I am an independent researcher on Declassified Documents and Constitutional Rights of the Borneo States of Sabah and Sarawak
The doctrine of “basic structure” in Malaysia
The legislative rights between the Federal and State government in Malaysia, especially by the Borneo States of Sabah and Sarawak has become one of the hot issues in recent years. To unravel this peculiar issue, we need to understand the basic structure doctrine and enumerated power doctrine as we read the provisions given in the Constitution of Malaysia. So that, we can unravel how the separation of power between the Federal and State government are being practiced in the context of Malaysia.
The Federation of Malaysia practices parliamentary democracy with a constitutional monarchy, being model upon the Westminster model, which is based on the system of parliamentary democracy. There are at least three essential elements that form the basic structure of the Constitution of Malaysia, based on the Westminster model, which is legislative, executive, and judicial power. This basic concept of separation of power is similar to the Westminster model, as the Constitution of Malaysia had been developed based on the unwritten constitution of the United Kingdom.
However, it must be noted that depending on the peculiarities of the particular constitutional document, there may be other elements that may form part of the basic structure of the Constitution of Malaysia. For example, among others, in the context of the Constitution of Malaysia, other elements that form part and parcel of the constitutional identity are the constitutional monarchy, delegated power doctrine, and the trusteeship system that formed part and parcel for the decolonization process of the Borneo States of Sabah and Sarawak through the formation of Malaysia.
These other elements that form the basic structure of the Constitution of Malaysia were first pronounced and accepted by the Malaysian judiciary in the case of Sivarasa Rasiah. Gopal Sri Ram FCJ. The Federal Court in delivering their unanimous decision said:
“... it is clear from the way in which the Federal Constitution is constructed there are certain features that constitute its basic fabric. Unless sanctioned by the Constitution itself, any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional. Whether a particular feature is part of the basic structure must be worked out on a case-by-case basis. Suffice to say that the rights guaranteed by Part II which are enforceable in the courts form part of the basic structure of the Federal Constitution. See Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.”
Another unanimous decision by the Federal Court in Semenyih Jaya, as delivered by Justice Zainun Ali, summarised that the basic structure doctrine applies to the Federal Constitution of Malaysia.
Therefore, any constitutional amendment that abrogated or removes the basic structure of the Federal Constitution cannot be simply done away with by Parliament.
The "basic structure" of Malaysia in Article 161E
One of the important provisions in the Federal Constitution is that outline the basic structure of Malaysia can be found in Article 161E.
Before we go directly to Article 161E, first, let us look at Article 159(1) of the Federal Constitution. It expressed that, "Subject to the following provisions of this Article and to Article 161E, the provisions of this Constitution may be amended by federal law." The words “and to Articles 161E…” were inserted after “this Article” comes from the Sixth Schedule (Minor And Consequential Amendments Of Constitution) of Malaysia Agreement 1963. In the Sixth Schedule of Malaysia Agreement 1963, the provision of the Constitution in Article 159 will be amended as follow, in Clause (1) after the word "Article" there shall be inserted the words "and to Articles 161E…"; and in Clause (4) there shall be inserted at the beginning of paragraph (bb) the words "subject to Article 161E". These particular terms in the Sixth Schedule of the Malaysia Agreement 1963, have been inserted into the new Federal Constitution of Malaysia in 1963, through Malaysia Act No.26 of 1963, section 70, in force from 16 September 1963. Therefore, if there is an amendment to the Federal Constitution going to be made, it must first consider Article 161E.
Now, let us go and take a look at Article 159(4)(bb). This provision expressed that, "The following amendments are excepted from the provisions of Clause (3), that is to say, subject to Article 161E, any amendment made for or in connection with the admission of any State to the Federation or its association with the States thereof, or any modification made as to the application of this Constitution to a State previously so admitted or associated;". The words “subject to Article 161E”, comes from Section 66 of Malaysia Agreement 1963, which spelled the safeguards for constitutional position of Borneo States and has been inserted through Malaysia Act No.26 of 1963, section 70, in force from 16 September 1963.
Again, it is being expressed here in Article 159(4)(bb), that certain amendments on the Federal Constitution must consider Article 161E. The difference between Article 159(1) and Article 159(4)(bb), is that Article 159(4)(bb) gives us a gist on what kind of amendment on the Federal Constitution needs to consider Article 161E. Article 159 Clause 4(bb) dictates that any amendment that changes anything in connection with the admission of any State to the Federation and how each of the State being associated with other State in the Federation is excepted from two-third majority amendment of the Federal Constitution. For example, how the State of Johor being admitted into the Federation and her association with the State of Terangganu, State of Perlis and other States cannot be simply changed by a two-thirds majority in Dewan Rakyat and Dewan Negara. It is excerpted from the two-thirds majority amendment of the Federal Constitution.
Both Article 159(1) and Article 159(4)(bb) bring us to Article 161E.
Now, let us look at Article 161E(1) of the Federal Constitution. The Article expressed that,
"As from the passing of the Malaysia Act, no amendment to the Constitution made in connection with the admission to the Federation of the State of Sabah or Sarawak shall be excepted from Clause (3) of Article 159 by paragraph (bb) of Clause (4) of that Article; nor shall any modification made as to the application of the Constitution to the State of Sabah or Sarawak be so excepted unless the modification is such as to equate or assimilate the position of that State under the Constitution to the position of the States of Malaya."
What it means here is that, specifically, no amendment can be made on Article 1(2) of the Federal Constitution, which forms the basic structure of the Federation of Malaysia as a Federation of States. In the case of the Borneo States of Sabah and Sarawak, unlike the eleven component unit of the States of Malaya, Article 1(2) in relation with the Borneo States is not just being excepted by a two-third majority. It is even being forbidden, no amendment can be made on Article 1(2) of the Federal Constitution in relation to the Borneo States of Sabah and Sarawak.
No amendment can be made, as any amendment of this particular Article 1(2) will affect the connection on how the State of Sabah and Sarawak was admitted to the new Federation of Malaysia and its association with other States. Any amendment will defeat the basic structure of Malaysia.
The characteristic and the process of the admission of the State of Sabah and Sarawak as outline in the original Article 1 Clause (2) was made based on Malaysia Agreement 1963, and it is cannot be altered in any way. The association between the States of Malaya, Borneo States of Sabah and Sarawak, and the State of Singapore as the component unit of the Federation of Malaysia cannot be changed.
It must be provided that the component unit of the States of the new Federation of Malaysia is the States of Malaya, Borneo States of Sabah, and Sarawak, and the State of Singapore, as agreed in the Malaysia Agreement 1963. This is one of the basic structures of Malaysia. Meanwhile, the eleven other States of the Federation of Malaya 1957 is the component unit of the States of Malaya. The Borneo States of Sabah and Sarawak cannot be put together as the eleven component unit of the States of Malaya. The Borneo States of Sabah and Sarawak can only be made on par with the whole States of Malaya, not as a mere component unit of the States of Malaya.
Even with the support on Second and Third Readings by the votes of not less than two-thirds of the total number of members of that House of Parliament, no amendment of Article 1 Clause (2) can ever be made. Even with the consent of the Sarawak and Sarawak Legislative Assembly, Article 1(2) is excepted from any amendment of the Constitution.
Enumerated power doctrine
As a country that was founded in the form of federalism, one of the basic structures of the Federal Constitution is the “enumerated power doctrine”. The "enumerated power doctrine" means our legislative power was enumerated from the Constitution. Federal power comes from Constitution and State power comes from Constitution as well.
Specifically, Article 74(1) expressed the power of Parliament, “Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).”
On the other hand, specifically, Article 74(2) expressed the power of Legislature of a State, “Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.”
Here, under Article 74(1) and Article 74(2) of the Federal Constitution, it is clear that the power to make laws by the Parliament and the Legislature of a State, respectively, is enumerated from the Ninth Schedule of the Federal Constitution.
Therefore, the legislative rights of the Federal Government and the State Government in Malaysia can be found as listed in the Ninth Schedule of the Federal Constitution.
Although it is clear that enumerated power doctrine can be specified in the Ninth Schedule of the Federal Constitution, a lot of people are neglected on the limiting power of the Ninth Schedule. Here, we must look at another provision in Article 74, specifically, Article 74(3) of the Federal Constitution. It expressed that,
“The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.”
This means the Ninth Schedule is subject to other particular provisions of the Constitution. One of such conditions is spelled under Article 77 of the Federal Constitution (Residual power of legislation). It expressed that,
“The Legislature of a State shall have power to make laws with respect to any matter not enumerated in any of the Lists set out in the Ninth Schedule, not being a matter in respect of which Parliament has the power to make laws."
This means any item that is not listed in the Ninth Schedule belongs to the Legislature of a State, not Parliament.
© 2021 Dr Zulfaqar Sa'adi