According to Article 160 of the Malaysia Constitution “the Federation” means the Federation which was established through the Federation of Malaya Agreement 1957. However, Article 1(2) of the Malaysia Constitution says the states of the Federation shall be Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu. The problem is not about the 11 States that made up the Federation of Malaya, the problem is in the 2 other Federations – the Federation of Sabah and Sarawak. This is because the Federation of Sabah and Sarawak formed the Federation of Malaysia through the Malaysia Agreement 1963.
Putting Sabah and Sarawak as the member States of the Federation of Malaya means that Sabah and Sarawak were bound by the Federation of Malaya Agreement 1957 when the legal documents were very clear Sabah, Sarawak and the Federation of Malaya formed the Federation of Malaysia based on the Malaysia Agreement 1963. As the result, who is Malaysia? – is it the Federation of Malaya masquerading as Malaysia? Or that Malaysia is actually the Federation of Malaya? Is Sabah and Sarawak is part of the 3 Federations that establishes the Federation of Malaysia or Sabah and Sarawak is part of the 13 States?
Whichever perspective is taken to answer this simple question Malaysia as a Nation will no longer be the same. If it is Malaya masquerading as Malaysia, then Sabah and Sarawak are free to leave the union. If the Federation of Malaya is actually part of Malaysia as agreed under the Malaysia Agreement 1963, then States of the Federation such as Kelantan, Terengganu, and Johor etc. are free to leave because they are no longer bound to the union by the Federation of Malaya Agreement 1957.
Realizing this impasse this paper is an attempt to examine and should be analyse the reason for having this identity crisis and the possible solutions that can be adopted to resolve the issues.
Malaysia was formed in 1963 via the Malaysia Agreement which was signed by representative amongst the United Kingdom, the Federation of Malaya, North Borneo (Sabah), Sarawak and Singapore on the 9 July 1963. The formation of the new Federation to be called Malaysia was specific and very clear in the Malaysia Agreement 1963. Article 1 of the Malaysia Agreement says:
The Colonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existing States of the Federation of Malaya as the States of Sabah, Sarawak and Singapore in accordance with the constitutional instruments annexed to this Agreement and the Federation shall thereafter be called "Malaysia" (Emphasis added).
In this Article “the Federation is called Malaysia” is formed by this agreement. This means that it is “the Federation” that is called Malaysia; it is not just a change of name from Malaya to Malaysia but the whole Federation which was called “the Federation of Malaya to the Federation of Malaysia”. Therefore the new Nation is to be called the Federation of Malaysia and NOT just simply being called Malaysia.
The Malaysia Agreement also contained “constitutional instruments” contained in its Annex A. These are constitutional arrangements discussed and agreed in the Inter-Governmental Committee report and are changes that were supposed to be made to the existing Federal constitution of Malaya. Annex A is called the Malaysia Bill because these changes were supposed to be tabled and passed by the parliament of the Federation of Malaya. This is different from the Constitution of North Borneo (Sabah) – Annex B, Sarawak – Annex C and Singapore – Annex D. The Constitution of the North Borneo, Sarawak and Singapore was passed by Order in Council made with the consent of Queen Elizabeth II of the United Kingdom and NOT by the Federation of Malaya’s parliament.
It is very unfortunate that the changes made to the Federation of Malaya’s Constitution were never made sincerely and thoroughly as the base for building the new Nation. There are interpretations to the Constitution which may be purposely overlooked. This oversight is no excuse, because the Nation has existed for the last 51 years, yet no appropriate changes was made to reconcile any inconsistencies.
Imagine the implications to so many agreements that have been signed as the Federation of Malaysia, so many laws that have been passed by the Malaysia Parliament, and so many international conventions and treaties ratified as Malaysia. Instead of making the necessary changes as in accordance to the Malaysia Agreement 1963, certain interpretation was never altered accordingly. As such it is the definition of “the Federation” which is today creating the crux of the identity crisis for Malaysia. The definition made it appear that the Federation of Malaya is masquerading as Malaysia – the reality is that Malaysia is actually Malaya which was formed by the Federation of Malaya Agreement 1957 and NOT formed by the Malaysia Agreement 1963.
The Malaysia Constitution which was reprinted and updated up to 2010 states the following:
Article 1(1) The Federation shall be known, in Malay and in English, by the name Malaysia.
Article 1(2) The States of the Federation shall be Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu.
However in Article 160 interpretation of the Malaysia Constitution define “the Federation” as follows:
“the Federation” means the Federation established under the Federation of Malaya Agreement 1957.
If this is the meaning of “the Federation” then Sabah and Sarawak should NOT be included as the “States of the Federation” because Sabah and Sarawak did not agree to be a part of the Federation of Malaya in accordance to the Federation of Malaya Agreement 1957 – Sabah and Sarawak agreed to form the Federation of Malaysia as how it was arranged by the Inter-Governmental Committee (IGC) Report and the Malaysia Agreement 1963.
To simply include Sabah and Sarawak as part of the “States of the Federation” is not just erroneous but legally wrong. It is implicit that Sabah and Sarawak is part of the 13 states instead of 3 states that formed Malaysia, however, any Sabahan and Sarawakian will insist that Malaysia is a Federation of 3 nations. It is a fact that the Federation of Malaya Agreement 1957 and the Malaysia Agreement 1963 are two separate and dissimilar documents. The Federation of Malaya Agreement 1957 was a merger of the Federated Malay States, the Un-federated Malay States and the Strait Settlements into one union – the Federation of Malaya.
The Malaysia Agreement 1963 is an agreement between the United Kingdom, the Federation of Malaya (which is a union of 11 states), North Borneo (Sabah), Sarawak and Singapore. Structurally this is a Union on top of a Union; it is not making of the Federation of Malaya to become the Federation of Malaysia.
IF the structure of Malaysia was constructed in the original spirit of the Malaysia Agreement 1963 then, there should be two levels of the Federation. The Federation of Malaya consisting of the 11 States and formed by the Federation of Malaya Agreement 1957 and the Federation of Malaysia made up of the Federation of Malaya, Sabah and Sarawak and formed by the Malaysia Agreement 1963. Perhaps in this way there are no confusion, no misinterpretation and no dissents in the effort for Nation building.
However, instead of establishing two layers of the Federation, the Federation of Malaya was simply elevated and made itself into the Federation of Malaysia. This solution, instead of establishing a proper starting point for Nation building, creates so much confusion, misinterpretations and dissents, especially for the Borneo States. This is based on the anxiety and fear of the Borneo people that the Federation of Malaya is colonizing them. This also vindicates the warnings of Sabah and Sarawak’s forefathers about Malaya’s imperialist tendencies and their mechanization and manipulations over Sabah and Sarawak people. As the result, this provides credibility to the claims made by dissidents in Sabah and Sarawak today about broken promises, disenfranchisements and marginalization of the people by Malaya – all these are pointing out that Sabah and Sarawak is Malaya’s colonies.
But most importantly when the structure did not reflect Union on top of a Union in the formation of Malaysia its implication to the laws of the Federation which were passed for the last 51 years may perhaps not be enforceable in Sabah and Sarawak.
The implication of this assertion is catastrophic. This refers to the Laws of the Federation containing word such as – “the Federation”, “the Government of the Federation”, “the Federal Government”, and “the Malaysia Government” etc. How is it possible to make use of the laws made by the Federation of Malaya applicable to the Federation of Malaysia?
Erasing the contending interpretation is not an option
To resolve this impasse, it may not be as simple as replacing the existing interpretation in Article 160 from “the Federation of Malaya Agreement 1957” to the “Malaysia Agreement 1963”. The solution may look simple but legally such action may no longer bind the original 11 States to the Federation of Malaya which is masquerading as the Federation of Malaysia. This may mean that the 11 States especially Kelantan and Terengganu may take this opportunity to break away from the Federation of Malaya and start their own sovereign and independent country using the Oil and Gas as their main source of income. Johor may want to be on its own especially when deciding their relationship with Singapore and Pahang may want to explore and exploit its own Oil and Gas fields. The Federation of Malaya may be left with States such as Malacca, Negeri Sembilan, Selangor, Perak, Kedah, Pulau Pinang and Perlis – a power hungry industrial belt which is facing a bleak economic future.
What is the reason the definition of “the Federation” was not changed in the Malaysia Constitution as implicit in the Malaysia Agreement 1963? Certainly it is not just a simple oversight; perhaps it was done on purpose because on the eve of the formation of Malaysia, the Kelantan government challenged the Prime Minister of Malaya, Tunku Abdul Rahman in court on the basis that Kelantan was never consulted over the decision to form Malaysia. According to Kevin Tan1 the Kelantan Government argued that both the Malaysia Agreement and the Malaysia Act were not binding on Kelantan on the following grounds:
(a) that the Malaysia Act in effect abolished the Federation of Malaya and this was contrary to the 1957 Federation of Malaya Agreement;
(b) that the proposed changes required the consent of each of the constituent states of the Federation of Malaya – including Kelantan – and this had not been obtained;
(c) the Sultan of Kelantan should have been a party to the Malaysia Agreement, but was not;
(d) a constitutional convention existed that required the Malay rulers be consulted regarding any substantial change in the Constitution; and
(e) the Federal Parliament had no power to legislate for Kelantan in respect of any matter regarding which the State had its own legislation.
The Kelantan challenge was based on the legal status and power of the Federal government of Malaya to act on behalf of the 11 States that formed the Federation of Malaya. In response Thomson CJ’s approach was “decidedly positivist”. The validity of the Malaysia Act was premised on the powers conferred on the Federation of Malaya Parliament by the 1957 Agreement. However, he seemed to suggest that there were limits on this power:
… I cannot see that Parliament went in any way beyond its powers or that it did anything so fundamentally revolutionary as to require fulfillment of a condition which the Constitution itself does not prescribe that is to say a condition to the effect that the State of Kelantan or any other State should be consulted. It is true in a sense that the new Federation is something different from the old one. It will contain more States. It will have a different name. But if that state of affairs be brought about by means contained in the Constitution itself and which were contained in it at the time of the 1957 Agreement, of which it is an integral part, I cannot see how it can possibly be made out that there has been any breach of any foundation pact among the original parties. [Emphasis added]2
Perhaps the word “so fundamentally revolutionary” used by Thomson CJ was an indication that the intention of the Kelantan Government may be right, but their emphasis on the legal status and power of the Government of the Federation of Malaya may not be correct. This is because the reasoning of the learned judge was that the 1957 Agreement is still binding and there were no changes made to the Interpretation in Article 160 of the Constitution. If the Interpretation in Article 160 were to be replaced by the Malaysia Agreement 1963 then, Kelantan was no longer bound to the Federation of Malaya Agreement 1957. No one from Sabah and Sarawak raises this issue until today. It is strongly believed that this was the “legal loophole” that Singapore used to leave Malaysia in 1965. Singapore only agrees to form Malaysia – it was never Singapore intention to be part of the Federation of Malaya based on the Federation of Malaya’s agreement 1957.
It may not be correct to question the legal status and power of the Federal Government because of the Federation of Malaya Agreement 1957, but Kelantan may question the procedure used by the Federal Government in executing the Malaysia Agreement 1963 especially when the Malaysia Agreement 1963 is also an International Treaty. The Federal government may have the legal right and power to decide and act on behalf of the component states in the Federation, it does not mean that they can decide and act arbitrarily. The Federal Government must follow the procedures as laid out in the Constitution itself.
The failure of the Federal Government to act in accordance to the procedure as provided for in the Federal Constitution was never raised in the Kelantan writ. The Federal Government must first fulfill the provision contained in Article 76 of the Federal Constitution before signing the Malaysia Agreement 1963 as well as before tabling the Malaysia Bill in the Malaya Parliament. Article 76 of the Malaya Constitution says:
Power of Parliament to legislate for States in certain cases
76. (1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say:
(a) for the purpose of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member; or ……
(2) No law shall be made in pursuance of paragraph (a) of Clause (1) with respect to any matters of Islamic law or the custom of the Malays or to any matters of native law or custom in the States of Sabah and Sarawak and no Bill for a law under that paragraph shall be introduced into either House of Parliament until the Government of any State concerned has been consulted.[Emphasis added]
It is very clear in this Article 76 (1) that the Federal Government may have the legal status and the power to sign the Malaysia Agreement 1963 as well as to pass the Malaysia Bill in parliament. However in Article 76 (2) it also says that the Bill for a law cannot be tabled in either House of Parliament until the Government of any State concerned has been consulted.
The Malaysia Agreement and the Malaysia Act 1963 Chapter 35 is very clear on the definition of the “the Federation”. In order to pacify the situation the Malaysia Bill which was tabled in the Parliament of the Federation of Malaya, the Federation of Malaya purposely did not change the definition of “the Federation” in Article 160 which means the Federation established under the Federation of Malaya Agreement 1957 to the definition agreed in the Malaysia Agreement 1963 and Malaysia Act 1963 Chapter 35 which means the Federation of Malaysia.
The preamble in the Malaysia Act 1963 Chapter 35 clearly says that:
An Act to make provision for and in connection with the federation of North Borneo, Sarawak and Singapore with the existing States of the Federation of Malaya.[31st July 1963]
The Malaysia Act 1963 Chapter 35 is an Act that was passed in the United Kingdom’s parliament. This Act is a statue that vested the Borneo States and Singapore to Federation of Malaya. In this preamble it clearly identify North Borneo, Sarawak and Singapore as “the Federation” NOT a State. The second part it says – “with the” – it did not say merge or combine into – it implicitly says side by side to the Federation of Malaya, instead of its States.
In the Malaysia Act 1963 Chapter 35 Section 1(1) it clearly says:
1.(1) For the purpose of enabling North Borneo, Sarawak and Singapore (in this Act referred to as "the new States") to federate with the existing States of the Federation of Malaya (in this Act referred to as "the Federation"), the Federation thereafter being called Malaysia, on the day on which the new States are federated as aforesaid (in this Act referred to as "the appointed day") Her Majesty's sovereignty and jurisdiction in respect of the new States shall be relinquished so as to vest in the manner agreed between the United Kingdom of Great Britain and Northern Ireland, the Federation and the new States.
(2) Her Majesty may by Order in Council enact State Constitutions to take effect for the new States immediately before the appointed day.
Observe the word vesting and not just the transfer of sovereignty, this action is not just a handing over of a colony from the British to the Federation of Malaya. This Act acknowledge that North Borneo (Sabah), Sarawak and Singapore are a Federation which means and independent sovereignty. It therefore recognize that the Malaysia Agreement 1963 signed on the 9 July 1963 is an international treaty signed by independent sovereignties. This means that Malaysia is not a vehicle for the Borneo States and Singapore to achieve their independence through merger rather it is a integration of 4 countries with their own individuality witness by the United Kingdom.
The highlight of the Malaysia Act 1963 Chapter 35 is actually Section 1 (1) and (2). In Section 1(1) it should be noted here that the words used here is “to federate with” it did not say “to federate into”, therefore it did not imply that Sabah and Sarawak is merged into the Federation of Malaya as one of the states. It imply that the integration is in accordance to the UN Charter.
This is in accordance to the UN 1541(VX) principles of decolonization where in Principle VI(c) it is allowed to integrate with an independent state. Meaning a Non-Self-Governing Territory such as North Borneo (Sabah) and Sarawak is allowed to gain independence through integration with an independent state such as the Federation of Malaya. This however does not mean that the Non-Self-Governing Territory must be the component parts of the Federation of Malaya.
Integration in this manner will contravene Principle VIII which says “Integration with an independent State should be on the basis of complete equality between the people of the erstwhile Non-Self-Governing Territory and those of the independent country with which it is integrated. The people of both territories should have equal status and rights of citizenship and equal rights and opportunities for representations and effective participation at all levels in the executive, legislative and judicial organs of government.”
The United Kingdom agrees to relinquish sovereignty and jurisdiction over the Borneo States and Singapore using the word “vest in the manner agreed” – this is not surrendering the sovereignty and jurisdiction of the Borneo States and Singapore over to the Federation of Malaya. The British was actually creating a “trust” by vesting it has a meaning “to hold in trust”. Malaysia was constructed as a “trust” with the United Kingdom as the settlor, the Federation of Malaya as the trustee and the Borneo States and Singapore as the beneficiaries. Understanding this structure means there is no such thing as absorbing the Borneo States into the Federation of Malaya – this is because there is no such thing that a trust can take possession of the beneficiaries and make them as part of the trustee – this would have broken the “trust” – putting Sabah and Sarawak as part of the “States of the Federation” means the Federation of Malaya’s lawmaker has broken the “trust”. This is the purpose for having the Malaysia Agreement 1963 in the first place so that the “trust” cannot be broken. Unless all those that sign the Agreement agree to sit down again and create another agreement.
Then in Section 1(2) the Constitution of the “new States” meaning North Borneo (Sabah), Sarawak and Singapore would be created by the Order in Council and not by the Federation of Malaya or the British parliament – it would be created in the name of the Queen by the Privy Council (Queen-in-Council). This confirms that even the Constitution of the Borneo States and Singapore were never created by the Federation of Malaya’s parliament – it was created by the Queen independent of the Federation of Malaya. It is therefore legally inappropriate for the Malaysia’s parliament to pass a law so that Sabah and Sarawak were incorporated into the Federation of Malaya.
In supporting the passing of the Malaysia Bill in the House of Lords on the 26 July 1963, Lord Cobbold says:
“Without strong central authority the different territories cannot be welded into one organism, …… But an attempt to carry out day-to-day administration in Jesselton or Kuching from Kuala Lumpur, or to submerge the character of the Borneo territories, would only court failure.”
On one side Lord Cobbold sees the need for a strong central authority because according to him without this authority, the central government cannot hold the Federation together. At the same time Lord Cobbold recognizes the vast distance separating Kuala Lumpur to Sabah and Sarawak and asserts any attempt by the Central government to suppress the “character” of the Borneo States will end up in failure. This is the situation we are facing at present. The Federation of Malaya is just masquerading as Malaysia but yet wants to impose its control over Sabah and Sarawak from Putrajaya. The reality is that the Federation of Malaya has no locus standi to impose anything on Sabah and Sarawak – the Malaysia Constitution as the supreme law in this country is still the Constitution of the Federation of Malaya based on the Federation of Malaya Agreement 1957 and NOT fully in accordance to the Malaysia Agreement 1963. Malaysia is just a name change to deceive Sabah and Sarawak into believing Malaysia is the Nation that is being built. For all intent and purposes Malaysia is actually still the Federation of Malaya.
The whole thing implied that there are more than two Federations that need to be integrated; the question is which of the agreement that created them should take precedence? Should it be The Federation of Malaya Agreement 1957 or the Malaysia Agreement 1963? In which ever choice is made one of the two Federations can still break away from the union.
Putting Sabah and Sarawak as part of the “States of the Federation” will not resolve the situation because this implicitly acknowledges that Sabah and Sarawak are at the same level as the other states in Malaya. The definition that “the Federation” is based on the Federation of Malaya Agreement 1957 exacerbates the situation because Sabah and Sarawak were never parties to sign the Federation of Malaya Agreement 1957 therefore how can Sabah and Sarawak are bound to that agreement? If Sabah and Sarawak are not bound to the 1957 agreement, then Sabah and Sarawak are being pressed into the “States of the Federation” against its free will. As such Sabah and Sarawak are free to leave the Federation of Malaya as Singapore did on 7 August 1965.
The only plausible solution to this impasse is to reestablish the Federation of Malaya and make it as one of the three states that form the Federation of Malaysia. This means that there should be a Parliament for the Federation of Malaya (which does not have representatives from Sabah and Sarawak) and another Parliament for the Federation of Malaysia which consists of the representative of the Federation of Malaya, Sabah and Sarawak for which the representatives are of equal numbers. There is no shortcut to building the Nation called Malaysia. As what Lord Cobbold warned in his report as well as his statement in the House of Lords, he says:
“It is a necessary condition that, from the outset, Malaysia should be regarded by all concerned as an association of partners, combining in the common interest to create a new nation, but retaining their own individualities”
What Lord Cobbold says is exactly the Principles of Decolonisation having in its declarations for decolonization which was provided by the United Nation. Sabah and Sarawak cannot be “an association of partners” when they are simply treated as one of the 13 States in Malaysia. Sabah and Sarawak cannot be a part of “combining in the common interest to create a new nation”, the word here is “to create a new nation” meaning Malaysia was never a ready-made Country in 1963, after 51 years, it is still “work in progress” – Malaysia is a process for Nation Building. There is still a lot that need to be done but must importantly is that the process for Nation Building requires a series of consultation between the government of the Federation of Malaya, the government of Sabah and the government of Sarawak. This requirement is provided for in Article VIII of the Malaysia Agreement 1963 which says:
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 Inter-Governmental Committee signed on 27th February, 1963, in so far as they are not implemented by express provision of the Constitution of Malaysia.
In order for the country to be built according to the plans of our founding fathers and the constant changing aspirations of the people, there must be frequent and continuous consultation between the Centre and the periphery. Failure to do this then there will be dissatisfaction and this will breed dissents; and dissents will eventually lead to defiance – defiance is the breaking down of the system that was build. As the result there will be chaos, anarchy and mayhem – it is not good for business and it is not good for the common people. All these however, can be avoided, once we acknowledge that there must be equality amongst partners.
Sabah and Sarawak social, political and economic fabric are being created in Malaya’s image and Sabah and Sarawak in the long term may lose “their own individualities” especially when everything is controlled remotely from Putrajaya. A very good example is the expansions of the political parties from the Federation of Malaya into Sabah; it is not about the welfare of the people rather it is to assume the power from the people.
Political integration was made a priority whilst nothing is being done to promote economic integration based on Sabah’s intrinsic economic strength. As the result, the people in Sabah and Sarawak perceived Sabah and Sarawak are nothing more than the colonies of the Federation of Malaya. The relationship between the Centre and the periphery is “to take” rather than “to give”. Resolving this amicably requires statesmanship of the highest order – using political expediency is to invite resistance and there will not be any solution – unless the “Settlor” is willing to break the “trust”.
Zainnal Ajamain 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.