©The Star (Used by permission)
Reflecting On The Law BY SHAD SALEEM FARUQI
Growth and evolution are natural and necessary in any federal set–up.
AS we commemorate Malaysia Day, it is important to look back at the mileposts that led to this historic accord between the British and Malayan Governments and the territories of North Borneo (Sabah) and Sarawak.
It is also important to note what my Sabah and Sarawak friends often remind me of, that Sabah and Sarawak were not minor colonial outposts that “joined” Malaya in 1963 but were two huge, sovereign, independent states that reconstituted Malaya to form Malaysia.
Indeed, for a few short weeks before “merger”, both Sabah and Sarawak had gained independence from the United Kingdom.
History: After World War II, as part of its de–colonisation process, the Labour Government in the UK intended to give independence to North Borneo, Sarawak and Singapore. Negotiations were therefore commenced in 1961 with the Government of Malaya and representatives of the three territories plus Brunei for the creation of an enlarged federation.
Initially there was all–round opposition to the proposal in Malaya and in the territories of North Borneo, Sarawak, Singapore and Brunei. But ultimately a resolution was passed by the Malaysia Solidarity Consultative Committee (1962) to proceed with the Malaysia proposal, on the condition that the special rights of the Borneo States be protected.
This was re–emphasised in the Twenty–Points Manifesto of the Sabah Alliance and the Eighteen–Points Resolution of Sarawak.
In April 1962, the Cobbold Commission was formed. The Commission reported on Aug 1, 1962 that the people of the Borneo States wished to join Malaya. A Resolution in support of the formation of Malaysia was passed by the Legislative Council of North Borneo on Sept 12, 1962.
An Inter–Governmental Committee (with Lord Lansdowne as Chairman and Tun Abdul Razak Hussein as Deputy) was formed in 1962. The Committee worked out the provisions to safeguard the special interests of North Borneo and Sarawak. General elections were held in North Borneo in December 1962 and in Sarawak in 1963.
The Philippines and Indonesia opposed the formation of the new federation and rejected the legitimacy of the self–determination process. A Tripartite Summit was therefore held in Manila in 1963 to bring the parties together.
It was agreed to invite the United Nations Secretary–General to ascertain the wishes of the people of Sabah and Sarawak and to determine the democratic legitimacy of the electoral processes in North Borneo and Sarawak.
The UN Secretary–General’s mission spent three weeks in Borneo to conduct a survey. It reported on Sept 15, 1963 that the Malaysia proposal had the wide backing of the people of these territories.
But the Indonesian and Philippines Governments were not persuaded. Indonesia resorted to an undeclared war (the “Confrontation”) with Malaysia. The Philippines laid an international law claim to Sabah.
The Malaysia Act: On July 9, 1963 the Malaysia Agreement, consisting of 11 clauses, was concluded between the UK, the Federation of Malaya, North Borneo, Sarawak and Singapore. Commentators have argued that the Malaysia Agreement was not just a domestic pact but a binding international treaty between the parties.
On Aug 20, 1963, the Federation of Malaya Parliament enacted Act No. 26 of 1963 which became operational on Sept 16, 1963. This “Malaysia Act” rewrote the Mer–deka Constitution and substantially restructured the constitutional framework of Malaya. Eighty–seven out of 181 Articles and 10 out of 13 Schedules of the Federal Constitution were amended. Thirty–five new Articles were inserted.
In many respects, the amendments created a new Constitution to accommodate the realities of a new, enlarged and more diverse federation. But there were grumbles within and without.
On Sept 10, 1963, the State of Kelantan in the case of Kelantan v The Federation of Malaya & Tunku Abdul Rahman (1963) challenged the impending Malaysia Day Agreement and the Malaysia Act on a number of grounds in the High Court. Its challenge failed.
And so on Sept 16, 1963, the 11–state Federation of Malaya was transformed into the 14–state Federation of Malaysia. A new name (Malaysia) was emblazoned on the political firmament. Significant new rules were established to regulate the special relationship of the new entrants with the Federal Government.
The consequent amendments to the Federal Constitution departed from the cardinal, constitutional principle of equality of status among the members of a federation.
In many respects, the new federation resembled a union of five unequal entities – the powerful Federal Government; the eleven West Malaysian States with limited autonomy; and the specially privileged states of Sabah, Sarawak and Singapore with considerable freedom from federal control in areas specially designated by the Supplementary State List and the Supplementary Concurrent List in the Ninth Schedule.
Brunei had backed out from the merger negotiations at the closing stages. The divorce with Singapore is now a sad part of our history.
Special position: What is important now is to reaffirm our special relationship with Sabah and Sarawak and to rededicate ourselves to the pacts of the past. A thorough study of the constitutional, legal and political instruments needs to be undertaken.
If any special provisions have fallen behind the march of times, they can be re–negotiated with mutual consent.
The Federal Constitution in Article 161E(2) states that the provisions dealing with safeguards for the constitutional position of Sabah and Sarawak can be amended with the concurrence of the Governors of these states.
Federalism is a process and not just a ready–made set of institutions. Growth and evolution are natural and necessary in any federal system.
If there were no tensions in federal–state relations, that itself would indicate an undemocratic and authoritarian set–up. Sometimes the absence of a problem is the problem!
Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed here are entirely the writer’s own. He wishes all Malaysians the blessings of Merdeka and Malaysia Day.