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Wednesday September 8, 2010
Reflecting On The LawBy Shad Saleem Faruqi
Forty-seven years of association between peninsular Malaysia and Sabah and Sarawak have brought many benefits to all sides and there is no reason this cannot continue.
SEPTEMBER 16 will be Malaysia Day – the day Sabah, Sarawak and Singapore united with the Federation of Malaya to constitute the new Federation of Malaysia.
The impulses that led to this union and the determined opposition from Indonesia, the Philippines and the state of Kelantan to the birth of the new federation, provide a fascinating tapestry of history.
Forty-seven years after the merger, many interesting questions linger about the transformation of Malaya into Malaysia.
Effect of merger: Did Sept 16, 1963, mark the birth of the new nation of Malaysia or did it simply record the expansion of an existing state that had already met its tryst with destiny on Aug 31, 1957?
In 1963, did Sabah, Sarawak and Singapore federate with Malaya as the 12th, 13th and 14th states of the federation or did they bring about something more revolutionary by transforming Malaya into a radically different federation of four regions – Malaya, Sabah, Sarawak and Singapore?
Whatever the political rhetoric may be, the legal answer is clear. Article 1(2) of the Federal Constitution states that Malaysia consists of 13 and not three regions.
The addition in 1963 of three new states and the adoption of a new name did not entail an overthrow of the 1957 Merdeka Constitution whose core features and structures continued to supply the chart and compass for the expanded federation.
The peninsular states retained their individuality and did not get absorbed into a single West Malaysian entity.
However, Sabah and Sarawak were indeed offered larger autonomy than assigned to peninsular states. Such special allocation for some regions but not for others is known to many federations. For example in India, the state of Kashmir enjoys many special powers not available to other regions of the federation.
Reasons for the special position: Sabah’s and Sarawak’s special position is justifiable for a number of socio-political, economic, geographical and legal reasons. Among them are the regions’ cultural and religious distinctiveness from Peninsular Malaysia.
The two new states contribute huge territories and massive resources to the new federation. Their combined area is 198,069 sq km exceeding peninsular Malaysia’s 131,681 sq km. The coastline of the two states measures 2,607km compared with the peninsula’s 2,068km.
Special treatment is justified because despite massive resources, the problems of poverty and underdevelopment are endemic in the Borneo states.
The 1963 pact between the Federation of Malaya, the UK, North Borneo (Sabah), Sarawak and Singapore sought clearly to ensure that the autonomy and special position of these regions was a prerequisite to their merger. Some have even argued that the guarantees for Sabah and Sarawak have an international law basis.
Autonomy: In a prototype federation all constituent units enjoy the same powers. However, the Federal Constitution guarantees to Sabah and Sarawak special position in many areas, including:
> The legislative competence of the Sabah and Sarawak State Assemblies is far wider than that of peninsular states. Sabah and Sarawak have a Supplementary State List and a Supplementary Concurrent List giving them additional law making power.
> Sabah and Sarawak are excluded from the Federal Parliament’s power to pass uniform laws about land and local government.
> Sabah and Sarawak are excluded from national plans for land utilisation, local government and development.
> The power of amending the Federal Constitution belongs to the Federal government. However, if an amendment affects the special rights of Sabah and Sarawak, the amendment must be submitted to the Governors of these states for assent. The Governors are bound by the advice of the State Executive.
> The Constitution provides for special financial arrangements for the Borneo states. They are assigned eight sources of revenue not permitted to peninsular states. These include import and excise duties on petroleum products, export duty on timber, forest produce and minerals. Sabah and Sarawak are also entitled to earnings from ports, harbours and sales tax.
> They’re allowed to raise loans for their purposes. They’re allocated special grants to meet their needs above and beyond what the other states receive.
> Under Article 153, natives of Sabah and Sarawak are entitled to the same special position as is granted to the Malays.
> Despite their low population, these states are well represented in the Dewan Rakyat. Together they have 56 of the 222 MPs, constituting 25% of the Dewan’s membership.
> The mobility of the West Malaysian population into Sabah and Sarawak is subject to immigration control. Legal practitioners from West Malaysia are not allowed to practise in proceedings in or from Sabah and Sarawak courts.
> Sabah and Sarawak enjoy special protection in relation to the use of English and native languages.
> The law on Malay reserve land does not apply to these states.
> The Sabah Assembly is allowed six appointed members in addition to 48 elected assemblymen.
> Native courts flourish in these two states and native law and custom is allowed free play.
Secession: Can these states change their mind and seek independence? The answer is simple and blunt. No state has a right to secede from the Federation. Our destinies are intertwined and any differences must be settled through negotiation and compromise. Contrary to what is believed, Singapore did not secede. It was expelled by amendments to the 1957/1963 Constitution.
Developments since 1963: In many areas Sabah’s and Sarawak’s autonomy has suffered retreat due to constitutional developments.
> Labuan was ceded to the federal government in 1984 through an amendment inspired by the then Sabah government.
> At the time of the 1963 merger, there was no state religion in these two states. Due to amendments to their Constitutions by their assemblies, Islam is now the official religion of these two states.
> On petroleum, water and tourism, federal jurisdiction has displaced the powers of all states.
> The federal declaration of emergency in Sarawak in 1966 and the dismissal of Chief Minister Stephen Kalong Ningkan indicates that state autonomy is rather frail and cannot withstand the onslaught of emergency powers.
> Interference by federal politicians in Sabah’s politics in 1994 led to the replacement of popularly elected local leaders. This underlines the ability of the federal government to dictate political outcomes.
> Sabah’s and Sarawak’s control over immigration is seriously undermined by the influx of thousands of illegal immigrants whose tide the Federal government is unable to stem. Within Sabah there is considerable disquiet that some of the safeguards of the “20 Points” have not been converted to law.
It must be borne in mind, however, that tensions between federal and state governments are commonplace in all federations. Malaysia is fortunate that these tensions have rarely reached open discord or hostilities. Forty-seven years of association between peninsular Malaysia and Sabah and Sarawak have brought many benefits to all sides.
Besides vastly expanding Malaysia’s territories and economic potential, Sabah and Sarawak have augmented Malaysia’s pluralism and diversity and they provide Peninsular Malaysia with a commendable example of inter-ethnic and inter-religious harmony that we could do well to emulate.
In turn, the Federation of Malaysia saved Sarawak from the threats of communism and the designs of Sukarno’s Indonesia. There has been uninterrupted peace and progress, happiness and harmony.
Despite all our problems, there is no reason to believe that the spirit of accommodation that animated the body politic in 1957 and in 1963 cannot continue for a long, long time.
> Shad Saleem Faruqi is Professor Emeritus at UiTM and Visiting Professor at USM.
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