunei’s state income multiplied from $1.5 million in 1932 to $276.6 million in 1952—an 18,000 per cent increase—with oil accounting for 98 per cent of total exports ($270.1 million) by 1952; royalty payments rose from $8.5 million (1932–1941) to $75.5 million (1946–1952) (p. 6, n. 26).
- The Brunei Malay Constitutional Committee recommended replacing the British Resident with a Menteri Besar and transferring the High Commissioner’s powers to the Sultan in Council—proposals the British authorities considered tantamount to an unmediated transfer of sovereignty (pp. 5–6).
- Hickling’s final recommendation in the Memorandum was that introducing a constitution “by means of an Order in Council under the Foreign Jurisdiction Act,” however “neat and secure such a method of promulgation might be, does not offer the correct solution” (p. 16).
- The Income Tax Enactment of 1949 introduced a 20 per cent flat tax on company income, increased to 30 per cent in 1953, which yielded an additional $81.6 million in government revenue in 1951/2 (p. 6, n. 26).
- The Constitution was finally promulgated in September 1959, after almost six years of negotiation during which the original draft “underwent a metamorphosis” to accommodate the Sultan’s demands (p. 15).
Conclusion
Hussainmiya’s definitive takeaway is that the Hickling Memorandum, despite its limitations of time, sources, and the author’s relative inexperience, succeeded in reframing the constitutional question for Brunei from a purely legal-technical problem into a political one requiring deference to the Sultan’s sovereignty and historical legitimacy. The British Government, while retaining the legal capacity to impose a constitution by fiat, chose instead to negotiate, and the resulting 1959 Constitution reflected this compromise—a document that satisfied neither the British aspiration for democratic reform nor the Sultan’s desire for untrammelled prerogative, but which preserved the Sultanate’s independence and the basic architecture of British advisory influence.
Context
- Primary archival collections consulted include Colonial Office Series CO 1030, Files 113 and 114 (British National Archives), the Sarawak National Archives in Kuching, and the Brunei National Archives in Bandar Seri Begawan; the Memorandum itself exists in multiple versions across these repositories (pp. 4, 16).
- The article contributes to Bruneian constitutional historiography by being the first detailed public treatment of the Hickling Memorandum, which had previously been accessed only in summary form in Hussainmiya’s own monograph Sultan Omar Ali Saifuddin III and Britain (1995); a fully annotated edition is in preparation with Professor Nicholas Tarling (p. 4).