THE MALAYSIA 1963 CONSTITUTION – SPECIAL PROTECTION FOR SABAH AND SARAWAK
The 1963 constitution was unique in the sense that the Malayan Parliament then made changes to the 1957 Constitution to make it a Federal Constitution for Malaysia, and the” special interests and safeguards” for Sabah and Sarawak were included in the Constitution as reported by the Cobbold Commission and which were recommended by the Inter-Governmental Committee.
The Constitution says that before any changes can be made to any of these special interests and safeguards, at least two–thirds of the members of the Dewan Rakyat and Dewan Negara in Parliament must agree and the Yang Di Pertua Negara (YDPNs) of both Sabah and Sarawak (who must follow the advice of the States’ Cabinet) must consent to it.
The culture and religious faiths of Sabah and Sarawak are different from West Malaysia. The States of Sabah and Sarawak combined area bigger than West Malaysia. Sabah and Sarawak are rich in natural resources like forests, rivers and petroleum.
Sabah and Sarawak wanted to maintain greater independence and control over the matters and resources in their States and their way of life when they joined Malaysia.
This is why they have “special protections” in the Constitution and greater powers than the States in West Malaysia.
Dewan Rakyat was supposed to comprise 159 elected members, 104 of which were to be from the states of Malaya (West Malaysia) and the remaining 55 were to be from Sabah, Sarawak, and Singapore.
This would ensure that no one territory would have a two-thirds (2/3) majority in the Dewan Rakyat.
Currently, out of 222 elected members, Sabah and Sarawak have only 56 seats in the Dewan Rakyat combined, or 25.23%. This leaves West Malaysia with a total of 166 seats or 74.77%, which is well over a two-thirds (2/3) majority (or 66.67%).
The current Article 46(1) of the Federal Constitution be amended to reflect this and ensure that neither West nor East Malaysia would be able to have a two-thirds majority of Dewan Rakyat.
At least two–thirds of the Dewan Rakyat and Dewan Negara in Parliament must also agree and the YDPNs of Sabah and Sarawak must also consent before changes can be made to any of these matters:
● the right of Sarawakians or Sabahans to equal treatment with other Malaysian citizens born or resident in any of the States of Malaysia;
● the jurisdiction of the Court; the appointment, suspension and removal of judges of the High Court in Sabah and Sarawak. The Heads of State (TYT) of Sabah and Sarawak may appoint Judicial Commissioners, but this power was removed by a 1994 constitutional amendment.
The Federal Government may look into whether the 1994 constitutional amendment was done with the full consent of the Sabahan and Sarawakian state legislatures, and should also look into amending Article 122AB on the appointment of Judicial Commissioners for the High Court in Sabah and Sarawak by the Heads of State of Sabah and Sarawak to better reflect Section 16(3) of the MA63.
● the Sabah and Sarawak State Legislative Assemblies’ powers to make laws and their state Governments’ powers to govern according to those laws, as well as the financial arrangements between the two States and the Federal Government;
● religion, the use of any particular language whether in the State Legislative Assemblies of Sabah or Sarawak or Parliament and the special treatment for natives of Sabah and Sarawak.
In Sabah, Islam is amended as the official religion through the controversial 1973 State Constitution.
● Immigration powers were given to Sabah and Sarawak to control the right of entry and residence in the States and matters connected to it.
Part VII of the Immigration Act 1959/1963 says that anyone who does not belong to Sabah and Sarawak must have a valid Permit or Pass to enter Sabah or Sarawak except for members of the Federal Government, judges, public servants or a person entering for the sole purpose of engaging in legitimate political activity.
In Sabah, Southern Filipino refugees fleeing the civil war were issued IMM13 documents by the Federal government, instead of the Sabah State Government, leading to a situation whereby the refugees, and their families who had settled in Sabah, could not be stripped of their IMM13 without rendering them stateless as the Philippine government did not recognize them as citizens.
● By the North Borneo (Alteration of Boundaries) Order in Council 1954, the boundaries of the Colony of North Borneo were extended to include the area of the continental shelf – the seabed and its subsoil which lies beneath the high seas contiguous to the territorial waters of North Borneo.
After the formation of Malaysia in 1963, laws such as the Territorial Sea Act 2012 (Act 750) were enacted, which effectively reduced the territorial waters of Sabah and Sarawak. The Federal Government should look into all Acts of Parliament that has an impact on the boundaries of Sabah and Sarawak, and whether these Acts of Parliament were in contravention with Article 2(b) of the Federal Constitution, whereby Parliament cannot pass laws altering the boundaries of a state in the federation without the express consent of the state itself, such consent being in the form of a law made by the legislature of that state.
In 1966, the Continental Shelf Act was enforced by the federal government on the two despite both having already extended their jurisdiction over the continental shelf adjacent to their territory.
Further, in 1974, the Petroleum Development Act was enforced on the two, giving them only 5% of an oil royalty from the revenue. Such acts may include the Continental Shelf Act 1966, the Petroleum Development Act 1974, and the Territorial Sea Act 2012, among others.
THE MALAYSIA 1963 CONSTITUTION – THE SPECIAL INTEREST FOR SABAH AND SARAWAK
The special interests and safeguards for Sabah and Sarawak are as follows:
● Sabah and Sarawak can control the entry and residence of non–Sabahans and non–Sarawakians into the two States.
● Only lawyers who are residents of Sabah or Sarawak or have satisfied the residential requirements of Sabah and Sarawak can practice law in Sabah and Sarawak.
● Sabah and Sarawak have a separate High Court called the High Court in Sabah and Sarawak which has jurisdiction over Sabah and Sarawak. High Court shall consist of a Chief Justice and no less than four other judges, which shall not exceed twelve in the High Courts of Malaya, eight in the High Court of Sabah and Sarawak (before 1994, the High Court in Borneo), and eight in the High Court in Singapore. The current proportion of judges in Malaysia does not reflect the proportion of judges as stated in the MA63.
The Federal Government should look into amending Article 122AA (1) of the Federal Constitution on the number of judges allocated for the High Court in Malaya and High Court in Sabah & Sarawak to reflect the proportion originally set out in the MA63.
The composition of the Federal Court and the Court of Appeal should also reflect a greater percentage of judges from Sabah and Sarawak.
● The Chief Ministers of Sabah and Sarawak must be consulted on who to appoint as Chief Judge of the High Court in Sabah and Sarawak.
● Besides Syariah Courts, there is a system of Native Courts in Sabah and Sarawak.
● Sabah and Sarawak have sources of revenue and special grants of money from the Federal government that other States in Malaysia do not have, and they can also charge their state sales tax.
The Constitution also provides special grants and additional sources of revenue for Sabah and Sarawak that the other States in Malaysia do not have.
For example, the Federal Government issues yearly special grants to Sabah and Sarawak for the costs of the States’ services and administration.
These special grants are to be reviewed every five years or longer (if the Federal Government and the State agree). Sabah and Sarawak also receive revenue from lands, mines and forests, entertainment duty, fees for specific services provided by the state departments, revenue from local authorities and the water supply.
In addition, Sabah and Sarawak are also allowed to charge import and excise duties on petroleum products, export duty on timber and forest produce, and sales tax and fees from ports and harbours.
● Sabah and Sarawak are entitled to impose import excise duties on petroleum products under Item 1, Part V of the 10th Schedule in the Malaysian Federal Constitution as an additional source of revenue assigned.
However, since 1999, due to Malaysia’s participation in the ASEAN Free Trade Area (AFTA), the Federal Sales Tax Act of 1972 was amended to abolish import duty and excise duty on all products throughout Malaysia. Sabah and Sarawak had been prohibited from imposing import duty and excise duties on petroleum products. The federal government has to compensate Sabah and Sarawak every year for the loss of this source of revenue.
● This amount has been fixed at RM240 million in 1999 and is divided equally (RM120M) between the two states as compensation for the abolition of these two duties. The relevant constitutional provisions have not been revised, and this means that Sabah and Sarawak retains its constitutional rights to this additional source of revenue. Moreover, since 1999 for the past 20 years, this amount of compensation of RM240 million has never been reviewed nor increased.
The finance minister said that the amount will be discussed and reviewed together with the proposal to return 40 per cent of Sabah’s net income under Article 112D of the Malaysian Federal Constitution to the Sabah government.
● The Legislative Assemblies of Sabah and Sarawak have the power to make laws on additional matters which the Legislative Assemblies of the other States do not have the power to do, and these matters include native law and custom; water supplies and services; personal laws relating to marriage, divorce, guardianship and adoption; distribution and supply of water power and electricity generated by water power and some shipping matters.
●The State Legislative Assemblies of Sabah and Sarawak can make laws on matters set out in the ‘State List’ and the ‘Concurrent List’ of the Constitution.
●The State Legislative Assemblies of Sabah and Sarawak can make laws on more matters than the State Legislative Assemblies of the other States in Malaysia. Apart from this, certain federal laws are not followed in Sabah and Sarawak, like the Local Government Act 1976, the National Land Code and the Employment Act 1955. Sabah and Sarawak have made their laws on these matters.
● Parliament has the power to pass laws on some matters in the State List to make sure that laws on that matter are the same in all the States in West Malaysia. However, Parliament’s power to do this does not extend to Sabah and Sarawak.
● Parliament also has the power to pass laws on matters in the State List to give effect to a National Development Plan, but if it involves the States of Sabah or Sarawak, the consent of the Yang di–Pertua Negeri (YDPN) of that State must be obtained.
● Sabah and Sarawak can also raise loans for their purposes with the consent of Bank Negara Malaysia.
● The natives of Sabah and Sarawak enjoy special interests such as quotas nor employment in the public service, scholarships, places in public educational institutions and business permits or licenses.
● Sabah and Sarawak can use the English language as their official language, and the native languages of the natives of Sabah and Sarawak in the Native Courts or for any native law and custom. English has been the official language of the State Legislative Assemblies and Courts in Sabah and Sarawak.
Any change of the official language to Bahasa Melayu can only become effective when the State Legislative Assembly of Sabah or Sarawak agrees to adopt federal laws that make Bahasa Melayu the official language.
In Sabah, Malay is amended as an official language through the controversial 1973 State Constitution and in Sarawak, Both Malay and English are official languages as of 2015. (Malay is also used in all courts except High Court and Native Court).
For as long as the people of Sabah and Sarawak feel these special interests are still needed by them.
These special interests are protection that the people of Sabah and Sarawak requested as a condition for joining Malaysia in 1963. The consent of the Yang di–Pertua Negeri (YDPN) must be obtained before any of these special interests can be removed, and the YDPNs must follow the advice of the States’ Cabinet.
The Ministers in the States’ Cabinets are appointed from members of the State Legislative Assemblies of Sabah and Sarawak, who are elected by the people of Sabah and Sarawak. This means that it is for the people of Sabah and Sarawak to decide through their elected representatives in the State Legislative Assemblies whether any of their special interests should be removed.
The constitution should be designed like Singapore to prevent any drop in standards of economic prosperity, public services, social amenities, educational facilities and public housing, whatever happens in the rest of Malaysia.
(Disclaimer: This article is designed to improve our North Borneo History’s knowledge and is strictly for educational purposes. We assume no responsibility or liability for any errors or omissions in the content of this article. The information in this article is not intended to be an exhaustive or complete history of the subject. Further reading materials on the topic may be required.)
References: –
1. Constitution of the State of Sabah
2. Malaysianbar.org.my
3. F.G. Whelan-A History of Sabah
4. KG Tregonning – Under the Charted Company Rule
5. KG Tregonning – A History of Modern Sabah 1881-1963
6. MH Baker – Sabah the First Ten Years as a Colony
7. IDS-Sabah 25 Years Later
8. A Collection of Treaties and Other Documents affecting the states of Malaysia 1761-1963