I am an independent researcher on Declassified Documents and Constitutional Rights of the Borneo States of Sabah and Sarawak
It is important for us to understand the framer intention for each of the provisions in the Federal Constitution so that we can get a clear historical understanding of the wishes of our forefathers for the country when the new Federation of Malaysia was established.
In the case of the formation of Malaysia, the framer intention can be derived from various legal and historical records. One of them is the Report of the Inter-Governmental Committee, 1962 (IGC Report), which is one of the legal international agreement under the formation of the Federation of Malaysia.
The terms in the IGC Report has been entered into, on the 26th September 1962, when the Council Negri of Sarawak (now renamed Legislative Assembly of Sarawak) adopted a motion without dissent, among others, "welcomes the decision in principle of the British and Malayan Governments to establish Malaysia by the 31st August 1963, on the understanding that the special interests of Sarawak will be safeguarded". This motion was adopted following the Cobbold Commission Report which has been published as CMND 1794 on the 1st August 1962.
In the IGC, the representatives from Britain, Malaya, North Borneo, and Sarawak work out the future constitutional arrangements for the new Federation of Malaysia. A detailed future constitutional arrangements have been agreed in the IGC Report including safeguards for the special interests of North Borneo and Sarawak such as religious freedom, education, representation in the Federal Parliament, the position of the indigenous races, control of immigration, citizenship, and the State Constitutions.
Here, one of the special interests of Sarawak that needs safeguarding, once Sarawak becomes one of the States of Malaysia, is the State Constitution. The safeguard for the Constitution of the State of Sarawak has been constructed, on which, the Federal Government will give a guarantee in the Federal Constitution, that the sanctity of the State Constitution will be safeguarded, once Sarawak becomes one of the States of Malaysia.
The terms for the safeguard have been expressed in Paragraph 20(2) of the IGC with the heading "State Constitutions". It expressed that certain protection for Sarawak State Constitution will be annexed in the Federal Constitution. The full text of Paragraph 20(2) of the IGC Report expressed that;
“As regards, Article 71 (4), which enables the Federal Parliament to make provision for giving effect in a State to "the essential provisions" of a State Constitution set out in the Eighth Schedule or for removing from a State Constitution provisions inconsistent with the essential provisions, the question whether a State Constitution does not contain the essential provisions or contains provisions inconsistent with them should be one which is ultimately determinable by the Courts and not one depending solely on the opinion of the Federal Parliament.”
Here, as regards to Article 71(4) of the Federal Constitution, the term in Paragraph 20(2) of the IGC Report created a clause on which, if there is any dispute regarding the provisions in the State Constitution which is inconsistence with the Federal Constitution, the inconsistencies between them should be one which is ultimately "determinable by the Courts and not one depending solely on the opinion of the Federal Parliament".
Under the original provision of Article 71(4) of the Federal Constitution, the Parliament has the sole right to address the inconsistencies between the Federal constitution and State Constitution. This would leave the State Constitution helpless against any future amendment in Parliament over the Federal Constitution which will inadvertently affect and interfere with the State Constitution.
To guarantee the sanctity of the State Constitution, under the term provided in Paragraph 20(2) of the IGC Report, the Federal Government is not empowered to fancily change the Federal Constitution and then change the State Constitution of Sarawak at their whims. Only the Courts will have the power to do so. This term was created to ensure that there will be no inconsistency between the Federal Constitution and State Constitution, and at the same time, to safeguard the sanctity of the State Constitution of Sarawak.
Emphasized was given here, that the protection under the agreed terms in Paragraph 20(2) of the IGC Report expressed that, any changes and amendments in the Federal Constitution on which the Federal Government tries to impose on the State Constitution can only be determinable by the Courts.
The consistency between the Federal Constitution and Sarawak State Constitution is important to ensure that all of other provisions and safeguards for Sarawak are well defined and be legally implement throughout the formation of Malaysia. Besides, the State Constitution of Sarawak can work as a balance to ensure the Federal Constitution will not be changed easily, regardless of the interest of the people of Sarawak. As any changes in the Federal Constitution would certainly change the characteristics of Sarawak if we are not careful.
However, when we look at the current Article 71 and specifically Article 71(4) of the Federal Constitution, the protection mentioned in paragraph 20(2) of the IGC Report is nowhere to be found!
This means, without the protection of Paragraph 20(2) of the IGC Report, the Federal Government can activate the supposed-to-be a “Federal guarantee of State Constitutions” under Article 71(4) and empower Parliament itself to changes the provisions in the Federal Constitution that can inadvertently affect the State Constitution of Sarawak, at their whims and fancy.
Meaning, without the protection of Paragraph 20(2) of the IGC Report, the Federal Government can interfere with the State Constitution of Sarawak. This is what will happen to Sarawak without the expressed provision in the Federal Constitution to incorporate the agreed terms of paragraph 20(2).
We would like to ask, how could the current State Government of Sarawak and the Federal Government of Malaysia let this happen for the past 58 years?
This breached of IGC Report must be rectified immediately. It has been agreed in the IGC report itself, in paragraph 14, that;
“In certain respects, the Committee agreed that the requirements of the Borneo States could appropriately be met by undertakings or assurances to be given by the Government of the Federation of Malaya rather than by Constitutional provisions, and these are mentioned in the appropriate sections of this Report. The Committee agreed that the more important undertakings should be included in the formal agreement and envisaged that the other undertakings and assurances might be dealt with in exchanges of letters between the Governments concerned.”
Therefore, it is the responsibility of the Federation of Malaya to undertake constitutional provisions, undertakings, or assurances in the form of a formal agreement or at least in exchanges of letters between the Government of the Federation of Malaya and the Government of Sarawak, to ensure that the requirements of the Borneo States under paragraph 20(2) of IGC Report could appropriately be met.
It must be reminded again, that Sarawak Government welcomes the decision to establish Malaysia on the understanding that the special interests of Sarawak will be safeguarded, including the State Constitution. Without which, in this case, would be a betrayal to the supremacy of the Constitution of the State of Sarawak.
Watch the video below to learn more on the origin of the Constitution of the State of Sarawak
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2021 Dr Zulfaqar Sa'adi