The Federation story that matters: Let’s get the facts right!

I may sound caustic in suggesting that Multi-Media University Law lecturer Hafiz Hassan ought to go back to the classroom, study Malaysian history and the constitution, and then publicly apologize to Sarawakians and Sabahans for a serious mistake he made in a remark through the media. His criticism was insufficient and it ignored the larger story that encompasses history, constitutionality, and political reality.

Just two days ago, the academic was cited in a New Straits Times article as stating that Sarawak and Sabah are not distinct "partners" that made up Malaysia, but rather states inside a federation. To put it another way, he compares Sarawak and Sabah's standing to that of the Malayan states.

He chooses to view Malaysia in relation to Sarawak and Sabah from a theoretical perspective that must have been lifted from a Western textbook, without much scrutiny and without knowing much of its little relevance to the Malaysian federation narrative.

Structural, constitutional mechanism

This regrettable dumbfounded stance reveals either his ignorance or indifference, as well as his inability to understand the structural and constitutional mechanism and the important regional partners that led to Malaysia's establishment.

The trajectory makes a statement that raises questions on the quality and depth of knowledge of the said academic and the wide-ranging ramifications it has on the roads ahead and students under his supervision.

Earlier, the academic was responding to calls for Sabah and Sarawak to form a united political bloc ahead of the next general election, and regarded it from his viewpoint as a misunderstanding of how a federation functions.

Tripartite alliance

At this point, the deliberation on the academic returning to the classroom to retake the history and constitution lessons starts. The lesson must be premised on understanding that the formation of the Federation of Malaysia on 16 September 1963 was the result of a tripartite alliance between the thirteen states of the former British Malaya, the Borneo states of Sabah (formerly North Borneo) and Sarawak, and the island of Singapore (which seceded from the federation in 1965).

The Malaysia Agreement 1963 (MA63) was the legal instrument that enshrined the alliance and set out the terms on which Sabah and Sarawak would be admitted to the federation, as well as the special provisions for the latter.

Under MA63, Sabah and Sarawak are recognized as "states" rather than merely "territories"; each was provided with its own package of constitutional guarantees, such as immigration control, greater fiscal autonomy, and the preservation of native customary rights, which are not present in the case of the peninsular states. The provisions are intended to take into account the special social, cultural, and economic circumstances of the Borneo regions and to ensure that the federation of these regions was not merely the annexation of the periphery.

MA 63 important benchmark

Nonetheless, the exact status of Sabah and Sarawak has long been an issue of debate. Some analysts have argued that the language used in the MA63 and subsequent constitutional changes has, over time, undermined the “equal partner” status that Sabah and Sarawak enjoyed at the time of federation formation.

They cite the 1976 amendment that changed the wording from "states" to "states and federal territories" in the Constitution's definition of the federation, and the various centralizing actions that have been deemed to erode the special autonomy that was originally conferred.

Against this background, when the Multimedia university professor avows that Sabah and Sarawak are “equal partners” with the peninsular states, such a claim could be viewed as problematic. This is because it is argued that such a claim glosses over the actual differences that were enshrined in the MA63 as well as the Constitution, which still define the relationship between Kuala Lumpur and the Bornean states.

Constitutional guarantees

It is argued that the differences must be acknowledged for a proper academic analysis to be made for the purpose of informing the debate on devolution and the restoration of the original constitutional guarantees enunciated in 1963.

At the same time, it must also be recognized that the Constitution today includes Sabah and Sarawak in the same list as the other thirteen states as “states of the Federation,” and that the Federal Government has, in the recent past, made various symbolic and legislative gestures to reaffirm the spirit of MA63.

The discourse, therefore, is based on the tension between the legal equality of all the 15 states and the substantive distinctions that have continued to play an important role in the history of Malaysia’s federalism.

The discourse must, therefore, in any academic work, make these distinctions between the legal terminology, the constitutional provisions, and the changing political realities that have governed the relationship between Sabah, Sarawak, and the other states in the Peninsula.