ASYMMETRIC FEDERALISM AND PROTECTION OF INDIGENOUS PEOPLES: THE CASE OF SABAH AND SARAWAK IN MALAYSIAN FEDERALISM
[This short piece is in press and due to be published on the website '50 shades of Federalism', hosted by Christchurch University, Canterbury, a very useful resource contributed to by many excellent scholars and edited by Paul Anderson and Soeren Keil]
Federalism and Ethnicity
Malaysian
federalism did not come about, nor has it been maintained for six decades, because of the diversity that
characterises Malaysian society. Rather, ethnic and religious diversity tend to
cut across state boundaries rather
than being defined by them. However, the East Malaysian states of Sabah and
Sarawak on the island of Borneo are notable exceptions, and are for two reasons
the focus of this study.
First,
these two states, unlike the other states of Peninsular or West Malaysia, are
defined by ethnicity. The
indigenous people of Sabah and Sarawak are officially and legally styled
‘native’, a term that comprises a large number of tribal people who are defined
as indigenous to those two states, including the Iban, Murut, Kadazan, Kenyah,
Penan, and many other groups.[1] The Iban constitute around
31% of Sarawak’s population, while the Kadazan are the largest group in Sabah
at 17%. Taken altogether, the indigenous peoples at around 2.2 million constitute
just over half of the population in these two States. Sabah and Sarawak also
have about 60% of Malaysia’s land area and abundant natural resources, but only
about one eighth of its population.
Secondly,
having joined an existing federation (the Federation of Malaya), along with
Singapore, in 1963 (Singapore left in 1965) to form ‘Malaysia’ pursuant to the
Malaysia Agreement 1963 (TY Tan 2008), Sabah and Sarawak are also an example of
asymmetric federalism, as they enjoy more powers than Malaysia’s other 11 states.
Many
in Sabah and Sarawak would maintain that their experience of federation is a
case of failed federalism in terms of non-observance of the original deal,
contained in the Malaysia Agreement and parallel documentation, with particular
reference to failure to protect these states’ indigenous cultural and
socio-economic interests, and the undermining of their political and
constitutional autonomy. Thus although in many aspects Malaysian federalism can
be called successful, from an East Malaysian perspective there are serious
issues with how federalism is practised, in spite of the asymmetrical power
they enjoy (Chin 2014a).
Evolution of Malaysian Federalism
Federalism
emerged as the defining structure of government in Malaya in 1948, due to the
fact that the Malays would not accept the abolition of their traditional states
along with their ancient monarchies. Accordingly, in 1948 with the Federation
of Malaya Agreement[2] the nine
Malay states and the two Crown colonies of Penang and Malacca were folded into
a federal structure, and it was this federation that gained independence under
the Constitution of the Federation of Malaya in 1957. Other ways than
federalism were found to deal with inter-ethnic conflicts. Principally,
affirmative action was entrenched in the Constitution, by virtue of its Articles
3 and 153, to ensure the continued recognition of the special position of the
Malays and of Islam. From
the early 1970s the term ‘bumiputera’ (‘sons of the soil’) was used for both
the Malay/ Muslim majority and the native peoples of Sabah and Sarawak. Bumiputera
citizens enjoy special privileges and status in terms of affirmative action,
sanctioned under Article 153, as an exception to equality before the law (Tay
2017).
In
1963 the Federation was enlarged to incorporate the three new states on
somewhat different terms from those given to the existing 11 states, creating a
two-tier federation. Pursuant to consultation between the various territories
and the British government, the
Cobbold Commission, consisting of
representatives of the British and Malayan Governments, visited Sabah and
Sarawak in 1962 and reported that the majority supported federation with
Malaya, provided due regard was had to the special position of Sabah and
Sarawak, the ethnic implications of federation for the indigenous people of
those territories, the physical distances involved, and the territories’
political immaturity compared to the Federation of Malaya and the then colony
of Singapore (Fong, JC 2014). The Legislative Assemblies of both Sabah and Sarawak voted in
favour of federation ‘subject to appropriate safeguards’. An Inter-governmental
Committee was then set up, comprising representatives from the same four
Governments, to thrash out constitutional safeguards for Sabah and Sarawak,
reporting in February 1963. The Malaysia Agreement was eventually signed on 9
July 1963 by all the Governments concerned, and Malaysia came into being on 16
September 1963.[3]
There is nonetheless a strong, lingering resentment in Sabah and Sarawak these
two states were rushed into federation although it was unclear, despite the
Cobbold Commission Report, that a majority of their populations had expressly
favoured this outcome (Welsh 2014).
A principal point of concern for Sabah and Sarawak was
the possible effect of migration on land, commerce, and the employment and
professional opportunities of East Malaysians now with competition from more
qualified people from West Malaysia. Accordingly, these states were given their
own powers over immigration, allowing them to control migration from West
Malaysia. However, there was also concern about financial arrangements and
development; the special position of the indigenous peoples of Sabah and
Sarawak; the national language; religion; the legal system; representation in
the Federal Parliament; and, naturally, how these states would be protected
from future constitutional changes affecting any of these issues. Several of
these matters remain concerns long after federation.
The Cobbold Commission had stressed the need for a sense of equality and partnership (not take-over) in the new federal
scheme.[4] It was very clearly a
primary objective in the Malaysia Agreement to provide special protection for
these native peoples in both states, as a condition of Sabah and Sarawak
joining the new Federation.
Constitutional Status of Sabah and Sarawak
It is significant that the events of 1963 did not trigger the
drafting of a new constitution, as one might have expected. Instead of a new
document expressing the structure and aspiration of a new partnership going
beyond the parameters of the 1957 Constitution, a process of simply amending
the Constitution gave rise to the impression that Malaysia was simply a
federation of 14 (later 13) states rather than a new federation of three equal entities.
The Government of the Federation of Malaya became the Government of Malaysia,
and there was therefore no co-equal partner to Sabah and Sarawak at an
equivalent subnational level. This was in effect a design fault: how could two
subnational units meaningfully enter into an equal partnership with a national and therefore implicitly superior,
more powerful, unit? The Federation of Malaya continued to exist as ‘Malaya’ but
only as an entity defined by its own legal system. It did not have a government
or legislature distinct from that of Malaysia itself. Accordingly, even the
Constitution’s first article listing the subjects of the Federation was
subsequently amended to abolish the separate listing of Sabah and Sarawak. This
Article was the subject of a 2019 Bill to Amend the Constitution so as to
revert to the original wording distinguishing Sabah and Sarawak from the other
states, but the Bill lapsed when it failed to achieve the necessary two-thirds
majority in Parliament.
A close examination of the Constitution indicates that the
status of Sabah and Sarawak is indeed higher than that of the other states. State
powers in Malaysia are largely limited to Islamic law and custom, local
government, land, agriculture, forests and natural resources. The concurrent
powers such as social welfare, planning and public health, are in general
exercised by the states. Sabah and Sarawak, however, have greater powers, including immigration,
separate legal systems and legal professions, more guaranteed revenue, and the
right to veto constitutional amendments affecting them, none of which
privileges apply to any of the other states (Harding 2014).[5]
As against this there can be little doubt that over the last
six decades autonomy has been undermined and the status of Sabah and Sarawak
has been abraded to the extent that in practice they resemble to a great extent
the other states, in spite of their special constitutional status and the guarantees
given in 1963 (Harding 2019).
While the extra powers conferred on Sabah
and Sarawak might not seem very great, importance is attached in those two
states to agreements that were reached and set out in the Inter-Governmental
Committee Report in 1962, known as the ‘18 points’ (Sarawak) or ‘20 points’
(Sabah).
The key issues and outcomes may be summarised as follows (Chin 2014a):
(i) Islam’s status as a national religion was not
to be applicable to Sabah and Sarawak. Nonetheless, pressure on indigenous
people to convert to Islam, and other forms of cultural interference, have been
apparent. Reforms to the Islamic legal system, involving constitutional
amendment, have proceeded without agreement of the governments of Sabah/
Sarawak.[6]
Islam was designated as Sabah’s state religion in 1973.
(ii)
Immigration control was vested in the state governments of Sabah and Sarawak.
This has been undermined due to the federal government’s control over granting of
citizenship.
(iii)
‘Borneanisation’ (i.e., gradual inclusion of Sabah/ Sarawak people) of the
public service was to proceed as quickly as possible. This has not occurred. In 2013 only 40% of federal heads of department
in Sabah were held by Sabahans. Overall only 2% of federal government employees
were non-Muslim bumiputera from Sabah
or Sarawak (James Chin 2014a).
(vi) The
indigenous peoples of both states would enjoy the same ‘special’ rights given
to the Malay community in Malaya. This occurred in 1971 but in practice it is
alleged they are treated as second-class bumiputera.
(vii)
Sabah and Sarawak were to be given a high degree of autonomy over their
financial affairs. With only 5% royalty on natural resource exploitation, these
states have been starved of funding and are both under-developed on all
criteria compared to other parts of Malaysia (Harding 2017).
Federal
Interference
One of
the main resentments has been federal interference in state politics. From
independence on 31 August 1957 until 10 May 2018 the Federation was ruled by a
single inter-ethnic coalition, the Barisan Nasional (BN). This coalition also controlled
virtually all state governments most of the time until 2008. Where, as in Sabah
and Sarawak, local ethnic parties had emerged, these found it to their
advantage to ally themselves with the BN. The assumption was that in
BN-controlled states, apart from Sarawak, where the BN’s leading party UMNO did
not operate, the Prime Minister would in effect appoint the state’s Chief
Minister. When a state was ruled by the opposition, the federal government
tended to do its utmost to make life difficult for the state, even punishing it
by use of its fiscal control and withholding development funding in order to
weaken the state government and replace it with a BN state government.
The tone
was set early on in the Stephen Kalong Ningkan episode in 1966. Ningkan was elected
as Chief Minister of Sarawak to protect the rights and interests of the
indigenous people, especially their customary land rights. The Federal
Government manipulated the state assembly to deprive him of his majority,
leading to litigation that reached the Privy Council in London. It even went so
far as to proclaim an emergency in order to amend the state constitution, facilitating
Ningkan’s removal. The
suppression of state autonomy that this episode represents paved the way for
subsequent interference by the federal government in Sabah/ Sarawak politics
in, for example, 1985 and 1993/4 (Harding 2019).
There are
in addition human rights concerns relating to indigenous peoples, especially in
the context of development, which impinges on their customary land. Indigenous rights have in fact
been strongly advocated by the Malaysian Human Rights Commission (‘Suhakam’)
and in the courts too some progress has been made in recognising customary land
rights (Suhakam 2010, Yogeswaran 2017). Native people as whole ‘suffer
disproportionately from preventable diseases, have higher infant and maternal
mortality rates, are poorly provided with basic services and utilities, and
have lower levels of education … the great majority … continue to suffer
widespread and persistent poverty, high rates of illiteracy, and limited access
to medical care’ (Aiken and Leigh 2011).
Implications
for Federalism
The
lesson to be drawn from Malaysian federalism is that if a single party holds
power continuously at the federal level, it can assert overwhelming power and
effectively demolish all but the bare appearance of a federal system (Harding
and Chin 2014). In
both Sabah and Sarawak there have been political parties representing
indigenous people’s interests, but they have proved powerless and sometimes too
corrupt, to protect them. This is in spite of representation in both houses of
Parliament, the federal cabinet, and the federal public service.
These conclusions are not comfortable ones for theorists of
federalism. They show that, despite the existence of what we may see as normal
or tried-and-tested federal mechanisms, and despite also the additional
emplacement of asymmetric protective mechanisms, these have all proved
ineffective to prevent erosion of both states’ rights and the rights and
interests of their indigenous peoples.
Given that the native people constitute a majority in both
Sabah and Sarawak, one might wonder why they would not vote against parties
that simply toe the federal line. However, opposition parties have found it
extremely difficult to penetrate outside urban areas in Sabah and Sarawak, at
least until the 2018 election, and democratic processes and institutions have
otherwise lacked development. Patronage systems have filled the void, locking
the indigenous people into BN support. Rare have been the occasions on which Sabah
or Sarawak elected representatives have raised concerns as to the autonomy of
their states. They appear to have been in effect complicit in the political
demise of their states’ powers.
Attempts to correct the situation by
making demands on the federal government to correct the situation, for example
via devolution of powers, were not in general looked upon with favour by
federal leaders, at least until the Pakatan Harapan (PH) government came into
office in May 2018. However, PH did nothing other than set up a committee and
propose a constitutional amendment that failed to get a two-thirds majority.
The incoming Perikatan Nasional (PN) government (from March 2020) has also
promised to deal with Sabah/ Sarawak autonomy.
Meanwhile, advocates in these two
states speak variously of devolution; secession; having the Malaysia Agreement
invalidated under international law (replying on the recent Chagos Islands case,
ICJ 2019)); and suing the Malaysian and British governments to have the
Malaysia Agreement enforced. However, the problems in Sabah and Sarawak as we
have seen are mainly political and appear to have only political solutions. In
a competitive, multi-party system, which Malaysia now has, political parties in
these states hold the balance of power at the centre. Leveraging this power is
their best hope of renewing state autonomy.
Bibliography:
Aiken, SR, and Leigh, CH (2011), ‘Seeking redress in the
courts: Indigenous land rights and judicial decisions in Malaysia’ 45 Modern
Asian Studies 825
Chin, J (2014), ‘Exporting the BM/ UMO
model: Politics in Sabah and Sarawak’, ch.7 of M Weiss (ed), The Routledge
Handbook of Contemporary Malaysia, Abingdon: Routledge
Chin, J (2014), ‘Federal- East
Malaysia relations: Primus inter pares?”, in Harding, AJ and Chin, J (eds), 50
Years of Malaysia: Federalism Revisited, Singapore: Marshall Cavendish
Fong, JC
(2014), Constitutional Federalism in Malaysia, Petaling Jaya: Sweet and Maxwell
Asia
Harding, A (2014), ‘Protection of the
Indigenous peoples of Sabah and Sarawak under Malaysian federalism’, in
Harding, AJ and Chin, J (eds), 50 Years of Malaysia: Federalism Revisited,
Singapore: Marshall Cavendish
Harding, A (2019), “’A Measure of
Autonomy’: Federalism as protection for Malaysia's indigenous peoples” 46(4) Federal Law Review 557
Harding, AJ and Chin, J (eds), 50
Years of Malaysia: Federalism Revisited, Singapore: Marshall Cavendish
ICJ (2019), Legal consequences of the separation of the Chagos
archipelago from Mauritius in 1965’ https://www.icj-cij.org/en/case/169
Suhakam (2010), Human
Rights Commission of Malaysia Annual Report 2010, Kuala Lumpur: Human Rights Commission of Malaysia,
www.suhakam.org.my/c/document_library/get_file?p_l_id=24205&folderId=39678&name=DLFE-10502.pdf.
Tay, WTV (2017), ‘Dimensions of Ketuanan
Melayu in the Malaysian constitutional framework’, ch.3 of Harding, A, and
Shah, DAH, Law and Society in Malaysia: Pluralism, Religion and Ethnicity,
Abingdon: Routledge
Tan, TY (2008), Creating “Greater Malaysia”: Decolonization
and the Politics of Merger, Singapore: ISEAS
Welsh, B (2014), Interview with Tan Sri Simon Sipaun;
Interview with Tan Sri Sir Peter Mooney, in Harding, AJ and
Chin, J (eds) (2014), 50 Years of Malaysia: Federalism Revisited,
Singapore: Marshall Cavendish
Yogeswaran S (2017), ‘Legal pluralism in Malaysia: The case of
Iban native customary rights in Malaysia’, ch.6 of Harding, A, and
Shah, DAH, Law and Society in Malaysia: Pluralism, Religion and Ethnicity,
Abingdon: Routledge
Further Reading:
Harding, A (2012), The Constitution
of Malaysia: A Contextual Analysis, Oxford: Hart Publishing, ch.5.
Harding, A (2017), ‘Devolution of
powers in Sarawak: A dynamic process of redesigning territorial governance in a
federal system’ 12(2) Asian Journal of
Comparative law 257
Harding, AJ and Chin, J (eds) (2014), 50
Years of Malaysia: Federalism Revisited, Singapore: Marshall Cavendish
Tan, Kevin YL (2017),’The creation of
Greater Malaysia: Law, politics, ethnicity and religion’, ch.1 of Harding, A,
and Shah, DAH, Law and Society in Malaysia: Pluralism, Religion and
Ethnicity, Abingdon: Routledge
[1] See Federal Constitution of Malaysia, Article 161A, for a complete list
of native peoples.
[2] Federation of Malaya
Order-in-Council 1948, SI 108/ 1948 (UK).
[3] Malaysia Agreement 1963,
signed 9 July 1963, between the United Kingdom, the Federation of Malaya,
Singapore, Sarawak and North Borneo (London, HMSO, 1963).
[4] The
Report of the Commission of Enquiry: North Borneo and Sarawak, 1962, Cmnd 1794/1962 (HMSO),
at para. 237.
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