Wednesday, 5 August 2015
I noted that Peter John and Mujah were grilled incessantly on the words 'negara' and 'referendum' at the balai polis. now, i will reserve my comments on the word referendum, but i cannot keep my silence on the negara status of Sarawak.
Now, look at this book, Malaysia Agreement. it is the mother of all documents on the formation of Malaysia. Without MA63, there is no Malaysia. Without Malaysia there is no Perlembagaan. One senior minister James Masing even noted, if MA63 is breached, then it becomes null and void. meaning there can be no Malaysia then.
MA63 is an international treaty lodged with United Nations. Why the UN accepted it for registration when submitted by Britain in 1970, after Singapore had departed to become an independent nation is beyond my comprehension but that is not my contention here.
What I want to say is, if Sarawak was not a negara at the time MA63 was inked then the Agreement cannot be valid becos in international law only sovereign nations can enter into an international agreement.
If Sarawak is a negara at the time of signing the Agreement, then why must the federal govt be unhappy if we want to re-affirm that Sarawak negara status. why must we be questioned if we say Sarawak is a negara?
and why must the federal government be alarmed if we talk about MA63? it is the Agreement that forms Malaysia, and this book is obtainable from the govt printing offices. Why is it wrong to talk abt MA63 then?
Why must the Sedition Act be used to threaten those who question our negara status and our rights, why must even a legitimate NGO be declared haram and considered as a threat to public order and national security?
Will Sarawakians and Sabahans bow down to intimidation and threats?
Source: Lina Soo
The leader of Catalonia has signed a decree calling for early parliamentary elections on September 27 which will serve as a proxy vote for the northeastern region’s potential secession in a fresh attempt at gaining independence from the rest of Spain.
Catalan president Artur Mas announced on Monday that if pro-independence parties secure the majority of votes in parliament then the region, which accounts for a fifth of Spain’s economic output, will aim for independence within 18 months.
While the Spanish general elections are due in 2015, the early Catalonian vote puts pressure on Madrid. The Catalan nationalist leaders have recently signed an agreement on what they call “a road map” to secession which aims to implement the plan by 2017.
The region’s three pro-independence parties are predicted to win 68 to 72 seats in Catalonia’s 135-seat parliament, according to last month’s La Vanguardia poll.
The Catalan coalition called “Together for Yes” comprises the ruling CDC party, the Republican Left of Catalonia (ERC) in addition to associations responsible for pro-independence rallies in the region. By last week the coalition had already presented plans to create a Catalan tax agency and agreed to establish a public credit institution which could later could be transformed into a Catalan central bank.
Spain’s central government in Madrid furiously rejects the notion that elections in Barcelona should be viewed as a referendum on independence.
“In a regional election one chooses lawmakers for the regional parliament, who in turn elect a president of the region. This is what citizens are deciding with this vote and nothing else,” Deputy Prime Minister Soraya Saenz de Santamaria, said on Monday.
Last year a symbolic vote on independence showed that some 80 percent of the 2.2 million people supported separation from Madrid. Prior to the November 9 referendum, Madrid blocked the vote through the Spanish Constitutional Court.
In the fallout stemming from a symbolic independence vote which was conducted despite a court injunction, Spanish state prosecutors filed charges against referendum supporters including Mas.
In the meantime, the Spanish general election is expected to take place in late November. As Catalonia braces for its new attempt to gain independence, popular support for regional secessionist groups in the region has dropped due to internal politics and the emergence of popular nationalist parties.
Spain’s regional elections in May showed big gains for upstart leftist and center-right parties with conservatives losing their majority: The results have been the worst for Mariano Rajoy’s People’s Party in more than 20 years. Voters have punished the Prime Minister for four years of severe spending cuts and a string of corruption scandals.
Rajoy now faces stiff opposition by relative new-comers, the Podemos and Ciudadanos parties which have appealed to voters by calling for more transparency and accountability in politics.
SIBU: A 47-year-old purported promoter of Sarawak for Sarawakians (S4S) was yesterday produced in a Magistrate’s Court here to face a charge under Communication and Multi-media Act 1998.
When the nature of charge was read and explained to Yeu Bang Keng, 47, from Tiong Hua Road, through an interpreter in Mandarin, he said he understood the charge but denied it.
The offence framed under Section 249 of the Communication and Multi-media Act 1998, and punishable under Section 242 of the same Act carries a maximum penalty of RM100,000-fine or two years’ jail or both on conviction.
Yeu is charged for refusal to provide his Facebook username and password to the police in their investigation into a commentary in his FB posting at Sibu Central Police Station at 4.30pm on May 15.
Clad in a black S4S T-shirt when he appeared in court yesterday afternoon, Yeu was granted bail of RM15,000 with two sureties.
As bail condition, magistrate Saiful Sayoti ordered that he deposit RM10,000 in the form of fixed deposit certificate with the court.
State Deputy Public Prosecutor Mohd Azrul Faidz preferred the charge against the accused who was not represented.
The case comes up for further mention on Sept 2 and for trial on Oct 8.
Monday, 3 August 2015
1.Tidak pernah ada pun menteri yang lantang bercakap akan berusaha menghapuskan salah laku dan pecah amanah dalam kalangan menteri-menteri dan ahli politik. Yang kita selalu dengar berulang ulang adalah nasihat kepada rakyat, harapan dan janji-janji palsu iaitu memberi kesejahteraan kepada rakyat dan memperbaiki taraf ekonomi rakyat.
2. Undang-undang yang pernah ada di Malaysia, hanya disediakan khas untuk menteri-menteri dan ahli politik. Ahli politik beserta dengan undang-undang mereka sahaja. Sistem perundangan yang hanya berkesan kepada rakyat biasa tetapi kebal kepada empunya kuasa perundangan iaitu dalam kalangan pengamal undang-undang dan barisan menteri-menteri dan sekutunya.
3. Undang-undang dalam Malaysia telah mematikan dan membekukan hak-hak dan kuasa rakyat bawahan. Ianya digunapakai ke atas rakyat biasa, iaitu pekerja bawahan.
4. Kesalahan jenayah terbesar dalam sebuah negara itu bukanlah jenayah sosial yang hanya melibatkan kesalahan jenayah yang dilakukan oleh rakyat. Mahkamah, polis, pendakwa raya, perundangan dan perlembagaan semuanya sengaja direka dan diwujudkan untuk rakyat. Berlakunya penyalah gunaan kuasa. Lalu rakyat dikawal seketat ketatnya dengan alasan untuk menjaga kesejahteraan negara dan mengawal keamanan dalam Malaysia. Orang awam atau rakyat biasa dijadikan simbol utama kepada permasalahan jenayah sosial yang akan memudaratkan negara.
5. Hakikatnya, jenayah serius dan hal yang bakal memudaratkan sesebuah negara itu ialah krisis yang ditimbulkan sendiri dalam kalangan menteri-menteri barisan hadapan negara dan ahli politik itu sendiri. Skandal korupsi dan penyelewangan yang dilakukan oleh menteri-menteri merupakan jenayah terburuk dan keji yang sepatutnya bakal mengugat kesejahteraan dan keselamatan dalam negara.
6. Mengapa ketua hakim atau ketua peguam, pendakwa raya negara, pasukan keselamatan negara iaitu polis dan tentera hanya dikerahkan untuk menangani permasalahan rakyat biasa. Bagaimana dengan pasukan pendakwaan khas, pasukan perisikan khas, akta-akta dan undang-undang dalam negara yang disediakan khas jika berlakunya salah laku dan pecah amanah dalam kalangan menteri-menteri?
7. Adakah salah laku yang hanya dilakukan oleh rakyat biasa seperti mencuri, memfitnah, membunuh, dan sebagainya diyakini tidak pernah langsung dilakukan oleh menteri-menteri kita pada hari ini? Menteri-menteri yang dilantik menjadi pemimpin negara pada hari ini merupakan seorang rakyat biasa yang dipilih untuk menjadi menteri. Jika seorang menteri itu dahulunya pernah menjadi rakyat biasa sebelum dipilih menjadi pemimpin, maka pada hari ini atas apakah alasan atau undang-undang dunia manakah yang menyatakan bahawa mereka tidak harus dikenakan tindakan atau hukuman atas salah laku mereka.
8. Pecah amanah yang dilakukan oleh mereka kerana tanggapan bahawa jawatan yang disandang dilihat sebagai harta dan kekayaan semata mata.
Tanpa kita sedari bahawa kita diperbodohkan melalui persetujuan untuk akur dan tunduk dan sembah kepada kuasa atau sistem perundangan dan perlembagaan yang dianggap mampu menstabilkan keadaan negara dan mewujudkan sebuah negara yang aman dan harmoni dan bebas daripada kuasa penjajahan oleh negara luar. Ciptaan undang-undang buatan manusia yang cuba mengaburkan mata rakyat bagi menutup rahsia dan penyelewangan yang dilakukan oleh pemimpin negara.
9. Jikalau rakyat sudah kehilangan kepercayaan kepada perundangan negara, maka tidak perlulah wujudkan pekerjaan sebagai peguam, kerana pada hakikatnya wang ringgit, masa dan tenaga yang dibazirkan juga tidak pernah berpihak dan menyebelahi nasib rakyat.
Saturday, 1 August 2015
Saturday, August 01, 2015 Agreement of Malaysia , Exposing the Truth , Fact , Federation of Malaysia 16 September 1963 No comments
The federal parliament then passed the Malaysia Act to amend the federal constitution to include the three new states and to provide for matters in connection with the admission.
On Sept 10 , six days before Malaysia was to be declared, the government of Kelantan began an action against the federal government for declarations that the Malaysia Agreement and the Malaysia Act were null and void or were not binding on the state.
In the case of The Government of the State of Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj ("the Kelantan case"), Kelantan argued that:
- The Malaysia Act would violate the Federation of Malaya agreement 1957 by abolishing the "Federation of Malaya".
- The proposed changes needed the consent of each of the constituent states including Kelantan, and this had not been obtained.
- The Sultan of Kelantan should have been made a party to the Malaysia Agreement.
- Constitutional convention dictated that consultation with rulers of individual states was required before substantial changes could be made to the constitution.
- The federal parliament had no power to legislate for Kelantan in matters that the state could legislate for on its own.
Chief justice James Thomson delivered his decision 30 hours before Malaysia was to be declared, saying: "Never, I think, has a judge had to pronounce on an issue of such magnitude on so little notice and with so little time for consideration."
He added that "a clearer expression of opinion than would be customary is clearly required in a matter which relates to the interests of political stability in this part of Asia and the interests of 10 million people, about half a million of them being inhabitants of the state of Kelantan".
Thomson responded to the five different arguments forwarded by the Kelantan government by framing the issues into one general question of "whether parliament or the executive government has trespassed in any way the limits placed on their powers by the constitution".
In this way, he bypassed addressing some fundamental questions relating to the supremacy of the constitution raised by the Kelantan government. Nevertheless, he still managed to make several important constitutional pronouncements. The court said that even if Kelantan was a sovereign state prior to the 1957 Federation of Malaya Agreement, the effect of that agreement was that a large proportion of the powers that make up sovereignty passed from the Kelantan government to that of the federation.
These powers are thus limited to and subject to the 1957 Federal Constitution that formed part of the agreement. The court also found that the Malaysia Act in amending the constitution to admit the new states and changing the name to "Malaysia" did not contravene the requirements of the constitution, which were found to be liberal in such matters.
And if the steps that had been taken were in all respects lawful, the nature of the results they had produced could not make them unlawful.
What is now known as the "basic structure doctrine" stipulates that a constitutional amendment can be declared by the courts to be invalid on the grounds that it destroys the basic structure of the constitution.
The courts, therefore, must play a vital role in ensuring that the basic structure is not dismantled. It is within their function to interpret the constitution and determine what the basic features are.
With respect, the court in the Kelantan case missed the opportunity to make a pronouncement on this. There was certainly merit in the argument that theinclusion of the three new states with their different status and privileges as compared with the original 11 states created a fundamental change to the structure of the federation, at least in the eyes of Kelantan and the 10 other original members.
The Kelantan case, besides being a political challenge to the fundamental principle of equality found in the 1957 agreement, manifested into a legal pronouncement of the state of constitutionalism in the new federation.
It revealed that Kelantan and the other original states were placed together in a class of component states distinct and of a different status from the other three new states. This was the basis of the new federation.
The Kelantan government also, through this challenge, succeeded in opening a door upon a new sphere of constitutional interpretation. The chief justice gave approval to the possibility of there being implied limitations in the power of constitutional amendments.
Although subsequent judicial decisions in Malaysia did not show approval for this doctrine, they did not completely close the door that was opened by the Kelantan case. The future of constitutionalism and the supremacy of the constitution rest significantly on the continuous deliberation of the basic structure doctrine by our courts.
The Kelantan challenge was thus a significant chapter in Malaysian constitutional history. It resulted in establishing the constitutional relations between the component states of the federation, defining the path along which federalism in Malaysia will go.
In particular, this episode appears to have been a precursor of things to come for the constitutional and political relations between Kelantan and the federal government.
Thursday, 30 July 2015
Although much publicity was given to the status that Sabah would enjoy in the proposed Federation and the range of safeguards that would be granted to the State, the interference of the Federal government in State affairs actually commenced within months of the birth of the Malaysia nation. The saga began with the tussle for control of the State government between Tun Fuad and Tun Mustapha, the outcome of which was dictated by Kuala Lumpur. Paul Raffaele in his book Harris Salleh of Sabah gives an accurate assessment of the event:
“… Although the early leaders of Sabah had hoped that Malaysia would be a true Federation and not a unitary state, post-independence history has shown that when the interests of Sabah and Kuala Lumpur clash, the Federal government will step in unhesistantly and bring its younger partner to heel. Tunku Abdul Rahman saw the Kadazan Chief Minister as less than totally committed to Malaysia, unlike his friend Mustapha who saw the new Federation as giving power support to his claim of Malay and Muslim political primacy in Sabah” (Raffaele, 1986, p.30)
The details of the events surrounding the Mustapha-Fuad crisis are well documented in history books. Suffice it to say that the difference between the two leaders lie in the fact that while Tun Fuad Stephens was jealously guarding the State’s rights in pursuance of the original safeguards and promises, Tun Mustapha was more interested in strengthening Islam and developing Malay dominance in Sabah, regardless of its effects on state affairs. Numerous clashes between the two leaders can be traced to these fundamental differences in outlook and orientation. For instance, Tun Mustapha refused to approve the appointment of John Dusing as State Secretary, in contravention of the behaviour of a constitutional Head of State. However, all this was done with the help of the Federal Secretary in the person of Mr. Yeap Kee Aik whose major role was to strengthen Kuala Lumpur’s hold on the frontier State, by ensuring that “any party favouring Malaysia should prosper while being unfavourably disposed to any party that seem to have doubts about the Federation” (Raffaele, 1986,pp. 142-144)
This has led some scholars to describe the 20 Points safeguard as follows:
“The intent of the safeguards was to give State leaders the illusion of having greater control than they in fact possessed, but illusions which they were to take very seriously.” (Ross-Larson, 1980).
The Mustapha-Stephens crisis can be aptly described as follows:
“The two (referring to Tun Mustapha and Tun Fuad Stephens) were unwitting actors in a drama written by the Federal government, and both felt compelled to play out their roles, however reluctantly.” (Ross-Larson, 1980)
The hands of the Federal government in shaping the political development and accelerating the erosion of State’s constitutional safeguards, can be clearly seen in the selection, encouragement and support for a state leader who reflected the Federal cause, who in the immediate years after Independence was none other than Tun Mustapha. In order to further ensure that the new State government would not be too independent-minded and thereby jeopardise federal’s interests in the State, Syed Kechik, a strong UMNO supporter and the political secretary to the Minister of Information, was assigned to assist Tun Mustapha. Syed Kechik’s contributions included the introduction of various constitutional amendments and new laws to shift the power from the State to the Federal government. It is believed that he was also instrumental in the resignation of top civil servants who were thought to be pro-state and their replacement by Federal sympathizers.
Whenever the question of who should bear the responsibilities for the erosion of the constitutional safeguards is raised, the standard answer is that it was the doings of the Sabah leaders themselves. However, history has shown that during the USNO’s rule the erosion of constitutional safeguards on education, language and religion can be directly traced to machinations of Kuala Lumpur’s appointees including Syed Kechik, the then Attorney General of Sabah and other Federal officers who were unsympathetic and unmindful of their far-reaching consequences on the State.
For the sake of harmonious and enduring Federal-State relationship in the future, the Federal government has as much obligation as the State government in upholding the constitutional safeguards.
In instances where erosion of constitutional safeguards has occurred either unwittingly or erroneously, the parties involved should take steps to restore such rights, otherwise inaction would be interpreted as a deliberate scheme to weaken the power of the other party.
In the final years before the rise of BERJAYA in 1976, Tun Mustapha began to lose favour with the Federal government. This was primarily because of the misuse of his draconian powers, bestowed on him originally by the Federal government, which eventually made him a political liability to Kuala Lumpur. His plan to break away from the Federation by proposing the formation of Borneosia and establish his sultanate was also an important factor which contributed to his fall from the grace of the Federal government. But by then, Tun Mustapha had paved the way for the erosion of the safeguards on Education, Language and Religion. Throughout his regime, the Federal government essentially abandoned the people of Sabah to his abuse of their democratic rights and his squandering of the State’s natural resources. When political intervention would have been justified, and indeed was most needed, Kuala Lumpur opted to assume a spectator’s role to the great disappointment of the people of Sabah.
The emergence of BERJAYA and the success it had in deposing the regime of Tun Mustapha occurred with the support of the Tun Razak government. In its early stage of development, the party sought earnestly to reverse the excesses of Tun Mustapha. However, when its leaders were assured of deriving support from the Federal government, it committed the same excesses as its predecessor. As with Tun Mustapha’s Administration, the Harris’ Administration became increasingly more autocratic and intolerant to well-intended public criticisms. It distanced itself from the Rakyat by pursuing policy objectives contrary to the wishes and aspirations of the people. It had even gone to the extent of changing the district status of Tambunan just to punish the voters who defied his order to support him. His abuse of power included the liberal use of Federal and State machineries in the 1985 general elections campaigns.
In the ensuing years Datuk Harris’ Government committed other political excesses similar to those of his predecessor. The problem of illegal entrants obtaining blue IC became increasingly more acute without his government doing something about the problem. Datuk Harris’ Government promoted massive conversion to Islam among indigenous Sabahans by granting favours to prospective converts. His government’s desire to keep the Federal happy culminated in the signing away of Labuan, free of charge, without the consent of the people of Sabah, although on the surface the federalisation of Labuan appeared to have been properly executed by subtly forcing an enactment through the State assembly. The act was also a breach to the Twenty Points safeguards.
When the PBS came into power, the Federal government could not accept the defeat of the party that had been so accommodating to Kuala Lumpur’s drive towards a unitary state. Amidst the events that followed the power grab at the Istana until the next general State elections in 1986, when the people of Sabah were forced to give their verdict on the legality of the government of the day, traces of Kuala Lumpur’s involvement were obvious. The fact that those involved in the power grab were let loose caused many Malaysians to take a dim view of the rule of Law as there was a clear case of miscarriage of justice. Between April 21, 1985 and May 5, 1986, two State general elections were held in close succession because of the reluctance of certain Federal leaders in endorsing the results of the 1985 general elections which saw the defeat of the Federal-anointed party. Prime Minister Datuk Seri Dr. Mahathir Mohammed when interviewed about the unsettled political climate in Sabah, was widely reported to have said that he himself was not sure as to which government, the ruling PBS Government or the contending USNO-BERJAYA coalition Government, would the Court uphold as the duly elected government of the people of Sabah.
It is amazing that the vanquished parties even had the audacity to hail the victor to court and demanded that they be installed to replace the rightfully elected government by claiming to represent the wishes of the majority of the people. While the people of Sabah were fearing for their lives, no decisive action was taken by Federal Government until the tense situation escalated into outbreak of lawlessness causing losses of property and lives. When those responsible were finally brought before the courts the charges handed out were viewed by Sabahans as a mockery vis-à-vis the extent of damages, human tragedy and economic losses caused by the rioters. Indeed, there were broad hints that some quarters were using the March 1986 riots to justify the imposition of Emergency rule in sabah by the Federal government, as a way to replace the democratically elected government.
Finally, many Sabahans consider the proposed entry of the UMNO into Sabah as not entirely unrelated to the issue of political interference. While the move has been cast in the name of championing Muslim cause and so-called bumiputera rights, the timing of the exercise and the past records of Kuala Lumpur’s interference in State affairs leave many nationalistic Malaysians of local origin unconvinced that the move will lead to any enhancement of Federal-State relations. Indeed Sabahans take the view that the whole exercise will be detrimental to national unity because the promotion of communal politics in Sabah will bring about racial and religious polarisation and split the already well-integrated people of Sabah. In the long term, communal politics go against the spirit of multiracialism which the Sabah leaders have so tirelessly championed. The proposed move of UMNO into Sabah also indicates the lack of understanding by the Federal leadership on the socio-cultural and psychological makeup of the people of Sabah. Unlike the people in Peninsular Malaysia, where people can be conveniently classified into Malays, Chinese and Indians, in Sabah, the racial and religious differences are unimportant as they are already well integrated.
It is to be noted that Malaysians in Sabah as represented by their leaders and political parties, have proven their ability to govern Sabah themselves for the past 23 years since the formation of Malaysia, without the presence of any Peninsular party or parties.
There is no need for UMNO, PAS, DAP or any other Peninsular parties to come to Sabah. It would be redundant. The important thing is for Kuala Lumpur to be able to foster and work with the ruling group in Sabah and Sarawak.
Thursday, July 30, 2015 Agreement of Malaysia , Federation of Malaysia 16 September 1963 , Sabah , Sarawak No comments
On 27 May, 1961, Y.T.M Tunku Abdul Rahman Putra Al-Haj, the Prime Minister, Federation of Malaya, at a press luncheon in Singapore made the proposal that a Federation of Malaysia should be created, comprising the eleven States of Malaya, Singapore, the three Borneo territories of Sarawak, North Borneo and Brunei. The regularly quoted words of the Tunku were as follows:
“… Sooner or later she (Malaya) should have an understanding with the peoples of Singapore, North Borneo, Brunei and Sarawak… these territories can be brought closer together in a political and economic cooperation” (speech made by Tunku Abdul Rahman on 27 May, 1961 to the Foreign Correspondents of Southeast Asia in Singapore).
Later, on 16 October, 1961, the Tunku explained to the Malayan Parliament the motivation and framework for the formation of the Federation of Malaysia as follows.
“… When considering the concept of Malaysia it is necessary to keep in mind that the independent Federation of Malaya has to take note of three separate elements and the special interests of each. These three elements are the State of Singapore, which is almost completely self-governing, the three Borneo territories which are still colonies, and the United Kingdom which has special obligations or duties in relation to the people of these areas.”
“… I will turn now to the problem of the Borneo territories in relation to the concept of Malaysia. These territories do not present the same complexity in the implementation of the concept as Singapore does. In a broad sense, it could be stated that the question is much simpler there, in fact so much simpler that they present a special difficulty of their own. The three Borneo territories have two political factors in common. First… vestiges for British colonialism. Second… their constitutional development has been very slow” (speech by Tunku Abdul Rahman, Prime Minister, the Federation of Malaya, in the Federal Parliament on 16 October, 1961).
Amidst all the rhetoric which accompanied the campaign for an enlarged Federation, the plan to include the States of North Borneo, Sarawak and Brunei was, however, somewhat coincidental, for what the Tunku really wanted was Singapore. Nevertheless, the Tunku had one genuine aim for the Borneo territories – independence from the British colonialism. As he put it then:
“… it is our duty to help bring about an end to any form of colonialism. The very concept of Malaysia Plan is an effort to end colonialism in this region of the world, in a peaceful and constructive manner. We in Malaya won our independence by peaceful means and we are sure that the people of the Borneo territories would like to end their colonial status and obtain independence in the same way."
“… the important aspect of the Malaysia ideal as I see it, is that it will enable the Borneo territories to transform their present colonial status to self-government for themselves and absolute independence in Malaysia simultaneously.”
On the British Government’s side, it was not an issue to grant independence to the Borneo States (North Borneo, Sarawak and Brunei), since the British Government had decided to allow these territories to attain their own independence ultimately. The question was one of timing and the form it should take. As one document puts it:
“… The declared aim of the British Government is to grant independence to all its colonial territories as soon as they are ready for it. Hitherto this has been thought of simply as independence fo North Borneo standing by itself or, more recently, in association with Sarawak.”
“… It is the view of the British Government that provided satisfactory terms of merger can be worked out, the plan for Malaysia offers the best chance of fulfilling its responsibility to guide the Borneo territories to self-government in conditions that will secure them against dangers from any quarters.”
“… Malaysia offers for them all the prospect of sharing in the destiny of what the British Government believes will be a great, prosperous and stable Independent State within the Commonwealth” (Extract from “North Borneo and Malaysia” published by Authority of the Government of North Borneo, Jesselton, February 1962)
Even at the point in time, there was considerable concern that the notion of ‘independence through Malaysia’ might not be the sort of independence that the Borneo States were looking for. There were those who were concerned about neo-colonialism. On this issue the Tunku had the following to say:
“… One reaction in the Borneo territories was that the Malaysia concept was an attempt to colonise the Borneo territories. The answer to this was, as I said before, it is legally impossible for the Federation to colonise because we desire that they should join us in the Federation in equal partnership, enjoying the same status between one another, so there is no fear that Malaysia will mean that there will be an imposition of Islam on Borneo… everybody is free to practise whatever religion.” (Extract of speech by Tunku Abdul Rahman, Prime Minister of the Federation of Malaya, in the Federal Parliament on 16 October 1961)
In addition, the colonial government of North Borneo had cautioned that:
“… It is necessary, therefore, for the people of North Borneo to consider what powers they are prepared to concede in order to bring Malaysia into being. It is understood that there should be widespread apprehension lest, in practice, Malaysia would mean that the people of North Borneo would have far less control over their own affairs than they exercise already, and that North Borneo would be relegated to the position of a relatively powerless province of a strong Federal Government situated 1,000 miles away” (Extract from ‘North Borneo and Malaysia’)
For this reason, in the same speech the Tunku raised the issue of constitutional safeguards:
“… Moreover in our future constitutional arrangement the Borneo people can have a big say in matters on which they feel very strongly, matters such as immigration, customs, Borneonisation, and control of their State franchise rights.” (Speech by Tunku Abdul Rahman in the Federal Parliament on 16 October 1961)
The need for consultation and non-interference in the normal affairs of the Borneo State was highlighted by the Tunku.
“… One very strong feeling was that they must be consulted on the future of their people and the future of the country. I have said on more than one occasion that Malaya can only accept Borneo people from an expression of their own free will to join us.”
Other observers noted that:
“… In conversation with members of the North Borneo delegation to the Malaysia Solidarity Consultative Committee he (the Tunku) has made it abundantly clear that he has no wish to interfere in the internal affairs of North Borneo and is willing to consider sympathetically any proposal for the management by the people of this country of their own internal affairs.” (IGC Report)
Even the Colonial Government of North Borneo cautioned strongly that:
“… It would, indeed, be against the long-term interest of the Malayan Government to insist on excessive control against the wishes of the people of the Borneo territories, which would over the course of the years build up resentment and discontent leading to a repetition within Malaysia of the internal stresses and strains which, in recent years, have become apparent within the framework of Indonesia, and, more recently still, have culminated in the secession of Syria from the United Arab Republic." (‘North Borneo and Malaysia’)
Arising from the various public statements on the need for safeguards and conditions, formal steps were undertaken to identify these safeguards and to present them for discussion by political leaders and officials of all the parties involves. A strong starting point for these discussions was the submission of a Memorandum containing the ‘Twenty Points’ on 29th August, 1962 by the leaders of five newly formed political parties (The United Kadazan Organisation, The United Sabah National Organisation, The United Party, The Democratic Party and The National Pasok Momogun organisation). The Memorandum was a joint declaration setting out the basis on which Malaysia would be acceptable in North Borneo and embodying minimal safeguards in the form of Twenty Points which the parties considered necessary for North Borneo in its entry into Malaysia. The signatories to the 20 Points Memorandum were as follows:
The principles of the 20 Points were accepted in total. The implementation of the Twenty Points was discussed at length by the IGC and most of them were subsequently taken up and incorporated in the Malaysia Agreement.
Discussion of the details of the various safeguards and conditions is the subject of the next section of this Memo. Suffice it to emphasize here that security consideration and economic development were important motivations for support for the proposed Federation, which was identified with independence in the mind of the People. Certainly, there existed as expectation that the new Federation will be conducive to harmony among ethnic groups and economic advancement in the rural areas.
The process of bringing the Malaysia Project to fruition was of course a lengthy and arduous task. It involved, among others, the Cobbold Commission of Inquiry, IGC and UN Malaysia Mission. While these bodies all came to the conclusion that the leaders and people of Sabah generally “expressed strong support for the establishment of the Federation of Malaysia” it is crucial to note that their views were by no means unanimous. The main finding of the Commission of Inquiry deserves to be mentioned here:
“… In accessing the opinion of the peoples of North Borneo and Sarawak we have only been able to arrive at an approximation. We do not wish to make any guarantee that it may not change in one direction or the other in the future.”
“… About one third of the population in each territory strongly favours early realisation of Malaysia without too much concern about terms and conditions. Another third, many of them favourable to the Malaysia Project, asked with varying degrees of emphasis, for conditions and safeguards varying in nature and extent: the warmth of support among this category would be markedly influenced by a firm expression of opinion by Governments that the detailed arrangement eventually agreed upon are in the best interests of the territories. The remaining third is divided between those who insist on independence before Malaysia is considered and those who would strongly prefer to see British rule continue for some years to come…"
"There will remain a hard core, vocal and politically active, which will oppose Malaysia on any terms unless it is preceded by independence and self-government; the hard core might amount to near 20 per cent of the population of Sarawak and somewhat less in North Borneo.” (Extract of the Commission of Inquiry, North Borneo and Sarawak, 1962 – HMSO SMND, 1974).
The reservation exhibited by the people of Sabah (about two-thirds) as regards the proposed Federation served to emphasise the importance they attached to the provision of specific safeguards and conditions because of the uncertainty of their future in the enlarged Federation. The issue of safeguards and their fulfilment by the Federal government was very basic to their decision to form the Federation. Any violation of the safeguards would constitute a violation of the conditions upon which the State agreed to be a party to the formation of the Federation of Malaysia.
In retrospect, the vision of the Tunku, the aspirations of the Sabahan leaders and the consent of the Colonial Government as regards the formation of the Federation of Malaysia all converged on the important conclusion that:
(a) Sabah would participate in the formation of the Federation in equal partnership with Malaya, Singapore and Sarawak;
(b) The Federal government would not interfere in the internal affairs of Sabah, which would also be consulted on the future of her people and the future of Malaysia;
(c) There would be autonomy in specific areas of government;
(d) The new Federation promised an independence state and an improved economic well-being to the people of Sabah.
Wednesday, 29 July 2015
As already stated, the Twenty Points Memorandum came into being when five political parties representing the people of Sabah presented a united stand on the minimum safeguards considered by the Sabahan leaders as crucial, the acceptance of which would pave the way for the formation of the new Federation. This document is truly important because it embodies the needs and aspirations of the people of Sabah.
The views expressed in the Twenty Points were the basis of Sabah’s acceptance to be part of the Federation of Malaysia. Most of the Twenty Points were incorporated upon deliberation, into the Inter-Governmental Committee Report and the Malaysia Agreement.
It should be stressed here that while much energies and time were expended in deliberations on the constitutional safeguards, the mechanism for their implementation and protection from change, amendment or deviation was conveniently disregarded. Hence, with a powerful and all-embracing Malayan Government, insufficient attention was paid by the Sabah negotiating team as to how the assurances, undertaking and promises could be implemented once Sabah became a component of the Federation of Malaysia. Little attention was also paid to the subject of recourse which Sabah might take against the Federal government in the event of breach of the constitutional safeguards and assurances. The safeguards were negotiated in the spirit of a gentlemen’s agreement. It can be inferred that the absence of any provision in the 20 Points for a possible recourse which Sabah could take against the Federal government in the event of a breach of the constitutional safeguards and conditions was indicative more of the faith of Sabah’s leaders in former Prime Minister, Tunku Abdul Rahman and the Federal government’s assurances rather than the lack of foresight. To them a gentlemen’s agreement was sufficient guarantee, although later events have proven Sabah’s leaders wrong.
The Twenty Points are presented below together with a statement of their status in the context of the IGC, Malaysia Agreement and Federal Constitution. Comments pertaining to deviations in implementation, where appropriate, are outlined after the presentation of each point.
Point 1: Religion
While there was no objection to Islam being the national religion of Malaysia there should be no State religion in North Borneo, and the provision relating to Islam in the present Constitution of Malaya should not apply in North Borneo.
In the IGC Report this point was taken up in the form of the provision that “Islam is the religion of the Federation” which essentially reaffirmed Article 3(1) of the Federal Constitution.
A contravention of this point occurred when the former Chief Minister of Sabah, Tun Mustapha enabled the passage of a constitutional amendment in the State Constitution thereby making Islam the State religion in 1973. It is well-known that Tun Mustapha actively discriminated against the promotion of other religions by expelling their missionaries. By this act, religious freedom which was intended by this point was abrogated in favour of Islam. His successor, Datuk Harris Salleh, also actively engaged in proselytization by using Islam as an instrument to grant favours to new converts. It was widely perceived by the general public that the actions of both Tun Mustapha and Datuk Harris were motivated by their need to strengthen their own political position vis-à-vis Kuala Lumpur.
In the case of the present Government, it tries to restore religious freedom by dealing with all religions equally but this is perceived as being anti-Islam. This is despite the fact that the State Legislative Assembly in 1986 inserted a new Article 5B “to confer on the Yang Di-Pertuan Agong the position of the Head of Islam in Sabah.”
Today, the status of Islam as the State religion has made it an instrument of political bigotry and provides a justification for religious polarisation and discrimination.
One may, of course, argue that the deviation that has occurred with respect to this particular point was caused by the State and not by the Federal authorities. This is too simplistic a view. As will be shown in Section V of the Memo, an examination of the Federal Government’s dealings with the State during the reign of the previous Chief Ministers shows numerous subtle interferences in Sabah’s political and administrative affairs by Kuala Lumpur, some of which are manifested in the form of administrative measures and decision making by Federal agencies. As a consequence, many constitutional amendments made at the State level which led to the dilution and surrender of several safeguards, were initiated and influenced by Federal Government. (e.g. Federalisation of Labuan).
Point 2: Language
(a) Malay should be the national language of the Federation;
(b) English should continue to be used for a period of time of ten years after Malaysia Day;
(c) English should be the official language of North Borneo, for all purposes, State or Federal, without limitation of time.
Tun Mustapha’s administration changed the status of English by passing a bill, introducing a new clause 11A into the State Constitution, making Bahasa Malaysia the official language of the State Cabinet and State Legislative Assembly. At the same time, the National Language (Application) Enactment 1973 was passed purporting to approve the extension of an Act of parliament terminating or restricting the use of English language for other official purposes in Sabah. This is putting the cart before the horse, because the National Language Act 1963/67 was only amended in 1983 to allow it to be extended to Sabah by State Enactment. But, no such State Enactment has been passed. Therefore, the National Language Act 1963/67 is still not in force in Sabah. Nevertheless, the above amendments have brought about the following consequences:
(a) Many civil servants who were schooled in English are now employed as temporary or contract officers because of their inability to pass the Bahasa Malaysia examination.
(b) The change in the medium of instruction in schools affected the standard of teaching due to lack of qualified Bahasa Malaysia teachers.
(c) The teaching of other native languages has been relegated to the background.
Many Sabahans believe that the Constitutional Bill passed in 1973 to erode this safeguard was probably made on the advise and influence of syed Kechik, who was regarded as the KL’s man in Sabah. (See Ross-Larson(1980)).
Point 3: Constitution
Whilst accepting that the present Constitution of the Federation of Malaya should form the basis of the Constitution of Malaysia, the Constitution of Malaysia should be a completely new document drafted and agreed in the light of free association of States and should not be a series of amendments to a Constitution drafted and agreed by different States in totally different circumstances. A new Constitution for North Borneo was, of course, essential.
It is obvious that the Sabah and Sarawak negotiating teams were of the opinion that they were joining in the Federation of Malaysia as equal partners, namely Malaya, Singapore, Sabah and Sarawak. However, the request for a completely new Constitution was not granted thereby deviating from the basic agreement. The reasons offered were:
(a) Due to time constraint. The drafting of a completely new Constitution would take a long time to complete.
(b) The Sabah negotiating team recognised the amount of time and energy required to draft a new Constitution.
From the foregoing, it is clear that during the negotiation, the State leaders had shown complete trust and confidence in the capabilities of the Malayan leadership in honouring the assurances and promises given them. As a result, minimum fuss was made of the necessity of casting those promises and assurances in enforceable terms to be duly incorporated into official documents, complete with legal and constitutional recourse in the event of breaches. Furthermore, the readiness with which the State leaders consented to the use of Federal Constitution of Malaya as a basis on which new amendments were to be incorporated also illustrates the trusting nature of the State leaders then. However, the speed with which the formation of the Federation of Malaysia was hurriedly implemented, at a time when the people of Sabah were still constitutionally backward, leaves many present-day better educated Sabahans to question the extent of participation of the Sabahan leaders in the entire negotiation process. For such an important undertaking which affects the future of the people of Sabah, certainly more time should been given.
An important agreement reached by the Inter-Governmental Committee was that in certain aspects, the requirement of Sabah and Sarawak could appropriately be met by undertaking or assurances to be given by the government of the Federation of Malaya rather than by constitutional provision. Still, this was a clear deviation from what was requested in the Twenty Points.
Points 4: Head of the Federation
The Head of State in North Borneo should not be eligible for election as Head of the Federation.
Since only a Ruler is eligible to be elected as the Head of the Federation in the Malayan Constitution, there was no necessity to make specific provision for the exclusion of the Head of the State of Sabah from election as Head of the Federation.
Point 5: Name of Federation
“Malaysia” but not “Melayu Raya”
This point was incorporated into the IGC Report and subsequently into the Federal Constitution.
Point 6: Immigration
Control over immigration into any part of Malaysia from outside should rest with the Federal government but entry into North Borneo should also require the approval of the State government. The Federal government should not be able to veto the entry of persons into North Borneo for State government purposes except on strictly security grounds. North Borneo should have unfettered control over the movement of persons, other than those in Federal government employ, from other parts of Malaysia into North Borneo.
While it was agreed in the IGC Report that the Immigration department should be a Federal department, the State should have absolute control of immigration to Sabah from within Malaysia.
Point 7: Right of Secession
There should be no right to secede from the Federation.
There was absolutely no reason or need for this point to be listed since it is not a safeguard for the State but for the Federal government. Nevertheless, the amazing readiness of the five political parties to include this as one of the Twenty Points reflected their firm belief that the ‘marriage’ would be a permanent one. Their decision to concede the right to secession was no doubt motivated by the promise of improved economic well-being that the new Federation would bring and the respect with which the Federal government would place on agreed safeguards and assurances.
Point 8: Borneonisation
Borneonisation (Sabahanisation) of the public services should proceed as quickly as possible.
As a consequence of Federal’s control on pensions (Article 112 of the Federal Constitution and Para 24 of the IGC Report), all promotions in the Federal department and creation of new posts in the State require Federal approval due to the “pension factor.”
An examination of existing records shows that the number of federalised departments or agencies in Sabah has increased 4 times since Independence. By 1985 there were 62 Federal departments and agencies in Sabah, of which more than 90 per cent is currently headed by Semenanjung officers. According to employment record, there are more than 21,000 Semenanjung officers working in government offices in Sabah. This is a clear deviation of the Twenty Points and IGC safeguards.
The usual justification used by the Federal Government to engage officers from Semenanjung to fill the federalised government positions is the lack of qualified Sabahans. However, it is found that even officers in the C and D categories are still being imported into the State from Kuala Lumpur. Furthermore, there has been no conscious plan to train prospective Sabahans to take over senior posts from these Semananjung officers.
At a time when some 800 graduates and thousands of school leavers in Sabah are unemployed, the existence of a large number of civil servants from Semenanjung serving in government departments gives many Sabahans the feeling that they have been deprived of employment opportunities which, in the context of the Twenty Points, are rightfully theirs.
Point 9: British Officers
Every effort should be made to encourage British Officers to remain in the public services until their places can be taken by suitably qualified people from North Borneo.
This point was taken up and discussed extensively in the IGC Report.
Point 10: Citizenship
The recommendations in paragraph 148(k) of the Report of the Cobbold Commission should govern the citizenship rights of persons in the Federation of North Borneo subject to the following amendments:
(a) Subparagraph (I) should not contain the provision as to five years residence;
(b) In order to tie up with our law, subparagraph (II)(a) should read “seven out of ten years” instead of “eight out of twelve years”;
(c) Subparagraph (III) should not contain any restriction tied to the citizenship of parents – a person born in North Borneo after Malaysia must be a Federal Citizen.
It is public knowledge that there is a significant number of Sabahans who were born before Malaysia Day is still having problems acquiring citizenship. Furthermore, many natives in the interior regions of the State are still holder of red I.C. because of the problems of verifying their birth.
It is also common knowledge that certain categories of refugees and illegal immigrants in Sabah have been issued with blue I.C. thus conferring upon them citizenship status and enabling them to vote in elections. This occurred particularly during the tenure of the previous State governments. A reliable source indicates that some 198,000 of these refugees have been issued with blue I.C.
According to a newspaper report, which was subsequently confirmed, police forces acting on public complaint raided Peting Bin Ali’s house in Sandakan on 16 November, 1979 and discovered that he was in possession of facilities to issue blue ICs. It is believed that the operators were collaborating with certain registration personnel in Kuala Lumpur. Most surprisingly the culprit was not prosecuted for committing such a grave crime against all the citizens of the country.
The process by which these illegals are registered by the Federal agencies for subsequent issuance of blue ICs, without due reference to the State, is considered by Sabahans as usurpation of the State’s immigration authority. This is a clear deviation from the safeguard on immigration and control of its franchise rights. Furthermore, the use of Labuan as an entry point to Sabah without immigration check, effectively removes immigration control from the State government.
Point 11: Tariff and Finance
North Borneo should have control of its own finance, development funds and tariffs.
This illustrates the true feeling of the Sabah leaders concerning Malaysia. They saw Sabah as equal partner in Malaysia. With its vast natural resources not yet fully tapped and the promise of rich oil discoveries, the Sabah leaders foresaw that the State would have adequate financial resources to cater for its socio-economic development. Today, all proceeds of revenue other than those listed in Part III of the Ten Schedule are accrued to the Federal government. These include personal income tax, corporate tax, export and import duties, petroleum royalty, etc. The State government derives its incomes primarily from timber exploitation, copper mining, and since 1974, from the 5.0% petroleum royalty accorded to it.
A study conducted by Institute of Development Studies (Sabah) concludes that since 1976 there was a net transfer of financial resources out of Sabah in favour of the Federal government. It should also be borne in mind that much of the Federal government’s financial flow to Sabah has actually been in the form of operating expenditures to service the large numbers of federalised agencies in Sabah. Although, during the First and Second Malaysia Plan period the Federal government had spent more in Sabah than collected from it, however, since 1976 there has been a net outflow of funds from Sabah to the Federal government amounting to M$2,633.18 million in the Third Malaysia Plan period and M$4,871.46 million during the Fourth Malaysia Plan period. During the First, Second, Third and Fourth Malaysia Plan period, some 80.5%, 72.1%, 66.8% and 68.3% of the financial allocation to Sabah were for operating expenditures of Federal departments and agencies as shown below:
The substantial net outflow of funds from Sabah to Kuala Lumpur is perceived by Sabahans as siphoning off of Sabah’s development funds which is tantamount to financial exploitation of the State.
The understanding of the leaders in joining Malaysia was to achieve an accelerated pace of economic development. However, it appears that the bulk of the Federal funds currently spent in Sabah are for operating expenditures rather than for development purposes.
The overall level of financial allocation to Sabah by the Federal government can be considered as minimal relative to its socio-economic development needs. These allocations are indeed meagre when compared with the amount of financial resources derived by the Federal government from the State as shown by the table above.
It is further felt that the State’s share of its oil revenue (5%) is too small. The sequence of events which led Sabah to sign away its oil rights to the Federal government has continued to puzzle the minds of the Sabahans. Previous Chief Minister, Tun Mustapha and Tun Stephens had consistently refused to sign the Petroleum Sharing Agreement indicating their unwillingness to give up the State’s oil rights. It is interesting to note, however, that in the ensuing political crisis following immediately after the June 6, 1976 plane crash resulting in the death of most of the key BERJAYA leaders, Datuk Harris Salleh dramatically reversed the position of the State government by signing away the State’s oil rights.
To many Sabahans the signing away of Sabah’s oil rights is equivalent to Constitutional amendment. Many believe that unless approved by the State Assembly with a two-third majority, the Chief Minister’s signature alone does not constitute approval of the people of Sabah.
Point 12: Special Position of Indigenous Races
In principle, the indigenous races of North Borneo should enjoy special rights analogous to those enjoyed by Malay in Malaya, but the present Malaya formula in this regard is not necessarily applicable in North Borneo.
While in principle the special privileges of Sabahan natives are recognised legally, the implementation of the policy has been somewhat dubious. For instance, when job vacancies in Semenanjung are advertised in national newspapers to the effect that “preference shall be given to bumiputera”, what it in effect implies is bumiputera of Malay origin and, inevitably the Malay in Semenanjung. This legacy was exported to Sabah during the reign of the government of Tun Mustapha and Datuk Harris. It is well-known that during those periods, the treatment accorded to indigenous people in the State depended on their religious faith. This gave rise to two categories of indigenous people – Muslim indigenous and non-Muslim indigenous. These actions always done in the name of ‘integration’ with the aim of presenting Kuala Lumpur the impression that the Muslim population in the State had grown rapidly. There were numerous cases during the reign of the previous governments where non-Muslim bumiputeras especially the Kadazans and Muruts, were bypassed for promotion or recruitment into the civil service unless they became Muslim.
Point 13: State Government
(a) The Chief Minister should be elected by unofficial members of Legislative Council;
(b) There should be a proper Ministerial system in North Borneo.
The incorporation of this point in the IGC Report and Federal Constitution was consistent with the original intentions of the Sabah leaders.
Point 14: Transitional Period
This should be seven years and during such period legislative power must be left with the state of North Borneo by the Constitution and not merely delegated to the State government by the Federal government.
This point was not addressed in the Malaysia Agreement nor dealt with in the Federal Constitution, even though the Cobbold Commission studied the point and recommended that the transitional period should be five years, or alternatively, minimum three years and maximum seven years. The ‘Transitional Period’ is actually discussed in Para 34 of the IGC Report and partly in Annex A to the Report.
It was clear that the purpose of introducing the transitional period was to provide the much needed time for the growth of political consciousness among the people of Sabah so that they would be able to understand their roles and responsibilities as political leaders. Both Malaya and Singapore had experienced a period of self-rule before Independence. Since neither Sabah nor Sarawak had any form of political relationship with Malaya and Singapore before the formation of Malaysia, a trial period would have significantly improved the Federal-State relationship right from the beginning. Had the transitional period been effected, it is generally believed that the erosion of constitutional safeguards may not have occurred so easily and rapidly.
Point 15: Education
The existing educational system of North Borneo should be maintained and for this reason it should be under State Control.
The existing educational system referred to primary and secondary schools and teachers training colleges, but not university and post-graduate education. The Sabah delegation wanted to teach English at all levels of schools in the State as the medium of instruction. Malay and other vernacular languages, such as Kadazan and Chinese, were also to be taught and used as the media of instruction in lower level primary schools in some primary schools in some voluntary agency schools. It was the intention that the education policy and its development will be subject to constant adaption and would move towards a national concept but it should not merely be an extension of existing Federal policy.
In the IGC Report education was a federal subject although specific conditions were spelt out for its administration. The IGC Report also specified important conditions pertaining to education development in general including the use of English and implementation of indigenous education.
In 1965, the Sabah Education Ordinance No.9 of 1961 was declared a federal law. During Tun Mustapha’s reign, the State Constitution was amended to make way for the use of Malay as the sole official language by 1973. When the Peninsular introduced Malay as the medium of instruction in Primary One in 1970, Tun Mustapha’s Administration adopted the same policy in Sabah.
Since the Education Act, 1961, was extended to Sabah only in 1976, the introduction of the national Educational Policy to Sabah in late 60s and early 70s with the tacit consent of the then State government under Tun Mustapha was carried out without the proper legal authorities. However, this has been rectified by the extension of the Education Act, 1961.
It is also important to note that the IGC Report made specific references to the responsibilities of the Federal government in developing educational infrastructure in Malaysia, “the requirement of the Borneo States should be given special consideration and the desirability of locating some of the institutions in the Borneo States should be borne in mind.” By and large, the Federal government has done little for Sabah in the development of higher education facilities, aside from the setting up of a YS-ITM campus and a makeshift UKM branch campus. Even a donation by the State government of 364 hectares of land in 1980 to be developed into a permanent campus of the UKM together with a $5.0 million contribution from Yayasan Sabah failed to elicit the “special consideration” responsibility of the Federal government on the development of education infrastructure in Sabah as contained in the IGC Report.
Yet in Kedah, Universiti Utara Malaysia which was only established in 1984 enjoys the full financing and other support of the Federal government as compared to the Sabah branch of UKM which was established in 1974, or then years earlier.
Such a phenomenon does not only violate the “special consideration” clause supposedly accorded to Sabah but it also speaks of the inequity in the distribution of funds for educational purposes among components parts of the Federation of Malaysia.
Point 16: Constitutional Safeguard
No amendment, modification or withdrawal of any special safeguard granted to North Borneo should be made by the Central government without the positive concurrence of the government of the State of North Borneo. The power of amending the Constitution of the State of North Borneo should belong exclusively to the people in the State.
Most of the safeguards contained in the IGC Report were incorporated into the Malaysia Agreement and subsequently into the Federal Constitution, although a number of these have since been repealed. In addition to the provision in the Constitution, Article VIII of the Malaysia Agreement provides that the governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the IGC signed on 27th February, 1963, in so far as they are not implemented by expressed provision of the Constitution of Malaysia.
An additional important agreement reached by the IGC was that certain aspects of the requirements of Sabah could appropriately be met by undertakings or assurances to be given by the government of the Federation of Malaya rather than by Constitutional provision. The Committee further agreed that these undertakings and assurances could be included in formal agreement or could be dealt with in exchanges of letters between the governments concerned.
In the minds of the people of Sabah (and Sarawak), the inclusion of the safeguards in the Constitution was reassuring in that they were as good as guaranteed by the British government. There is, however, an oversight by those responsible for drafting the Constitution to ensure that these safeguards are to be really effective. An amendment to the Federal Constitution must be passed by a two-third majority by the Parliament (which in today’s composition of Parliament is a non-issue) and, where State rights are involved, it must have the consent of the State government concerned (i.e. the Executive). It does not have to be approved by the State Assembly (the representatives of the people of the State) by also a two-third majority. Under the present Constitutional arrangements, the safeguards are therefore as good only as the strength or personality of the State government of the day.
In essence, most of the safeguards can be abrogated by the mere ‘consent’ of the State government of the day, even for the sake of wanting to ‘please’ the Federal government. There is a general belief that this had been the case for previous governments in Sabah.
Para 30 of the IGC Report and Article 161E of the Federal Constitution provide the constitutional safeguards on some specific matters. While, Article 161E is not exhaustive, these are safeguards found in other constitutional provisions. Amendment to Article 3(3) (making the Yang Di-Pertuan Agong the Head of Islamic religion in Sabah) and repealed og Article 161A(1)(2)&(3) (relating to the special position of the Natives of Sabah) and Article 161D (relating to freedom of religion in the State) if made without the concurrence of the Yang Di-Pertuan Negeri contravenes Article 161E.
It should be pointed out that there are also cases where the Federal government failed to seek the concurrence of the State government in making amendments relating to matters under State control.
As regards Fisheries Act, 1985, marine and estuarine fishing and fisheries are in the Concurrent List whereas riverine and inland fishing and fisheries and turtles are in the State List. Therefore, both the State and Federal Legislatures can pass law on the former but only the State Legislature can pass law on the latter (except for the purpose of uniformity; but in such cases the law only come into force in the State if adopted by the State Legislature). In the event of conflict between State and Federal laws, the Federal Law will prevail. However, Sabah has its own Fishing Ordinance, 1963, but this was repealed by PUA 274/72 under section 74 of the Malaysia Act, 1963 apparently without the consent of the Head of State (Yang Di-Pertuan Negeri)
Similarly, when the Federal government put fishery matters as a supplement to the Concurrent List taken away from the State in 1976, concurrence was not sought from the State government. And when the Federal government repealed the Fishery Ordinance in 1978, again the State government was ignored. The Fisheries Department in Sabah is now in danger of being sued by the public because it is enforcing law upon which it has no power to it.
Point 17: Representation in Federal Parliament
This should take account not only of the population of North Borneo but also of its size and potentialities and in any case should not be less than that of Singapore.
This point was taken up in the IGC Report and Malaysia Agreement. However, it is important to stress the fact that when considering representation in the Federal Parliament, the potentialities of Sabah should be taken into account and that the mention of the size of Singapore’s representation was only the minimum requirement. There are now 20 members from Sabah in the lower house of the Parliament. This particular point therefore remains ‘unbroken’. But since the signatories of the Malaysia Agreement consisted of the four governments of Malaya, Singapore, Sarawak and Sabah, there is a strong case for arguing that the matter should have been reviewed when Singapore pulled out from the Federation of Malaysia.
Indeed in view of Singapore’s departure from the Federation this safeguards must be reviewed along with other assurances in order to give the Malaysia Agreement validity. This review should be made immediately if Malaysia, as a federation, is to continue to be valid.
Point 18: Name of Head of State
Yang DiPertua Negara
The name of the Head of State is Yang DiPertuan Negeri, as opposed to Yang DiPertua Negara as contained in both the Twenty Points and IGC Report. The use of the word ‘Negara’ by the Sabah leaders seems to convey the point that in their minds, independence was to bring with it a certain level of political autonomy for Sabah. It may therefore be argued that Sabah upon joining the Federation was a ‘negara’ or a nation. This clause was amended in 1976 in the Federal Constitution. Hence, the fact that this provision is not followed is a clear deviation.
Point 19: Name of State
This point was taken up in both the IGC Report and Malaysia Agreement.
Point 20: Land, Forest, Local Government etc.
The provision in the Constitution of the Federation in respect of the power of the National Land Council should not apply in North Borneo. Likewise the National Council for Local Government should not apply in North Borneo.
While the State continue to exercise control over land, agriculture and forestry, the Federal government has established a National Land Council whose intention is yet to be determined. Should the National Land Council extend its jurisdiction over Sabah then it will contravene this particular provision.
In conclusion, it is shown that there are a number of critical areas in which the Federal government has deviated from the original spirit and meaning of the constitutional safeguards and assurances granted to Sabah at the formation of Malaysia. The basic conditions were contained in the memorandum called the “Twenty Points”, the contents of which were subsequently incorporated into the IGC Report, the Malaysia Agreement and Federal Constitution. The principle areas in which there have been clear deviations with respect to implementation are those which relate to matters pertaining to Immigration, Religious freedom, Borneonisation, Citizenship, Education, Finance, and Tariff Arrangements and Constitutional safeguards.
Deviations in implementation with respect to these matters have been largely responsible for strained Federal-State relations, thereby presenting barriers for territorial integration. It must nevertheless be stressed that problems pertaining to Federal-State relations do not originate merely from deviations as described above. Equally important is the problem of political interference by Kuala Lumpur in State affairs.
As a result of the deviations and political interferences, an idea is now slowly taking root that there is going to be a ‘take-over’ of the Borneo Territories by Malaya and the submersion of the individualities of Sabah and Sarawak.