Unique federal set-up

  • Reflecting On The Law
  • Wednesday, 05 Sep 2007

Significant rules were introduced to regulate the newly established Malaysia, a federation that resembled a union of five unequal entities.

THE nation just commemorated its fiftieth 50th anniversary of independence. As we bask in the afterglow of the celebrations, it is time to remember another milestone – that of Malaysia Day on Sept 16, 1963, when the 11 regions of Malaya merged with Sabah, Sarawak and Singapore to form the new nation Malaysia.

Before World War Two, Sabah and Sarawak were under the loose suzerainty of the Sultan of Brunei who gave trader James Brooke and the British Chartered Company administrative rights over these territories.

Seeds of the proposal: After the War, as part of its de-colonisation process, the Labour government in Britain intended to give up its colonies in the Far East.

It therefore opened negotiations with the Government of Malaya and representatives of North Borneo, Sarawak, Singapore and Brunei to create an enlarged federation.

Borneo States: In April 1962, a joint British-Malayan commission known as the Cobbold Commission investigated the proposal and reported that the people of the Borneo States wished to join Malaya and that the new federation would be in the best interests of North Borneo and Sarawak.

The Report of the Cobbold Commission led to the establishment of an Inter-Governmental Committee to work out the future constitutional arrangements, including safeguards for the special interests of North Borneo and Sarawak.

General elections were held in North Borneo in December 1962 and in Sarawak in 1963 and the proposal to join Malaysia won the support of the electorate.

However, the Philippines and Indonesia opposed the formation of the new federation and rejected the legitimacy of the self-determination process.

A Tripartite Summit was, therefore, held in Manila in 1963 to bring the parties together. It was agreed to invite the UN Secretary-General to ascertain the wishes of the people of Sabah and Sarawak and to determine the democratic legitimacy of the electoral processes in North Borneo and in Sarawak.

The Secretary-General’s mission spent three weeks in Borneo and reported that the Malaysia proposal had the wide backing of the people of these territories.

But the Indonesian and Philippines governments were not persuaded. Indonesia eventually resorted to an undeclared war (the “Confrontation”). Philippines laid a claim to Sabah under international law.

Singapore: Though relatively advanced compared with the Borneo States, Singapore had compelling reasons for closer association with Malaya.

There was need for economic security and the fear that an independent Singapore would succumb to communism. A merger referendum was conducted in Singapore and its results were affirmative.

Brunei: Though initially enthusiastic, Brunei backed out from the merger negotiations at the closing stages because of unresolved questions about the precedence of the Sultan of Brunei in the Conference of Rulers and the financial arrangements relating to Brunei’s rich oil reserves.

Malaysia Act: In September 1963, the Malayan Parliament enacted the “Malaysia Act” to restructure the constitutional framework of Malaya. In many respects, the amendments created a totally new Constitution to accommodate the realities of a new, enlarged and more diverse nation.

On Sept 16, 1963, the Federation of Malaya was transformed into the Federation of Malaysia, but not without opposition internationally and grumbles within.

The government of Kelantan had on Sept 10, 1963, challenged the impending Malaysia Day Agreement and the Malaysia Act on a number of grounds.

FIRST, that the proposed changes required the consent of each of the constituent states, including Kelantan, and this had not been obtained.

SECOND, that the Ruler of Kelantan should have been a party to the Malaysia Agreement; and he was not.

THIRD, that there is a constitutional convention that the Rulers of the individual states should be consulted before any significant modifications to the Merdeka Constitution are legislated.

In a historic judgment, the High Court ruled that Article 159 nowhere requires consultation with the states prior to the admission of new provinces into the federation.

As to the alleged constitutional convention, the court observed correctly that conventions are informal political practices not enforceable in a court of law.

And so, the Federation of Malaya expanded to 14 states. A new name (Malaysia) was emblazoned on the political firmament. Significant new rules were established to regulate the special relationship of the new entrants with the Federal Government.

The consequent amendments to the Constitution departed from the cardinal principle of equality of status among the members of the federation.

In many respects, the new federation resembled a union of five unequal entities – the powerful Federal Government, the 11 West Malaysian States with limited autonomy and the specially privileged states of Sabah, Sarawak and Singapore with considerable freedom from federal control in areas specially designated by the Supplementary State List and the Supplementary Concurrent List in the Ninth Schedule.

Singapore’s expulsion: Even before the celebrations of merger with Malaya ended, frictions developed between the government of Singapore and the Federal Government.

The overt disputes were primarily about “Malaysian Malaysia” – a Malaysia with equal rights for all or a Malaysia with special privileges for the indigenous Malays and the natives of Sabah and Sarawak.

The differences became so irreconcilable that Prime Minister Tunku Abdul Rahman was left with only two choices: remove Lee Kuan Yew from power under many special powers available to the Federal Government or bring about an amicable separation. The democrat that he was, Tunku opted for the latter.

The Malaysian Parliament enacted an amendment to expel Singapore from the federation. Despite the racial tensions and the political drama, the separation was peaceful and dignified and every effort was made to provide equitable terms on which Singapore could embark on its new journey.

Special position: Sabah and Sarawak joined Malaysia on terms substantially better than the ones offered to the Malay States in 1957. Forty-four years down the road this preferential treatment is often challenged. One must not forget that there were many factors that led to the special arrangements.

> There were historical events like the Resolution of the Malaysia Solidarity Consultative Committee (1961), Resolution of the Legislative Council of North Borneo (1962), Report of the Cobbold Commission (1962), the Twenty-Point Manifesto of Sabah Alliance (1962), Report of the Inter-Governmental Landsowne Committee (1963) and the Malaysia Agreement (1963).

> Sabah and Sarawak have a clear cultural, linguistic, ethnic and religious distinctiveness from peninsular Malaysia.

> They contribute huge territories to the federation. Their combined area is 198,069 sq km, exceeding peninsular Malaysia’s 131,681 sq km. The coastline of the two States is 2,607 km, against the peninsula’s 2,068 km.

> Despite their huge resources, there are problems of poverty and underdevelopment in these states.

> The 1963 “social contract” between the Federation of Malaya, Britain, North Borneo, Sarawak and Singapore was not merely a domestic political pact but was an international agreement.

We must remember that in contemplating the future, it is always necessary to be cognizant of the past.

Dr Shad Faruqi is Professor of Law at UiTM.

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