Sarawak and the use of English

IN all of the 25 or so federal systems in the world, occasional conflicts of interest between the federal and regional governments are unavoidable. Malaysia is no exception.

If the conflict cannot be resolved amicably through the political process, then our Constitution provides for a number of legal channels.

There are bodies like the National Land Council, National Council for Local Government and National Finance Council to formulate policies on the matters in contention.

If this too fails to restore federal-state harmony, then there is the possibility of resorting to the courts under Articles 4(3), 4(4) and 73-95E.

Lately, there has been a difference of opinion about Sarawak’s dual language policy. The controversy was generated by a speech on Oct 25 by Prime Minister Datuk Seri Anwar Ibrahim, who reminded the nation that all communications with government departments must be in Bahasa Malaysia otherwise the letters would be returned to the senders.

The PM’s directive was undoubtedly inspired by Article 152(1) of the Federal Constitution, which prescribes that the national language shall be the Malay language and shall be used for all official purposes.

“Official purpose” is defined in Article 152(6) as any purpose of the federal or state governments or a public authority.

However, there were robust voices of dissent from Sarawak to the PM’s directive. Sarawak’s Premier Tan Sri Abang Johari Tun Openg pointed out that Article 161(3) provides that the use of English for official purposes in Sabah and Sarawak cannot be terminated by an Act of Parliament unless the Act has been approved by a State Enactment.

State Secretary Datuk Amar Mohd Abu Bakar Marzuki declared firmly that Sarawak will not “follow the reminder” by the PM as it did not apply in the state.

State Deputy Minister for Public Health, Housing and Local Government Michael Tiang Ming Tee also pointed out that the use of English in Sarawak is guaranteed by the Federal Constitution.

Indeed, that is so. The continued use of English was one of the delicate compromises of our “asymmetrical”, “consociational” federal system adopted in 1963 in relation to Sabah and Sarawak. The Constitution and laws recognised that unity need not mean uniformity but must be unity in diversity.

A mosaic and not a melting pot was adopted as our model for living together in peace, harmony and mutual respect. This was especially so in relation to Sabah and Sarawak due to their distinct characteristics and unique aspirations.

On the use of English in Sabah and Sarawak, the following provisions deserve special note.

Article 161: Articles 161(1) and (2) prescribe that English can be used in Sabah and Sarawak in their Courts and Assemblies or “for other official purposes (including the official purposes of the Federal Government)” for 10 years after Malaysia Day. The 10-year time limit is of course over, but it does not apply because of Article 161(3), which mandates that no Act of Parliament regarding the use of English in Sabah and Sarawak shall come into operation until “it has been approved by an enactment of the Legislature of that State”.

This means the National Language Act (NLA) 1963/67 does not extend to Sarawak unless the Sarawak Assembly approves it, which it has not. According to Tiang, “Sarawakians are, therefore, free to opt to use English or Malay for letters to federal government departments since both languages are official languages in Sarawak”. According to him, the Federal Government has a constitutional duty to entertain these letters in English from Sarawak.

Education: The case of Merdeka University Bhd v Government (1982) ruled that education – whether public or private – is an official purpose under Article 152. This means Article 161’s permission to Sabah and Sarawak to use English for “official purposes” applies equally to all levels of education till Sabah and Sarawak adopt the various laws on education, among them the NLA, Education Act 1996, and Private Higher Educational Institutions Act 1996. The NLA has not been approved by the Sarawak Assembly. Whether the other two Acts have been approved by enactments in Sabah and Sarawak requires further exploration.

MA63: There is an additional dimension to Sabah and Sarawak’s autonomy due to the Constitutional Amendment Act, 2022. In this important constitutional amendment, the term “the Federation” in Article 160(2) is redefined to include the Federation established pursuant to the Malaysia Agreement of July 9, 1963 (MA63) along with the earlier Federation established under the Federation of Malaya Agreement 1957.

Up to now, the Inter-Governmental Committee Report (IGC Report) 1962 and the Malaysia Agreement 1963 (MA63) were merely international agreements (and thereby not enforceable in local courts). The incorporation of MA63 into the Federal Constitution means that MA63 is not merely an international or historical document but is now part of our law.

MA63 can now be taken note of by our courts, and can be used as an aid to the interpretation of local laws including the Constitution. Though MA63 cannot nullify or override an explicit provision of our Constitution, courts can try, as far as possible, to harmonise existing constitutional provisions with MA63.

Another pivotal point is that because MA63 is constitutionalised, the IGC Report, which is recognised in MA63, is also indirectly constitutionalised. The relevant passage in MA63 is: “The Government of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other actions as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the Inter-Governmental Committee signed on 27th February 1963, in so far as they are not implemented by express provision of the Constitution of Malaysia.”

IGC Report: The IGC Report has 37 sections and four Annexes and is rich with legal, political and financial provisions, which must now be taken note of as aids to interpretation. For example, there is a provision on education in Paragraph 17, which states, “... although Education, item 13(a) of the Federal list in the Ninth Schedule, will be a Federal subject; the present policy and system of administration of education in North Borneo and Sarawak should be undisturbed and remain under the control of the Government of the State until that government otherwise agrees.”

To sum up, the Federal Constitution in Article 161 permits Sabah and Sarawak considerable latitude to continue with educational and language policies of the pre-Malaysia era unless they agree to subordinate themselves to the relevant Acts of the Federal Parliament on matters of language and education.

This autonomy and uniqueness have been bolstered further by the constitutionalisation in 2022 of the Malaysia Agreement and the IGC Report.

The autonomy and asymmetry that Article 161, MA63 and the IGC Report reflect is not unique to Malaysia. In English-speaking Canada, for example, the province of Quebec adopts French as the predominant language within provincial government institutions and society.

The province of New Brunswick is, under the Canadian Constitution, officially bilingual.

So, it is possible, if we open our hearts and minds, to preserve diversity, celebrate commonalities and develop unity and common humanity.

Emeritus Prof Datuk Dr Shad Faruqi is Holder of the Tunku Abdul Rahman Chair at Universiti Malaya. He wishes all Hindu readers the blessings of Deepavali. The views expressed here are the writer’s own.