No evidence for equal partnership
Unless proven otherwise, it is clear that the available historical and documentary evidence does not show there was any provision or request for equal partnership when Malaysia was formed.
D.S. Ranjit Singh, letter in The Star
SABAHANS and Sarawakians are clamouring for the return of the state rights enshrined in the Malaysia Agreement 1963 (MA63), which have over time been eroded by the Federal Government.
I fully support this demand. However, there is another demand by Sabah and Sarawak which has become very vocal. This is the “restoration” of equal status to the two states with the Federation of Malaya. Sabahans and Sarawakians claim that Malaysia is an entity of three equal partners that is the Federation of Malaya, Sabah and Sarawak, and as such the two Borneo states cannot be relegated to the position of the original 11 states of the Federation of Malaya.
They claim that this status of equality was written into Article 1(2) of the Malaysian Constitution of 1963 but it was amended in 1976 whereby Sabah and Sarawak were downgraded to the position of the 12th and 13th states of Malaysia.
Even the Federal Government now accepts these views and has promised to amend Article 1(2) and “restore” equal status to Sabah and Sarawak with Peninsular Malaysia as outlined in MA63.
1. The question of equality of the five founding members was discussed by all the representatives of the Malaysia Solidarity Consultative Committee including leaders from Sabah and Sarawak but they decided that, with the exception of certain local safeguards, the Borneo territories could be placed on equal footing with the other states of the Federation of Malaya. Please refer to paragraphs 8 and 9 of the memorandum of the said committee dated Feb 3, 1962.
It is clear from paragraph 8 that an association of several sovereign states was considered, but the Committee finally opted for a Federation where all the member states would be merged into one sovereign state, and not a union of several equal sovereign states. From paragraph 9, it is evident that the status of the Borneo territories was compared to the states of the Federation of Malaya and not to the said federation as one legal unit. So where is the reference to the equal status of the four or five potential members of the proposed federation?
2. The question of equality of the member states was never raised in the 20 Points and the recommendations of the Inter-Governmental Committee embodied in its report of 1962. Readers can confirm this point by going through these two documents.
3. The position of the four member states as equal partners was not enshrined in the Malaysia Agreement signed by the United Kingdom, the Federation of Malaya, North Borneo, Sarawak and Singapore in London on July 9, 1963. Article 1 of the Malaysia Agreement is worded as follows: “The colonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existing States of the Federation of Malaya as the States of Sabah, Sarawak and Singapore in accordance with the constitutional instruments annexed to this Agreement and the Federation shall thereafter be called ‘Malaysia’.”
Again, it must be noted that North Borneo, Sarawak and Singapore were to be federated with the existing States of the Federation of Malaya, not the entity called Federation of Malaya, which was a signatory to the Agreement as one sovereign unit.
4. Article 1(2) of the 1963 Malaysian Constitution (the so-called original document) does not accord equal status to the four partners. The said article describes the states and territories of the Federation of Malaysia as follows:
“The States of the Federation shall be:
(b) The Borneo States, namely Sabah and Sarawak; and
(c) The State of Singapore.”
Section 1(2) (a) clearly says States of Malaya and not the Federation of Malaya. Where is the reference to the status of equality between Sabah, Sarawak, Singapore and the Federation of Malaya? Is equality in any way implied by separating the states into sections (a), (b) and (c)? If so, with whom?
5. The Federation of Malaya as a single legal entity or actor ceased to exist after the Malaysia Agreement of 1963. This is evident from all the documents I have cited. So with whom do Sabah and Sarawak seek to have equal partnership? With a non-existent partner!
6. The concept of legal equality of states which carries with it the notion of sovereign equality is inconsistent with the concept of a highly centralised Federation. In a federal structure like ours, power is shared in varying degrees between the central government and the regional authorities. In the case of Malaysia, Schedule 9 of the Malaysia Constitution demarcates the legislative powers of the central government and the 13 other regional or state governments. The central government enjoys overwhelmingly superior powers to those held by the units which are basically subservient to the centre. Sovereignty, defence, security and foreign relations, for example, are exclusive preserves of the central government.
If Sabahans and Sarawakians indeed wanted to be equal partners in the formation of Malaysia, then they should have opted for a looser structure such as the European Union, where members are sovereign states and therefore equal in status legally. This is what A.M. Azahari of Brunei wanted – independence first and then a confederation, not a federation. As we have seen, however, the leaders of the Borneo States made a decision to choose a highly centralised federation rather than an association of sovereign partners. So where does all this clamour for equal status come from? It is very perplexing.
7. To my mind, the Federal Government will not be able to resolve the question of equal status within the confines of the present federal structure although the Prime Minister has promised to do so. My contention is based on the following reasons:
(a) The third partner in the equation, the Federation of Malaya as a legal personality, as a single actor has disappeared. How the Federal Government will resurrect this dead unit is a mystery. The status of Sabah and Sarawak as equal partners to the Federation of Malaya cannot be restored just by amending Article 1(2) of the Federal Constitution. The Federation of Malaya does not come alive just by inserting these words “equal to the Federation of Malaya or Peninsular Malaysia” in the amended version.
(b) The only way I can see this happening is for the Federal Government to dismantle the present federal structure and replace it with a looser union of equal sovereign partners such as the European Union. This will be a messy, risky and unthinkable solution.
Unless proven otherwise, it is clear that the available historical and documentary evidence does not show there was any provision or request for equal partnership when Malaysia was formed.
EMERITUS PROFESSOR D. S. RANJIT SINGH
