Our unique federal set-up always evolving - Reflecting On The Law | The Star Online


Our unique federal set-up always evolving

THIS Saturday will be the 54th anniversary of Malaysia Day. Most Malaysians agree that the new federal union in 1963 between the Federation of Malaya and the Borneo states has brought security, prosperity and development to both sides. Yet, there are simmering tensions about the alleged whittling down of the privileges promised in 1963.

These privileges are explicated in many venerated historical documents and in the Malaysia Act and the Federal Constitution. The Consti­tution was amended significantly in 87 provisions and 10 Schedules. Thirty-five new Articles were inserted to confer on Sabah and Sarawak many special rights in our unique federal set-up.

Legislation: The State Assemblies of Sabah and Sarawak have legislative powers far larger than those of the peninsular states (Schedule 9).

Federal powers: Federal power to enact uniform laws on land, agriculture, forestry and local government is not applicable to Sabah and Sarawak (Article 95D). Under Article 95E(3), Sabah and Sarawak are excluded from national plans for land utilisation, local government and development unless the consent of the Yang di-Pertua Negeri is obtained. Policies of the National Land Council and National Council for Local Government are not binding on Sabah and Sarawak (Article 95E(2)).

Amendments: Under Article 161E(2), the con­­­­­sent of the Governors of Sabah and Sarawak is required for any constitutional amendment affecting the special position of these states.

Islam: Due to the large non-Muslim population in Sabah and Sarawak in 1963, there was no state religion in the Constitutions of Sabah and Sarawak in 1963. But Sabah amended its own Constitution to make Islam the official state religion. Article 161C (deleted in 1976) provided that if financial support is given by the federal government for Islamic institutions and Islamic education in the Borneo states, the consent of the state Governor must be obtained. Further, an equivalent amount shall be allocated for social welfare in these states.

Article 161D of the Federal Constitution (repealed in 1976) provided that in the Borneo states, a state law restricting the propagation of any religious doctrines to Muslims may not be passed without a special two-thirds majority.

Native law: Besides Syariah Courts, there is a system of native law and native courts.

High Court: The federal High Court has two wings. Appointment of the Chief Judge of the Sabah and Sarawak High Court requires consultation with the Chief Ministers of these States (Article 122B(3)). Judicial Commissioners in the High Court for Sabah and Sarawak shall be appointed by the Yang di-Pertua Negeri on the advice of the Chief Justice of Sabah and Sarawak (Article 122AB). In 1994, this power was transferred to the Yang di-Pertuan Agong acting on the advice of the PM after consulting the Chief Justice of the Federal Court.

Number of MPs: Sabah and Sarawak are handsomely represented in the Dewan Rakyat. Sabah has 25 MPs; Sarawak 31. Together, they have 56 of the country’s 222 MPs (or 25%). The Sabah and Sarawak MPs also constitute 50% of the 112 MPs required to form a majority government.

Emergency: Even during an emergency, the native law or customs of Sabah and Sarawak cannot be extinguished (Article 150(6A)).

Fiscal federalism: The federal government’s stranglehold over most of the lucrative sources of revenue is not as strong in relation to Sabah and Sarawak as it is in relation to other states. In several areas, Sabah and Sarawak enjoy fiscal privileges that are not available to the peninsular states.

Under article 112B, Sabah and Sarawak can raise loans with the consent of Bank Negara. These states are allocated special sources of revenue like taxes, fees and dues on eight sources of revenue like state sales tax, ports, harbours, import and excise duty on petro­leum products, export duty on timber and other forest produce (Schedule 9, Lists IIA and IIIA and Schedule 10, Part V).

The two states enjoy some special grants (Article 112C and the Tenth Schedule, Parts II and IV). There are special rules about state audits (Article 112A).

Affirmative action: Under Article 153, the natives of Sabah and Sarawak enjoy a special position similar to that of the peninsular Malays.

Immigration: The mobility of non-residents to Sabah and Sarawak is restricted under (Article 161E(4) and Part VII Immigration Act, Act 155).

Lawyers: There is restriction on non-resident lawyers practising before the courts of Sabah and Sarawak (Article 161B).

Language: Sabah and Sarawak enjoy special protection in relation to the use of English and native languages (Article 161).

Malay reserves: There is non-application of Malay reserve lands to these two States (Article 161A(5)).

Sabah Assembly: The Sabah Assembly is allowed six appointed members in addition to its elected Assemblymen.  

Fifty-four years down the road, not all is well with the Borneo states’ relationship with the centre. In some areas, Sabah and Sarawak’s autonomy appears to have suffered retreat due to constitutional and political developments.

What can be done to douse the embers of controversy? A thorough study of constitutional, legal and political instruments needs to be undertaken.

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. Petroleum royalty issues have triggered separatist movements in many federations.

There is a need to strengthen institutional mechanisms for regular, non-partisan dialogue so that the inevitable tensions that are inherent in a federal set-up can be resolved with the least friction. We need to recapture the spirit of accommodation, moderation and compassion that animated the leaders of the Malaysia Agreement in 1963.

People of the peninsula should rededicate themselves to the pacts of the past. They should open their eyes to the commendable example of inter-ethnic and inter-religious harmony in the Borneo states.

Sabah and Sarawak, on their part, must recognise that growth and evolution are natural and necessary in any federal set-up. Federalism is a journey and not just a set of institutions and procedures.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.

Reflecting the Law , Shad Faruqi