Next, what needs to be resurrected and enforced
Published on: Sunday, December 19, 2021
By: Prof Dr Shad Faruqi
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LAW Minister Datuk Seri Wan Junaidi Tuanku Jaafar deserves warm congratulations after successfully piloting the Constitution (Amendment) Bill 2021 through the Dewan Rakyat.

We wish him similar success over the next constitutional steps: two-thirds majority in the Dewan Negara and assent of the Yang di-Pertuan Agong. Additionally, the government should examine whether the concurrence of the Governors of Sabah and Sarawak under Article 161E is also needed.

There are three major provisions in the celebrated Amendment Bill.

First, Article 1(2), which describes the territories of the Federation, is amended to place Sabah and Sarawak in a separate and special category. This restores the autonomous and “asymmetrical” position of Sabah and Sarawak that existed between 1963 and 1976. The unnecessary status-downgrade of 1976 is reversed.

However, the amendment to Article 1(2) is more symbolic than substantial and will not be the magic wand to resolve any woes. 

Autonomy and special rights of the Borneo States are contained in about 80 provisions of the Federal Constitution, and these need to be resurrected and enforced both in letter and spirit.

Second, Article 160(2) is amended to redefine the term “the Federation”. The present definition says that “the Federation” means the Federation established under the Federation of Malaya Agreement 1957.

The new definition rightly acknowledges (though 58 years late) both the 1957 and the 1963 Federation Agreements! This recognition is significant because it gives constitutional status and the kiss of life to MA63. It will take time to work out the profound implications of this amendment.

Third, the Federal Constitution’s definition of who is a “native” of Sarawak in Article 161A(6) and 161A(7) is deleted, and the State is rightly allowed to specify by state law who should be regarded as indigenous to the State. The federal definition was problematic because it excluded people of mixed marriages and provided a list of natives that contained many errors.

All in all, the proposed amendment is a good first step towards redemption of rights that were repealed or had not been enforced in letter or spirit. The list of litanies that needs attending is long and painful.

Finances: There is discontent about the inequitable sharing of resources and lack of fiscal federalism. These states do not derive the kind of financial benefit they deserve as a result of their contribution to the national coffers from petroleum, hydroelectricity and tourism. A major complaint is the meagre 5pc oil royalties.

Another major and extremely intricate complaint is that Sabah and Sarawak have not received the mandatory financial allocations that are due to them under the Malaysia Agreement 1963 of July 9, 1963, and the 10th Schedule. For example, Sabah was promised 40pc of the net revenue derived by the Federation from the State.

Development: Despite their abundant natural resources and massive contribution to the national coffers, Sabah and Sarawak rank among the poorest states in Malaysia and lag behind in infrastructure, education and employment opportunities.

Amendments to the Federal Consti­tution: Federalisation of critical state matters such as water (Act 26/1963) and tourism (Act A885) has taken place. Article 121(1) was amended in 1988 to emasculate the powers of the High Court of Borneo. 

The power of the Governors to appoint Judicial Commissioners was transferred to the Yang di-Pertuan Agong in 1994: Robert Linggi v Government of Malaysia (2011). The federalisation of Labuan was accomplished in 1984.

The native, “non-Islamic” character of Sabah and Sarawak has been diluted over the years and Islamisation has been a key policy of the Federal Government since the 1980s. Repeal of Articles 161C and 161D is clear proof of the point.

Borneonisation: Borneonisation of the administrative services is proceeding too slowly. Despite the protection of Article 153, there are complaints about poor implementation of affirmative action laws and policies.

Illegal immigrants: The naturalisation of thousands of illegal immigrants (in violation of Article 19 requirements for naturalisation) has destroyed the special rights of the Borneo States over immigration.

Islamisation: The moves towards an Islamic state, the plan to introduce hudud laws, the attempt to export the peninsula’s hardline Islamic trend arouse discomfort in Sabah and Sarawak.

Laws have been enacted to provide that in the case of Muslims, native law will not apply and the Syariah courts shall have jurisdiction. In the past, authorities in Peninsular Malaysia imposed hurdles in the path of import into Sabah and Sarawak of Bibles in Bahasa Melayu.

Federal control over politics: Despite the autonomy of states in prescribed areas, the Federal Government controls political and administrative processes in Sabah and Sarawak. The Federal Govern­ment manipulated the political processes to remove popularly elected chief ministers in Sarawak in 1966 and in Sabah in 1994 and 2020.

Governors: The federally appointed governors do not always protect the special interests of these regions. The convention that if the CM is a Malay, the governor will be a native and vice versa has not been followed.

Representation in Dewan Rakyat: Though Sabah and Sarawak are handsomely represented in the Dewan Rakyat, their proportion of MPs is lesser than the 33pc envisaged for Sabah, Sarawak and Singapore in 1963 in order to give these States protection against amendments requiring a two-thirds majority.

Federal appointments: Despite Article 153, Sabah and Sarawak are seriously under-represented in the federal public services especially within the higher echelons.

The 20 and 18 points: It is alleged that these fundamental demands from Sabah and Sarawak have not been honoured. Specifically, the autonomy in matters of religion, language and immigration have weakened.

It must be noted, however, that on the issues of federalisation of Labuan, the incorporation of a state religion and the adoption of Bahasa Melayu over English, it is the Sabah Assembly and not the Federal Government that amended the Sabah State Constitution.

Nation’s age: There is controversy over the nation’s age. Should it be calculated from Aug 31, 1957, or Sept 16, 1963? Sabahans and Sara­wakians note with displeasure that Malaysia Day was ignored by the Federal Government for 47 years till  prime minister then Datuk Seri Najib Razak declared it to be a national holiday in October 2010.

Hopefully, most of the above complaints will get a proper hearing and a fair resolution soon. 

The new political realities since the 2008, 2013 and 2018 general elections indicate a rising influence of Sabah and Sarawak.

Hopefully, this will translate into new national policies on sustainable development, education and elimination of poverty in these States.

Both as a matter of expediency as well as a matter of fidelity to the provisions of our 1957/1963 Consti­tution, the political leaders of the peninsula must rebuild bridges of understanding with our brethren across the South China Sea so that this Federation can grow stronger. This Amendment Bill gives hope.

Of course, hope alone is not enough, but (to paraphrase Flaubert) hope is a springtime plant that perfumes everything, even the ruins to which it clings.

- Emeritus Prof Dr Shad Faruqi is Holder of the Tunku Abdul Rahman Chair at UM. The views expressed here are the writer’s own. This appeared in the Star

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