From Malaya to Malaysia

Wednesday September 23, 2009
From Malaya to Malaysia
REFLECTING ON THE LAWBy SHAD SALEEM FARUQI
Sabah and Sarawak brought much land and natural resources with them when joining then Malaya and Singapore to form Malaysia, thus the special privileges they are entitled to.
SEPTEMBER 16 was hardly noticed by Malaysians in the peninsula. It was Malaysia Day – the day in 1963 when the Federation of Malaya joined destinies with North Borneo (Sabah), Sarawak and Singapore to constitute the enlarged Federation of Malaysia.
Evolution: The process of conversion from Malaya to Malaysia was by no means trouble-free. The general election held in North Borneo in 1962 and in Sarawak in 1963, pointed to the desire of the people of the Borneo states to join Malaysia on the condition that their special interests were safeguarded in the new federation.
The governments of the Phili-ppines and Indonesia were vehemently opposed to Malaya’s reconstitution.
They rejected the legitimacy of the above self determination processes. A Tripartite Summit was, therefore, held in Manila which invited the UN Secretary-General to ascertain the wishes of the peoples of North Borneo and Sarawak.
The Secretary-General’s mission spent three weeks in Borneo to conduct a survey and released its finding on Sept 15, 1963, that the Malaysia proposal had the wide backing of the peoples of the Borneo states.
Still, the Indonesian and Philippines governments were not appeased. Indonesia resorted to an undeclared war dubbed “the Confrontation”. The Philippines laid an international law claim to Sabah.
Within the country, Kelantan commenced proceedings in the High Court to declare the Malaysia Agreement null and void. A few days before Malaysia Day, it laid two arguments before the court.
First, it argued that it was a founding member of the Federation of Malaya and as such its consent must be obtained before any changes are made that alter drastically the character of the Federation.
The court rejected this argument. Kelantan had agreed to the 1957 Constitution and in that basic charter, the power to amend the Constitution to bring new states into the Federation was a federal power that did not require the consent of the states.
Kelantan’s second contention was that there was a binding constitutional custom that any major amendment requires the consent of the states. The Court ruled that customs are not laws and are not enforceable in the courts.
Basis for special treatment: In 1963 the Inter-Governmental Com-mittee headed by Lord Lansdowne with then prime minister Tun Abdul Razak as the deputy chairman worked out several constitutional arrangements to guarantee the special position of the Borneo states.
This was deemed justifiable due to a number of socio-political, economic, geographical and legal factors.
> Sabah and Sarawak were culturally and religiously distinct from peninsular Malaysia.
> They were bringing huge territories into the federation. Their combined area of 198,069 sq km exceeded peninsular Malaysia’s 131,681 sq km. Their combined coastline was 2,607 km compared with the Peninsula’s 2,068km.
> They had massive potential resources in fisheries, ports, forests, timber, petroleum, river waters, hydroelectric power and tourism.
> Despite these resources they had serious problems of poverty, illiteracy, lack of infrastructure and under-development.
> The 1963 pact between the Federation of Malaya, the UK, North Borneo, Sarawak and Singapore was not merely an internal arrangement but an international treaty.
More autonomy: Malaysia’s federal model provides for a heavy central bias. But in relation to Sabah and Sarawak the Federal Government’s powers are not so pronounced.
For example, Sabah and Sarawak are excluded from Parliament’s power to pass uniform laws about land and local government: Article 95D. Sabah and Sarawak are also excluded from national plans for land utilisation, local government and development: Article 95E.
There are special rules about audits in Sabah and Sarawak (Article 112A).
The power of amending the Constitution which belongs to the federal Parliament is not as extensive in relation to Sabah and Sarawak as it is in relation to the peninsular states.
Under Article 161E constitutional amendments affecting the specified rights of the East Malaysian states cannot become law without the consent of the governors of these states.
The legislative competence of the various states is elaborated in the Federal Constitution’s Schedule 9 Lists II and III. Sabah and Sarawak have a Supplementary State List and a Supplementary Concurrent List conferring on them many legislative powers not allocated to the peninsular states.
Financial powers: The Federal Government’s stranglehold over most of the lucrative sources of revenue is not as strong in relation to Sabah and Sarawak as it is in relation to other states.
In three areas Sabah and Sarawak enjoy fiscal privileges that are not available to the peninsular states:
> Under Article 112B, these states are allowed to raise loans for their purposes with the consent of Bank Negara.
> These states are allocated special grants to meet their needs above and beyond what other states receive: Article 112C and 112D.
> Sabah and Sarawak are assigned eight sources of revenue not permitted to other states. These include import and excise duty on petroleum products, export duty on timber and forest produce and, subject to a ceiling, export duty on minerals.
> Sabah and Sarawak are also entitled to earnings from ports and harbours and state sales tax: Article 112C & Schedule 10, Pt. V.
Other privileges: The Federal Constitution is replete with many other provisions for the special position of Sabah and Sarawak.
> Under Article 153, the natives of Sabah and Sarawak enjoy a special position similar to that of the Malays.
> Customary courts and native law are given special protection.
> The High Court has a special wing for Sabah and Sarawak presided over by a Chief Judge for the region.
> In the Dewan Rakyat there are 28 MPs from Sarawak and 20 from Sabah. On a population basis this is very favourable.
> These states enjoy special protection in relation to the use of English and native languages: Article 161.
> The law on Malay Reserve Land does not apply to these states: Article 161A(5).
> The Borneo states have a special right to regulate immigration.
> Sabah and Sarawak lawyers have exclusive right to practise law in these states and in relation to cases originating there.
Forty-six years down the road, not all is well with the Borneo states’ relationship with the centre.
The influx of illegal immigrants and the alleged “naturalisation” of thousands of them are being regarded as violations of Sabah and Sarawak’s rights over immigration.
There are murmurs of discontent about Barisan Nasional’s choice of MBs and governors. Labuan’s federalisation is a sore point.
In the peninsula, there are concerns that integration is being hindered because of restrictions on freedom of movement and the requirement of work permits in one’s own land.
These are legitimate concerns. But one must also remember that in 1963 some concessions were awarded. They must be honoured.
Unity and integration, while laudable goals, must not be forced. They must be achieved within, and not outside, the solemn pact of 1963.
> Dr Shad Saleem Faruqi is Emeritus Professor at UiTM and Visiting Professor at USM.