Malaysia

September 16 1963
Sabah and Sarawak joined the Federation of Malaya to form - Malaysia.

let us remember the good things of the day

=)

Remembering Malaysia Day?
BY SHAD SALEEM FARUDI

The spirit of moderation and accommodation that animated the birth of our country in 1963 must be continued as we gear for the challenges ahead.

YESTERDAY was the 45th anniversary of Malaysia Day. On Sept 16, 1963 the British colonies of Sabah, Sarawak and Singapore merged with the Federation of Malaya to form the new nation of Malaysia.

However, there was opposition externally as well as internally. Indonesia launched an undeclared war. The Philippines laid an international law claim over Sabah.

Within Malaya, the State of Kelantan vehemently opposed the transformation.

It went to court to challenge the impending Malaysia Day Agreement on the ground that under constitutional conventions its consent was needed for any significant amendment to the Merdeka Constitution.

In a historic judgment, Government of Kelantan v Government of the Federation of Malaya (1963), the High Court ruled that Article 159 (the amendment clause of the Constitution) nowhere requires the consent of the states prior to the admission of a new province into the federation.

As to the alleged convention, the court observed correctly that conventions are informal political practices not enforceable in a court of law.

And so, from 11 regions, Malaya expanded to 14. A new name was emblazoned on the political firmament. Significant new rules were established to regulate the special relationship of the new entrants with the federal government.

In many respects the new federation embodied a pact among five unequal entities – the powerful federal government, the 11 peninsular states with limited autonomy and the specially privileged regions of Sabah, Sarawak and Singapore with considerable freedom from federal control in designated areas.

The reasons for this special treatment need to be examined.

First of all, there were a number of historical and legal events, among them the Resolution of the Malaysia Solidarity Consultative Committee (1961), Resolution of the Legislative Council of North Borneo (1962), the Report of the Cobbold Commission (1962) and the Twenty Point Manifesto of the Sabah Alliance (1962).

In addition there was the Report of the Inter-Governmental Committee/Landsdowne Committee (1963), the Malaysia Agreement (1963) and the Malaysia Act 1963. All of them recognised the special needs of and acceded to the demands of the Borneo states.

Second, the cultural, religious and linguistic distinctiveness of the people of Borneo is an undeniable fact that justifies some special safeguards for indigenous traditions.

Third, the Borneo states contribute huge territories and massive resources to the federation. Their combined area is 198,069 sq km exceeding peninsular Malaysia’s 131,681 sq km. The coastline of the two states is 2,607 km compared to the peninsula’s 2,068km.

Fourth, despite their huge resources, there were, and still are, continuing problems of poverty and underdevelopment in Sabah and Sarawak.

Fifth, the 1963 pact between the Federation of Malaya, the United Kingdom, North Borneo, Sarawak and Singapore was not merely a domestic agreement. It was an international treaty.

For the above reasons, the Constitution of the Federation of Malaya was rewritten significantly to incorporate the special position of the new states.

> The three states were given some special and additional sources of revenue which the West Malaysian states do not possess.

> Schedule 9 which demarcates the legislative powers of the federation and the states contains three legislative lists – a Federal list with 27 topics; a State List with 13 topics; and a Concurrent List with 14 topics. For enlarging the legislative powers of the Borneo states a Supplementary State List with 6 topics and a Supplementary Concurrent List with 9 topics was added to the Federal Constitution.

> The Borneo States were given powers over immigration into the States.

> Sabah and Sarawak have their own High Court, their own Chief Judge and their own native courts. Appointment of judges to the Borneo High Court requires consultation with the Chief Ministers of the states.

> Due to the prevalence of non-Muslim religions in Sabah and Sarawak, the Constitution of the two States in 1963 did not contain provisions for Islam. Many federal rules relating to Islam as the religion of the federation did not apply in Sabah and Sarawak.

> Sabah and Sarawak have exclusive rights over land and local government.

> Despite Bahasa Melayu as the national language, the use of English and native languages is permitted in the Borneo States.

> Similar to the special position of the Malays under Article 153, the natives are also given special protection under Article 153.

> Any amendment to the Federal Constitution that affects the rights of Sabah and Sarawak requires the consent of the Governor of these states.

> The 1963 pact gave to Sabah, Sarawak and Singapore special representation in the Dewan Rakyat totalling more than one-third of the elected seats. Perhaps this was to enable these states to veto constitutional amendments.

> Article 150(6A) of the emergency chapter protects native law and custom in the Borneo states even against emergency legislation.

> West Malaysian lawyers have no right to practise before the courts in Borneo without a work permit.

Despite these special provisions, Kuala Lumpur’s relationship with the three special regions has not always worked well.

The union with Singapore lasted only two years. Tensions with the Borneo states have been plenty. In 1966 an emergency had to be declared in Sarawak to rein in the Chief Minister, Stephen Kalong Ningkan.

In Sabah the reign of Tun Mustapha witnessed a period of great state assertiveness. The PBS rode to power a few times by invoking the spirit of Sabah nationalism.

Most Sabahans have the perception – and perceptions are important – that their special rights as embodied in the 20-point agreement are not being fully respected.

What rankles them most is the federal government’s failure to control the massive influx of illegal immigrants into Sabah.

There is even an allegation that thousands of “illegals” have been granted permanent residence or citizenship thereby rendering useless Sabah’s control over immigration. Certainly Sabah’s population has shown exponential growth.

The federal government rebuts all these charges by pointing to international pressures to treat illegal immigrants humanely.

Another sore point is the amendment of the Constitution to appropriate Labuan as a federal territory.

A third explosive issue is that through constitutional amendments to Articles 3(3) and 38(7), Islamisation policies have been gradually extended to Sabah and Sarawak despite the 1963 exemption to these states from religious acts.

The Borneo states also lament that their representation in the Dewan Rakyat has fallen below the proportion in 1963 despite Article 161E(2)(e).

The federal leadership defends these changes by pointing out that most of these amendments were accomplished with the consent of the leaders of the Borneo states and in accordance with constitutional procedures in Article 161E.

In every federal system some tension between the central and regional authorities is unavoidable and even healthy.

In every functioning democracy, disagreements are bound to exist. If federal-state relationships exhibit no discord, that itself is a symptom of other ills. Sometimes the absence of the problem is the problem!

Malaysia has done well to keep federal-state tensions from exploding into open conflict.

The spirit of moderation and accommodation that animated the birth of Malaysia in 1963 must be continued as we gear for the challenges ahead. Our fellow citizens from Sabah and Sarawak have many grievances that need to be heard.

Dr Shad Saleem Faruqi is Professor of Law at UiTM, Shah Alam.