Columnists

Reflecting On The Law

Published: Thursday September 18, 2014 MYT 12:00:00 AM
Updated: Thursday September 18, 2014 MYT 7:08:17 AM

Accommodating diversity

Sabah and Sarawak’s special position in our federation is based on compelling socio-political, economic, geographical and legal considerations.

THERE is no universal or single set of “best practices” or institutional and constitutional designs to manage conflicts arising out of ethnic, religious, linguistic and geographical diversity. Generally, however, a federal system of government is better suited than a unitary system for accommodating diversity in a plural and divided society.

The extent of autonomy and distinctiveness allowed to the various regions (provinces, states or cantons) varies from country to country. Much depends on what the goal of the dominant elites is: is it repression, exclusion, assimilation or integration?

Repression is done through genocide and ethnic cleansing as in former Yugoslavia. Exclusion involves marginalisation of minority groups and denial to them of any meaningful economic or political participation in society.

Assimilation involves strong pressures on minorities to abandon their values, cultures, beliefs and languages and submerge into the national main. Catalans in Spain, Bretons in France, Scots and Welsh in the United Kingdom and, increasingly, Muslim emigrants in Europe suffered or are suffering such melting pot pressures.

On the other hand, integration (or inclusion and empowerment) is based on the recognition of diversity as a defining characteristic of the polity. Malaya in 1957 and, even more so, Malaysia in 1963 were inspired by the inclusivist approach that each constituent group can preserve its language, culture and custom and yet participate fully in the nation’s political and economic processes.

In 1963 in recognition of the uniqueness of Sabah, Sarawak and Singapore, these states were offered terms far more favourable than what the peninsula states received in 1957. (See The Star, Sept 16).

However, fifty-one years down the road, such preferential treatment is arousing deeply opposing and partisan views. Some “nationalists” in the peninsula feel that five decades after Malaysia Day, distinctiveness must give way to more unity and uniformity on such issues as free travel and right to live and work throughout the federation.

They point to spectacular cases of over-assertiveness by Sabah and Sarawak of some of their special rights e.g. to refuse admission to and to deport Peninsular Malaysians legitimately seeking to enter these states. Some of these incidents indeed arouse constitutional concern. But all in all, Sabah’s and Sarawak’s special position in our federation is based on compelling socio-political, economic, geographical and legal considerations:

> Sabah and Sarawak were and are ethnically, culturally and religiously distinct from the peninsula.

> They bring huge territories to the federation. Their combined area of 198,069sq km exceeds Peninsular Malaysia’s 131,681sq km.

> Their combined coastline is 2,607km compared with the peninsula’s 2,068km.

> They have massive potential resources in fisheries, ports, forests, timber, petroleum, river waters, hydroelectric power and tourism.

> Despite these resources they have serious problems of poverty, illiteracy, lack of infrastructure and under-development.

> The 1963 pact between the Federation of Malaya, the UK, North Borneo, Sarawak and Singapore was drawn up after a lengthy process of bargaining and negotiations. The delegates of these states made very clear to the Inter-Governmental Committee (IGC) headed by Lord Lansdowne, with then deputy prime minister Tun Abdul Razak as the deputy chairman, that special treatment was a pre-condition for constituting Malaysia.

> The 1963 pact was not merely an internal arrangement but an international treaty.

> The sanctity of the IGC Report and Malaysia Agreement has been reiterated by our courts in several cases: Sabah v Sugumar Balakrishnan (2002), Datuk Tufail v Dato Ting (2009) and Robert Linggi v Government (2011).

In opposition to Peninsular Malaysian views against special treatment, some voices from across the South China Sea assert that the constitutional safeguards of 1963 have been whittled down. Specifically, they point to violations of the Twenty Points Manifesto of the Sabah Alliance and the 18-points of Sarawak.

A scrutiny of Sabah’s 20-point manifesto indicates that 17 out of 20 points show complete or substantial compliance. However, there are problems with three parts of the manifesto on (1) religion, (2) language and (6) immigration.

Sabah was supposed to have no state religion. During Tun Mustapha Harun’s time, the Sabah Constitution was amended by the State Assembly to adopt Islam as the state religion and to appoint the Yang di-Pertuan Agong as the Head of the religion of Islam.

While Malay was to be the national language, English could be used in Sabah for all purposes, State or Federal, without limitation of time. Sabah amended this to adopt Malay as the language of the Cabinet and the Assembly subject to some exceptions.

Point 6 on Sabah’s rights over immigration is intact but the influx of illegal immigrants and their al leged
naturalisation has changed the ethnic landscape of Sabah.

What is noteworthy is that points 1 and 2 were tinkered with by Sabah itself. Likewise, the federalisation of Labuan by the federal government was with the consent of the Sabah executive. Clearly, there is some barking up the wrong tree and dissatisfaction with the decisions of some elected Sabah governments.

What can be done to douse the embers of controversy? Leaders of the federal government must recognise that Sabah and Sarawak’s restiveness is real and must be addressed.

Balancing the concerns of equity and efficiency in intergovernmental financial relations is paramount. Petrol royalty issues have triggered se pa ratist movements in many federations.

There is a need to strengthen institutional mechanisms for regular, non-partisan dialogue between the centre and the states.

> Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to
inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at prof.shad.saleem.faruqi@gmail.com. The views expressed here are entirely his own.

Tags / Keywords: Datuk Shad Faruqi

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