PH government should be duly acknowledged for their courage to amend the Federal Constitution

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Debate speech by YB Irene Chang on Motion to amend the Federal Constitution today at DUN sitting today:

1. INTRODUCTION

Tuan Speaker, I stand here today as 1) an elected representative to speak with conviction as my conscience and principles dictate; 2) as an anak Sarawak, born, bred and raise in this beautiful Land of the Hornbill and therefore I speak for the people of Sarawak; and 3) as a mother, speaking up for our future generations in Sarawak; and 4) as a lawyer and I hope to get this debate speech in the correct legal perspective. 

I do believe that most of us realised that the attempt to amend Article 1(2) of our Federal Constitution during the previous session of Parliamentary sitting was history in the making in itself. Whether it was done correctly, incorrectly, less than efficiently or hastily, or with political agenda or otherwise, credit should undeniably be given to the PH Federal Government for attempting the unenviable. I use the word, “unenviable” because, while the restoration of ours and Sabah’s status within Malaysia would please and appease our people, the rest of the 82% of our 34 million people residing on the other side of South China Sea might not be so enthusiastic. 

This is understandable for letting go of something which have been yours to keep for 56 years, is not going to be easy. And the restoration of our status would inevitably come with a restoration of our right to speak up with a louder voice, as an equal partner to this Federation. The PH government should therefore be duly acknowledged for their courage to walk the talk in attempting to give back to Sabah and Sarawak what was taken from us for the past 56 years. 

2. THE BILL

Tuan Speaker, I now refer to the bill which was tabled for the 1st Reading on 4th April 2019. This bill, as it was, strongly suggested that it was not sufficiently  thought through for the intended purpose to be achieved, namely, the restoration of equal partnership among Malaya, Sabah and Sarawak. But again, credit to the PH Government, in between the 1st Reading and the 2nd Reading, they listened to the voices of the MPs from both political divide and settled by rephrasing the wording of the Bill to that of the original wording as in the Constitution prior to the 1976 amendment. 

To me, that act should be taken in good faith to show the sincerity of the PH Government to achieve the common objective of putting right the mistakes of the past. 

With the reversion of the wording in the Bill to the original wording as aforesaid, the PH Government should not be faulted to expect that the bill would be passed with at least 2/3 majority in the House. But alas, that was not to be so. The deal fell through because of the insistence of the GPS Government to add in the 6 words, “Pursuant to Malaysia Agreement 1963” to the proposed amendment and the refusal by the PH government to simultaneously amend the definition of the word “Federation”.

Tuan Speaker, we are all Sarawakians and we should be on the same page to make history by making right all the previous mistakes which have caused our people to suffer for the past 56 years. And I believe this is the purpose of the two motions today. And the ministerial motion shows that we are indeed on the same page and I support the motion for the sake of Sarawak and the people. However, the issue is both governments have a different view on how it should be done. While the Federal Government wishes to restore the status first, the State Government presumably, based on what happened on 9th April 2019 in Parliament, wishes to do everything in one go as provided in i), ii) and iii) of the Motion.   

Tuan Speaker, it is my stand that I agree with the PH Government that the amendment of Article 1(2) should precede any other steps. A restoration of this status as spelt out in the Supreme law of the country, is necessary to provide each player, the right basis to their claim of equal status and in the negotiations for the return of autonomous rights thereafter. The claims to want a complete package of amendments to restore Sarawak rights can only come later and certainly not at this juncture. This was borne out by the words of the PM when he tabled the Bill at the 2nd Reading, that that was the 1st step to be followed by the necessary consequential amendments on issues raised or to be raised by the steering committee. And even so, it is foreseeable that it would be practically impossible to have a complete package in one go but rather that it would be a restoration by stages in accordance to priority of importance to both Sabah and Sarawak and the practical ability of the Federal Government and the Malayan States to accede. If we are to wait for the finalisation of all negotiations regarding the complete package, it might make take another 10, 20 years. Would our people be willing to wait that long, after already waiting for half a century? And furthermore, as in any new venture, the first step has to be taken to take the project off the ground. Once that is done, a direction would have been set on how to proceed with the rest.

Tuan Speaker, my stand above should not preclude zealously safeguarding and protecting what we already have in our hands by virtue of the Constitution – in other words, our legislative and executive powers, the sources of revenues and special grants assigned to us and our financial autonomy – all those need to be protected zealously. But we must set our status right first, for that would definitely give us a louder and bigger voice to negotiate for the rest that is already not in our hands. 

3. THE SPIRIT OF MALAYSIA AGREEMENT 1963

Now I move on to the spirit of Malaysia Agreement 1963. It is good and encouraging that all three players in Malaya, Sabah and Sarawak are on the same page that the spirit of Malaysia Agreement had accorded equal status to all three. And this shall be the platform on which the amendment to Article 1(2) and to all the other necessary consequential amendments should ideally be based on. But here, caution has to play an upper hand. It would be child’s play to demand a third of everything in the Federation without any heed for the rules and safeguards as contained in the Federal Constitution and the Malaysia Agreement together with the Cobbold Commission and the recommendations as found in the Inter-Governmental Committee Report. This is for the whole country to move forward together and to function well in peace and unity as a united federation as intended by all our forefathers when they agreed to join up in 1963. 

Therefore, the knowledge and legal backing of where we stand in the Constitution would give us equal bargaining power and equal voice to make decisions which is good for the running of the Federation as a whole. It would be done with a view to put things back in their right place and yet not encroaching into another’s space. We are to be mindful of order and discipline in our State and country but at the same time, we are not to bow down to power. This should always have been the stand from Day One since 56 years ago.  This has been an expensive lesson paid for by our people, not only in terms of dollars and cents but also in general development and growth of our society and state.    

I am sure it is with this in mind that some quarters in the PH Federal Government had, perhaps been a little bit too eager to push through the Bill without addressing their mind if the Bill would have achieved what was intended, ie the restoration of equal status and partnership.   

4. FEDERAL CONSTITUTION IS FACTUALLY AND HISTORICALLY WRONG

The ruling government owes the people of Sarawak an apology. Given that the spirit of Malaysia Agreement was an equal partnership, the ruling government since 1963 had failed to ensure that that was properly drafted into our Federal Constitution. Because even in the original wording of the Federal Constitution as at before the 1976 amendment, it had failed to clearly show that equal partnership. And even if we can imply the partnership by the separation of states by putting them into categories of a), b) and c), then the Borneo States of Sabah and Sarawak were one entity and certainly not 1 in 3. 

It is my personal stand therefore that the Bill as tabled on 9th April could have been drafted with more clarity in order that all parties would know where they stand after just one reading. A good Bill should be one which should leave no room for ambiguity and conjectures. Here, Tuan Speaker, I must differ slightly from my friends from this side of the House. 

With due respect to them, it is my view that if the proposed bill had been passed on 9th April, the matter (ie the status of Malaya, Sabah and Sarawak) might still not be put to rest. It would definitely have put us in a better position than we are now. But the question is whether that would have been sufficient for our people. And if we had taken that step, would another chance be given to us to further “upgrade” our status? Of course, we know that if the State Government changes hands, the possibility of that is high. 

Therefore, no matter what, the paramount issue in the amendment of Article 1(2) should somehow or the other, inject the spirit of MA into the FC. Therefore, if we think along that line, then maybe it is indeed more prudent to add in the words “Pursuant to Malaysia Agreement 1963” to the proposed amendment in order that there shall be no ambiguity whatsoever that the Article is to be construed along the spirit of MA 1963 and to leave no possible room of doubt of what is exactly our status within Malaysia. We do not want our children and children’s children to be still engaged in the same battle in years to come.

i) Explanatory Note

In Jimmy Seah Thian Heng v PP (2019) 7 MJL 308, it was held that explanatory notes do not form part of the Bill, are not endorsed by Parliament and cannot be amended by Parliament. They are intended to be neutral in political tone and they aim to explain the effect of the text and not to justify it. It is a construction aid to a statutory interpretation. Therefore, although the explanatory notes to the proposed Art 1(2) would have injected the spirit of Malaysia Agreement 1963 into the Federal Constitution, it was still not part of the Bill and if passed, not part of the FC. 

Therefore, I still say that it would be more prudent to include the 6 words into the main body of the proposed amendment especially if the word “Federation” in Article 160(2) is not amended. Without this insertion, the Federation as in Article 160(2) means the Federation formed pursuant to 1957 Constitution. The insertion would make Article 160(3) read subject to Article 1(2) because Art 1(2) has the words unless the context in other parts of the Constitution otherwise requires.  

ii) Proposed amendment of Art 160(2) on word “Federation”. 

This definition is a relic of the earlier constitution in 1957 and ideally it should have been amended along with Article 1(2) in 1963 when Sabah, Sarawak and Singapore came together with Malaya. That was not done obviously due to the fact that there are parts in the Fed Constitution which still need to refer to the Federation as formed under the Federation of Malaya 1957. 

On this point, I cite as an example is Article 3, where it is provided that Islam is the religion of the Federation. This Federation here obviously is the Federation as established under Federation of Malaya 1957. Because we all know, pursuant to the recommendations in the IGC Report, there is no official religion in Sarawak. And if my memory serves me correct, this issue was brought up by the Honourable member for Ba’Kelalan a few years ago and the Sarawak Government under the able leadership of the late CM, Tok Nan, had responded positively by taking off the official religion of Sarawak from Sarawak’s official website. 

So, you see, Tuan Speaker, I am sure there are many other provisions in the FC which still need to refer to the Federation as formed under the Federation of Malaya 1957. Therefore, it is my stand that the word, “Federation” as defined in Article 160(2) should not be amended by totally substituting one for the other. In fact, for the purpose of restoring the equal partnership status, as I have stated above, because of Article 160(3), we do not need an immediate amendment of the word of Federation if the words, “pursuant to MA 1963” can be agreed to be inserted in. 

However, if we should insist in amending “Federation” in Article 160(2), then may I suggest that the definition should be amended to as follows:  

that the word, “Federation” should be defined as one being established under the Federation of Malaya Agreement 1957 or under the Malaysia Agreement 1963, as the case may be or where the context otherwise requires.  

Tuan Speaker, obviously a lot of tidying up of the Federal Constitution is required but that should be left to another day. On behalf of the people, I urge both the State Government and Federal Government not to burn the bridges behind them but to put aside their political baggage and start afresh.