Do states have right to secede?

Secession is an act whereby a region of a nation removes itself from the larger nation. Lately, this issue has been raised in high circles in several states of our federation.

IN contrast to unitary states, a federation is marked by the existence of dual governments. There is a constitutional division of legislative, executive, judicial and financial powers between the central government and semi-autonomous state/provincial/regional governments. There is “self-rule plus shared rule”.

However, despite the constitutional demarcation, disputes invariably arise. In the 25 or so federations around the world, discontents often flare up between the federal and state governments and among the various states over territorial boundaries, river waters, ownership or sharing of financial resources, especially petroleum royalties, and issues of religion, language or politics.

In Malaysia, the states of Kelantan, Penang, Sarawak, and Johor are prominent for publicly expressing their complaints against federal violations of their rights contained in foundational documents.

Most constitutions provide some mechanism for peaceful resolution of federal-state disputes.

1. Our Constitution in Articles 75, 76, 76A, and 77 gives some guidance on how jurisdictional disputes may be resolved and how “cooperative federalism” may be promoted.

2. Article 108 provides for a National Finance Council and Article 91 for a National Land Council – both with representative composition – to advise federal and state governments on these matters.

3. The electoral process and existence of elected and representative assemblies permit self-government.

4. There is also the possibility of judicial review under the supremacy clause of the Federal Constitution. In Malaysia, about a dozen federal-state disputes have gone to the courts, and the scorecard is mixed.

Kelantan set the ball rolling in 1963 when it challenged the Malaysia Agreement and the Malaysia Act on the ground that the proposed changes to the Federation of Malaya Agreement 1957 require the consent of each of the constituent states, including Kelantan. Its action failed because Article 159 (on constitutional amendments) does not mandate consultation with or consent of the states.

What if all of the above mechanisms fail? Do the states have a right to secede from the Federation if their discontents are not addressed? Secession is an act whereby a region of a nation removes itself from the larger nation.

Lately, this issue has been raised in high circles in several states of our federation.

Legally speaking, neither the Federal Constitution nor any of the State Constitutions contain any provision for the secession of any state from the federation. The disintegration of the federal union is not contemplated by our apex law, nor by any foundational or historical document that preceded the Federation of Malaya or the Federation of Malaysia.

For example, the 20-Point Agreement with Sabah explicitly states in para 7 that there is no right to secession.

A referendum (for which there is no provision in Malaysia) cannot override the gilt-edged provisions of the supreme Constitution, which, in Article 1, describes the name, States and territories of the Federation, and, in Article 2, provides for the admission of new territories into the Federation.

In fact, any attempt to secede or incitement to secede may amount to a serious criminal offence under the Penal Code (Sections 121 and 121B) and the Sedition Act’s Sections 3(b), 3(d), and 3(e).

Anyone advocating secession may also be subjected to a number of preventive detention laws.

But what about Singapore? Contrary to what is believed, Singapore did not unilaterally secede from Malaysia. Its “separation” was accomplished by several mutual acts. Among these were the Independence of Singapore Agreement 1965, and the Constitution and Malaysia (Singapore Amendment) Act 1965. The latter made significant modifications to the 1957 Federal Constitution and the 1963 Malaysia Act and explicitly stated, “Parliament may by this Act allow Singapore to leave Malaysia.”

What about international law? One has to concede that the law of nations recognises the right of people to self-determination. This law was born in an era of decolonisation and embraces the notion that people who have a common historical, ethnic, cultural, linguistic, religious, ideological, territorial or economic identity have a right to determine the political and legal status of their territory. They may set up a new state or choose to become part of another state.

In recent memory, Bangladesh (1971), Eritrea (1993), Timor Leste (2002), South Sudan (2011) and Crimea (2014) travelled down the painful, blood-soaked path of national liberation.

This principle of self-determination is recognised in Articles 1(2), 55, 73 and 76(b) of the United Nations Charter and in many other international documents. However, international law scholar Abdul Ghafur Hamid asserts that the legal right of self-determination applies primarily to colonised, trust and mandated territories: “The effect of linking self-determination to decolonisation seems to deny a ge- neral right to secession of groups within a State.”

This makes sense because if the hundreds of ethnic, religious or linguistic communities in Catalonia, Kurdistan, Tibet, Scotland, Luhansk, Donetsk, and Quebec are entitled to secession, there would be no limit to the break-up of existing states.

I believe that despite some ambiguity in international law, the various regions of a federation do not have a legal right to walk away from the union.

A unilateral act of separation is permissible in confederations like the European Union or Asean but not in a federation united by a written, supreme Constitution, which describes the territories of the federation.

There may be an exception in the case of “remedial secession” where a minority ethnic group faces severe structural discrimination or grave violations of fundamental rights, as in the International Court of Justice decision in the Lozidou v Turkey case.

It is submitted, therefore, that leaders of Sabah, Sarawak and Johor must disassociate themselves from all separatist movements. Instead, they must study the apex law closely and demand compliance with its provisions. Their discontents are genuine and manifold. They must speak with one voice and seek greater autonomy.

On its part, the Federal Government must realise that internal autonomy, equality and social justice are the best antidote to secession.

Shad Saleem Faruqi is Tunku Abdul Rahman Professor at Universiti Malaya. He wishes all Muslim readers Selamat Aidiladha. The views expressed here are the writer’s own.

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