ON April 20, Society Empowerment and Economic Development of Sabah held a seminar in Kota Kinabalu, where I had the privilege of noting that Sabah and Sarawak have a unique position in our Federation and many special rights not available to the 11 peninsula states.
Under Schedule 9, Sabah and Sarawak’s legislative power is larger than that of peninsula states. Federal power to have uniform laws for land, agriculture, forestry and local government under Article 76(1)(b) of the Federal Constitution does not apply to Sabah and Sarawak.
Under Article 161E(2), the consent of their governors is required to a constitutional amendment affecting these states.
In 1963, there was no state religion in Sabah and Sarawak. Article 161C 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 will be allocated for social welfare in these states.
Article 161D provided that a state law restricting the propagation of any religious doctrines to Muslims may not be passed without a special two-thirds majority.
Besides syariah courts, there is a system of native courts. The High Court has a separate wing for Sabah and Sarawak, and the appointment of its chief judge requires consultation with the chief minister of these states (Article 122B(3)). Judicial commissioners in the High Court for Sabah and Sarawak shall be appointed by the governor on the advice of the chief judge (Article 122AB, later amended).
Sabah and Sarawak have 56 out of 222 or 25% of the MPs in the Dewan Rakyat. This is an over-representation based on population.
Policies of the National Land Council and National Council for Local Government are not binding on Sabah and Sarawak.
The Federal Government’s stranglehold over most of the lucrative revenue sources is not as strong in relation to Sabah and Sarawak as it is in relation to other states. Sabah and Sarawak get special revenues to meet their needs above and beyond what other states receive (Article 112C(1)(b) and Tenth Schedule). Sabah and Sarawak are also entitled to taxes, fees and dues on eight sources of revenue like import and excise duties on petroleum products, export duty on timber and other forest produce, export duty of up to 10% on minerals (other than tin), state sales tax, fees and dues from ports and harbours (Article 112C and Tenth Schedule). Under Article 153, the natives of Sabah and Sarawak enjoy a special position similar to that of the Malays of the peninsula.
The mobility of non-residents to Sabah and Sarawak is restricted: Article 161E(4). There is restriction on non-resident lawyers practising before the courts of Sabah and Sarawak or for cases originating in these states (Article 161B).
Sabah and Sarawak enjoy special protection in relation to the use of English and native languages (Article 161).
There is non-application of Malay reserve lands to these states (Article 161A(5)).
The Sabah Assembly is allowed six appointed members besides the elected assemblymen.Sabah and Sarawak nationalists assert, and rightly so, that in many areas, the 1963 pact has not been observed. It is alleged that federal allocations to the Borneo states do not take into account the huge direct and indirect federal earnings from these states. There is unhappiness over the meagre 5% oil royalties.
The Federal Government’s answer is that under the Constitution, all oil and oilfields, petroleum products, mineral resources, mines, mining, minerals and mineral ores, import and export of minerals are in Federal hands (Sch 9, List I, Para 8(j)). Sabah and Sarawak are entitled only to import and excise duties on petroleum products (Tenth Schedule, Part V, Para 1).
The 5% royalty on oil for Sabah and Sarawak is not derived from the Constitution but from the freely negotiated Assignment Deed between the states and Petronas.
Another extremely intricate complaint is that Sabah and Sarawak have not received the mandatory financial allocations due to them under the Tenth Schedule, Part IV.In violation of procedural safeguards, critical state matters such as environment, water, tourism and appointment of judicial commissioners have been federalised. Articles 121(1) and 121(1A) were amended in 1988 to emasculate the powers of the courts, including the High Court of Borneo. A constitutional amendment that symbolically diluted the special position of Sabah and Sarawak is Amendment Act A354 (1976) to amend Article 1(2) to lump Sabah and Sarawak with the other 11 states.Borneonisation of the administrative services is moving too slowly. Many federal appointments ignore deserving people from Sabah and Sarawak. The naturalisation of thousands of illegal immigrants has destroyed state autonomy in the matter of immigration.
The native character of Sabah and Sarawak has been diluted over the years and Islamisation has been a key policy of the Federal Government since the 1980s. Repeal of Articles 161C and 161D is clear proof of this point. Laws have been enacted to provide that in the case of Muslims, native law will not apply and the syariah courts shall have sole jurisdiction. Recently, it came to light that Muslims are often appointed to head the native courts.
Most of the above grievances are legitimate. But there are demands that are illegal or difficult to meet, among them the belief that there is a right to secession. Nationalists in these states rely on the Cobbold Commission Report, the Inter-Governmental Committee Report, the 20 and 18 points and the Malaysia Agreement, which are historical documents of great significance but not law under Article 160(2).
There is a claim that Sabah and Sarawak are not states but nations and have equality of status with the 11 peninsula states combined. This claim is pure rhetoric and has no legal basis.
We must distinguish legal reality from political aspiration. Our supreme Constitution needs to be studied carefully to see what it provided in 1963 and what has been diluted. The original provisions should be restored and the existing laws polished up to meet new aspirations.
Shad Saleem Faruqi is the holder of the Tunku Abdul Rahman Foundation Chair at Universiti Malaya’s law faculty. The views expressed here are entirely the writer’s own.