It’s highly unlikely that the Federal Court, bearing colonialism in mind, will rule that the Sabah 40 per cent claim lacks merit. This remains political issue which demands political decision. It’s not matter for court ruling!
Commentary and Analysis . . . If the Federal Court does not rule that there’s no proof that the judicial review application by the Sabah Law Society (SLS) wasn’t class action suit, there’s hope that the Sabah government and Federal government can discuss the 40 per cent annual revenue reimbursement claim. In the autonomous Acheh region in northern Sumatra, for example, the province gets back 70 per cent of the revenue collected by the Indonesian government.
If the Federal Court rules that SLS has no locus standi, it’s not the end of the matter for Sabah. The territory can’t put the cart before the horse. The people should, for starters, get rid of the parti parti Malaya from local politics.
If the court accepts that the SLS judicial review was class action suit and rules against the Sabah parties, it’s the end of the 40 per cent claim, at the risk of colonialism rearing its ugly head. The Federal government will point at the court ruling for denying the 40 per cent at the risk of all hell breaking loose.
It’s highly unlikely that the Federal Court, bearing colonialism in mind, will rule that the Sabah 40 per cent claim lacks merit. This remains political issue which demands political decision. It’s not matter for court ruling.
Sabah
The Sabah 40 per cent has been enshrined in article 112C and section 2 of Part IV in the Tenth Schedule of the Federal Constitution as per the Malaysia Agreement 1963 (MA’63). Sabah gets federal allocations from the annual National Budget and the five-year Malaysia Plans. The monies, however, are not controlled by the Sabah government. Sabah would control the 40 per cent monies, if received. That’s the sticking point with the Federal government which sees all states dependent on it.
Sabah being denied the 40 per cent confirms that the territory has been internally colonised i.e. there’s criminal accumulation of capital by transferring wealth, income, revenue, reserves and resources from those who have no power for those who have power.
Colonialism was outlawed after World War II. Nazism, Fascism, Apartheid — ketuanan (political supremacy and dominance) and caste system related — were outlawed as well.
The ultimate political documents in Malaysia for the rule of law are the Federation of Malaya Agreement 1948, the Federation of Malaya Independence Act 1957 and the MA’63, the last inserted in the Federal Constitution recently by de facto Law Minister Wan Junaidi Tuanku Jaafar. Wan Junaidi briefly became Senate President. He’s now Sarawak Governor.
Wan Junaidi’s predecessor as de facto Law Minister, V. K. Liew in Sabah, told the media that Attorney General (AG) Tommy Thomas cautioned him that “inserting MA’63 in the Federal Constitution risks creating legal complications”.
Colonialism
The Federal government has allegedly been non-compliant on MA’63. This remains form of internal colonisation ala colonialism i.e. the criminal accumulation of capital by transferring wealth, income, revenue, reserves and resources from those who have no power to those with power.
Sabah and Sarawak can consider that the United Nations Security Council (UNSC) was the approach taken by the people of South Sudan for independence. Sovereignty resides with the people.
The UNSC declared that South Sudan was internally colonised.
That paved the way for Referendum and Independence from Sudan.
Equal Partnership
Malaysia isn’t Federation but “Equal Partnership of North Borneo (now Greater Sabah including the Sabah claim of the nine Sulu sultanate heirs recognised by the High Court of Borneo in Sandakan in 1939 for compensation and no territorial claims), Sarawak and Malaya (with Singapore merged after Yes/No vote in 1962/1963).
Singapore exited Malaysia in 1965 after the last straw viz. being denied access to the Malaysian Common Market. Otherwise, Singapore was willing to live with the Administration in Kuala Lumpur. Malaya is Federation under the Definition in Article 160(2).
Breaches
The Equal Partnership has been observed in the breach since Malaysia Day on 16 September 1963 by successive Federal governments. Sabah’s long outstanding 40 per cent annual revenue reimbursement claim remains case in point. Sarawak, in strange contradiction in terms, has no similar written claim. Still, Sarawak reserves all its rights.
No legislation passed by Parliament was applicable in Sabah and Sarawak without the consent of the state Cabinet, state assembly and Governor. The consent must be gazetted, enforcement date stated, and published in the state government Gazette. These procedures have been observed in the breach since Malaysia Day on 16 September 1963.
There are two High Court in Borneo viz. High Court of Malaya, and High Court of Borneo (Sabah and Sarawak). They have separate but equal jurisdiction. No case in the High Court in Borneo can be transferred to the High Court in Malaya and vice versa.
Lawyers in Malaya, admitted to the High Court in Malaya, cannot practise in Sabah and Sarawak unless admitted by the High Court in Borneo.
There’s case law by Judge Ian Chin on “strong Sabah connections” viz. Sabah address in the MyKad, owning residential property in Sabah and registered as voter in Sabah.
In Sarawak, the High Court will determine “strong Sarawak connections” on case by case basis. Chief Justice (CJ) Tun Richard Malanjum from Sabah, for example, was admitted by the High Court in Kuching after he retired in 2019. The Advocates Association of Sarawak (AAS) could not object.
There are three AG in Malaysia i.e. in Putrajaya, Sabah and Sarawak.
The Prime Minister and the Home Minister has delegated by Administration, for the Chief Minister and State Secretary, certain immigration powers which cannot be exercised by the Federal government in Sabah and Sarawak. There have been complaints that these certain powers are not all in tact, having been circumvented by the Federal government, by administrative procedures.
Otherwise, immigration remains Federal power.
No state in Malaysia can have immigration powers.
Prerogative and discretionary powers, for example, do not exist if abuse of power can be proven. There’s no lacuna (gap) in local law on abuse of power. Raja Azlan Shah and, most recently, Asian Arbitration vs AG Tommy Thomas, refers as case laws. Immigration remains legal minefield in Sabah and Sarawak. There are widespread allegations on abuse of power. The High Court of Borneo allegedly looks the other way on jurisdiction.
Federal Partner
Lawyers differ over merits of Johor’s claim for “Federal partner” status when it’s settled question in law. Johor cannot be Equal Partner like Sabah and Sarawak.
Johor signed the Federation of Malaya Agreement 1948.
In Federation, power remains delineated at three levels viz.
Federal; state and local.
Johor and other states should, in fact, push for local government election which was suspended in 1965 and then abolished.
Local government remains about bottom up democracy as against the top down control freaks.
Most development in the Federation and Equal Partnership was local. So, taxes should be collected locally only. The local government can share with state government. The state government, likewise, can share with the Federal government.
Khalistan Uprising
The Khalistan uprising in Punjab, India, happened for example because New Delhi was encroaching into the power of the states in moves away from Federation and for unitary state like the UK. Hopefully, Johor isn’t another “Khalistan”in the making but this time in Malaysia.
The UK, meanwhile, has devolved political power away from the centre in London. Scotland, Wales, and Northern Ireland now have 1st Minister. England, having no 1st Minister, was represented by the Prime Minister.
Najib
We can recall that Prime Minister Datuk Seri Najib Tun Razak offered greater administrative powers by devolution, before GE14, for Sabah and Sarawak. He proposed the devolution by administration in areas where there was much duplication. Many Federal agencies in Sabah and Sarawak “co-exists” with similar state government agencies. The MM2H (Malaysia My 2nd Home), for example, faces challenges in Sabah and Sarawak from similar state government agencies.
The Cabinet in Sabah and Sarawak, likewise, also have portfolios which mirror the Federal Cabinet.
The Chief Minister in Sarawak was recently designated Premier. The 18 Points from Sarawak, attached with the MA’63 mentions Governor (Tuan Yang di Pertua Negeri) and Chief Minister.
In Sabah, the 20 Points mentions Prime Minister and Governor as Yang di Pertua Negara. The Sabah Chief Minister may soon be re-designated Prime Minister as in Singapore when it was in Malaysia. — NMH
Related Internal Links . . .
https://newmalaysiaherald.com/2024/06/19/anwar-ibrahim-may-find-no-acceptance-after-ge16
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia 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.
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