Sat, 20 Apr 2024


Concurrent list – strategic tool for Sabah’s autonomy
Published on: Sunday, March 31, 2024
By: Datuk Roger Chin
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By following the Sarawak model and strategically enacting its own legislation, Sabah can move towards a more empowered and self-determined future within the Malaysian Federation.
WITHIN the Malaysian Federation’s federalist system, the Concurrent List offers a unique space for shared legislative authority between the federal and state governments.

This list, outlined in the Ninth Schedule of the Federal Constitution, encompasses various critical subjects impacting citizens’ daily lives, such as public health, cooperatives, and animal welfare. However, a key caveat exists: federal legislation prevails in cases of conflict. This has the potential to limit state control over these crucial matters.

This analysis examines this challenge and proposes a proactive legislative strategy for the Sabah state government to leverage the Concurrent List and enhance its legislative autonomy.

Proactive Legislation - Seizing the First-Mover Advantage

Unlocking the Concurrent List’s potential hinges on a strategic approach by Sabah’s government. Here’s a breakdown of the recommended course of action:

1. Comprehensive Review - A meticulous examination of the Concurrent List is the initial step. Sabah’s legal team should thoroughly analyse each area to identify gaps where federal legislation is absent. These lacunae present opportunities for the state government to take initiative.

2. State Legislative Enactment - In identified areas lacking federal law, Sabah has the power to enact its own legislation. This proactive approach allows the state to establish a foundation for regulations tailored to its specific context. For instance, Sabah could enact a modern and comprehensive Public Health Act, addressing areas not covered by its outdated Public Health Ordinance.

3. First-Mover Advantage - By taking the initiative and enacting its own legislation, Sabah gains a significant advantage. Any subsequent federal legislation on the same subject would now need to consider the existing state law.

This significantly reduces the likelihood of direct conflict and strengthens Sabah’s bargaining position in negotiations. Federal lawmakers would need to demonstrate a compelling improvement upon the existing state framework.

4. Shaping the Regulatory Landscape - The most crucial benefit of this proactive approach lies in Sabah’s ability to influence the direction of regulations under the Concurrent List.

Through well-crafted state legislation, Sabah can ensure these areas are governed by regulations that better reflect the state’s unique needs and priorities.

This proactive approach empowers Sabah to shape its own regulatory landscape, ensuring these regulations are not solely dictated by federal interests.

The Sarawak Case Study - A Model for Proactive Legislation

Sarawak’s success with public health, a subject under the Concurrent List, serves as a powerful example for Sabah. While Sabah struggled with its outdated Public Health Ordinance during the COVID-19 pandemic, Sarawak’s comprehensive legislative framework was evident in the numerous Protection of Public Health Orders it enacted.

It’s important to note that many of these Sarawakian orders were promulgated specifically in response to the unprecedented challenges posed by the pandemic. These targeted measures addressed critical gaps that the existing federal or state legislation left unaddressed.

This proactive approach by Sarawak ensured greater control over public health regulations within the state and prevented federal intervention, demonstrating the effectiveness of strategic legislation under the Concurrent List.

Learning from Sarawak - A Call to Action for Sabah

By emulating Sarawak’s strategy, Sabah can unlock the true potential of the Concurrent List. Here’s how proactive legislation can benefit Sabah:
  • Addressing Legislative Gaps - By enacting its own legislation in areas lacking federal law, Sabah can address any lacunae in its existing legal framework, strengthening its overall legal infrastructure and ensuring a more robust response to emerging challenges.
  • Securing Legislative Autonomy - Proactive legislation allows Sabah to establish a strong foundation for its preferred regulations, making it more difficult for federal legislation to override them entirely. This ensures a greater degree of autonomy in shaping the legal landscape and protecting Sabah’s specific interests.
  • Controlling Its Regulatory Destiny - Sabah can move beyond simply reacting to federal legislation. By taking a proactive stance, Sabah can shape the legal landscape for areas under concurrent jurisdiction. This ensures that these regulations are not solely dictated by federal interests, but rather reflect Sabah’s unique circumstances and aspirations, empowering Sabah to chart a course for the future that best serves its citizens.

A More Empowered Future for Sabah

The Concurrent List presents both challenges and opportunities for Sabah. By adopting a proactive approach to legislation, Sabah can seize the initiative, gain greater control over its future, and ensure that regulations under the concurrent list better serve the needs of its citizens.

By following the Sarawak model and strategically enacting its own legislation, Sabah can move towards a more empowered and self-determined future within the Malaysian Federation.

This proactive approach will not only address current legislative gaps but also position Sabah to adapt and effectively respond to future challenges.

Roger is the past President of the Sabah Law Society

- The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express.

- If you have something to share, write to us at: [email protected]


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