Constitutional change in sarawak 1963-1988: 25 years as a state within the federation of Malaysia.

Introduction

When Sarawak joined the Federation of Malaysia on 16 September 1963, it was a secular state with its own constitution, which was integrated into the Federation's constitution, with provisions and exceptions to reflect the special rights of Sarawak within the Federation. This article seeks first to provide the background on how Sarawak's constitution came to be and how it was developed to enable self-government as an independent state just prior to Sarawak joining the Federation. Second, it seeks to investigate the amendments made to the Federation's constitution during Sarawak's first twenty-five years within the Federation that altered or detracted from Sarawak's rights. All this is based on the premise that a constitution embodies "the fundamental political principles of a state." (1)

Historical background

From 1476 to 1841 the northwest coast of Borneo comprising the present state of Sarawak was part of the independent Malay Sultanate of Brunei, with indigenous native groups practicing forms of animism and maintaining their own cultures and languages. On 24 September 1841, Raja Muda Hashim granted James Brooke tutelage over Sarawak Proper and James was proclaimed Rajah of Sarawak in Brunei on 1 August 1842. (2) A century of independence for a territorially-expanding secular Sarawak under Brooke rule followed, (3) during which, in addition to pre-existing Islam and animism, virtually all other major religions became firmly established through Chinese, European, and Indian immigration and missionaries. (4) English and Malay were widely used by the administrative officers, and by usage English became the accepted official language. (5) Sir Charles Vyner Brooke, the third Rajah, proclaimed Sarawak's first written constitution on 24 September 1941, ending a century of Brooke sole sovereignty. (6) The first clause of the proclamation bound the Rajah and his heirs or successors "to ensure that our beloved subjects shall ultimately enjoy their inherent right to control their own lives and destinies." Under the constitution, almost complete authority was transferred to the executive--the Supreme Council of no less than five members, and the legislature--the Council Negri with twenty-five members. (7) Other than Cardinal Principle 7 stipulating that "Subjects of whatever race or creed shall be freely and impartially admitted to offices in Our Service," religions or religious beliefs are not mentioned in the 1941 Constitution, consistent with Brooke rule of Sarawak as a secular state. The constitution envisaged Sarawak continuing as an independent sovereign state, but with Britain responsible for defense and foreign affairs in accordance with the 1888 and 1941 bilateral treaties. (8) With the arrival of the Japanese on 25 December 1941, Sarawak came under military administration which worked to some extent through those community leaders willing to cooperate, with Japanese becoming the de-facto official language. After liberation on 11 September 1945, the state came under Allied military administration until 15 April 1946, when the re-commencement of civil government under the 1941 constitution was proclaimed. (9)

On 1 July 1946, Sarawak was ceded to Britain. (10) "To avoid offending local feelings and susceptibilities," amendments to the constitution were limited to those absolutely necessary to reflect the transfer of power. (11) The Nine Cardinal Principles in the 1941 Proclamation laying down broad parameters of good governance were retained throughout the era of British colonial rule. (12) Coupled with the introduction of elections, further amendments in 1956, 1962, and 1963 gradually introduced a measure of representative government. (13) The final amendments reduced the number of ex officio members in the Council Negri to three, with all other members indirectly elected; replaced the Chief Secretary as President of the Supreme Council with a politically-appointed Speaker; introduced members of the Supreme Council being appointed to ministerial roles; and established a politically-appointed Chief Minister as head of government. (14) These constitutional changes facilitated the formation of Sarawak's first elected state government, which was formed on 22 July 1963. The new government under Chief Minister Stephen Kaiong Ningkan, the chairman of a group of political parties called the Sarawak Alliance, passed a resolution on 4 September in the Council Negri welcoming the British-Malayan 9 July agreement to form Malaysia. (15) In the absence of a plebiscite to validate the forthcoming changes in Sarawak's sovereignty, a United Nations mission found that in its opinion a sizeable majority of the people of Sarawak wished to join the Federation of Malaysia. (16)

On 21 June 1962 the Cobbold Commission had issued its report supporting Sarawak and British North Borneo becoming member states in a proposed Federation of Malaysia. Three major differences between the Malayan and Sarawak constitutions were that the former decreed Malay as the national language, Islam as the oficial religion, and afforded Malays special rights. However, the ethnic mix in Sarawak was different from that in the Federation of Malaya, where Muslim Malays made up about half the population. (17) Subsequently, an Inter-governmental Committee (IGC) agreed on the terms and constitutional safeguards that would apply to Sarawak, issuing its findings on 27 February 1963. (18)

1963-1988

With the formation of Malaysia on 16 September 1963, an amended Malayan Constitution, incorporating the constitutional safeguards agreed to by the IGC, applied to Sarawak. In the absence of a cession clause and the "good-government" Cardinal Principles of the Brooke Constitution, Sarawak relied on those safeguards to protect its interests. (19) Although complex in detail, in simplified form these were: Citizenship: automatic Malaysian citizenship for those born and normally resident in Sarawak. For those of good character who were normally resident in Sarawak and who had resided in any part of Malaysia for seven of the preceding ten years, but had not been born in Sarawak or any part of Malaysia, citizenship upon application.

Education: although on the Federal List, to remain under the control of the Sarawak State Government. Knowledge of the Malay language not required as a qualification for any educational opportunity and no application of any Federal requirements for religious education. Use of English as the education media could be continued for a maximum of 10 years.

Emergency powers: during a national emergency, the Federal Parliament given unqualified power when a Proclamation of Emergency is declared, notwithstanding anything in the Constitution.

Immigration: this remained on the Federal List, but admission to Sarawak not to be granted to persons from or outside Malaysia without the approval of the Sarawak State Government, giving Sarawak effective rights over immigration into the State.

Federal Constitution: any amendments to the Constitution to require a two-thirds majority in the Federal House of Representatives.

Federal House of Representatives: Sarawak to elect 24 members of the total membership of 159.

Federal Senate: Sarawak to be represented by at least two members.

Legal Department: Sarawak to have a legal department with the Attorney-General a State Officer appointed in consultation with the Federal Government.

Religion: religious freedom is guaranteed in the Malayan Federal Constitution. A two-thirds majority of the total State Legislature is required to pass any law that may control or restrict the propagation of any religious doctrine or belief among persons professing the Muslim religion. Federal Law should not provide for special financial aid for establishing Muslim institutions or Muslim religious education in Sarawak without the concurrence of the State Government.

Sarawak Constitution: Sarawak is allowed to continue calling its Executive Council the Supreme Council and its Legislative Assembly the Council Negri. The Yang diPertuan Agong (King) appoints Sarawak's head of State after consulting with the Chief Minister.

Sarawak's Legislative List: Muslim Law, Native Law and Customs, land, agriculture and forestry, local government and services, electricity, state works and water, state machinery, state holidays, turtles and riverine fishing.

Concurrent Federal and Sarawak Legislative List: social welfare, scholarships, national parks, animal husbandry, town and country planning, public health and sanitation, and drainage and irrigation.

The Council Negri passed the first amendments to the Sarawak Constitution by the required two-thirds majority on 25 June 1964. One of these enabled another person to perform the functions of the Speaker should the latter be unable to do so. The other removed the impractical stipulation that indirect elections be held within 60 days in all situations. Opposition Council Negri member Chart Siaw Hee claimed the amendment showed that the State Government had no intention of holding a direct election before 16 September 1968, the latest date given in the IGC Report. Initially, direct elections were to be held in 1967, but setting up new electoral boundaries each with approximately the same number of voters delayed the projected date of elections until May 1969. (20) To prolong the life of the Council Negri due to be dissolved in September 1968, the Federal constitution had to be amended.

For this, the [Federal] Constitution (Amendment) Act, 1968 was enacted. During the debate on this act in the Dewan Rakyat (House of Representatives), on 21 August Stephen Yong Kuet Tze, Secretary-General, Sarawak United People's Party (SUPP), suggested that the Federal Government had deliberately delayed delimiting constituencies and registering voters because it feared defeat at the polls. Criticizing the wording of the amendment, Yong took the opportunity to say that "if the arbitrary arrest and detention of [his SUPP colleague] SUPP member Chan Siaw Hee ... was in accordance with the law, then let us see [whether] the proposed amendment ... is also in accordance with the law." (21) Polling finally began on 10 May 1969. Five days later polling was suspended, following a proclamation of emergency over racial riots that broke out in Kuala Lumpur on 13 May 1969. (22)

The aim of the next amendment to the Federal Constitution was to prevent any recurrence of the 1969 racial riots in mainland Malaysia. By the end of June 1969, hundreds of people had been killed and over 350 injured in the riots. (23) The riots were generally accepted as a major setback in the polls for the ruling Alliance coalition headed by the United Malays National Organization (UMNO), with feared loss of, and resentment over, the special privileges for the bumiputera (Malays) in the Constitution. (24) After the riots broke out, the government quickly assumed emergency powers, suspended parliament, and established direct government through the National Operations Council (NOC). The NOC was disbanded on 19 February 1971 and parliamentary rule reestablished on the following day. In preparation for return to parliamentary rule, the [Federal] Constitution (Amendment) Act, 1971, was published on 15 February 1971. (25) Simply, this act empowered the Dewan Rakyat to pass laws restricting any freedom of speech questioning the special position of the Malays, the sovereignty of the rulers, the national language (Malay), and constitutional provisions on citizenship. This restriction extended to speeches in the Dewan Rakyat and all state legislative assemblies, which included the Council Negri in Sarawak. (26) On 24 February during the debate on the act in the Dewan Rakyat, Haji Amad Arshad (Alliance coalition) said that the choice was between a restricted democracy, meaning the restrictions imposed by the amendment bill, and military or emergency rule. The act was passed on 3 March, with only 17 dissenting votes.

Earlier, in 1966, the Federal Government's power to amend the Constitution of Sarawak following a declaration of a state of emergency was used to resolve a complicated political impasse. On 17 June Governor Tun Abang Haji Openg dismissed Chief Minister Ningkan, who was said to no longer hold the confidence of the majority in the Council Negri. A new Chief Minister, Tawi Sli, with his new Supreme Council members, was then sworn in. The High Court in Kuching subsequently found that the governor had no power to dismiss Ningkan. To provide the governor with those powers, the Federal Government declared a controversial state of emergency in Sarawak on 14 September. (27) The Federal Parliament then passed the Emergency (Federal Constitution and Constitution of Sarawak)Act, 1966, which enabled the Dewan Rakyat to change Sarawak's constitution so that Sarawak's governor could convene the Council Negri and dismiss Ningkan. (28) On 24 September the governor once again dismissed Ningkan and once again Tawi Sli and his Supreme Council were sworn in. Ningkan's petition against his unconstitutional dismissal progressed slowly though the courts for another two years, finally ending on l August 1968 when he was advised that the Judicial Committee of the Privy Council had dismissed his appeal. Commenting on the controversial declaration of a state of emergency, Lord MacDermott observed: "their Lordships could not find any reason for saying that the emergency was not grave and did not threaten the security of Sarawak."

An appeal by a man sentenced to death for possessing firearms in 1969 led to an interesting ruling by the Federal Court on the Federal Constitution. On 21 August the Court ruled that the Dewan Rakyat had the power to make constitutional amendments, even if those amendments were inconsistent with existing provisions in the constitution. Lord President Tun Mohamed Suffian said many provisions in the constitution showed that it was intended to be a living document, which, if the need arose, could be amended in any way thought fit. His comments were put to the test in 1983 when the Dewan Rakyat was forced to reverse some constitutional amendments already approved before Royal assent would be given.

The Federal Constitution (Amendment) Act 1983 passed by the Dewan Rakyat in August 1983 contained some controversial amendments that curtailed the powers of the head of state, the Yang di-Pertuan Agong. These amendments were: Article 150 (l) that transferred the power to proclaim an emergency from the Agong to the Prime Minister; Article 66 (5) that made a Federal bill law if the Agong's assent had not been given after 15 days; and 8th Schedule 11(3) that made a state bill law if [in Sarawak's case] the governor's assent had not been given within 15 days. (29) Royal assent was withheld until 15 December after Prime Minister Dr. Mahathir gave a written undertaking that a new bill would reverse those amendments. A special joint session of the Dewan Negara (Senate) and the Dewan Rakyat (House of Representatives) approved the Constitution (Amendment) Act 1984 that reversed the contentious amendments and the Act received Royal assent on 19 January. All the other amendments in the 1983 Act remained, including another of direct relevance to Sarawak, the abolition of appeals in civil cases to the Privy Council in Britain. That connection was finally severed at the beginning of i 985 when the Federal Court was renamed the Supreme Court and all remaining appeals to the Privy Council were abolished.

Eight years earlier, two special provisions in the Malaysian Constitution reflecting the non-prominence of Islam in Sarawak in 1963 were repealed. These were Articles 161C and 161D that were introduced on 16 September 1963 and repealed by the Malaysia Act Constitution (Amendment) Act 1976, effective from 27 August 1976. Shown in full in Appendix II, both Articles had been incorporated in the Constitution when Malaysia was formed as "illustrative of the fact that Islam does not occupy the place in the Borneo States that it does elsewhere in the Federation" and that "In Sarawak the majority of the Chinese and indigenous people are not Muslims." (30) The repeal of Article 161C enabled the legislative provision of special financial aid for establishing and maintaining Muslim institutions or instruction in Muslim religion to Muslims in Sarawak to be passed without the consent of the governor of Sarawak. Further, the stipulation that any such special financial aid by the Federal Government already being given to all States in Malaysia be applied to social welfare in the case of Sarawak was removed. The repeal of Article 161D removed the provision for a two-thirds majority in the Council Negri needed to approve any bill controlling or restricting propagation of any doctrine or belief to Muslims. Removal of these two articles reflected the fact that Islam is the religion of the Federation under Article 3 of the Malaysian Constitution and meant the removal of barriers that could be viewed as restrictive to increased penetration of Islam in Sarawak. Only three days before the Articles were repealed, the Chief Minister Datuk Patinggi (Dr.) Haji Abdul Rahman Ya'kub had presided at the conversion of 44 people to Islam and told his audience that it was the duty of all Muslims, particularly the intellectuals, to play a leading role in the propagation of Islam. (31)

The Constitution (Amendment) Act 1985 passed on 23 October 1985 increased the number of seats for Sarawak in the 180-seat Dewan Rakyat by three to a total of 27. (32) This was the first increase in seats for Sarawak since Malaysia was formed, reflecting the increase to 597,237 voters in Sarawak by January 1985. In 1988, Articles 83-6 of the Constitution, all relating to land, were amended. According to Dr. Mahathir, this was to help carry out the Federal Government's privatization, economic, and development plans. The 1988 amendments enabled state governments to hand over land to the Federal Government, enabled Federal Government to ask state governments to turn over rights to reserve land to the Federal Government, and enabled the Federal Government or relevant public authority to retain alienated land that was no longer needed. State interests were served by mutual agreement on compensation and land usage. Only a review after another decade or more would show the outcome of these amendments on Federal land holdings in Sarawak.

Comments

Both Sarawak and Sabah had a well-developed sense of identity and individuality before both agreed to become part of the Federation of Malaysia. Their different ethnic, economic, and religious mix, and their past histories compared with the states of Malaya, coupled with their distance from the federal capital, Kuala Lumpur, were all sources of friction when those states became part of the Federation. The special safeguards and conditions given to Sarawak and Sabah, such as control over education, immigration, and land, enabled both states to retain much of their own identity, without being completely overwhelmed by the mores of mainland Malaysia. However, those safeguards came under pressure from time to time and were indeed completely overridden during the 1966 Ningkan crisis. Easier relationships were established post-1966 after state governments in the image of the ethnic Malay Muslim-dominated Federal Government had been installed. This muted resistance to the special status of Malays and Indigenes embodied in the Constitution helped to overcome serious opposition to changing the official language from English to Malay. it also enabled the Federal parliament to provide special financial aid for Muslim institutions and instruction in Islam to Muslims in Sarawak without the consent of the governor of Sarawak, removing the need for a two-thirds majority in the Council Negri to approve any bill controlling or restricting propagation of any doctrine or belief to Muslims. By 1988 the basic tenets of the Federation of Malaysia, Malay as the national language and the pre-eminence of Islam, had been firmly entrenched in Sarawak by amendments to the 1963 constitution. Federal power to alter the constitution unilaterally had been established and Sarawak had been completely integrated as a state within the Federation of Malaysia.

Appendix 1

Sarawak Order No. C-21 (Constitution) 1941 enacted 24 September 1941 (part only)

Now therefore it is meet that we should pronounce and declare the principles of government which have actuated our predecessors and ourselves during the one hundred years of the rule of the English Rajahs. And we do urge that these same principles which have brought peace and contentment to our people may serve to guide the members of the Councils of State who will hereafter be responsible for the good Government of Sarawak.

Let the Cardinal Principles of the rule of the English Rajahs as set out hereunder therefore be remembered:

1. That Sarawak is the heritage of our Subjects and is held in trust for them.

2. That social and educational services shall be developed and improved and the standard of living of the people of Sarawak shall steadily be raised.

3. That never shall any person or persons be granted rights inconsistent with those of the people of this country or be in any way permitted to exploit Our Subjects or those who have sought our protection and care.

4. That justice shall be easily obtainable and that the Rajah and every public servant shall be freely accessible to the public.

5. That freedom of expression both in speech and writing shall be permitted and encouraged and that everyone shall be entitled to worship as he pleases.

6. That public servants shall ever remember that they are but the servants of the people on whose goodwill and co-operation they are entirely dependent.

7. That so far as may be Our Subjects of whatever race or creed shall be freely and impartially admitted to offices in Our Service, the duties of which they may be qualified by their education, ability and integrity duly to discharge.

8. That the goal of self-government shall always be kept in mind, that the people of Sarawak shall be entrusted in due course with the governance of themselves, and that continuous efforts shall be made to hasten the reaching of this goal by educating them in the obligations, the responsibilities, and the privileges of citizenship.

9. That the general policy of Our predecessors and Ourselves whereby the various races of the State have been enabled to live in happiness and harmony together shall be adhered to by Our successors and Our servants and all who may follow them hereafter.

Appendix 2

Selective Extracts from the Malaysian Constitution regarding Sarawak

95B. Modifications for Borneo States and Singapore of distribution of legislative powers.

(3) The Legislature of a Borneo State may also make laws for imposing sales taxes, and any sales tax imposed by State law in a Borneo State shall be deemed to be among the matters enumerated in the State List and not in the Federal List ...

95D. Exclusion for Borneo States and Singapore of Parliament's power to pass uniform laws about land or local government.

In relation to a Borneo State and in relation to Singapore Clause (4) of Article 76 shall not apply, nor shall paragraph (b) of Clause (1) of that Article enable Parliament to make laws with respect to any of the matters mentioned in Clause (4) of that Article.

95E. Exclusion of Borneo States and Singapore from national plans for land utilisation, local government, development, etc.

(3) Under Article 92 no area in the State shall be proclaimed a development area for the purposes of any development Plan without the concurrence of the Governor.

110. Assignment of taxes and fees to the States.

(1) Subject to Clause (2), each of the States shall receive all proceeds from the taxes, fees and other sources of revenue specified in Part 11I of the Tenth Schedule so far as collected, levied or raised within the State.

111. Restriction on borrowing.

(2) A State shall not borrow except under the authority of State law, and State law shall not authorise a State to borrow except from the Federation or, for a period not exceeding five years, from a bank or other financial source approved for that purpose by the Federal Government.

112. Restriction on alterations in establishments of States.

(1) Subject to Clause (2), no State shall, without the approval of the Federation, make any addition to its establishment or the establishment of any of its departments, or alter the rates of established salaries and emoluments, if the effect of doing so would be to increase the liability of the Federation in respect of pensions, gratuities or other like allowances.

112B. Borrowing powers of Borneo States and Singapore.

Clause (2) of Article 111 shall not restrict the power of a Borneo State or Singapore to borrow under the authority of State law within the State, if the borrowing has the approval, of the Central Bank for the time being of the Federation, nor the power of Singapore to borrow under the authority of State law otherwise than within the State, if the borrowing has the approval of the Federal Government.

112C. Special grants and assignment of revenue to Borneo States.

(1) Subject to the provisions of Article 112D and to any limitation expressed in the relevant section of the Tenth Schedule--

(a) the Federation shall make to the Borneo States in respect of each financial year the grants specified in Part IV of that Schedule; and

(b) each of those States shall receive all proceeds from the taxes, fees and dues specified in Part V of that Schedule, so far as collected, levied or raised within the State, or such part of those proceeds as is so specified.

112D. Reviews of special grants to Borneo States.

(1) The grants specified in section I and subsection (1) of section 2 of Part IV of the Tenth Schedule, and any substituted or additional grant made by virtue of this Clause, shall at the intervals mentioned in Clause (4) be reviewed by the Governments of the Federation and the States or State concerned, and if they agree on the alteration or abolition of any of those grants, or the making of another grant instead of or as well as those grants or any of them, the said Part IV and Clause (2) of Article 112c shall be modified by order of the Yang di-Pertuan Agong as may be necessary to give effect to the agreement:

146A. Branches in Borneo States and in Singapore of Judicial and Legal Service Commission.

(2) The branch of the Judicial and Legal Service Commission for the Borneo States shall consist of--

(a) the Chief Justice of the High Court in Borneo, who shall be Chairman;

(b) the legal advisers of the Borneo States;

(c) the chairman of the State Public Service Commission (if any) in each of the Borneo States; and

(d) two persons designated by the Federal Government from among the members of the main body of the Judicial and Legal Service Commission or Public Services Commission.

153. Reservation of quotas in respect of services, permits, etc. for Malays.

(1) It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and the legitimate interests of other communities in accordance with the provisions of this Article.

161. Use of English and of native languages in Borneo States.

(1) No Act of Parliament terminating or restricting the use of the English language for any of the purposes mentioned in Clauses (2) to (5) of Article 152 shall come into operation as regards the use of the English language in any case mentioned in Clause (2) of this Article until ten years after Malaysia Day.

161A. Special position of natives of Borneo States.

(1) Subject to Clause (2), the provisions of Clauses (2) to (5) of Article 153, so far as they relate to the reservation of positions in the public service, shall apply in relation to natives of any of the Borneo States as they apply in relation to Malays.

(2) In a Borneo State Article I53 shall have effect with the substitution of references to natives of the State for the references to Malays, but as regards scholarships, exhibitions and other educational or training privileges and facilities Clause (2) of that Article shall not require the reservation of a fixed proportion for natives.

(3) Before advice is tendered to the Yang di-Pertuan Agong as to the exercise of his powers under Article 15319 in relation to a Borneo State, the Chief Minister of the State in question shall be consulted.

(5) Article 89 shall not apply to a Borneo State, and Article 8 shall not invalidate or prohibit any provision of State law in a Borneo State for the reservation of land for natives of the State or for alienation to them, or for giving them preferential treatment as regards the alienation of land by the State.

(6) In this Article "native" means--

(a) in relation to Sarawak, a person who is a citizen and either belongs to one of the races specified in Clause 7 as indigenous to the State or is of mixed blood deriving exclusively from those races; and

(7) The races to be treated for the purposes of the definition of "native" in Clause (6) as indigenous to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits, Kayans, Kenyahs (including Sabups and Sipengs), Kajangs (including Sekapans, Kejamans, Lahanans, Punans, Tanjongs and Kanowits), Lugats, Lisums, Malays, Melanos, Muruts, Penans, Sians, Tagais, Tabuns and Ukits.

161C. Muslim education in Borneo States.

(1) No Act of Parliament which provides as respects a Borneo State for special financial aid for the establishment or maintenance of Muslim institutions or the instruction in the Muslim religion of persons professing that religion shall be passed without the consent of the Governor.

161D. Freedom of religion.

Notwithstanding Clause (4) of Article 11, there may be included in the Constitution of a Borneo State provision that an enactment of the State Legislature controlling or restricting the propagation of any religious doctrine or belief among persons professing the Muslim religion shall not be passed unless it is agreed to in the Legislative Assembly on second or third reading or on both by a specified majority, not being a majority greater than two-thirds of the total number of members of the Assembly.

161E. Safeguards for constitutional position of Borneo States.

(2) No amendment shall be made to the Constitution without the concurrence of the Governor of the Borneo State or each of the Borneo States concerned, if the amendment is such as to affect the operation of the Constitution as regards any of the following matters:

(a) the right of persons born before Malaysia Day to citizenship by reason of a connection with the State, and (except to the extent that different provision is made by the Constitution as in force on Malaysia Day) the equal treatment, as regards their own citizenship and that of others, of persons born or resident in the State and of persons born or resident in the States of Malaya;

(b) the constitution and jurisdiction of the High Court in Borneo and the appointment, removal and suspension of judges of that court;

(c) the matters with respect to which the Legislature of the State may (or Parliament may not) make laws, and the executive authority of the State in those matters, and (so far as related thereto) the financial arrangements between the Federation and the State;

(d) religion in the State, the use in the State or in Parliament of any language and the special treatment of natives of the State;

(e) the allocation to the State, in any Parliament summoned to meet before the end of August, 1970, of a quota of members of the House of Representatives not less, in proportion to the total allocated to the other States which are members of the Federation on Malaysia Day, than the quota allocated to the State on that day.

Vernon L. Porritt

Honorary Research Associate

Murdoch University

Western Australia 

(1) Roger Scruton, A Dictionary of Political Thought, London: Pan Books Ltd, 1983, p. 92.

(2) Sarawak Proper covered an area of some 3,000 square miles, the western end of the current state of Sarawak.

(3) By 1905 the Brookes had extended Sarawak to some 48,250 square miles by annexing territory from the Sultanate of Brunei.

(4) This is a simplification of a long, protracted process.

(5) The Sarawak Gazette, the government's official publication, was printed in English with the occasional translation into Malay.

(6) Sarawak Order No. C-21 (Constitution) 1941. For an exhaustive background to how the Constitution came about, see Alex C. Castle, The Constitutional and Legal History of Sarawak: Documents and Commentaries: Volume 1: Peoples 'Law Making and Brooke Rule, Kuala Lumpur: Malaysian Historical Society Sarawak Branch, 2003, pp. 251-279.

(7) Council Negri and Supreme Council members were nominees of the Rajah and top-rank administrative officers. Section 4(iii) of the constitution retained the right of the Rajah to appoint any new non-ex officio members to the Supreme Council.

(8) "Agreement between Her Majesty's Government and Charles Brooke, Second Rajah of Sarawak," 5 September 1888, and "An Agreement between His Majesty's Government and the Rajah in Council of the State of Sarawak," 22 November 1941.

(9) English was reintroduced as the administrative language immediately after the occupation ended.

(10) For a full account of cession at the wish of the Rajah which was ratified by a controversial vote in the Council Negri, see R. H. W. Reece, The Name of Brooke: The End of White Rajah Rule in Sarawak, Kuala Lumpur: Oxford University Press, 1982, pp. 198-245.

(11) File note, 5 June 1952, File SEA 31/7/02, CO1022/90, Public Records Office, Kew.

(12) See Appendix 1.

(13) The Sarawak (Constitution) Order, 1956: the Sarawak (Constitution) Order in Council, 1962, and Amendments to the Sarawak (Constitution) Order in Council, 1956 passed in the Council Negri on 9 March 1963.

(14) "Indirectly elected" refers to the three-tier electoral system of local councils electing members to Divisional Advisory Councils, which in turn elected Council Negri members. This led to distortion in the number of Council Negri seats won by political parties compared with their overall percentage of votes received at the local council elections.

(15) Thirty-one Council Negri members voted in favor. The five dissenting votes were from the predominantly Chinese party, the Sarawak United People's Party (SUPP).

(16) U Thant, "Mission to Sarawak and Sabah (North Borneo), Secretary-General's Conclusion," United Nations Review, 10, 9 (October 1963): 15.

(17) In Sarawak, the Malay-Melanau Muslim community made up about 20 percent of the population, non-Muslim indigenous peoples making up about 45 percent, and the Chinese about 31 percent.

(18) Malayan Government, Malaysia: Report of the Inter-governmental Committee, 1962, Kuala Lumpur: Government Printer 1963.

(19) Although there was some pressure for a cession clause, it was held to be unnecessary.

(20) The early elections were to provide proof to Indonesia of Sarawak's commitment to Malaysia under the agreement ending Confrontation with Indonesia.

(21) Chan Siaw Hee was detained on 14 August 1968 under the Provisions of Preservation of Public Security Regulations (PPSR) and the Internal Security Act.

(22) Polling was not resumed until 6 June 1970. The interruption to the elections in Sarawak created some resentment, as there were no civil disturbances in Sarawak.

(23) Estimates of casualties varied with some estimates of death as high as 700.

(24) Bumiputera was generally accepted as meaning only Malays but the intent covered all native races.

(25) Shortly after publication of the act, Stephen K. T. Yong (SUPP) undertook to seek reassurance that the act would not affect the prerogative of the Council Negri to decide on the politically sensitive issue of whether Bahasa Malaysia would replace English as the official language in Sarawak after 1973.

(26) The SUPP Chairman Dato Ong Kee Hui, by then the Federal Minister of Technology, Research and Local Government, said the public would expect the same restrictions and penalties to apply to MPs.

(27) The Secretary-General of the Sarawak United People's Party, Stephen K.T. Yong. pointed out there was "not a tense atmosphere in the State" and "the only conclusion ... is that it [the declaration of a state of emergency] is an attempt to cover up the wrong and unconstitutional move of dismissing the Chief Minister of Sarawak in June this year" (Sarawak Tribune, 16 September 1967).

(28) A public opinion poll among the literate people of Sarawak by the Sarawak Tribune on 19 September found that 96% were against the Dewan Rakyat in Kuala Lumpur amending the Sarawak Constitution.

(29) L. A. Sheridan & Harry E. Groves, The Constitution of Malaysia, Singapore: Malayan Law Journal Pte. Ltd., 1987, pp. 178-9, 372-5,493 and 501.

(30) L. A. Sheridan & Harry E. Groves, The Constitution of Malaysia, New York: Oceana Publications, Inc., 1967, p. 228.

(31) Sarawak Tribune, 24 August 1976.

(32) Sheridan in note 5 on page 152 states "the number was raised from 24 by ... section 2 (c), with effect by virtue of ... from 24th February 1986."