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Hiding the Constitutional Identity of Malaysia

I am an independent researcher on Declassified Documents and Constitutional Rights of the Borneo States of Sabah and Sarawak

What is "Malaysia"?

What is "Malaysia"?

What is Malaysia?

It is 2021 and the people calling themselves Malaysian are still confused about the place they're living in. They can’t even answer a simple question. What is Malaysia?

To answer this question, we can try to find it in the Constitution (define as Federal Constitution and Constitution of the States in Act 388). After all, under Article 4(1) of the Federal Constitution, Constitution is the supreme law of the Federation. Therefore, according to Article 4(1) of the Federal Constitution (read together with Act 388), both the Federal Constitution and the Constitution of the State of Sarawak should be able to answer this question. Besides, the Federal Constitution and the Constitution of the State of Sarawak have been constructed based on the Inter-Governmental Committee (IGC) Report and Malaysia Agreement 1963. The definition and understanding of “what is Malaysia” by both of these documents should be consistent.

Now that we have established the legal documents that we need to refer to, let’s go into details and make a deliberation to understand “what is Malaysia?”

Let’s begin from 16th September 1963, when Malaysia was formed. The answer can be found in the original Article 1 of the Federal Constitution which has been inserted based on Section 4 of the Malaysia Agreement 1963 (in compliance with Section 3 and the First Schedule of the Malaysia Agreement 1963).

Based on the original and exact provisions (without any amendments) of Article 1 of the Federal Constitution with the heading expressed;

Name, States and territories of the Federation

(1) The Federation shall be known, in Malay and in English, by the name Malaysia.

(2) The States of the Federation shall be,

(a) the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Trengganu; and

(b) the Borneo States, namely, Sabah and Sarawak; and

(c) the State of Singapore.

(3) the territories of each of the States mentioned in Clause 2 are the territories comprised therein immediately before Malaysia Day.

The heading of Article 1 itself is self-explanatory which defines the Name, States, and territories of the Federation. So, whoever called themselves Malaysian must know the Name of the Federation, the States of the Federation, and the territories of the Federation. This information is what we need to start answering “what is Malaysia?”

Other than the name, States, and territories of the Federation, another important piece of constitutional information in Article 1 is the definition of “the Federation” and “Malaysia Day” as it will explicitly explain how the “the Federation” was formed and it will also explain the exact date that Malaysia comes into existence.


Name of the Federation

First, under Article 1(1) of the Federal Constitution, the Name of the Federation, in Malay and in English, is Malaysia. So, the Name of the Federation is Malaysia. Simple. However, there are inconsistencies here. The Federal Constitution is defining “the Federation” differently from the Constitution of the State of Sarawak.

This is how Federal Constitution defines “the Federation”. Based on Article 160(2) of the Federal Constitution, “the Federation” means the Federation established under the Federation of Malaya Agreement 1957.

On the contrary, this is how Sarawak State Constitution defines “the Federation”. Based on Section 3 (1) of Sarawak Interpretation Ordinance 2005, “Federation”, when used in relation to a time on or after Malaysia Day, means Malaysia or the Federation of Malaysia. Section 3(9) of Sarawak Interpretation Ordinance 2005, making the references more clear on the definition of "the Federation". It is expressed that "the Federation" in respect of time prior to Malaysia Day shall be construed as a reference to the Federation of Malaya. While reference to "the Federation" in respect of a time on or after Malaysia Day shall be construed as a reference to Malaysia.

Based on Article 4 of the Federal Constitution (read together with Act 388), the Federal Constitution and the State Constitution of Malaysia are the supreme law of the Federation. However, both definition of “the Federation” by the Federal Constitution and State Constitution was found to be inconsistent.

So, which definition of “the Federation” is supreme here?

Does “the Federation” of Malaysia define under Article 160(2) supreme or does “the Federation” under Section 3(1) and Section 3(9) of Sarawak Interpretation Ordinance 2005 is supreme?

Then, which one is “the Federation” of Malaysia?


The penultimate answer for “the Federation”

To answer this question, let’s look at Article 159A, with the heading ‘Operation of transitional provisions of Malaysia Act’. Malaysia Act here refers to Malaysia Act (No.26 of 1963), an Act of Parliament by the Federation of Malaya passed in August 1963 in compliance with Article II of Malaysia Agreement 1963. Article 159A expressed that ‘The provisions of Part IV of the Malaysia Act (which contains temporary and transitional provisions in connection with the operation of that Act) shall have effect as if embodied in this Constitution”. This means provisions in Part IV of the Malaysia Act have the same force of law as the Constitution.

Article 159A of the Federal constitution will lead us to Part IV of the Malaysia Act. Now, let us look at the provisions given in Part IV of the Malaysia Act. Look no further, Section 73(1) gives a sufficient answer to how to construct the definition for “the Federation” in the Federal Constitution. Section 73(1) of the Malaysia Act (Continuation and effect of present laws) expressed that,

“Subject to the following provisions of this Part of this Act and to any law passed or made on or after Malaysia Day, all present laws shall, on and after Malaysia Day, have effect according to their tenor, and be constructed as if this Act had not been passed:

Provided that references to the Federation (except in relation to a time before Malaysia Day) unless the context otherwise requires or it is otherwise expressly provided by any written law including any orders made under section 74, shall be construed as references to Malaysia, and expressions importing such a reference shall be construed accordingly.”

This means, all present laws, which is the colonial law in the former Colony of Sarawak still have the effect of law unless it is being provided that the references to “the Federation” shall be construed as references to Malaysia in the Federal Constitution. Therefore, a proper definition of “the Federation” on or after Malaysia Day is required to limits the effect of the present law (colonial law) in Sarawak.

If the definition for “the Federation” is not properly defined in the Federal constitution, Sarawak is still being governed under the present law of the British. Sarawak remains a British Colony. This is what it simply means.

Because the definition of “the Federation” in Article 1 is not being ‘construed as references to Malaysia’, on and after Malaysia Day, this means the British colonial laws remain in force in Sarawak.

Therefore, amending the definition of “the Federation” in Article 1 will require the proper usage of Article 159A (read together with Section 73(1) of the Malaysia Act).

It’s funny how they try to hide the meaning of “the Federation” until today.

Based on Article 159A of the Federal Constitution which give effect to Part IV of the Malaysia Act (No.26) as if embodied in the Constitution, section 73(1) of the Act provided that references to the Federation (except in relation to a time before Malaysia Day) in any written laws shall be construed as references to Malaysia, and expressions importing such a reference shall be construed accordingly.

As we can see here, any provision that gives reference to “the Federation” after Malaysia Day shall be construed accordingly.

Unfortunately, these transitional provisions to ensure that the references for “the Federation” in relation to a time before or after Malaysia Day was not inserted in the Federal Constitution.


States of the Federation

Under Article 1(2) of the original 1963 Federal Constitution, the States of the Federation of Malaysia was separated into 4 units. The States of the Federation are the States of Malaya, the Borneo States of Sabah and Sarawak, and the State of Singapore.

A specific example for what constitutes the States of the Federation can be seen in Article 113 (Conduct of elections), where there shall be a separate “unit of review” for the States of Malaya and for each of the Borneo States of Sabah and Sarawak and for the State of Singapore.


States of Malaya is the Federation of Malaya

In the original provision of the Federal Constitution as of 16th September 1963, Article 1 Clause 2(a) outline the component units of the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Trengganu.

Under Article I of Malaysia Agreement 1963, it has been expressed that “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 ".”

It is mentioned in Article I, that the Colonies of North Borneo and Sarawak and the State of Singapore federated with the existing States of the Federation of Malaya. The constitutional instrument, which is Section 4 of Malaysia Agreement 1963, showed that the existing Federation of Malaya has become one of the States of the new Federation of Malaysia, as the States of Malaya.

The clearer definition of the Federation of Malaya now become the States of Malaya and its component units can be confirmed in the Interpretation and General Clauses Ordinance 1948.

The Interpretation and General Clauses Ordinance 1948 expressed that the “States of the Federation” means the States of Johore, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, Terengganu, Malacca and Penang, and all dependencies, islands and places which on Merdeka Day were administered as part thereof, and the territorial waters adjacent thereto.

Here, the Interpretation and General Clauses Ordinance 1948 expressed that “Federation” means the Federation established in accordance with the Federation of Malaya Agreement 1957. The Interpretation and General Clauses Ordinance 1948 also expressed that “Merdeka day” means the thirty-first day of August 1957.

The definition is given in the Interpretation and General Clauses Ordinance 1948 was in confirmation with the original provision and Article of the Constitution of the Federation of Malaya 1957.

On 16th September 1963, the Federation of Malaya federated with Sabah, Sarawak, and Singapore to form the new Federation of Malaysia. The new introduction in Article 1 Clause 2(a) compare to the Interpretation and General Clauses Ordinance 1948, is that the component units of the States of Malaya have been arranged by alphabetical order.

However, after the separation of Singapore in 1965, the Interpretation and General Clauses Ordinance 1948 was revised and repealed by the Interpretation Act 1967 with effect from 18 May 1967. The revised Act is cited as the Interpretation Acts 1948 and 1967.

In the new Interpretation Acts 1948 and 1967, the definition for “Federation” has been replaced simply with “Federation” means Malaysia. The clear definition for “Federation” that was established in accordance with the Federation of Malaya Agreement 1957 has been repeal. Based on Article 159A of the Federal Constitution which give effect to Part IV of the Malaysia Act (No.26) as if embodied in the Constitution, section 73(1) of the Act provided that references to the Federation (except in relation to a time before Malaysia Day) in any written laws shall be construed as references to Malaysia, and expressions importing such a reference shall be construed accordingly.

However, the new provision does not explain either the new definition of “Federation” is referring to which written agreement. The question is, does the “Federation” define in the new Interpretation Acts 1948 and 1967, give the meaning to the “Federation” establish in accordance with the Federation of Malaya Agreement 1957, or the “Federation” establish in accordance with Malaysia Agreement 1963?

This is in breach of Article 159A of the Federal Constitution which gives effect to Part IV of the Malaysia Act (No.26) as if embodied in the Constitution, section 73(1) of the Act provided that references to the Federation (except in relation to a time before Malaysia Day) in any written laws shall be construed as references to Malaysia, and expressions importing such a reference shall be construed accordingly.

The real identity of the “Federation” to simply means Malaysia in the new Interpretation Acts 1948 and 1967, was made on purpose to hide the real identity of the “Federation” of Malaysia that should be construed accordingly on and after Malaysia Day.

In the new Interpretation Acts 1948 and 1967, a similar revised provision for “Merdeka Day” means 31 August 1957 was found with a slight amendment on the wordings. However, there is no definition of “Malaysia Day” given. This is again, in breach of Article 159A of the Federal Constitution which gives effect to Part IV of the Malaysia Act (No.26) as if embodied in the Constitution, section 73(1) of the Act provided that references to the Federation (except in relation to a time before Malaysia Day) in any written laws shall be construed as references to Malaysia, and expressions importing such a reference shall be construed accordingly.

In the new Interpretation Acts 1948 and 1967, the definition for the “States of the Federation” has been replaced with completely new wording, “Peninsular Malaysia”. The new definition given is “Peninsular Malaysia” means the States of Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Terengganu and the Federal Territory of Kuala Lumpur. This definition is questionable as there is no such thing as “Peninsular Malaysia” in the Federal Constitution. Therefore, this definition has no force of law at all.

In the new Interpretation Acts 1948 and 1967, “State” has been simply defined as “State” means a State of Malaysia. Compare with the previous provision which defines “State” or “State of the Federation” means such one of the States of the Federation as the circumstances may require. Here, the wordings “Federation” was removed for the purpose of hiding the definition of “the Federation” so as not to comply with Article 159A of the Federal Constitution which gives effect to Part IV of the Malaysia Act (No.26) as if embodied in the Constitution, section 73(1) of the Act provided that references to the Federation (except in relation to a time before Malaysia Day) in any written laws shall be construed as references to Malaysia, and expressions importing such a reference shall be construed accordingly.

The meaning of “Federation” of “the Federation” must be construed accordingly based on Article 159A of the Federal Constitution. They can change, repeal and hide the meaning of it, in the new Interpretation Acts 1948 and 1967 or Federal Constitution. Or they can try to change it in the Malaysia Act 1963 (No.26) if they dare. But, they will never be able to change was has been written in Malaysia Agreement 1963, section 71, which spelled that “The provisions of Part IV of the Malaysia Act, 1963 (which contains the operation of temporary and transitional provisions in connection with the operation of that Act) shall have effect as if embodied in this Constitution, and shall have effect notwithstanding anything in this Constitution as amended by that Act; and the provisions of this Constitution, and in particular Clause (1) of Article 4 and Articles 159, 161E and 16lH, shall have effect in relation thereto accordingly.”

Now, where else do you want to hide?

Unfortunately, these transitional provisions to ensure that the references for “the Federation” in relation to a time before or after Malaysia Day was not inserted in the Federal Constitution.

This is what causes confusion for the public regarding the interpretation of “the Federation”. Right now, the people of the States of Malaya and the people of Borneo States of Sabah and Sarawak define “the Federation” differently, due to this intentional constitutional neglect.

It is the relation on which the States was expressed in the Federal Constitution and Malaysia Agreement 1963 that is important here. If the term for States was constitutionally expressed in relation to “the Federation” before Malaysia Day, it refers to the Federation of Malaya. If the term for States was constitutionally expressed in relation with “the Federation” after Malaysia Day, it refers to the States of Malaya, Borneo States of Sabah and Sarawak, and the State of Singapore. This is how we read the Constitution. The specificity of the term must be observed.


Territories of the Federation

Third, under the original Article 1(3) of the Federal Constitution 1963, “The territories of each States in Clause (2) are the territories comprised therein immediately before Malaysia Day.”

Here, the territories of the Federation are comprising of the territories of the States of Malaya, State of Sabah, State of Sarawak, and the State of Singapore which already exists before Malaysia Day. There are four territories.

The territory of the States of Malaya is defined in Act 388 as “States of the Federation” which means the States of Johore, Kedah, Kelantan, Negeri Sembilan, Pahang, Perak, Perlis, Selangor, Terengganu, Malacca and Penang, and all dependencies, islands and places which on Merdeka Day were administered as part thereof, and the territorial waters adjacent thereto.

The territory of Sabah is defined in the North Borneo (Alteration of Boundaries) Order in Council 1954. The territory of Sarawak is defined in the Sarawak (Alteration of Boundaries) Order in Council, 1954. It is made clear under Section 3(1) of the Sarawak Interpretation Ordinance 2005, where the “territory of the State” means all areas within the boundaries of the State which comprised the territory of Sarawak immediately before Malaysia Day, and includes, by virtue of the Sarawak (Alteration of Boundaries) Order in Council, 1954 [Vol.VI, p. 1025], the continental shelf being the seabed and its subsoil which lies beneath the high seas contiguous to the territorial waters of Sarawak.

The territory of Singapore is defined in Singapore Interpretation Act as “Singapore” means the Republic of Singapore and shall be deemed to include the Island of Singapore and all islands and places which on 2nd June 1959 were administered as part of Singapore and all territorial waters adjacent thereto.


Malaysia Day
However, there are also inconsistencies in Article 1(3) on the definition of “Malaysia Day” to define the territories of the Federation. Malaysia Day was not defined in Federal Constitution and federal laws. This means that the Federal Constitution never give the effect of law under Malaysia Act for Malaysia to come into operation on 16th September 1963.

On the contrary, section 3(1) of Sarawak Interpretation Ordinance 2005 specifically expressed that “Malaysia Day” means 16th September 1963. Meaning, Sarawak State Constitution recognized that Malaysia come into operation on 16th September 1963 and with it, the coming into effect of the operation of the law of Malaysia Act 1963 (No.26) and Malaysia Agreement 1963.

If the Federal Constitution doesn’t recognize “Malaysia Day”, this means it is intentionally doesn’t want Malaysia Act 1963 (No.26) to come into operation. Consequently, the present laws, the British colonial laws remain in force in Sabah and Sarawak. The question now, since the present law, British colonial laws remain in force in Sabah and Sarawak, are we British colonies?


Conclusion

So what is the final answer for the question “What is Malaysia”?

Article 1 of the Federal Constitution has failed to address the Name, States, and territories of the Federation properly as the agreed terms provided in the Malaysia Agreement 1963 to make a proper reference to “the Federation” and “Malaysia Day” was purposely missing in the Federal Constitution, unlike the Constitution of the States of Sabah and Sarawak.

The matter worsened when in 1976 when Article 1 was further amended in breach of Article 159(4)(bb) and Article 161E(1) of the Federal Constitution. At this point, every person calling themselves Malaysians will answer the question of “What is Malaysia” differently. It is truly a messed-up situation. Fortunately, if we want to answer this question properly, look no further. The constant is there; Malaysia Agreement 1963.

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