THE process of redemption to restore the rights of Sabah and Sarawak under the Federal Constitution and the Malaysia Agreement 1963 must be viewed as urgent.
However, nobody familiar with the plethora and complexity of the issues will deny that reform will be a long-drawn affair and will encompass territorial, fiscal, religious, cultural, language and immigration issues. Concerns about native land, status of native courts and the special but forgotten position of the natives under Article 153 will also require attention.
In April 2019, a partial reform proposal was made by the then Federal Government but it failed to muster the required two-thirds majority in Parliament. An attempt is being made again by the present government and Law Minister Datuk Seri Dr Wan Junaidi Tuanku Jaafar deserves congratulations for this.
According to press statements, the following reforms are being proposed.
First, the Constitution Amendment Bill 2021 will restore the pre-1976 position of recognising Sabah and Sarawak as special regions of the Federation under Article 1(2).
Second, the Constitution in its current form defines “Merdeka Day” but not “Malaysia Day”. This will be remedied.
Third, there will be a new definition of “Federation” to refer to the one constituted after the Malaysia Agreement 1963.
Fourth, Article 161A Clauses (6) and (7) on the definition of a native of Sarawak will be repealed to permit the state of Sarawak the right to decide the qualifications of a “native” or a “person indigenous to Sarawak”.
Under the present Article 161A(7), the term “native” in relation to Sarawak has been defined to include the following 28 groups – Bukitans, Bisayahs, Dusuns, Sea Dayak, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagals, Tabuns and Ukits.
It has been submitted by some scholars, among them Ramy Bulan, that there are some errors in this list. Some groups from Sabah are mistakenly included. Some Sarawak natives are not mentioned by their preferred description. Others, like the Selakau, are not listed at all.
Another painful issue sought to be reformed is that for a child to be regarded as a native, both parents must be from one of the 28 races. If one parent is from a race not included in the Article 161A(7) list, the child of mixed parentage loses out on the status of a native and its accompanying rights and privileges.
It is not known from press releases whether the definition of a native in Sabah is also being looked into. The federal law in relation to Sabah suffers from a terrible gender bias that must be eliminated. Article 161A(6)(b) states that a person is a native of Sabah if:
> He is a citizen;
> A child or grandchild of someone indigenous to Sabah; and
> Was born in Sabah or born to a father domiciled in Sabah at the time of the birth.
This discriminates against domiciled mothers and is not in the spirit of Article 8(2) on gender equality. Personal laws are, of course, exempted by Article 8(5) from the equality requirement, but they should not be in this case as the mother’s domicile is just as important, if not more, than the father’s domicile.
In other respects, however, the law in Sabah on who qualifies as a native is much more inclusive than the law in Sarawak. Under the State of Sabah Interpretation (Definition of Native) Ordinance, Section 2(1)(b), a person is a native if one parent or ancestor is a native.
Along with the Suluk, Kagayan, Simonol or Ubian communities, people indigenous to Sarawak or Brunei or Indonesia or the Sulu group of Islands or the states of Malaya or Singapore who have lived as a member of a native community in Sabah for a prescribed period may also qualify as a native of Sabah! This inclusiveness is really remarkable and admirable.
In addition to the above debate about who qualifies as a “native”, two significant issues of native law and native courts that have constitutional implications deserve mention.
First, native courts are regarded as inferior courts whose decisions are subject to review by the high court. The review of native court decisions by the high court is in contrast with the independence of syariah courts under Article 121(1A) of the Federal Constitution.
Some scholars in Sabah and Sarawak argue in favour of similar independence and upgrading of the native courts to be on par with the civil and syariah courts. They, however, agree, that to raise the status of native courts, the training and legal literacy of the native court officials have to be improved.
It must also be observed that in the matter of judicial review, the contrast in the position of the native and syariah courts has become lesser after the Indira Gandhi a/p Mutho decision in 2018. This landmark decision revives the power of the civil courts over “inferior tribunals”.
Second, there is a clear contrast between the peninsula and Sabah and Sarawak over how to treat a clash between customary law and syariah law. In the peninsula, on personal law matters, both adat and agama are handled by the same syariah courts.
In Negri Sembilan, for example, any conflict between adat perpatih and the syariah is sought to be harmonised by the syariah courts. In other peninsula states, too, adat plays a significant role in the syariah courts.
Unlike on the peninsula, in Sabah and Sarawak, native law and syariah are, understandably, assigned to different jurisdictions. The State Enactments are clear that if the parties are Muslims, the syariah should apply.
The reality, however, is more complex. If both (Muslim) parties are agreeable to the application of native law, the native courts often accept jurisdiction and pronounce a decision. Legally this is problematic. Jurisdiction comes from the law, not from consent or acquiescence.
In sum, the process of restoration of Sabah and Sarawak’s special position in our federation must be pursued vigorously and the broadest possible consultations must be conducted.
Besides looking at MA63, we need also to take note of changes that have become necessary to meet the felt necessities of the times.
The author is Tunku Abdul Rahman Professor at the Faculty of Law, Universiti Malaya. The views expressed here are the writer’s own.