On 3 November 2021, the Malaysian government tabled four constitutional amendments relating to Sabah and Sarawak, which was to realise the terms agreed to under the Malaysia Agreement 1963 (MA63). MA63 was a treaty for the creation of the Federation of Malaysia by combining the states in the Federation of Malaya with North Borneo (which became Sabah), Sarawak, and Singapore. The Federation was left with the Malayan states as well as Sabah and Sarawak after Singapore seceded by mutual agreement in 1965.
The first three amendments are symbolically important, though their legal significance remains unclear. The first amendment concerns Article 1(2). The proposed amended Article 1(2) would specify that “[T]he States of the Federation shall be (a) the States of Malaya …; and (b) the Borneo States, namely Sabah and Sarawak.” The current version of Article 1(2) was the product of a further constitutional amendment in 1976 and lists all states within the federation under a single category in alphabetical order. This effectively placed Sabah and Sarawak on equal footing with the other states in the Federation. The 1976 amendment was justified as necessary to create equality among states and ensure further unity within the federation, and received overwhelming support in the federal legislature, including the acquiescence of members of Parliament from Sabah and Sarawak. Opposition on this only came from the DAP. So, the “downgrading” in 1976 was with consent of the representatives from Sabah and Sarawak.
The current amendment reverts Sabah and Sarawak’s perceived status change, clarifying that the Federation is comprised of two groupings – one encompassing the states in Peninsular Malaysia and the other comprising the two territories of Sabah and Sarawak. Besides changing Article 1(2), the second amendment namely Article 160(2) has a new definition. The new definition of “The Federation” refers to the Federation that was first established under the Federation of Malaya Agreement 1957 and MA63, taking into account the separation of Singapore from Malaysia. The third amendment, also to Article 160(2), includes a new term, ‘Malaysia Day,’ defined as 16 September 1963, the day Sabah and Sarawak joined the Federation. This is in addition to ‘Merdeka Day,’ which remains 31 August 1957, when the Federation of Malaya was created.
The constitutional amendments are welcomed by Sabah and Sarawak for restoring their status as equal to the Peninsular Malaysia. But this begs the question of what legal impact these amendments will have. The Constitution had already granted Sabah and Sarawak special status, conferring specific powers to Sabah and Sarawak not available to the other states. An entire section in the Federal Constitution (Part XIIA) is devoted to additional protections for Sabah and Sarawak. It preserves the use of English (time limited) and native languages in native courts in Sabah and Sarawak (Article 161); restricts non-residents from practicing before courts in Sabah and Sarawak (Article 161B); and gives the two states veto rights to certain constitutional amendments which affect them, including in relation to citizenship, the High Court in Sabah and Sarawak, legislative power and executive authority, and financial arrangements, religion, language, special treatment of natives of the State, as well as allocation of members of the federal House of Representatives (Article 161E).
But the amendments do not go far enough to address the actual demands that Sabah and Sarawak have concerning financial allocation, resource autonomy, as well as the assurance over matters not already currently included in the State List, such as educational policy. As resource rich territories, Sabah and Sarawak’s levels of economic development simply do not match their financial contributions.
The proposed constitutional amendments are a step in the right direction, symbolically restoring the status and dignity of Sabah and Sarawak within the Malaysian constitutional order. The amendment to Article 161A is also an important step in the devolution of powers to Sarawak, which hopefully would allow for stronger protection of native rights. Other matters such as resource allocation, financial/budgetary support and education also need to be addressed. Hopefully, we will progress as one nation.
Reference:
Restoring Constitutional Equality to Sabah and Sarawak: Do the Proposed Amendments to the Malaysian Federal Constitution Go Far Enough? Jaclyn L Neo, Constitutionnet, 19 November 2021
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