I am an independent researcher on Declassified Documents and Constitutional Rights of the Borneo States of Sabah and Sarawak
Sarawak is both poor and underdeveloped as it emerged in 1946 after World War II, from a century of rule by the "White Rajahs" who, whilst enlightened in terms of social relationships, displayed chronic neglect of education and the rudimentary framework for development. There was no recorded budgetary expenditure on education prior to 1939. British Colonial rule did affect the considerable expansion of education, established a basic infrastructure, and instituted a measure of development planning. As of 1963, the educational budget absorbs nearly 15% of total Government expenditure. With the current conditions of education in Sarawak which was lacking on many sides in terms of performance and facilities needed, understanding of our rights must be taken into urgent consideration before we can take the necessary actions to rectify the issue and problems.
Therefore, Sarawak Government must take serious action to empower the State with proper legislative and jurisdiction authority over education in Sarawak. Here, Sabah and Sarawak Government and their representatives in Parliament must play a big role in participating and formulating policy of the new education as intended by the Federal Education Minister. During the new policy council meeting on education, the representatives of Sabah and Sarawak must insist on our rights in education as entailed in Paragraph 3 of the IGC Report which acknowledges that Education is one of the safeguards for the special interest of Sabah and Sarawak and also mentioned in Joint Public Statement Issued by the British and Malayan Governments on the 1st August 1962.
It is known that Education (Item 13) falls under Federal List set out in the Ninth Schedule of the Federal Constitution. Under Article 74(1) of the Federal Constitution, “Parliament may make laws with respect to any of the matters enumerated in the Federal List”. Therefore, the Federal Government is responsible for the standard and progress of education in Sarawak as a whole. Education under Federal List also means that the financial burden of education is the Federal Government's responsibility.
To give the effect of laws for the educational rights of Sarawak, the Parliament of Malaysia either through Dewan Rakyat (Act of Parliament), Dewan Negara (Act of Parliament) or Order of the Yang di-Pertuan Agong may make laws for the purpose of implementing educational rights of Sarawak as spelled out in the IGC Report. This can be done through Article 169(c) and Article 76(1)(c) of the Federal Constitution. Article 76(1)(c) expressed that, “Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say, (c) if so requested by the Legislative Assembly of any State.” By using Article 76(1)(c) read together with Article 169(c) of the Federal Constitution, the Legislative Assembly of Sarawak may pass a bill to request the Parliament to implement the agreed terms in Paragraph 17 (Education) and item 13 of Annex A in the IGC Report. Article 169(c), expressed that the IGC Report entered on 27th February 1963 (which is before Malaysia Day), shall be deemed to be a treaty between the Federation of Malaysia and the Borneo States of Sabah and Sarawak. Therefore, under Article 76(1)(c) read together with Article 169(c) of the Federal Constitution, the Legislative Assembly of Sarawak can request the Parliament to make laws for the purpose of implementing educational rights of Sarawak as provided in the IGC Report. The Parliament may create Education Act (Sarawak) to give effect to the agreed terms in Education as set out in the IGC Report.
Then, the Parliament can devolve the legislative rights on education to Sarawak through devolution settlement mechanism by order of the Yang di-Pertuan Agong as provided in Article 95C (Power by Order to extend legislative or executive powers of States) of the Federal Constitution. These provisions were added by Malaysia Act 1963 (No.26), section 38, in force from 16 September 1963. Article 95C provide the Yang di-Pertuan Agong may by order;
- Under Article 95C(1)(a) authorizing the Legislature of the State to make laws as mentioned in Article 76A
- Under Article 95C(1)(b) for extending the executive authority of the State, and the powers or duties of any authority of the State, as mentioned in Clause (4) of Article 80.
Order of the Yang di-Pertuan Agong under Article 95C(1)(a) will provide for the Parliament to authorize the Legislatures of the States or any of them, subject to such conditions or restrictions (if any) as Parliament may impose, to make laws with respect to the whole or any part of a matter enumerated in the Federal List. This means, Article 95C(1)(a) provides for the transfer of the Federal List into State List. This is simply a devolution of power from Federal laws into State laws. For example, when the State Government have enough competency to take over Education which is now under Federal List, by means of the order of the Yang di-Pertuan Agong under Article 95C(1)(a), the legislative jurisdiction over Education can be devolved from the Federal Government to the State Government. Article 95C(1)(a) provides a mechanism where the Ninth Schedule of the Federal Constitution can be modified by an Order of the Yang di-Pertuan Agong, subject to the agreement of both the Federal Government and State Government. The agreement between the governments concerned would mainly involve the funding mechanism, public services, etc. before the transfer of responsibility was done. Afterward, Article 95C(2) enables the amendment or to repeal an Act of Parliament passed after Malaysia Day, where that is considered necessary or expedient in connection with other provisions made by the order.
Procedurally, under Article 95C(5), the draft order of the Yang di-Pertuan Agong under this Article shall be laid before each House of Parliament before it can be implemented. The same procedure is required for extending the executive authority of the State, and the powers or duties of any authority of the State for any specified provisions of federal law being transferred into State law through Article 95C(1)(b).
This is how devolution settlements between the Federal Government and State Government should works in the Federation of Malaysia as the provisions to do so already incorporated as Article 95C of the Federal Constitution based on the Malaysia Agreement 1963. This is one of the mechanisms for devolution settlements on how the Federal Government and State Government can retain the flexibility to adjust the devolution of power settlement without recourse to primary legislation (Constitution amendment under Article 159).
The entanglement of Education which was under Federal List but subject to the provision and condition given in IGC Report need to be expressed constitutionally based on the various method as mentioned above. Most of the legislative function on Education might fall under the jurisdiction of the Federal Government but the devolution of power on some of the function derives from the Education rights of Sarawak in the agreed terms also must be observed properly to ensure that the special interest of Sarawak can be implemented by all of the governments' concern. This is to ensure that the legislative function of each Government on Education can be adjusted and settled in a better constitutional order without the need for litigation. There might arise some issue on which the legislative function may step into the categories of Federal List and State List, which is not beyond the capabilities of both governments to resolve. A further deliberation will then be needed on the borderline issue such as employment and financial responsibility, which actually has been provided in IGC Report and Malaysia Agreement 1963. A proper mechanism must be constructed to address this issue especially in terms of policy differences and competency of the Federal and State Government agencies in discharging their responsibility on certain functions related to Education. To this effect, it is preferable for the Federal Government to pass Education (Sarawak) Act to define the power reserved to Sarawak Government as set out in Malaysia Agreement 1963 and IGC Report.
The safeguards on Education that have been spelled out in the IGC Report are;
- Sections 36 and 37 of the Malayan Education Act, 1961, should not be applied to North Borneo and Sarawak.
- Federal law should not provide for special financial aid for the establishment of Muslim institutions or the instruction in the Muslim religion of persons professing that religion in respect of North Borneo and Sarawak without the concurrence of the State Government concerned;
- The Federal Constitution should be amended to secure that where federal law provides for special financial aid for Muslim institutions or Muslim religious education in pursuance of Article 12 (2) the Malaysian Government would grant to the North Borneo and Sarawak Governments proportionate amounts* for social welfare purposes in those States. Any grants paid out by the Malaysian Government from the proceeds of lotteries conducted by the Social and Welfare Services Lotteries Board would not be regarded as payment made from Federal revenue in this respect.
- Although Education (item 13 (a) of the Federal List in the Ninth Schedule) will be a federal subject, the present policy and system of administration of education in North Borneo and Sarawak (including their present Ordinances) should be undisturbed and remain under the control of the Government of the State until that Government otherwise agrees.
- The present policy in the Borneo States regarding the use of English should continue.
- Knowledge of the Malay language should not be required as a qualification for any educational opportunity until such time as the State Government concerned considers that sufficient provision has been made to teach Malay in all schools in the State.
- There should be no application to the Borneo States of any Federal requirements regarding religious education.
- State provisions for the special position of the indigenous peoples should continue to apply.
- The Directors of Education in the Borneo States, who would be officers serving in Federal posts and being responsible to the Federal Minister of Education through the Ministry of Education, should carry out much the same duties as they do at present in consultation with the State Government concerned.
- To enable local wishes to be fully consulted and taken into account as far as possible, the Directors of Education of the Borneo States should continue to be advised by the respective existing Boards of Education and the local Education Committee.
- In the case of Sarawak, the local authorities should continue to be used as agents for primary education.
- When the expansion of higher education facilities was being considered by the Malaysian Government the requirements of the Borneo States should be given special consideration and the desirability of locating some of the institutions in the Borneo States should be borne in mind.
- Item 13(a) of the Ninth Schedule; Elementary, secondary, and university education; vocational and technical education; training of teachers; registration and control of teachers, managers, and schools; promotion of special studies and research; scientific and literary societies; is Subject to the undertakings in paragraph 17 of the IGC Report.
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© 2021 Dr Zulfaqar Sa'adi