SLA ALLEGES BREACHES OF SABAH RIGHTS

By: JOE FERNANDEZ

The Sabah Law Association (SLA) has detailed numerous serious breaches of Sabah rights as enshrined in the federal constitution.

The Sabah rights were incorporated in the 20 Points. This is the basis on which the state along with neighbouring Sarawak (18 Points) participated in the formation of the Federation of Malaysia in 1963.

The breaches and anomalies were detailed during a power point presentation of a SLA paper over the weekend by its representative, peninsular Malaysia-born Sukumar Vanugopal, at a closed-door forum, 'Formation of Malaysia, a Promise Revisited, and the Way Forward'.

The presentation in Kota Kinabalu was the curtain-raiser to the first official celebration of Malaysia Day on Sept 16. It was organised by two NGOs, the Borneo Heritage Foundation (BHF) in association with the Common Interest Group Malaysia (CigMA).

The SLA paper did not cover the 18 Points of Sarawak but did stress that they were similar to the 20 Points of Sabah. It was pointed out as well that Sarawak too has suffered whatever breaches that have affected Sabah.

The presentation focused on three aspects of the 20 Points viz. those breached, the constitutional safeguards and the legal status. Elsewhere, it also focused on the legal status of both the Inter Governmental Committee Report and the 1963 Malaysia Agreement and whether the lost rights can be reinstated.

No evidence people at large were consulted

For starters, the validity of these breaches is questionable since there's no evidence that the people at large were consulted as required by way of a referendum, according to the SLA.
"The concurrence of the Yang Di Pertua Negeri (Governor) of Sabah was also not obtained as proven in a number of cases."

Another anomaly discovered by the SLA is that the Constitution of the Federation of Malaysia is not a completely new document, as it should have been in keeping with the letter and spirit of the 1963 Malaysia Agreement.

Instead, the old constitution of the defunct Federation of Malaya was used with some initial amendments and modifications.

Apparently, this ‘sacred document’ has since suffered several hundred amendments since 1963, leading the SLA to the only logical conclusion: the Constitution of the Federation of Malaysia is the Constitution of the Federation of Malaya after a series of numerous amendments based on nothing more than afterthoughts.

Kota Kinabalu lawyer and social activist Nilakrisna James, from the floor, confirmed that the federal constitution has been amended over 600 times during the last 50 years. She compared this dubious distinction with the 27-odd amendments of the US constitution during the last 200-odd years.

One of the most notorious breaches, the SLA notes, is Article 150 which empowers Parliament to amend any provision if such amendment is required by reason of emergency even if inconsistent with any state constitution and unimpeded by protections in Article 161E except that this power does not extend to matters relating to native law or custom, religion, citizenship or language in Sabah and Sarawak.

This was illustrated in the case of Stephen Kalong Ningkan Vs Government of Malaysia (1968) Malaysian Law Journal 119.

The illustrated case appears to be in line with the rejection of the Basic Structure Doctrine by Malaysian courts although the cases of Pang Chin Hock (1980) and Mark Koding (1982) respectively - Malaysian Law Journal 70 and 120 - against the public prosecutor were inconclusive.

(Basic Structure Doctrine, adopted from India, holds that certain sections of the constitution are so sacrosanct that they cannot be amended. Otherwise, the entire constitution will fall apart.)

Successful challenge against ouster clause

The invalidity of the breaches, according to the SLA, was proven in 2002 in the case of the Sabah State Authorities Vs Sugumar Balakrishnan. The latter mounted a successful challenge against the ouster clause removing judicial review of any decision of the state authority in cancelling the issuance of a work permit or work pass.

Sugumar is a Seremban-born teacher in Sabah who took up law in London under a Sabah Foundation scholarship. His permanent residence was cancelled by then Chief Minister, Yong Teck Lee. He was subsequently denied a work permit despite having numerous cases in hand.

The SLA also points at three other cases to illustrate the invalidity of the breaches, again based on the proviso that "the amending power of the Sabah state constitution should be with the people in the state (read referendum)".

The cases are Richard Yap Vs Mustapha (1968) Malaysian Law Journal 159; Jimmy Loh Huan Moh (1968) Malaysian Law Journal 94; and Datuk Haji Mohammad Tufail Bin Mahmud & Others Vs Dato Ting Check Sii (2009) Malaysian Law Journal 165. Tufail is a brother of Sarawak Chief Minister Abdul Taib Mahmud.

"The first of the numerous breaches were the constitutional safeguards on religion," said Sukumar. "While Islam is the religion of the federation, Sabah and Sarawak would have no state religion and neither would the King be the head of Islam or any religion in the two states."

These recommendations by the IGC Report, according to Sukumar, were breached in the case of Sabah in 1973 - Article 3(1) and 11(1) - and 1985 - Article 3(3) - respectively by amendments to the state constitution.

Likewise, the 20 Points recommended that the constitutional provisions relating to Islam should not apply to Sabah. This was also breached in 1976 when Article 161D was repealed and the propagation of other religions to Muslims proposed. It was the IGC recommendation, and enshrined in the federal constitution, that a two-thirds majority of the state assembly would be required for a ban.

Other breaches referred to financial aid for Muslim religious education and the prohibition against the Conference of Rulers extending religious acts to cover Sabah and Sarawak.

Among other numerous breaches, the significant ones covered the status of the English language in Malaysian Borneo, export of round logs, the Labour Ordinance, the inadequate compensation for acquisition of property as illustrated by the 5 percent oil royalty, and the special position of the indigenous races of Sabah and Sarawak.

The jury is still out among lawyers whether the lost Sabah rights (Sarawak's too) can be reinstated, according to the SLA.

The verdict from the floor of the forum, during question time, is that a change of the present federal government from the ruling Barisan Nasional (BN) to the opposition alliance Pakatan Rakyat (PR), is the minimum precondition to win back the lost Sabah and Sarawak rights.