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Devolution of Powers in Sarawak: A Dynamic Process of Redesigning Territorial Governance in a Federal System

  • Andrew HARDING (a1)

Abstract

This article is based on a case study of the developing process of devolution of powers in Sarawak as an aspect of the operation of cooperative federalism in Malaysia. The argument developed is that devolution can be seen and used in conjunction with and in reinforcement of federalism, rather than being simply an alternative method of decentralizing powers. The study finds that this approach may be more promising than a more confrontational approach based on arguments around the fulfilment of the original federal bargain, and is also potentially more open-ended and creative (a process rather than an event), embracing issues within the federal bargain but also issues that are not dealt with in that bargain. The study is based on a unique opportunity to canvass the views of Sarawak leaders at the iteration of the devolution process.

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Copyright

Footnotes

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Professor, Faculty of Law, National University of Singapore.

Footnotes

References

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1. Wheare, Kenneth C, Federal Government (4th edn, OUP 1963); Watts, Ronald L, Administration in Federal Systems (Hutchinson Educational 1970).

2. Watts, Ronald L, Comparing Federal Systems in the 1990s (Institute of Intergovernmental Relations, Queen’s University 1996).

3. Harding, Andrew and Sidel, Mark (eds), Central-Local Relations in Asian Constitutional Systems (Hart Publishing 2015) ch 1; Hatchard, John, Ndulo, Muna, and Slinn, Peter, Comparative Constitutionalism and Good Governance in the Commonwealth: An East and Southern African Perspective (CUP 2004) 184 .

4. See several articles listed in live coverage in Malaysiakini, at ‘LIVE Reporting’ (Malaysiakini) <http://live.malaysiakini.com/sarawak2016/> accessed 6 February 2017.

5. King, Anthony, The British Constitution (OUP 2007) 212 .

6. Harding, Andrew and Chin, James (eds), 50 Years of Malaysia: Federalism Revisited (Marshall Cavendish 2014) 50 ; Andrew Harding, ‘Will things fall apart in the Malaysian federation?’ (East Asia Forum, 28 August 2015) <www.eastasiaforum.org/2015/10/28/will-things-fall-apart-in-the-malaysian-federation/> accessed 6 February 2017.

7. Harding and Sidel (n 3).

8. Harding, Andrew and Leyland, Peter, Constitutional Courts: A Comparative Study (Wildy, Simmons and Hill 2010).

9. Leyland, Peter, ‘The multifaceted constitutional dynamics of UK devolution’ (2011) 9(1) International Journal of Constitutional Law 251, 256 .

10. There are many who think secession is desirable and that Sarawak could survive and prosper outside Malaysia as an independent state: Sheridan Mahavera, ‘Slight majority of East Malaysians want to secede, warns academic’ (Movement for Change Sarawak, 16 February 2014) <https://mocsarawak.wordpress.com/2014/02/16/slight-majority-of-east-malaysians-want-to-secede-warns-academic/> accessed 9 May 2017. This issue nonetheless falls outside the scope of this article.

11. The Malaysian Prime Minister has indicated hostility to the notion of secession: ‘Sabah, Sarawak secession issue non-negotiable’ (The Star Online, 30 November 2014) <www.thestar.com.my/News/Nation/2014/11/30/Sabah-Sarawak-secession-issue-nonnegotiable/> accessed 6 February 2017. In March 2015 four people were charged with sedition for advocating secession: ‘4 charged with sedition over Sabah, Sarawak secession, report says’ (Yahoo News, 16 March 2015) <https://sg.news.yahoo.com/4-charged-sedition-over-sabah-sarawak-secession-report-042938718.html> accessed 9 May 2017.

12. Mahavera (n 10); Harding and Chin (n 6) 184.

13. ‘Hudud will be the Last Straw for Sabah, Sarawak’ (Free Malaysia Today, 6 April 2016) <www.freemalaysiatoday.com/category/nation/2015/04/06/hudud-will-be-last-straw-for-sabah-sarawak/> accessed 6 February 2017.

14. Federal Constitution of Malaysia (adopted 1957; last amended 2009).

15. ‘Finer details on Sarawak’s devolution of powers in the works, says Adenan’ (The Rakyat Post, 4 November 2015) <www.therakyatpost.com/news/2015/11/04/finer-details-on-sarawaks-devolution-of-powers-in-the-works-says-adenan/> accessed 6 February 2017; Adenan claimed, according to this report, that 45 policies have already been changed in pursuit of this devolution policy. Adenan passed away on 17 January 2017; his policies, said his successor, will be continued.

16. ‘Last of the rajahs: Powerful chief minister bows out – or does he?’ The Economist (London, 15 February 2014) <www.economist.com/news/asia/21596592-powerful-chief-minister-bows-outor-does-he-last-rajahs> accessed 9 May 2017.

17. ‘Sabah-Sarawak to remain as BN’s fixed deposit, says local leader - Bernama’ (Yahoo News, 16 November 2015) <https://sg.news.yahoo.com/sabah-sarawak-remain-bn-fixed-deposit-says-local-071131990.html> accessed 9 May 2017.

18. Malaysia Agreement 1963, signed 9 July 1963, between the United Kingdom, the Federation of Malaya, Singapore, Sarawak, and North Borneo.

19. Yong, Tan Tai, Creating ‘Greater Malaysia’: Decolonization and the Politics of Merger (Institute of Southeast Asian Studies 2008).

20. Runciman, Steven, The White Rajah: A History of Sarawak, 1841-1946 (CUP 2011).

21. This common understanding of the events of July-September 1963 has recently been disputed by historian Michael Leight. See ‘July 22 1963 not the day Sarawak gained independence – Prof Leigh’ (The Borneo Post, 9 November 2015) <www.theborneopost.com/2015/11/09/july-22-1963-not-the-day-sarawak-gained-independence-prof-leigh/> accessed 9 May 2017.

22. Turnbull, Constance M, ‘British Planning for Post-War Malaya’ (1974) 5(2) Journal of Southeast Asian History 239 .

23. Harding, Andrew, The Constitution of Malaysia: A Contextual Analysis (Hart Publishing 2012) ch 5.

24. Hoong, Khong Kim, Merdeka! British Rule and the Struggle for Independence in Malaya 1945-57 (Institute for Social Analysis, 1984) 108ff; see, further, Lau, Albert, The Malayan Union Controversy 1942-1948 (OUP 1991).

25. Harding and Chin (n 6) 18, 103.

26. These are contained in the Federal Constitution, Part XIIA, and are discussed in detail below.

27. Harding and Chin (n 6) 34, 154.

28. Andrew Harding, ‘Protection of the Indigenous Peoples of Sabah and Sarawak under Malaysia’s Constitution’ in Harding and Chin (n 6) 187; Harding, Andrew, ‘Legal Pluralism and the Constitutional Position of East Malaysia’s Indigenous Peoples: The View from the Longhouse’ in Gary Bell and Veronica Taylor (eds), Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of MB Hooker (Institute of Southeast Asian Studies 2017).

29. Peter Sibon, ‘Masing Wants Review on State’s Position in Malaysian Federation’ (The Borneo Post, 16 November 2013) <www.theborneopost.com/2013/11/16/masing-wants-review-on-states-position-in-malaysian-federation/> accessed 9 May 2017.

30. James Chin, ‘Federal-East Malaysia Relations: Primus Inter Pares?’ in Harding and Chin (n 6) 153ff.

31. Chin, James, ‘Politics of Federal Intervention in Malaysia, with reference to Kelantan, Sarawak and Sabah’ (1997) 35(2) Journal of Commonwealth and Comparative Politics 96 .

32. For territorial governance in the Malaysian context, see Fong, J C, Constitutional Federalism in Malaysia (Sweet & Maxwell Asia 2008); Harding (n 23) ch 5.

33. Watts (n 1); Elazar, Daniel, Exploring Federalism (University of Alabama Press 1987); Saunders, Cheryl, ‘Constitutional Arrangements of Federal Systems’ (1995) 25(2) Publius 61 ; Saunders, Cheryl, ‘Collaborative Federalism’ (2002) 61(2) Australian Journal of Public Administration 69 . Elazar (at 5) refers to federalism as an arrangement ‘of partnership, established and regulated by a covenant, whose internal relationship reflects the special kind of sharing that must prevail among the partners, based on mutual recognition of the integrity of each partner and the attempt to foster a special unity among them’.

34. Harding and Sidel (n 3) ch 1.

35. Noel Tarrazona ‘Philippines under Duterte to Stake Claim on Sabah Despite Malaysia’s Warning’ (Asia Times, 6 June 2016) <http://atimes.com/2016/06/philippines-under-duterte-to-stake-claim-on-sabah-despite-malaysias-warning/> accessed 6 February 2017.

36. Webber, Jeremy, The Constitution of Canada: A Contextual Analysis (Hart Publishing 2014) ch 6.

37. Harding (n 23).

38. See Leyland (n 9).

39. As this article was being written, a disagreement broke out between the Sarawak Government and the Federal Government over the non-recognition of Malaysia’s Unified Education Certificate (UEC) for Chinese schools, described by Sarawak’s Chief Minister as ‘stupid’. Sarawak wishes to control education policy, and as an illustration of how devolution might impact such issues, the Sarawak Government has recognized the UEC for state employment purposes: Sulok Tawie, ‘Putrajaya Stupid for Not Endorsing Unified Examination Certificate, Says Sarawak Chief Minister’ (Malay Mail Online, 3 November 2015) <www.themalaymailonline.com/malaysia/article/putrajaya-stupid-for-not-endorsing-unified-examination-certificate-says-sar/> accessed 6 February 2017.

40. Malaysia Agreement 1963, signed 9 July 1963, between the United Kingdom, the Federation of Malaya, Singapore, Sarawak, and North Borneo.

41. Harding and Chin (n 6) 154-55.

42. ie, gradual conversion of public service positions so that they would be held by Sarawakians or Sabahans.

43. See Federal Constitution, art 153.

44. Fung Fon Chen @ Bernard & anor v Government of Malaysia & anor [2012] 6 MLJ 724; revd on appeal, Civil Appeal S-01-295/7-2012; see also Robert Linggi v Government of Malaysia [2011] 2 MLJ 741; revd on appeal, Civil Appeal S-01-247-2011.

45. Draft paper on file with the author: J C Fong, ‘Federalism: Distribution and Devolution of Powers within the Framework of the Federal Constitution in Malaysia’, 12. This involves implementing assurances, undertakings and recommendations in Annexes A and B of the Report of the Inter-governmental Committee, 1962 (Government Printer 1963).

46. Report of the Commission of Enquiry, North Borneo and Sarawak, 1962, para 237.

47. Federal Constitution, art 159(3).

48. Harding (n 23) ch 3. Currently Sabah (25) and Sarawak (31) have 56 seats out of 221 in the Federal Parliament.

49. The literature is too much and too marginal to present concerns to cite here, but for further discussion and citations, see Jaclyn Neo, ‘What’s in a name? Malaysia’s “Allah” controversy and the judicial intertwining of Islam with ethnic identity’ (2014) 12(3) International Journal of Constitutional Law 751.

50. Federal Constitution, art 161E(2).

51. ‘Johor crown prince warns that the state may secede if putrajaya breaches federation’s terms’ (Straits Times, 16 October 2015) <www.straitstimes.com/asia/se-asia/johor-crown-prince-warns-that-state-may-secede-if-putrajaya-breaches-federations-terms/> accessed 6 February 2017.

52. See Harding, Andrew, ‘The Keris, The Crescent and the Blind Goddess: The State, Islam and the Constitution in Malaysia’ (2002) 6 Singapore Journal of International and Comparative Law 154 .

53. Harding and Chin (n 6) 11.

54. See below n 90 and related text.

55. Khairil Azmin Mokhtar, ‘Confusion, Coercion and Compromise in Malaysia’s Federalism’ in Harding and Chin (n 6) 221.

56. Yeoh, Tricia, States of Reform: Governing Selangor and Penang (Penang Institute 2012).

57. Andrew Harding, ‘Local democracy in a multi-layered constitutional system: Malaysian local government reconsidered’ in Harding and Sidel (n 3) ch 7.

58. ibid.

59. Hashim, Shafruddin, ‘The Constitution and the Federal Idea in Peninsular Malaysia’ (1984) Journal of Malaysian and Comparative Law 138, 156 .

60. Fong (n 32) ch 5. For an example, see ‘What AG’s Report Says about Selangor’ (Malaysia Today, 25 October 2011) <www.malaysia-today.net/what-ags-report-says-on-selangor/> accessed 6 February 2017.

61. Federal Constitution, Schedule 10, Part I.

62. Federal Constitution, art 109; for details as to how this works, see Fong (n 32).

63. Fong (n 32) 107, states the total State deficit for 2006 as RM193 million.

64. ‘Sarawak to Seek RM500 Million More from the Federal Government for Rural Development’ (Bernama, 31 October 2015) <www.bernama.com/bernama/v8/sp/newssports.php?id=1185366/> accessed 6 February 2017. This is intended mainly for bridges and roads.

65. Federal Constitution, art 114.

66. Federal Constitution, art 110.

67. Fong (n 32) 98-103.

68. Considerable disquiet was expressed in Kuching over the enactment of the Malaysia Territorial Seat Act (Act 750) which in the eyes of many in Sabah as well as Sarawak was an attempt to plunder Borneo’s natural resources: see, for example, Winston Way ‘Petronas-Putrajaya Has No Rights in Borneo Waters’ (Free Malaysia Today, 31 March 2014) <www.freemalaysiatoday.com/category/nation/2014/03/31/petronas-putrajaya-has-no-rights-in-borneo-waters/> accessed 6 February 2017.

69. Petroleum Development Act 1974 (Act 144).

70. Under Tripartite Agreements of 1975, involving the Federal Government and the Governments of Sabah, Sarawak, and Terengganu.

71. Desmond Davidson, ‘Adenan Pledges to Keep Fighting for 20% Royalty’ (The Edge Markets, 6 August 2015) <www.theedgemarkets.com/article/adenan-pledges-keep-fighting-20-oil-royalty> accessed 9 May 2017.

72. Fong (n 32) 103. See also n 24.

73. Fong (n 32) 120.

74. Official statistics adduced by the State Secretary of Sarawak October 2015, on file with the author.

75. Fernando, Joseph, ‘Sir Ivor Jennings and The Malayan Constitution’ (2006) 34(4) Journal of Imperial and Commonwealth History 577 ; Report of the Federation of Malaya Constitutional Commission 1957, Colonial No 330 (London, Her Majesty’s Stationary Office, 1957); see also Kumarasingham, Harshan, ‘Eastminster – Decolonisation and State-Building in British Asia’ in Harshan Kumarasingham (ed), Constitution-Making in Asia: Decolonisation and State-Building in the Aftermath of the British Empire (Routledge 2016) ch 1.

76. For eg, the Sewel motion which has been invoked on many occasions: Leyland (n 9) 259.

77. ibid 256.

78. Scotland Act 2016, c.11.s

79. Harding (n 23) 136.

80. ibid 137.

81. See above n 12.

82. Harding and Chin (n 6) 41.

83. See Axa General Insurance Ltd v The Lord Advocate [2011] CSIH 31.

84. Leyland (n 9) 255.

85. ibid 256.

86. Federal Constitution, Schedule 10.

87. Leyland (n 9) 258.

88. Harding and Chin (n 6).

89. Keating, Michael, ‘Policy Convergence and Divergence in Scotland under Devolution’ (2005) 39(4) Regional Studies 459 .

90. ‘PM Explains Devolution of Power to Sabah, Sarawak’ (Bernama, 16 September 2015) <www.bernama.com/bernama/v8/fe/newsfeatures.php?id=1171884/> accessed 6 February 2017.

91. Relevant statutes such as the Education Act 1996 (Act 550), s 5, and the Federal Constitution itself (art 95C: order of the Yang di-Pertuan Agong) envisage such delegation.

92. Delegation of Powers Act 1956 (Act 358) (revised 1988).

93. M Ratnavale v Government of Malaysia (1961) 1 lNS 58; Azman Abdullah v Ketua Polis Negara (1997) 1 CJ 257. I am indebted to JC Fong for information regarding these issues of delegation; precedents for Orders under the Federal Constitution, art 95C, may be found in his paper (n 45) 13.

94. Malaysia Territorial Sea Act 2012 (Act 750).

95. See n 43.

96. Goods and Services Tax Act 2014 (Act 762).

97. Fong (n 45) 99.

98. Federal Constitution, art 76(1)(c). See also art 76A, which gives States limited powers to pass laws on Federal matters.

99. Federal Constitution, art 80(1).

100. Immigration Act 1959/1963 (Act 155).

101. Federal Constitution, art 80(5).

* Professor, Faculty of Law, National University of Singapore.

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