Sabah rights: Story so far and what next

Published on: Sunday, August 22, 2021

By: Anuar Ghani

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Signing the MA63 in London: SLS is coming up with a handbook so students will know the background and issues.

THREE committees have been formed to discuss MA63 rights.

Round 1

In 2017, stating that Sabah was BN‘s fixed deposit and realizing the emergence of Sabah rights as a political issue, then Prime Minister Dato Najib Razak established a Devolution of Authority to Sabah and Sarawak and Malaysia Agreement 1963 (MA63) implementation committee.

This was at the behest and insistence of then Foreign Minister from Sabah, Datuk Anifah Aman. This cabinet level committee was headed by Anifah and Dato Nancy Shukri. At the state level the Sabah State committee was headed by Datuk Teo Chee Kang. No agreement was reached because BN lost the general elections in 2018.

Round 2

Then under the PH government in 2018, a Presidential council headed by then PM Tun Dr Mahathir Mohammad was formed together, among others, with the Chief Ministers of Sabah and Sarawak.

Much was done by the late Datuk VK Liew who worked tirelessly to raise 21 matters as the issues to be discussed. Out of these 21 issues, 17 were agreed leaving four outstanding.

Of the 17 agreed issues, three were resolved i.e. (i) Export duties for timber and forest revenues (ii) Administration of Sipadan Island and Ligitan Islands (iii) Agriculture and forest issues.

Of the balance 14 agreed issues, four concerned the Delegation of power to the Sabah and Sarawak courts and administration of Justice, appointment of Judicial commissioners and Stamp duties imposed on transfer instruments (Memorandum of transfers), charges, leases of land under the Sabah Land Ordinance.

This leaves 10 agreed issues which includes

(i) Regulation of gas and electricity in Sabah and Sarawak

(ii) Implementation of federal work in Sabah and Sarawak

(iii) Labour force in Sabah and Sarawak Federal

(iv) Joint obligations under joint list

(v) Review of Special gifts ($)

(vi) Fishing, inshore and offshore fisheries

(vii) Ownership of federal lands in states

(viii) Article 112 of the FC (increase in employment)

(ix) Legal authority on Tourism and environment

(x) State authority over health issues in Sabah and Sarawak.

These remaining four outstanding were regarding

(i) Oil royalty and petroleum cash payments

(ii) Oil minerals and Oil Fields,

(iii)Territorial Sea Act 2012 (Act 750): and

(iv) State rights over the continental Shelf. The four outstanding issues revolve around oil rights and the sea (The money issues). These are the Continental Shelf Act 1966, the Petroleum Development Act 1974 and the Territorial Sea act 2012. Also, there has been no resolution of the 40pc entitlement of Net Revenue under Article 112D of the Federal constitution.

Round 3

In 2020, the PN government, after taking power, formed a Special Council headed by then PM Tan Sri Mahiadin Yasin. Three corresponding Federal and state working committees were formed to discuss and make recommendations to the Special Council. The three committees covered Equal status and constitutional rights, Security and Socio-economic matters.

What we have are the committees to discuss presumably the 10 agreed issues left out of the 21 issues brought out during the late VK Liew’s time. In addition thereto, the amendment under Article 1(2) (Equal Status of Sabah) of the federal constitution and illegal immigrants were discussed under the Equal status committee and the Security Committee respectively.

Interestingly, what was not raised in the 21 issues are Religion, Language, education, Local government, new constitution, TYT title, citizenship and immigration. Maybe some are considered “too sensitive” or water under the bridge.

The question arises what and why only these 10 agreed issues (albeit with the inclusions above)? How were these issues decided and identified?

Why is it limited to 21 issues? Was this the work of politicians per se together with the civil service and who else?

Was there any consultations with the public, civil society and interest groups and affected people? Were the people ever consulted or given a chance to voice their opinions?

Or consultations were deemed not necessary? What now? There is another change of government. Now how, Round 4?

Pre-Malaysia Consultations

We must remember that there were two fact finding missions for the views of the people before and during the formation of Malaysia, flawed or criticized though they might have been.

There was the Cobbold Commission (I962) and the United Nations Malaysia Mission (UNMM) Report (1963). The ordinary people were consulted during the Cobbold Commission. The results might have been rigged to favour the formation of Malaysia but there were consultations.

Similarly in 1963 the UNMM met not only all the leaders who contested and won in the First Indirect elections of 1962 and 1963 in Sabah where the Sabah Alliance won 131 out of 137 seats in the Town and Local Council elections but also losing candidates, people prevented from voting, all the returning officers and whoever deemed relevant to ascertain their views.

The UNMM found that the people of Sabah having voted for the Sabah Alliance platform of forming Malaysia did so in exercise of their free will knowing exactly what they were voting for. In the 60s at least the motions of referring to the people‘s and leaders wishes was respected and adhered to.

No consultation

This is sadly lacking in reference to establishing the wishes of the people with regards to Sabah and MA 63 rights. What the government of Sabah should do is make a clear stand on MA63 rights, listen and consult the people, make a repository of these list of demands and grievances and establish a mechanism and institution or body to express, make and negotiate these demands.

The issue of Sabah and MA 63 rights have used and misused, misrepresented and misunderstood by both demagogic politicians and the unenlightened layman alike.

MA63 and Sabah Rights

MA 63 and Sabah rights are a complex issue. You need to have in hand all the Foundational documents which include The Cobbold Commision Report, The 20 points, The Inter Government Committee Report 1962, The Malaysia Agreement 1963, The Malaysia Act 1963, Chapter 35(United Kingdom of Great Britian and Northern Ireland), The Malaysia Act 1963, Act 26 (Malayan parliament), The Federal and state constitutions and for good measure the Keningau Oath stone (1964).

One also needs to know the relevant articles in the constitution which enshrined Sabah ‘s rights, the amendments thereto eroding them, the Ninth Schedule containing the federal, state and concurrent lists and the various acts and means which has circumvented or diminished Sabah’s rights.

One needs to know all these to begin to comprehend the issues. Or one can choose to be selective and be under-informed.

I did a list of Sabah and MA63 Rights which have been taken over or eroded over the years and I stopped at a possible 25 breaches. There are many, many more.

The question is how do we Sabahans deal with this formidable mountain of breaches which is higher than Mount Kinabalu? Are the people’s representatives knowledgeable enough to tackle these issues? Is the public knowledgeable enough to firstly understand the issues and be ready, willing and able thereafter to articulate their views? Are the leaders engaging and listening to the people? These are some of the questions arising. Here are some ideas and proposals to address these issues.

Educating oneself on Sabah rights

Take a cold towel, lock yourself up in room, have plenty of coffee and read the foundational documents. It’s heavy reading, even for a lawyer. There are also books one can read, two of which are Zainal Ajmains “Queens Obligations” and “The Grand Design”. He gives regular talks on Sabah rights, in public and via Zoom. Professor Emeritus Datuk Dr Shad Saleem Faruqi of University Malaya, a constitutional expert also talks about Sabah rights, the latest of which was “Special Position of Sabah and Sarawak in the Federal Constitution “ on 19th August 2021.

Also the late Tan Sri Herman Luping’s chapter in the IDS publication on “The History of Sabah from 1888 to 1988” is a good introduction. The Sabah Law Society (SLS) is preparing a handbook on the history of Sabah’s formation and MA63 rights which will be used for schools, higher study and research and for the general public. This should be out by the end of the year. Also there is the Sabah Action Body Advocating Rights (SABAR)Trusteeship (one of the few established in Sabah) which deals with Sabah and MA 63 rights.

To me, we need to make a definite stand and take a focused, consultative and systematic approach.

Making a stand

1. Firstly, there must be Declaration or expression of grievance and demands by Sabah.

What is required to express a stand is by passing a motion in the Dewan Undangan Negeri Sabah along these lines;

“.. Bahawasanya Kerajaan Sabah mengambil segala tindakan yang perlu di ambil untuk melaksanakan dan menunaikan Hak-HakSabah dalam Malaysia serta Aku-Janji dan Jaminan-Jaminan termasuk Hak pemberian dan Hasil Tambahan menurut Artikle 112C, 112D dan jadual 9 Perlembagaan Persekutuan, Di bawah Artikel VIII Perjanjian Malaysia 1963 saperti yang di persetujui semasa pembentukan Malaysia dan dalam dokumen-dokumen yang berkenaan termasuk Perlembangaan Persekutuan, Lapuran IGC, Batu Sumpah bersama segala dokumen, memorandum, perjanjian, jaminan dan syor, akujanji yang berkenaan dan berkaitan”.

Ideally, it should be passed unanimously but a sizeable majority will suffice.

Establishing a mechanism

After the Declaration of stand and grievance and Resolution for Demand;

The Sabah Government should then form a Sabah State Consultative Council (SCC)to collect, vet views, establish a repository of the demands. Revisit the rights from all aspects including those not included in the 21 issues which include religion, education, TYT position and title, new constitution, Local government, immigration etc. Have an open discussion and let the people put forward their views.

The SCC should comprise Government and Opposition members. It should be bi-partisan and should consult and seek views from the public, civil society and interests groups. Use social media. Let the people vent their views. Let the people articulate and participate. We have been waiting for 58 years. Let’s do it properly.

The SCC shall be empowered to decide on the issues and crystallise the demands to be brought for discussion with the Federal Government.

Prioritising our demands

Divide the demands into three (or Four) tiers;

- The 40pc under Article 112D

- The Money issues viz Oil: The CSA, PDA, TSA

- Decentralisation matters; Tourism, Environment, health, education, Local government, agriculture, mining etc etc

- State identity issues: Equal status, Religion, New constitution, Citizenship, Position of TYT, Sabah Identity card etc may require another special category.

Inter-Government Committee

The SCC and the Federal Government will then meet in an Inter-Government committee (IGC) meeting to reformulate the new terms of the federation. IGC round 2. Sabah must get de facto and de jure rights. Political horse trading will follow and legal alternatives should be considered.

Real Grievances

Sabah was formed through consultations and committee hearings led by leaders who were, in hindsight, naïve and taken advantage of, being promised the moon and the sky. Our grievances are real. Granted Malaya has many reasons for not granting us what we are rightly asking for.

This includes causing a stampede of demands of rights from the other states like Johor and Kelantan and of course massive loss of revenue.

We are only asking for our rights, as promised and as codified before amendments and circumventions. We want our fair share, nothing more, nothing less.

The voices of discontent against Malaya is getting stronger. It cannot be ignored. Eventually, the voices will become so loud and strong, these voices can only be dealt with through suppression and repression. At that time, unless Malaya listens and act, Malaya will reap what it sowed. The same, too, applies to Sabah politicians.

- Anuar is a lawyer and passionate advocate of Sabah rights.