If laws of Sabah and Sarawak passed or made before Malaysia Day are State laws, they are subject to Article 75 of Federal Constitution — Hafiz Hassan

SEPTEMBER 14 — On the eve of Malaysia Day ten years ago, the much-respected constitutional law expert, Prof Dr Shad Saleem Faruqi wrote as follows:

“As we commemorate Malaysia Day, it is important to look back at the mileposts that led to this historic accord between the British and Malayan Governments and the territories of North Borneo (Sabah) and Sarawak ….

“The Malaysia Act: On July 9, 1963 the Malaysia Agreement, consisting of 11 clauses, was concluded between the UK, the Federation of Malaya, North Borneo, Sarawak and Singapore. Commentators have argued that the Malaysia Agreement was not just a domestic pact but a binding international treaty between the parties.

“On Aug 20, 1963, the Federation of Malaya Parliament enacted Act No. 26 of 1963 which became operational on Sept 16, 1963. This “Malaysia Act” rewrote the Merdeka Constitution [of 1957] and substantially restructured the constitutional framework of Malaya. Eighty-seven out of 181 Articles and 10 out of 13 Schedules of the [Merdeka] Constitution were amended. Thirty-five new Articles were inserted.

On Aug 20, 1963, the Federation of Malaya Parliament enacted Act No. 26 of 1963 which became operational on Sept 16, 1963. This “Malaysia Act” rewrote the Merdeka Constitution [of 1957] and substantially restructured the constitutional framework of Malaya. — Picture by Yusof Mat Isa

[Thirty-five new Articles were inserted to grant to Sabah and Sarawak guarantees of their autonomy and special position.]

“In many respects, the amendments created a new Constitution to accommodate the realities of a new, enlarged and more diverse federation. But there were grumbles within and without.”

The article, “From Malaya to Malaysia”, can be read here.

Grumbles are normal in a family, more so in an extended or “enlarged and more diverse” family.

The eighty-seven amended Articles, notably though, do not include Article 162. The Article is the first provision of Part XIII (Temporary and Transitional Provisions). It concerns ‘Existing laws’.

Article 162 makes provisions for modification of ‘existing laws’ to enable them to continue in operation after Merdeka Day. Subsection (1) says that subject to the provisions of the Article and Article 163, the existing laws, unless validly repealed, shall continue in force on and after Merdeka Day with such modifications as may be made under the Article and subject to any amendments made by federal or State law.

By Article 160, “existing law” means any law in operation in the Federation or any part thereof immediately before Merdeka Day.

By definition then, existing law, or often referred to as pre-Merdeka law, does not include the laws of each of the States of Sabah and Sarawak passed or made before Malaysia Day.

What about these laws then, I asked.

Article 162 may not be amended to provide for laws of each of the States of Sabah and Sarawak passed or made before Malaysia Day. The provision, however, is contained in Section 73 of the Malaysia Act 1963 (Act 26 of 1963).

Section 73 is the provision in PART IV (Transitional and Temporary). It makes provisions for the continuation and modification of ‘present laws’. The term means “the laws of the Federation, of each of the Borneo States [that is, Sabah and Sarawak], and of Singapore passed or made before Malaysia Day, but does not include the [Federal Constitution] or any [State Constitution] and this Act”. (See below)

The Malaysia Act 1963 was passed pursuant to Article II of the Malaysia Agreement 1963 (MA63). The Article obligated the Government of the Federation of Malaya to take such steps “as may be appropriate and available to them to secure the enactment by the Parliament of the Federation of Malaya of an Act” – that is, the Malaysia Act 1963.

MA63, consisting of 11 clauses, must therefore be read with the Malaysia Act 1963, including Section 73, the gist of which is this:

All present laws shall have legal effect according to their tenor, on and after Malaysia Day – subsection (1).

No present law of the Federation shall extend to Sabah and Sarawak unless or until it is so extended by a law passed or made on or after Malaysia Day – subsection (2).

The present laws of Sabah and Sarawak are federal laws on and after Malaysia Day insofar as they are laws which could not be passed after Malaysia Day by the State Legislatures. Otherwise, they are State laws – subsection (3).

Accordingly, if they are State laws, they are subject to Article 75 of the Federal Constitution.

This means, if any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.