Pairin, if Sabah Governor, can take a leaf from sultan, and be dubbed Huguan Siou — Paramount Chief — as well, but non-Orang Asal should also be eligible by Convention, if not by the rule of law!
The ongoing Debate in cyberspace, sparked inadvertently by Joseph Pairin Kitingan’s supporters on the Governor of Sabah, and Sarawak as well, has somewhat degenerated into rhetoric and polemics between lawyers and non-lawyers on only one issue . . . the appointment of the regional head of state based on the unwritten discretion of the heads of governments in Sabah, Sarawak, and Malaysia and the Agong as head of state.
Discretion may be a double-edged sword. If it can be used to appoint a Muslim as Governor, it can also cover non-Muslim as Governor.
The Orang Asal have a right to be head of state in their own land. In Adat, customary practices which have force of law, only those who have NCR (native customary rights) land, i.e. ancestral and historical property rights, are Orang Asal. Article 5 (right to life) and Article 13 (property rights) refer.
In law, and on ethical and moral grounds, the Agong cannot delegate his role and functions as spiritual head of the local ummah to the Governors in Sabah, Sarawak, Penang and Malacca. Any such delegation would be a violation of the rule of law, the basis of the Constitution. Spiritual power and temporal power — i.e. worldly power — are not one and the same.
In Malaysia, there’s separation of Church and State in the Constitution, Federal and state.
There can be no law against non-Muslim being Governor in the non-sultanates and there can be no law making Muslim Governor mandatory. In fact, as during British days, sultan should not be head of state as well, but confine themselves to the original role recognised by Arab and Islamic history and the English Monarch.
Pairin Proposed To Be New Governor
Former Sabah Chief Minister (1985 to 1994) Joseph Pairin Kitingan has been proposed unanimously by the court of public opinion — it’s all about cases in court or what should be there — and the social media and various political personalities as the next Governor of the Territory.
In Sarawak, former Federal Minister Leo Moggie Anak Irok and local traditional strongman Leonard Linggi Jugah, have both been mentioned as possible candidates for the Governorship. Linggi is the son of Paramount Chief Temenggong Jugah Anak Barieng who, in hindsight, threw cold water on Malaysia in 1963 but went along anyway. He cautioned that Malaysia would probably turn out to be like sugar cane, “sweet in the beginning, less sweet towards the end” . . . Jangan Malaysia seperti tebu, manis di pangkal, tawar di hujung.
It may be politically inadvisable, and incorrect, if non-Muslim continue to be denied the Governor’s post after so much water has passed under the Bridge since Malaysia Day on 16 Sept 1963 i.e. after more than half a century.
It’s unlawful to literally force a non-Muslim to become Muslim to be Governor. It happened in the case of Donald Stephens in Sabah and Luis Barieng in Sarawak. The argument has been made that a non-Muslim can convert to become Governor, although there’s no law on it, and return to the original religion after leaving office. That’s hypocrisy of the highest order. The talk in Sarawak is that Luis Barieng remained a staunch Roman Catholic all his life. It’s said that he used to go to the garden house far from his home in the village to recite the Holy Rosary of the Blessed Virgin Mary in solitude.
After Stephen Kalong Ningkan was ousted in 1966 as Chief Minister, under Emergency Declaration, no non-Muslim except for Penghulu Tawi Sli briefly, has been Chief Minister. In fact, the people have lost their sovereignty under international law, as the Sarawak government remains unchanged since Ningkan and Tawi Sli. In adding insult to injury, in the absence of runoffs, the majority of election results in Sarawak have never been perfected in law. Many candidates were declared winners although they came in with less than 51 per cent of the votes counted. Unlike in the United Kingdom for example, the First Past the Post System (FPtPS) fell on undemocratic soil in Sarawak, Malaysia and Singapore since elections in these Territories have generally not been on a one to one basis.
In Sabah, no non-Muslim has been Chief Minister since Pairin was ousted in 1994 by three defections to the other side. It was engineered by Chinese money bags (names withheld) in Sarawak and Labuan, within about a month after the territorial election in Feb 1994, in cahoots with Mahathir Mohamad and Anwar Ibrahim.
The religion of the holder has nothing to do with various public posts in Malaysia . . . Attorney General of Malaysia, Chief Justice, Chief Judge of Sabah and Sarawak, Attorney General of Sabah, Attorney General of Sarawak, Prime Minister, Chief Minister of Sabah, Premier of Sarawak and Agong i.e. if elected by the people.
It has been argued that the Prime Minister will not advise the Agong that non-Muslim be appointed as Governor of Sabah or Sarawak. It’s widely believed that the Agong will not appoint non-Muslim as head of state in the Borneo Territories. In law, that’s not true. Again, the Agong is the spiritual head of Islam for the local ummah in Malaysian Borneo, Penang and Malacca.
The Agong, as sultan, is the spiritual head of the local ummah in his sultanate but not in Malaysia. The other sultan are the spiritual head of the local ummah but only in their own sultanate.
During the British Administration of Malaya, the sultan was recognised by the English Monarch as the spiritual head of the local ummah, presiding also over Malay language, culture, customs and traditions. Interestingly, Article 160(2) of the Constitution contradicts itself on Malay. The 1st Prong implies the local ummah. The 2nd Prong, the greater clause which must be read together with the 1st Prong to issue Malay MyKad, implies Malay as “form of identity”. There’s case law on this . . . Read Petmal Oil (Malaysia) Sdn Bhd v. Che Mariah Mohd Tahir (Trading As Delta Mec Enterprise)  3 CLJ 638. Mahathir, for example is Malay by form of identity, but Indian (Malayalee) by language and culture. In jurisprudence and constitutional law, the Constitution of a nation-state is colour-blind.
Besides the English Monarch, there’s no proof that any other head of state — whether non-Muslim or Muslim — recognised the sultan in Malaya. The British controlled defence, internal security and foreign affairs as well besides Internal Administration.
It was the British who stopped toll collection along the main waterways in Malaya and created the sultanate as territorial states. The British could not comprehend a situation where the Ruler did not have Territory to rule. The sultanate, before the British intervention in Malaya, were kerajaan sungai — riverine “kingdoms” — confined to collecting toll at the rivermouth of main waterways. The British compensated the newly-elevated sultan with annual purses after toll collection was abolished by them and roads and rail built.
In digressing a little, the Attorney General should cite the rivermouth kingdoms in Malaya, before European Arbitration, to demolish territorial claims by the Sulu Heirs. European Arbitrators, like the British colonialists, probably cannot envisage a situation where a Ruler does not rule over Territory. In 1939, the High Court of Borneo in Sandakan dismissed territorial and sovereignty claims by nine heirs of the last Sultan of Sulu. The High Court recognised compensation claims, 5300K Spanish dollars every year, for loss of toll collection along the main waterways along the eastern seaboard. The 1939 Ruling was based on the 1878 Deed between the Sulu Sultan and the British North Borneo Standard Chartered Company (BNBSCC). The BNBSCC had a Charter from the English Monarch to rule North Borneo on his/her behalf.
The Parliamentary Oath is proof that non-Muslim can be Sabah Governor and Sarawak Governor. Besides the Constitution, there’s no reason why the Oath cannot be taken on any other document or even one’s own Mother, provided it’s about upholding the rule of law. In the UK for example, the Oath need not be taken on the Holy Bible. There’s no written/codified Constitution in the United Kingdom of Great Britain and Northern Ireland.
It cannot be said that the Governor, whether in Borneo or Malaya, is the spiritual head of the local ummah. Again, it’s only the sultan that plays that role and function in Islamic and Arab history.
The Oath in the legislature is about upholding the rule of law, the basis of the Constitution. It’s a bundle of contradictions if the Sabah Oath taken by the Governor mentions defending Islam and the rule of law in the same breath.
Islam does not accept the rule of law, freedom of conscience, free speech, free thought, free association, free assembly, free press, free women, human rights, and the universality and commonality of citizenship. The list goes on and on.
Law cannot be read in isolation but must be read together in conjunction with many other Articles, written, implied, inherent or permeating through the Constitution, Federal and Territorial.
In the rule of law, no one is above the law, all are equal under the law, there can be no discrimination, and where there are rights, there must be remedies.
Spirit of the Law
In the rule of law, there’s greater emphasis on the spirit of the law, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all. It’s dictatorship. There’s no democracy, no legitimacy. The letter of the law, by itself, is rule BY Man, the law of the jungle as in China where anything goes. In China, under rule BY law, they make up things as they go along.
Discretion as Excuse
Discretion, on the part of the Chief Minister, Prime Minister and Agong, should not be used to prevent Joseph Pairin Kitingan from being the next Governor of Sabah. Again, in reiterating, the same discretion can be cited in appointing him.
Discretion isn’t law. The court has no jurisdiction on discretion i.e. it’s not a matter for judicial consideration and resolution.
The court of law is only about law.
Under the Malaysia Agreement 1963 (MA’63), 20 Points (Sabah) and 18 Points), Sabah and Sarawak have no religion.
Batu Sumpah, the constitutional document in stone, in Keningau, Sabah, also says that Sabah has no religion.
Muslim always being Governor of Sabah and Sarawak isn’t Convention — the working of the Constitution — but an aberration in law.
The Governors of Sabah and Sarawak before Malaysia Day, 16 Sept 1963, were non-Muslim. – NMH
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He is not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
The points expressed in this article are that of the writer and do not necessarily reflect the stand of NMH.
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the South China Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.