FIFTY-EIGHT years ago on Sept 16, 1963, the Federation of Malaya joined the self-governing territories of North Borneo (Sabah), Sarawak and the British colony of Singapore to forge the new and enlarged nation of Malaysia. Even though Singapore exited the Federation two years later, the formation of Malaysia was nevertheless a remarkable feat.
While the late Tunku Abdul Rahman is commonly regarded as the leading architect of Malaysia, this remarkable union would not have been possible without the tireless negotiations between, and the warm cooperation of, key Sarawakian and Sabahan leaders of the time – Tun Fuad Stephens and Tun Datu Mustapha Harun of Sabah and Tun Temenggong Jugah, Stephen Kalong Ningkan and Tan Sri Ong Kee Hui of Sarawak.
In embarking on the formation of Malaysia, the delegates of Sabah and Sarawak made it very clear to the Inter-Governmental Committee (IGC) headed by Lord Lansdowne and the then Deputy Prime Minister Tun Abdul Razak that special constitutional rights were preconditions for forming Malaysia.
Sabah summarized its demands in the famous "20 points Manifesto". Sarawak expressed them in a similar "18 points Memorandum". The IGC Report, the Malaysia Agreement, and the Malaysia Act also gave expression to these special aspirations.
The Federal Constitution was therefore amended significantly to accommodate the demands of Sabah and Sarawak for autonomy. Eighty-nine out of 181 Articles and 12 out of 13 Schedules were amended. Thirty-seven new Articles were inserted to define Sabah and Sarawak’s special relationship with the Federal Government.
This special asymmetrical arrangement was justified because of Sabah and Sarawak’s cultural and religious distinctiveness, their huge territories (60% of Malaysia’s land mass), their rich natural resources in petroleum, natural gas and timber, and (yet) acute problems of poverty and underdevelopment.
Sabah and Sarawak were given wider legislative powers than the peninsular states. The federal power to have uniform laws on land, agriculture, forestry, and local government is not applicable to Sabah and Sarawak. Amending the Constitution to affect the rights of Sabah Sarawak requires the consent of their Governors.
There is a High Court for Sabah and Sarawak and the appointment of the Chief Judge requires the consent of the Chief Ministers of these States. The appointment of Judicial Commissioners, till 1994, was in the hands of the Governors of Sabah and Sarawak. Native Courts exist to administer native law.
The special protection of Article 153 applies to the natives of Sabah and Sarawak as it does to the Malays of the peninsula. In the matter of English and native languages, the Borneo states have special privileges. Immigration into Sabah and Sarawak is controlled by these states. Policies of the National Land Council and National Council for Local Government are not binding on Sabah and Sarawak. The law on Malay reserves is not applicable to these states.
All these special provisions formed the foundation of a hopeful beginning for the new federation. Regrettably, not everything has worked out well. Sabah and Sarawak have suffered loss of some of their special rights.
There is discontent about inequitable sharing of resources and lack of fiscal federalism. Critics allege that federal allocations to the Borneo states do not take into account the huge direct and indirect federal earnings derived from Sabah and Sarawak's resources in petroleum, hydroelectricity and tourism. A major and intricate complaint is that Sabah does not receive the mandatory financial allocation due to it under the Tenth Schedule (Grants and source of revenue assigned to states).
Some constitutional amendments have directly or indirectly diminished Sabah’s and Sarawak’s rights without their consent.
Borneonisation of the administrative services is proceeding too slowly. Federal appointments tend to ignore local talents. There are also concerns that Islamisation and Malay-nisation of Sabah and Sarawak have been key policies of the Federal Government since the 1980s.
Federal manipulation of state politics resulted in the removal of popularly elected state leaders in 1966, 1994 and 2020. In 1963, 34% of the Dewan Rakyat MPs were from Sabah, Sarawak and Singapore and had the power to veto any constitutional amendment. This proportion has now gone down to 25%. There is unhappiness that many judges in the peninsula do not recognize the "validity" of some venerated historical documents as the legal basis for Sabah and Sarawak’s rights.
The list of demands and disagreements is long and painful, and there is a growing movement for secession.
However, there is no cause for pessimism. Tensions are inherent in any federal set up. What is necessary on both sides of the South China Sea is to return to the letter and spirit of the Federal Constitution of 1963 – to honour and renew our commitments to the safeguarding of the rights accorded to Sabah and Sarawak.
A time frame must be set for the arduous task of restoring these rights. If the felt necessities of the times require minor amendments, that should be attempted. Perhaps in some areas, the Constitution is ripe for review. Federalism is a continuing journey and not a fixed destination.
That way, we may be able to come closer to the ideals of the painstakingly reconstructed 1963 Constitution that empowers nation builders of Sabah, Sarawak and the peninsula states to come together and remain together as equal partners in determining a collective vision of Malaysia.
To quote Tun Jugah himself, "Malaysia should not be like the sugar cane – sweet at the head but less sweet towards the end."
May we commit to building a sweeter future for Malaysia.
EMERITUS PROF DATUK DR SHAD SALEEM FARUQI