A NEW federal constitution must be drafted to restore the status of Sabah and Sarawak as equal partners in the Federation of Malaysia, said Sabah Institute Development of Studies chairman, Simon Sipaun.

It will not suffice to amend the constitution, he said, as a 20-point agreement with Sabah clearly stipulated the need for a completely new one for the newly formed country of Malaysia in 1963.

He said the constitution now was “flawed” because it catered only to Malaya as Sabah and Sarawak were already self-governing territories when they formed Malaysia with Malaya and Singapore.

Sarawak and Sabah were granted self-rule by Britain on July 22 and Aug 31, respectively, in 1963, ahead of the formation of Malaysia on September 16 the same year.

Sipaun said Sabah’s 20-point agreement, a document to safeguard Sabah’s rights upon its incorporation into Malaysia, stated the need for a brand new federal constitution.

Point no. 3 states that while it was accepted that the present constitution of the federation of Malaya should form the basis of Malaysia’s federal constitution, the federal constitution should be “a completely new document”.

By right, he said, Malaysia should also have had a new flag and national anthem to inaugurate the birth of a new nation in 1963. The anthem, Negaraku, was selected in 1957 to mark Malaya’s independence from the British.

Sipaun spoke to The Malaysian Insight following Prime Minister Dr Mahathir Mohamad’s Malaysia Day promise of equal status for Sabah and Sarawak upon the completion of a study on the Malaysia Agreement 1963 (MA63).

The two Bornean states have long asked for equal status as set down in MA63, an agreement that activists say Putrajaya has ignored.

But Sipaun cautioned against reliance on the MA63 for guidance. The agreement was not even mentioned in the federal constitution, he said, and was another reason for the drafting of a new constitution.

“People say the formation of Malaysia was based on MA63. But if you look at the federal constitution, there is no mention of MA63 anywhere.

“As a matter of fact, the agreement is so ambiguous that even lawyers are not able come out with a uniform argument over the details,”  said the former national human rights (Suhakam) commissioner who was also the Sabah state secretary at one time.

Another con of basing Sabah and Sarawak’s demand for their rights on the MA63 was the fact that the agreement effectively broke down when Singapore left the federation of Malaya in 1965, Sipaun said.

As such, he said, the MA63 lacked teeth as the basis of the argument for the restoration of Sabah and Sarawak’s rightful status.

The autonomy of Sabah and Sarawak as equal partners to Malaya was downgraded in a 1976 constitutional amendment to Article 1(2), in which the two states were named as being among the states of the Federation of Malaysia.

Sipaun said he did not consider the change valid as it was not possible to make constitutional amendments affecting the interests of Sabah and Sarawak without their consent given through the respective heads of state.

Sipaun noted that the then Sabah chief minister Harris Salleh had declared that the state had not been consulted before parliament went ahead and passed the amendment to Article 1(2) of the federal constitution in 1976.

Sipaun added that hansard record on July 13, 1976 showed 130 MPs were for and only four were against the amendment. None of the Sarawak MPs on record had opposed the amendment.

The four lawmakers who objected were Lim Kit Siang, Dr Tan Chee Khoon, Farn Seong Than and Lee Lam Thye – all of DAP, then an opposition party.

Prominent Sarawak MPs Leo Moggie Irok and Tin Ling Kiew were not on the hansard’s record so it is unknown which way they voted.

Sabah MPs Datu Mustapha Datu Harun and Pengiran Tahir Pengarin Patera were also absent from the record.

All this showed that the formation of Malaysia was a poorly executed exercise, said Sipaun.

“It’s a mess,” Sipaun said, and it was why Sabah and Sarawak resented the federal government and resisted its attempts to assimilate them into the national culture.

“To this very day, we are forced to celebrate the Malayan independence,” he said of Merdeka Day on August 31.

“61 years of Merdeka? Seriously? Malaysia never attained independence because it was never colonised.” –  September 26, 2018