Saturday, 23 August 2014

LIMITATIONS TO SUPREMACY OF MALAYSIA CONSTITUTION

The effort to deny Sabah and Sarawak rights permeates to all levels especially from those who come from Malaya. Chief Justice of Malaysia Tun Arifin bin Zakaria, in a book launching, “The Constitutional Rights of Sabah and Sarawak” which was written by a Sabah-based lawyer Sukumaran Venugopal of the Sabah Law Association said, “The Cobbold Commission Report which was published on August 1st, 1962 contains the unanimous conclusion that theFederation of Malaysia was in the best interest of Sabah and Sarawak”.
This unanimous conclusion made by this Chief Justice obviously refers to Lord Cobbold conclusion in the report where he says that 1/3 of the population supports the formation of Malaysia, 1/3 support but with the safeguards emplaced, and 1/3 did not agree.  Therefore the British and Malaya government decided then that 2/3 of the people supported the idea of forming Malaysia.  What they did not tell the public is that the people of Sabah and Sarawak are actually being cheated of their future.
If the learned Chief Justice has read the Cobbold Commission Report he would have known that the Cobbold Commission Report is a travesty of justice and would never have associated himself with it, unless he is upholding the truth.
The Cobbold Commission only met with 4,000 persons in some 960 groups which varied from 1 to 50 people. In addition the Commission also receives 2,200 letters and memoranda.
The population of Sabah and Sarawak then was 1.2 million. Therefore the Chief Justice using the word unanimous conclusion was actually in grave error. The 4,000 persons out of 1.2 million people reported who met with the Cobbold Commission was hardly a number that represents the people of Sabah and Sarawak. It was not even a good sample of the population.
It was reported in the local news that there were more than 7,000 people demonstrating in Kuching at SUPP headquarters who objected to the formation of Malaysia.  These numbers of demonstrators in Kuching alone is more than enough to override the 4,000 people that Lord Cobbold claimed they met.
To the ordinary Sabahan and Sarawakian who are now educated, they can see that the formation of Malaysia is actually a SHAM, a design by the British for Malaya to colonize the Borneo States.
It is for this reason perhaps that most Malaysia Constitutional scholars tend to study the Reid Commission in analyzing the Malaysia Constitution instead of studying the Inter-Government Committee (IGC) Report and the Malaysia Agreement 1963.
The Malaysia Agreement 1963 is where the Malaysia Constitution (a Modified Constitution of the Federation of Malaya) was appended as Annex A.  Failing to understand the safeguards and caveats in the IGC report and the subsequent Malaysia Agreement 1963 is perhaps the reason that many from Malaya did not understand that Sabah and Sarawak are NOT the same as the other states in the Federation of Malaya.
Many people perceive the Malaysia Constitution as Supreme; however not many people discuss, write or even understand that the Supremacy of the Malaysia Constitution is limited by the Safeguards and Caveats contained in the IGC and the Malaysia Agreement 1963.  Even when amendments are made in the Malaysia Constitution and approved by a 2/3 majority in Parliament, these amendments shall not be affective in Sabah and Sarawak, provided that it is approved by the government of the Borneo States.
No new Enactments which touch the state rights as contained in Schedule 9 of the Malaysia Constitution can be enforced in Sabah and Sarawak unless it is approved by the governments of Sabah and Sarawak. These are issues that are often overlooked by Malaysia Constitutional Scholars and have wide ranging implications.
Take for example the Immigration Act 1959/63. This is Federal legislation enacted to control the movement of people and the powers are given in the Federal list in Schedule 9 of the Malaysia Constitution.
However, the IGC report is detailed in protecting the rights of the people in the Borneo States. As such the Immigration Act 1959/63 incorporates the powers of the Borneo states into the Act from Section 62 to Section 74 of that Act. In enforcing this law the Director of Immigration in Sabah and Sarawak has no recourse when directed by the “State Authority” to stop a particular type of people from being allowed to enter Sabah and Sarawak.
The fact that Article 5(1) of the Malaysia Constitution provides for free movements in the Federation has nothing to do with it.  This is a clear example of limitation imposed on the Malaysia Constitution by the IGC and Malaysia Agreement 1963.
There are other examples that can be quoted, such as the power of the Borneo States over land and its mineral resources, and the Petroleum Development Act 1974 but this is discussion for another day.
ZainnalAjamain
ZainnalAjamain is an economist by profession, graduating with a Masters degree from the University of East Anglia. He has held several high ranking civil service positions in government and government think tanks and has worked as a university lecturer, senior researcher, stockbroker, and economist and published several papers in international media journals. He was the co-author behind the Sabah Government’s vision for development and progress in the Sabah Development Corridor and created the first Offshore Islamic Fund in Labuan. He also held the position of Senior Research Fellow in the Centre for Remote Sensing and Geographic Information Systems at the University Malaysia Sabah. He was the Co-Founder of the United Borneo Front (UBF) and a passionate activist to abolish the Cabotage Policy. He is also the Secretary General of a newly formed political party in Sabah.

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