Restoring Constitutional Equality to Sabah and Sarawak: Do the Proposed Amendments to the Malaysian Federal Constitution Go Far Enough?

Four proposed constitutional amendments in Malaysia seek to restore the status of Sabah and Sarawak within the Malaysian constitutional order, and reflect both the increased leverage of the states and the pressure from secessionist voices. While the amendments concerning the coequal status of Sabah and Sarawak to the Peninsula may be more symbolically than legally significant, the fourth, allowing Sarawak state law to define who is a “native”, could have significant economic and political consequences. If passed, these constitutional amendments are hopeful first steps towards greater devolution, more equitable wealth distribution, and democratic empowerment of the peoples of Sabah and Sarawak – writes Professor Jaclyn L Neo

Introduction

On 3 November 2021, the Malaysian government tabled four constitutional amendments relating to Sabah and Sarawak, which purport to realize the terms agreed to under the Malaysian 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.

This article examines the symbolic and legal significance of the proposed amendments, contextualized in a brief history of the treatment of Sabah and Sarawak within the Federation as well as the current political conditions in Malaysia. I argued in 2018 that the momentous results of Malaysia’s 14th General Election, where the Barisan Nasional alliance (“BN”) lost control of the federal government for the first time since Malaysia’s independence, would result in further political diffusion, giving rise, inter alia, to opportunities to reconsider the division of power between the Malaysian federal government and the states of Sabah and Sarawak. With a weakened central government, Sabah and Sarawak’s leverage is particularly strong since, amidst a fragmented political party landscape, they have taken on the position of ‘kingmaker’ with approximately 25% of the seats in the federal legislature. As further discussed below, the proportion of seats has also become a point of contention for Sabah and Sarawak.  

Coequal Status of Sabah and Sarawak to the Peninsula

The first three proposed 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.” It bears echoes of an earlier version of this article, which had listed the Federation as comprising three groupings: (a) the eleven states in Peninsular Malaysia that constituted the former Federation of Malaya (1948-1963); (b) the Borneo States, namely Sabah and Sarawak; and (c) the State of Singapore. This version was amended when Singapore became an independent state in 1965. 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. One Member of Parliament from the Peninsula argued that the amendment would remove the impression that Sabah and Sarawak were “foreign” countries in Malaysia; the Chief Minister of Sarawak supported the removal of the word ‘Borneo’, which historically also includes Indonesian provinces, and expressed his desire for a unified judiciary with no division between the Malayan and Borneo courts.

The current proposal 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 will be to Article 160(2), which currently defines “The Federation” as simply “the Federation established under the Federation of Malaya Agreement 1957,” without reference to MA63. The new definition of “The Federation” will instead refer 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), will include 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 original intent of the constitutional federation under the 1963 Malaysian Agreement was for Sabah and Sarawak to have greater powers…

The division of the Federation into two presumably equal parts restores the asymmetrical nature of the federal system envisaged under MA63, although critics may question whether it is appropriate to lump together Sabah and Sarawak considering that they were distinct treaty parties to MA63. The original intent of the constitutional federation under MA63 was for Sabah and Sarawak to have greater powers, including immigration powers, separate legal systems and legal professions, more guaranteed revenue, and the right to veto constitutional amendments affecting them. The 1962 Cobbold Commission, which was set up to determine whether the people of Sabah and Sarawak supported a merger with the Federation of Malaya, had called the union a “partnership” and not a “takeover.” However, in the 58 years since MA63, BN had, for the most part, created a de facto centralised system of governance. This was possible since, until recently, BN not only dominated the central government, but also most state governments. As academics Wong and Chin have observed, the BN federal government effectively exercised intra-party control over BN state governments, which in turn behaved more like party branches than state partners to the federal government.

Indeed, in tabling the current amendments, de facto Law Minister Datuk Seri Wan Junaidi Tuanku Jaafar, a Sarawakian, hailed them as restoring the status of Sabah and Sarawak as equal partners to Peninsular Malaysia. This responds to a growing movement for greater autonomy or even secession among Sabahans and Sarawakians. There are two main sources for discontent: the failure of the central government to ensure the level of autonomy agreed upon in MA63 and the failure to deliver on economic progress. The discontent appears to be growing, with a former Deputy Chief Minister of Sabah recently claiming that a majority of East Malaysians want Sabah and Sarawak to secede from Malaysia.

The constitutional amendments are generally welcomed by Sabah and Sarawak for restoring their status as equal to the Peninsular Malaysia, and not merely as constituent states within the Federation on equal footing with the other states.  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).

Resource allocation will remain a significant point of contention, one that will not immediately be resolved by the proposed amendments…

In fact, the proposed 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 of extended de jure and de facto powers over matters not already currently included in the State List, such as educational policy. In fact, resource allocation will remain a significant point of contention, one that will not immediately be resolved by the proposed amendments. As resource rich territories, Sabah and Sarawak’s levels of economic development simply do not match their financial contributions to the central coffers. Both are resource-rich territories contributing significantly to Malaysia’s exports; for instance, Sabah is Malaysia’s largest crude oil producer; whereas Sarawak is its largest timber exporter. It is not clear how the current amendments will devolve further control to the states in relation to their resource earnings and infrastructure development. Another area of contention that has emerged is the allocation of parliamentary seats; Sabah and Sarawak claim that they should be allocated one-third of seats in the Federal parliament, though the basis for this claim is not strictly found in MA63.

Who is a Native of Sarawak? Practical and Political Considerations

The fourth amendment is to Article 161A of the Federal Constitution, which relates to the definition of ‘native.’ The current provision defines a ‘native’ in relation to Sarawak as a person who is a citizen and who either belongs to one of the constitutionally specified races indigenous to the State or is of mixed parentage deriving exclusively from those races. The new provision will define a native of Sarawak as “a person who is a citizen and belongs to one of the races specified by the State law as indigenous to the State.” Article 161A(7) will also be repealed; it currently contains a list of specified races constitutionally regarded as ‘native’ to Sarawak. The repeal means that the Federal Constitution will be silent as to which race/group falls within the definition of ‘native’ of Sarawak.

Removing the list of native races from the Federal Constitution and allowing the Sarawak state government to define Sarawak’s native races is a significant devolution of powers.

In contrast to the amendments concerning the coequal status of Sabah and Sarawak with Peninsular Malaysia, this amendment has a clearer legal impact and could change the official demographic makeup of Sarawak. Removing the list of native races from the Federal Constitution, thus allowing the Sarawak state government to define in state law which races are to be considered ‘native’, is a significant devolution of powers. This treats the constitutional definition of natives in a similar (though not identical) manner as that for Sabah; for historical reasons arising from a lack of consensus as to terms to be applied to native groups, the Federal Constitution does not include a list of races considered indigenous to Sabah in defining a native of Sabah. It merely states that a “native” of Sabah is “a person who is a citizen, is the child or grandchild of a person of a race indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth.”

One justification for the amendment to the definition of natives of Sarawak was to ensure that children of mixed marriages could still be regarded as ‘natives’ and therefore retain their constitutional privileges. The existing definition applicable to natives of Sarawak would exclude persons of mixed races if their parents are not exclusively from one of the specified races, whereas there is no such requirement to be defined as a native of Sabah. Section 2(1) of the Interpretation (Definition of Native) Ordinance does not contain a list of races considered indigenous to Sabah, and allows for persons ordinarily resident in Sabah and living as a member of a native community to be recognized as ‘native’ as long as at least one parent or ancestor is or was a native.

To be included as a native of Sabah and Sarawak not only has identitarian implications, but potentially significant economic and political consequences.

To be included as a native of Sabah and Sarawak not only has identitarian implications, but potentially significant economic and political consequences. Under Article 153 of the Federal Constitution, natives of Sabah and Sarawak are accorded a “special position” alongside the Malay majority, meaning that they have access to quotas for positions in the public service, scholarships, and other educational or training privileges, special facilities, as well as permits/licences for trade or businesses. In addition, as highlighted in the 2001 case of Nor Anak Nyawai v. Borneo Pulp Plantation, concerning a claim of customary rights to land, the question of whether groups are entitled to native customary rights depends very much on the preliminary question of whether they are recognised as ‘natives’ in the first place.

While the amendment will devolve definitional powers, it would not immediately resolve the question of the status of children with one native and one non-native parent. This is because the Sarawak Interpretation Ordinance defines natives in much the same way as the existing constitutional provision. The Schedule to the Ordinance contains a list of races considered indigenous to Sarawak, and includes the admixture of races but only with each other. Accordingly, the state legislature will have to amend the Ordinance to expand the definition of natives, which only requires a simple majority in the state legislature. However, this could give rise to questions of equity among groups if the state legislature becomes embroiled in specific inter-racial disputes concerning a group’s native status. Thus, whether the amendment would have the effect of addressing the concerns raised and extending native status to all children of natives of Sarawak remains to be seen.

Conclusion

The proposed constitutional amendments are a step in the right direction in 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. However, whether the current government will move the amendments for a vote and whether they will obtain the requisite two-thirds majority to pass remain open questions. Politicians from Sabah and Sarawak have warned that secessionist voices would grow stronger if the amendments fail to pass. Notably, a constitutional amendment tabled by the short-lived Pakatan Harapan government to revise Article 1(2) and restore equality to Sabah and Sarawak failed to pass in 2019. In any event, the Malaysian government would have to go beyond these symbolic gestures to address the real source of discontent: the de facto autonomy of the territories over their political futures and the returns on their resources. These constitutional amendments are hopeful first steps towards greater devolution, more equitable wealth distribution, and democratic empowerment of the peoples of Sabah and Sarawak.

Jaclyn L Neo is Associate Professor and Director of the Centre for Asian Legal Studies at the National University of Singapore Faculty of Law.