Monday, May 28, 2012


On 21 June 1962 the Cobbold Commission had issued its report supporting Sarawak and British North Bomeo becoming member states in a proposed Federation of Malaysia. Three major differences between the Malayan and Sarawak constitutions were that the former decreed Malay as the national language, Islam as the official religion, and afforded Malays special rights.

However, the ethnic mix in Sarawak was different from that in the Federation of Malaya, where Muslim Malays made up about half the population." Subsequently, an Inter-governmental Committee (IGC) agreed on the terms and constitutional safeguards that would apply to Sarawak, issuing its findings on 27 February 1963.With the formation of Malaysia on 16 September 1963, an amended Malayan Constitution, incorporating the constitutional safeguards agreed to by the IGC, applied to Sarawak. In the absence of a cession clause and the "good-government" Cardinal Principles of the Brooke Constitution, Sarawak relied on those safeguards to protect its interests." Although complex in detail, in simplified form these were:

1) Citizenship: automatic Malaysian citizenship for those bom and normally resident in Sarawak. For those of good character who were normally resident in Sarawak and who had resided in any part of Malaysia for seven of the preceding ten years, but had not been born in Sarawak or any part of Malaysia, citizenship upon application.

2) Education: although on the Federal List, to remain under the control of the Sarawak State Government. Knowledge of the Malay language not required as a qualification for any educational opportunity and no application of any Federal requirements for religious education. Use of English as the education media could be continued for a maximum of 10 years.

3) Emergency powers: during a national emergency, the Federal Parliament given unqualified power when a Proclamation of Emergency is declared, not withstanding anything in the Constitution.Immigration: this remained on the Federal List, but admission to Sarawak not to be granted to persons from or outside Malaysia without the approval of the Sarawak State Government, giving Sarawak effective rights over immigration into the State.

4) Federal Constitution: any amendments to the Constitution to require a two-thirds majority in the Federal House of  Representatives.

Federal House of Representatives: Sarawak to elect 24 members of the total membership of 159.

Federal Senate: Sarawak to be represented by at least two members.

Legal Department: Sarawak to have a legal department with the Attomey-General a State Officer appointed in consultation with the Federal Govemment.

5) Religion: religious freedom is guaranteed in the Malayan Federal Constitution. A two-thirds majority of the total State Legislature is required to pass any law that may control or restrict the propagation of any religious doctrine or belief among persons professing the Muslim religion. Federal Law should not provide for special financial aid for establishing Muslim institutions or Muslim religious education in Sarawak without the concurrence of the State Govemment.

6) Sarawak Constitution: Sarawak is allowed to continue calling its Executive Council the Supreme Council and its Legislative Assembly the Council Negri. The Yang diPertuan Agong (King) appoints Sarawak's head of State after consulting with the Chief Minister

7) Sarawak's Legislative List: Muslim Law, Native Law and Customs, land, agriculture and forestry, local government and services, electricity, state works and water, state machinery, state holidays, turtles and riverine fishing.

8) Concurrent Federal and Sarawak Legislative List: social welfare, scholarships, national parks, animal husbandry, town and country planning, public health and sanitation, and drainage and irrigation.

The Council Negri passed the first amendments to the Sarawak Constitution by the required two-thirds majority on 25 June 1964. One of these enabled another person to perform the functions of the Speaker should the latter be unable to do so. The other removed the impractical stipulation that indirect elections be held within 60 days in all situations. Opposition Council Negri member Chan Siaw Hee claimed the amendment showed that the State Govemment had no intention of holding a direct election before 16 September 1968, the latest date given in the IGC Report. Initially, direct elections were to be held in 1967, but setting up new electoral boundaries each with approximately the same number of voters delayed the projected date of elections until May 1969. To prolong the life of the Council Negri due to be dissolved in September 1968, the Federal constitution had to be amended.

For this, the [Federal] Constitution (Amendment) Act, 1968 was enacted. During the debate on this act in the Dewan Rakyat (House of Representatives), on 21 August Stephen Yong Kuet Tze, Secretary-General, Sarawak United People's Party (SUPP), suggested that the Federal Govemment had deliberately delayed delimiting constituencies and registering voters because it feared defeat at the polls. Criticizing the wording of the amendment, Yong took the opportunity to say that "if the arbitrary arrest and detention of [his SUPP colleague] SUPP member Chan Siaw Hee ... was in accordance with the law, then let us see [whether] the proposed amendment ... is also in accordance with the law. Polling finally began on 10 May 1969. Five days later polling was suspended, following a proclamation of emergency over racial riots that broke out in Kuala Lumpur on 13 May 1969.

The aim of the next amendment to the Federal Constitution was to prevent any recurrence of the 1969 racial riots in mainland Malaysia. By the end of June 1969, hundreds of people had been killed and over 350 injured in the riots." The riots were generally accepted as a major setback in the polls for the ruling Alliance coalition headed by the United Malays National Organization (UMNO), with feared loss of, and resentment over, the special privileges for the bumiputera (Malays) in the Constitution.

After the riots broke out, the govemment quickly assumed emergency powers, suspended parliament, and established direct government through the National Operations Council (NOC). The NOC was disbanded on 19 February 1971 and parliamentary rule re-established on the following day. In preparation for retum to parliamentary rule, the [Federal] Constitution (Amendment) Act, 1971, was published on 15 February 1971."

Simply, this act empowered the Dewan Rakyat to pass laws restricting any freedom of speech questioning the special position of the Malays, the sovereignty of the rulers, the national language (Malay), and constitutional provisions on citizenship. This restriction extended to speeches in the Dewan Rakyat and all state legislative assemblies, which included the Council Negri in Sarawak. On 24 February during the debate on the act in the Dewan Rakyat, Haji Amad Arshad (Alliance coalition) said that the choice was between a restricted democracy, meaning the restrictions imposed by the amendment bill, and military or emergency rule. The act was passed on 3 March, with only 17 dissenting votes.

Earlier, in 1966, the Federal Government's power to amend the Constitution of Sarawak following a declaration of a state of emergency was used to resolve a complicated political impasse. On 17 June Governor Tun Abang Haji Openg dismissed Chief Minister Ningkan, who was said to no longer hold the confidence of the majority in the Council Negri. A new Chief Minister, Tawi Sli, with his new Supreme Council members, was then sworn in. The High Court in Kuching subsequently found that the governor had no power to dismiss Ningkan. To provide the govemor with those powers, the Federal Government declared a controversial state of emergency in Sarawak on 14 September."

The Federal Parliament then passed the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, which enabled the Dewan Rakyat to change Sarawak's constitution so that Sarawak's governor could convene the Council Negri and dismiss Ningkan. On 24 September the governor once again dismissed Ningkan and once again Tawi Sli and his Supreme Council were swom in. Ningkan's petition against his unconstitutional dismissal progressed slowly though the courts for another two years, finally ending on 1 August 1968 when he was advised that the Judicial Committee of the Privy Council had dismissed his appeal. Commenting on the controversial declaration of a state of emergency. Lord Mac Dermott observed: "their Lordships could not find any reason for saying that the emergency was not grave and did not threaten the security of Sarawak."

An appeal by a man sentenced to death for possessing firearms in 1969 led to an interesting ruling by the Federal Court on the Federal Constitution. On 21 August the Court ruled that the Dewan Rakyat had the power to make constitutional amendments, even if those amendments were inconsistent with existing provisions in the constitution.

Lord President Tun Mohamed Suflfîan said many provisions in the constitution showed that it was intended to be a living document, which, if the need arose, could be amended in any way thought fit. His comments were put to the test in 1983 when the Dewan Rakyat was forced to reverse some constitutional amendments already approved before Royal assent would be given.

The Federal Constitution (Amendment) Act 1983 passed by the Dewan Rakyat in August 1983 contained some controversial amendments that curtailed the powers of the head of state, the Yang di-Pertuan Agong. These amendments were: Article 150 ( I) that transferred the power to proclaim an emergency ffom the Agong to the Prime Minister; Article 66 (5) that made a Federal bill law if the Agong's assent had not been given after 15 days; and 8th Schedule 11(3) that made a state bill law if [in Sarawak's case] the governor's assent had not been given within 15 days.

Royal assent was withheld until 15 December after Prime Minister Dr. Mahathir gave a written undertaking that a new bill would reverse those amendments. A special joint session of the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives) approved the Constitution (Amendment) Act 1984 that reversed the contentious amendments and the Act received Royal assent on 19 January, All the other amendments in the 1983 Act remained, including another of direct relevance to Sarawak, the abolition of appeals in civil cases to the Privy Council in Britain, That connection was finally severed at the beginning of 1985 when the Federal Court was renamed the Supreme Court and all remaining appeals to the Privy Council were abolished.

Eight years earlier, two special provisions in the Malaysian Constitution reflecting the non-prominence of Islam in Sarawak in 1963 were repealed. These were Articles 16IC and 161D that were introduced on 16 September 1963 and repealed by the Malaysia Act Constitution (Amendment) Act 1976, effective from  27 August 1976.

Shown in full in Appendix II, both Articles had been incorporated in the Constitution when Malaysia was formed as "illustrative of the fact that Islam does not occupy the place in the Borneo States that it does elsewhere in the Federation" and that "In Sarawak the majority of the Chinese and indigenous people are not Muslims.The repeal of Article 161C enabled the legislative provision of special financial aid for establishing and maintaining Muslim institutions or instruction in Muslim religion to Muslims in Sarawak to be passed without the consent of the governor of Sarawak, Further, the stipulation that any such special financial aid by the Federal Government already being given to all States in Malaysia be applied to social welfare in the case of Sarawak was removed. The repeal of Article 161D removed the provision for a two-thirds majority in the Council Negri needed to approve any bill controlling or restricting propagation of any doctrine or belief to Muslims, Removal of these two articles reflected the fact that Islam is the religion of the Federation under Article 3 of the Malaysian Constitution and meant the removal of barriers that could be viewed as restrictive to increased penetration of Islam in Sarawak, Only three days before the Articles were repealed, the Chief Minister Datuk Patinggi (Dr,) Haji Abdul Rahman Ya'kub had presided at the conversion of 44 people to Islam and told his audience that it was the duty of all Muslims, particularly the intellectuals, to play a leading role in the propagation of Islam," The Constitution (Amendment) Act 1985 passed on 23 October 1985 increased the number of seats for Sarawak in the 180-seat Dewan Rakyat by three to a total of  27 ,"

This was the first increase in seats for Sarawak since Malaysia was formed, reflecting the increase to 597,237 voters in Sarawak by January 1985. In 1988, Articles 83-6 of the Constitution, all relating to land, were amended. According to Dr. Mahathir, this was to help carry out the Federal Government's privatization, economic, and development plans. The 1988 amendments enabled state governments to hand over land to the Federal Govemment, enabled Federal Govemment to ask state govemments to tum over rights to reserve land to the Federal Govemment, and enabled the Federal Govemment or relevant public authority to retain alienated land that was no longer needed. State interests were served by mutual agreement on compensation and land usage. Only a review after another decade or more would show the outcome of these amendments on Federal land holdings in Sarawak.

Both Sarawak and Sabah had a well-developed sense of identity and individuality before both agreed to become part of the Federation of Malaysia. Their different ethnic, economic, and religious mix, and their past histories compared with the states of Malaya, coupled with their distance from the federal capital, Kuala Lumpur, were all sources of friction when those states became part of the Federation. The special safeguards and conditions given to Sarawak and Sabah, such as control over education, immigration, and land, enabled both states to retain much of their own identity, without being completely overwhelmed by the mores of mainland Malaysia.

However, those safeguards came under pressure from time to time and were indeed completely overridden during the 1966 Ningkan crisis. Easier relationships were established post-1966 after state governments in the image of the ethnic Malay Muslim-dominated Federal Government had been installed. This muted resistance to the special status of Malays and Indigenes embodied in the Constitution helped to overcome serious opposition to changing the official language from English to Malay. It also enabled the Federal parliament to provide special financial aid for Muslim institutions and instruction in Islam to Muslims in Sarawak without the consent of the governor of Sarawak, removing the need for a two-thirds majority in the

Council Negri to approve any bill controlling or restricting propagation of any doctrine or belief to Muslims. By 1988 the basic tenets of the Federation of Malaysia, Malayas the national language and the pre-eminence of Islam, had been firmly entrenched in Sarawak by amendments to the 1963 constitution. Federal power to alter the constitution unilaterally had been established and Sarawak had been completely integrated as a state
within the Federation of Malaysia.

(Reference - Borneo Research Buletin Vol.38 pge -159 by Vernon L. Porritt, Honorary Research Associate
Murdoch university,Western Australia)

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