KOTA KINABALU – Describing the recent proposed changes to the federal constitution as momentous, the Sabah Law Society said Sabah and Sarawak governors will, however, still need to concur with the constitutional amendments.
Its president Roger Chin said Article 161E of the constitution stipulates that any amendment – including repeals and modifications – to those articles incorporated into the constitution by reason of the Malaysia Act 1963 needs a two-third majority in Parliament, and the concurrence of the Yang di-Pertua Negri of both Sabah and Sarawak.
“In the case of modification to the constitution in so far as its application to the Borneo states is concerned, the two-third majority rule and the concurrence of the Yang di-Pertua Negri of the respective states would still be required.
“Given the present state of affairs and circumstances where MPs from the Borneo states supported the amendments, the concurrence of the respective Yang di-Pertua Negri may only be a formality. It still remains a constitutional requirement that must be complied with,” he said in a statement today.
Parliament approved constitutional amendments to the act, reinstating the Borneo states to what they were when the constitution was first formulated following the Malaysia Agreement 1963 (MA63) and the Malaysia Act, by amending Article 1(2) and Article 160(2).
As required under Article 159 read together with Article 161E, it was approved with a two-third majority, he said.
Chin said many seem to think that this is a historic amendment and appear jubilant – however, the original constitutional provisions provided three separate components to the formation of Malaysia.
Each of the components formed a separate and distinct unit of its own, as reflected in the Cobbold Commission report, he said.
“Section 4 of the Malaysia Act expressly provided for the manner and content of Article 1 to be worded.
“If anything, this merely reinstated the Borneo states to their original status,” he said.
At this juncture, it must also be noted that the original constitutional provision in Article 1(2) provided as follows:
The states of the federation shall be:
(a) the states of Malaya – Johor, Kedah, Kelantan, Melaka, Negri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, and Terengganu;
(b) the Borneo states – Sabah and Sarawak; and
(c) the state of Singapore.
(3) The territories of each of the states mentioned in Clause (2) are the territories comprising therein immediately before Malaysia Day.”
When Singapore left, the constitution was amended to delete Singapore, but Article 1(2)(a) and (b) remained intact, he said.
As for the previous constitutional amendment to reduce the Borneo states as one of the states of Malaya, Chin said this has become academic with the passing of the constitutional amendment.
He said the 1976 amendment had always been a bone of contention, in view of whether it was done in compliance with the provisions of Article 159 and Article 161E of the constitution.
While Article 159 provides space for the amendments of both Articles 159 and 161E by federal law, Article 161 states that “no act of Parliament terminating or restricting the use of the English language for any of the purposes mentioned in Clauses (2) to (5) of Article 152 shall come into operation as regards the use of the English language in any case mentioned in Clause (2) of this article until 10 years after Malaysia Day”.
Long awaited move
As for the additional addendum pursuant to MA63 under Article 160(2), Chin said this is a long awaited move.
“While the definition of ‘Malaysia’ as set out in the amendment is a mouthful, it nevertheless sets out the historical narration in so far as the formation of Malaysia is concerned.
Some may argue that the amendment to Article 1(2) is form over substance.
“Nevertheless, it has reinstated the original intent and spirit of MA63. This is a rebooting of that very spirit and enthusiasm that prevailed in 1963.”
He said this allows the revisit of aspirations of the Malaysian founding fathers, and enables governments to review and recalibrate the relationship between the Borneo states and the states of Malaya.
This is, perhaps, the beginning of a new and exuberant Malaysia. It may be appropriate to deal with the much talked about issue of equal partnership at this juncture.”
Chin believes the British and Malaya started out Malaysia based on each component parties being treated as equal partners.
However, he said both then changed course, seceding the Borneo territories to the Federation of Malaya, renaming Malaya to Malaysia.
Chin said another argument brought forth is that the reference of equal partners was intended to be Malaya, along with the states within, treated as one unit; with Sabah and Sarawak as another; and Singapore a third.
“It therefore follows that Article 1 of the constitution was accordingly amended, providing for this distinct and separate partnership.
“Still, with the recent amendment, it is hoped that the original intent and spirit will be preserved, and the aspirations and hopes of the people of the Borneo states will be fulfilled – and, perhaps, this is a start,” he said.
Chin said there is still a tremendous amount of work that needs to be done between the Borneo states and the federal government in terms of MA63 and the Malaysia Act.
He said a great deal of issues need to be addressed – for instance, certain acts extended or approved by Parliament that affects the Borneo states.
They include the Continental Sea Act 1966, the Petroleum Mining Act 1966, the Petroleum Development Act 1974, the Exclusive Zone Act 1984, and the Territorial Sea Act 2012.
Excepting the Territorial Sea Act, all the other acts were made applicable to the Borneo states while the emergency proclamation was still in force, pursuant to Article 150, which overrides the requirement of Articles 4, 79, 159, and 161E, he said. – The Vibes, December 16, 2021
