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

Published online by Cambridge University Press:  11 July 2017

Andrew HARDING
Andrew HARDING*
Affiliation:
National University of Singapore, Singapore lawajh@nus.edu.sg
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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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Asian Journal of Comparative Law , Volume 12 , Issue 2 , December 2017 , pp. 257 - 279
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© National University of Singapore, 2017 

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Footnotes

*

Professor, Faculty of Law, National University of Singapore.

References

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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.

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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)Google Scholar 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 Google Scholar.

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)Google Scholar.

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 Google Scholar.

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 CrossRefGoogle Scholar; 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)CrossRefGoogle Scholar 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 CrossRefGoogle Scholar.

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).