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Daily Express
04-05-2025
- Politics
- Daily Express
Sabah more than a state
Published on: Sunday, May 04, 2025 Published on: Sun, May 04, 2025 By: Datuk Roger Chin Text Size: CALLING Sabah as one of the 13 states of Malaysia starkly overlooks the profound historical and legal context that sets Sabah apart as an equal partner in the federation. To reduce Sabah's status to that of a mere state as was attempted in 1976 but reversed in 2021 is to ignore the foundational agreements and constitutional safeguards that were meticulously crafted to ensure its unique position within Malaysia. This analysis delves into the historical context, legal frameworks, and recent constitutional amendments that collectively affirm Sabah's status as more than just a state. Historical Context Formation of Malaysia The Federation of Malaysia was formed on 16 September 1963, bringing together the Federation of Malaya (comprising 11 states), Sabah, Sarawak, and Singapore (which later left in 1965). The formation of Malaysia was the result of the Malaysia Agreement 1963 (MA63), signed by the United Kingdom, the Federation of Malaya, North Borneo (now Sabah), Sarawak, and Singapore. This agreement laid down the terms and conditions for the formation of the new federation. Sabah's Unique Position Sabah's inclusion in Malaysia was not as a mere state but as a partner in the federation. The Cobbold Commission, which was set up to determine the wishes of the people of Sabah and Sarawak, reported a significant desire for these regions to join Malaysia but with certain safeguards and special autonomy. As a result, Sabah (and Sarawak) was granted specific rights and privileges, distinct from the existing states of Malaya. Legal Framework and Amendments to the Federal Constitution 1. Malaysia Agreement 1963 (MA63) The MA63 is a fundamental document that outlines the conditions under which Sabah, Sarawak, and Singapore (at the time) agreed to form Malaysia. Key points include: Autonomy - Sabah and Sarawak were granted considerable autonomy in areas such as immigration, education, and religion. Special Legislative Lists - The Ninth Schedule of the Federal Constitution includes special legislative lists for Sabah and Sarawak, giving them legislative powers that other states do not have. Additional Protections - Article 161 of the Federal Constitution provides special provisions for Sabah and Sarawak, including safeguards for their native peoples and control over immigration into their territories. 2. The Federal Constitution The Federal Constitution of Malaysia incorporates provisions from the MA63 to ensure Sabah's (and Sarawak's) unique status. Key constitutional provisions include: 20-Point Agreement - Although not part of the Federal Constitution, this document details Sabah's specific conditions for joining Malaysia, including control over immigration, Borneanisation of the civil service, and guarantees of religious freedom. Article 161E - Protects the special position of Sabah and Sarawak in terms of representation in Parliament, the power of the state legislatures, and financial arrangements. Article 112C and 112D - Provide for special grants and sources of revenue for Sabah and Sarawak, acknowledging their unique economic and developmental needs. Constitution (Amendment) Act 2022 In an effort to reinforce Sabah's (and Sarawak's) status as equal partners within Malaysia, the Constitution (Amendment) Act 2022 was passed unanimously by the Dewan Rakyat on 14 December 2021 and received royal assent on 11 February 2022. This amendment was specifically aimed at giving effect to the Malaysia Agreement 1963 (MA63). Key aspects of the amendment include: Restoration of Equal Partner Status - The amendment formally acknowledges Sabah and Sarawak as equal partners to Malaya, rectifying any perception that they are mere states. Revised Constitutional Language - Changes were made to the constitutional text to reflect the original spirit of the MA63, ensuring that the partnership status of Sabah and Sarawak is explicitly recognized and protected. Critical Analysis Sabah as a Partner The historical agreements and the specific provisions within the Federal Constitution, reinforced by the Constitution (Amendment) Act 2022, underscore that Sabah (and Sarawak) were envisaged as equal partners in the formation of Malaysia, rather than mere states. The special protections and autonomies granted reflect this intention. Erosion of Rights Over the decades, there have been claims that some of the special rights and autonomies of Sabah have been eroded. For instance: Petroleum Rights - The controversy over the Petroleum Development Act 1974, which essentially transferred ownership and control of petroleum resources from Sabah (and Sarawak) to the federal government, is often cited as an example of this erosion. Developmental Disparities - There is also ongoing debate about whether Sabah has received its fair share of development and resources, compared to Peninsular Malaysia. Recent Developments The passage of the Constitution (Amendment) Act 2022 is a significant development in the ongoing efforts to restore and recognize Sabah's special status within the federation. This legislative action demonstrates a clear commitment to upholding the spirit of the MA63 and ensuring that Sabah is treated as an equal partner in Malaysia. Affirming Sabah's Status While it is technically accurate say that Sabah is one of the 13 states, it fails to acknowledge the profound historical and constitutional context that sets Sabah apart. The Malaysia Agreement 1963 and subsequent constitutional provisions, reinforced by the recent Constitution (Amendment) Act 2022, unequivocally establish Sabah as an equal partner in Malaysia. It is imperative to recognize and uphold this status, ensuring that Sabah's rights and autonomy are preserved and respected. To do otherwise is to undermine the very foundation upon which Malaysia was built. Sabah is not merely a state, but an equal partner in the Malaysian federation. The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: [email protected]
Malay Mail
23-04-2025
- Politics
- Malay Mail
The (mis)reading of the Right Honourable Chief Justice of Malaysia's speech at the 24th Commonwealth Conference — Philip TN Koh
APRIL 23 — The Honourable Chief Justice of Malaysia Tun Tengku Maimun binti Tuan Mat delivered a speech entitled 'Judicial Independence and Parliamentary Sovereignty – a Colossi of Roads?' which elicited both support and criticism. A plain and objective reading of her Ladyship's presentation will disabuse any notion that the Chief Justice is advocating a form of juristocracy, i.e. the judiciary being an unelected body embarking on a road to establishing judicial supremacy over elected officers that represents the sovereign will of the people. The Chief Justice neither makes such an assertion nor was there discernible any desire to promote her own virtues or character. The arguments made in the paper highlights Constitutional supremacy as provided for under Article 4(1) of the Federal Constitution as was pointed out cogently by Tun Tengku Maimun, 'the Federal Constitution of Malaysia did not emerge from the aftermath of a bloody revolution or upheaval against colonial rule. Rather, it was the product of careful negotiation and consensus among key stakeholders, including the Malay rulers, political leaders and representatives of the nation 'multiracial communities. ' Students of the British Constitution which a generation fresh after our independence was weaned on the writings of A.V. Dicey, the Victorian jurist who in engaging on the unwritten Constitution of the UK espoused either implicitly or explicitly the doctrine of parliamentary sovereignty. Citing a respected ruling of then Lord President Mohamed Suffian Mohamed Hashim, the distinction between the UK where supremacy of Parliament is applicable, the learned jurist observed, 'the power of parliament and of State Legislatures in Malaysia is limited by the Constitution, and they cannot make any law they please.' The evolution of judicial review of both legislative enactments and executive actions which contravene the principle of Constitutional supremacy was sketched by the Chief Justice. In 1988, the then Prime Minister Dr Mahathir Mohamad removed reference to the vesting of judicial power on the superior courts and renamed the Supreme Court to the Federal Court. This was prompted by the judicial review of certain ministerial discretion which irked the Executive. The tribunalisation and subsequent removal of the then Chief Justice Tun Salleh Abbas and five Supreme Court justices were indeed signature events that seriously impaired and damaged the integrity and independence of the judiciary. The efforts in the last two decades to re-establish the broken foundations of Constitutional governance by key incremental judicial decisions led by clear sighted fidelity to canons of Constitutional interpretation cannot be cynically dismissed as a desire to seek personal validation. Decisions and precedents were already established to re-contextualise the boundaries of earlier judicial reticence in delineating both legislative and executive acts before the Bar of Constitutional supremacy as unequivocally provided by Article 4(1) of the Federal Constitution. The outcry over the Chief Justice's dispassionate account clearly recognises that judicial ruling on legislative and executive actions are not to be construed as a threat or assertion of unelected power against political actions but a Constitutional organ discharging their oath of office in upholding the rule of law and the Constitution. Any exercise of judicial powers is not meant as an end in itself but to be,'a fortress against tyranny, oppression and absolute power, which most certainly corrupts absolutely.' Democratic governance includes the vitality of the interpretive function of a judiciary working alongside the Executive and Legislature. — Pexels pic The focus of criticism against the Chief Justice's speech was on her remarks that the Judicial Appointment Commission (JAC) which was established under the JAC Act 2009 provided an additional safeguard for judicial independence as part of the evolving institutional development towards good Constitutional governance. In the past, judicial appointments appear to be vested on the discretion of the prime minister, albeit upon consulting the Chief Justice but with the establishment of the JAC there is an additional 'institutional safeguard to enhance the transparency, integrity and merit-based selection of candidates for judicial office.' In paragraph 37 of her speech, the Chief Justice noted, 'Of late there have been proposals to amend the Judicial Appointments Commission Act 2009 and the Federal Constitution to remove the role of the prime minister in the appointment of judges. 'Such changes in my view would reinforce the impartiality of the decision process, ensuring that judicial appointments remain firmly grounded on merits and free from any perception of political influence.' This extra -judicial comment surely merits a deliberative debate and not arrogant, dismissive or even derisory remarks, some suggestive of the lamentable events surrounding Tun Salleh Abbas. As the Chief Justice noted in her conclusion, the relationship between branches of government is not a contest as to who is supreme but a 'partnership in governance – one founded not just on mutual respect but on a clear understanding of each branch's Constitutional roles.' Undoubtedly there are positive judicial actions and negative ones. The moral and legal legitimacy of judicial decisions lies open to judgement of the public and critical reason. Democratic governance includes the vitality of interpretive function of a judiciary working alongside the Executive and Legislature. The fear of unelected elites exercising unwarranted power is baseless so long as judicial decision making remains transparent and accepted as being fair, just and equitable in relationship to the text and context of the issues that are being adjudicated. * Philip TN Koh is an Advocate & Solicitor, High Court of Malaya; Adjunct Professor, Universiti Malaya; School of Business & Taxation, Monash Malaysia University and member of Board of Trustees Yayasan Tun Suffian.
