Report of The Inter-Governmental Committee, Malaysia/Proposed Constitutional Arrangements

by Commission of Enquiry in North Borneo and Sarawak Regarding Malaysian Federation

CHAPTER III
PROPOSED CONSTITUTIONAL ARRANGEMENTS

15. Religion

(1) No amendment is required to Article 3 (1), which provides "Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation". As in the case of Penang and Malacca (Article 3 (2)) the Heads of State in the Borneo States should not be Head of Muslim religion in the State; but Article 3 (3) should be left unamended so as not to confer on the Yang di-Pertuan Agong the position of Head of the Muslim religion in the Borneo States.

(2) The guarantee for religious freedom contained in Article 11 should be retained as regards Article 11 (4) which provides "State law may control or restrict the propagation of any religious doctrine or belief among persons professing the Muslim religion", it was agreed that the Constitutions of the Borneo States could properly provide that a law having the effect described in Article 11 (4) would need to be passed by a two-thirds majority vote of the total membership of the State Legislative Assembly.

(3) Sections 36 and 37 of the Malayan Education Act, 1961, should not be applied to North Borneo and Sarawak; Federal Law should not provide for special financial aid for the establishment of Muslim institutions or the instruction in the Muslim religion of persons professing that religion in respect of North Borneo and Sarawak without the concurrence of the State Government concerned; and the Federal Constitution should be amended to secure that where federal law provides for special financial aid for for Muslim institutions or Muslim religious education in pursuance of Article 12 (2) the Malaysian Government would grant to the North Borneo and Sarawak Governments proportionate amounts^[1] for social welfare purposes in those States. Any grants paid out by the Malaysian Government from the proceeds of lotteries conducted by the Social and Welfare Services Lotteries Board would not be regarded as payment made from Federal revenue in this respect.

(4) Article 38 (2)(b) and (6)(d), which deals with the functions of the Conference of Rulers relating to the extension of religious acts, observances and ceremonies to the Federation as a whole should not apply to the Borneo States.

16. Immigration

The following arrangements should apply:—

(a) immigration into Malaysia should remain on the Federal List, but legislation should be enacted by the Federal Parliament to ensure that except as provided in subparagraph (f) below, entry into the Borneo States will require the approval of the State concerned;

(b) the Federal Constitution should be amended to enable the Federal Parliament to legislate to control the movement of persons between the existing Federation and a new State or between new States on any ground (i.e. not merely the grounds specified in Article 9 (2));

(c) the Federal Government should undertake in the formal agreement for the establishment of Malaysia to pass before Malaysia Day a law coming into operation on Malaysia Day, the draft of which would be agreed by the Governments of the Borneo States and scheduled to the formal agreement and an outline of which is set out in sub-paragraph (f) below;

(d) the Federal Constitution should be amended to provide that this law may not be amended or repealed in its application to a Borneo State without the concurrence of the Government of the State concerned;

(e) the Federal Constitution should be amended to provide that the provisions referred to in sub-paragraphs (b) and (d) may not be amended or repealed in their application to a Borneo State without the concurrence of the Government of the State concerned;

(f) the law referred to in sub-paragraph (c) should contain provisions to secure that:—

(i) any person from outside Malaysia whose entry into a Borneo State the Government of that State considers is necessary for State purposes shall be given entry except in cases where the Federal Government, which will be consulted for this purpose, considers that it is desirable in the national interest that entry should be refused;

(ii) subject to Article 9 (1) and to sub-paragraph (iv) below, admission to a Borneo State will not be granted to any other person or class of persons, whether from inside or outside Malaysia, without the approval of the Government of the State concerned;

(iii) subject to Article 9 (1) and to sub-paragraph (iv) below, any person who is present in a Borneo State contrary to the provisions of sub-paragraph (ii) above or whose presence is otherwise unlawful, whom the Government of the State wishes to be removed from the State, shall be so removed;

(iv) the provisions outlined in sub-paragraphs (ii) and (iii) above do not apply to members or officers of the Federal Government or any person or class of persons whose temporary presence in the State the Federal Government, after consultation with the State Government, considers is necessary in order to enable the Federal Government to carry out its constitutional and administrative responsibilities, or any citizen who enters for the purpose of exercising his rights in connection with the functioning of parliamentary democracy in Malaysia or any part thereof, or any person who belongs to the State, i.e. who is a permanent resident of the State or who is a citizen of Malaysia on account of connection with the State;

(v) no person who resides temporarily in the State in accordance with sub-paragraph (iv) shall by reason of such residence be deemed to belong to the State or to be a citizen of Malaysia on account of connection with the State for the purposes of that sub-paragraph; and

(g) the Federation Government should give an assurance that labour for federal projects in the Borneo States will not be recruited from outside the State if adequate local labour is available, and that it is not the intention of the Federal Government, in its control of immigration, to hinder the recruitment of persons from outside Malaysia as experts or technical advisers or for the purpose of employment by the Governments of the Borneo States.

17. Education

Certain aspects of religious education have been dealt with under the heading "Religion". In addition :―

(a) although Education (item 13 (a) of the Federal List in the Ninth Schedule) will be a federal subject the present policy and system of administration of education in North Borneo and Sarawak (including their present Ordinances) should be undisturbed and remain under the control of the Government of the State until that Government otherwise agrees in particular:—

(i) the present policy in the Borneo States regarding the use of English should continue;

(ii) knowledge of the Malay language should not be required as a qualification for any educational opportunity until such time as the State Government concerned considers that sufficient provision has been made to teach Malay in all schools in the State;

(iii) there should be no application to the Borneo States of any Federal requirements regarding religious education;

(iv) State provisions for the special position of the indigenous peoples should continue to apply;

(v) the Directors of Education in the Borneo States who would be officers serving in Federal posts and responsible to the Federal Minister of Education through the Ministry of Education, should carry out much the same duties as they do at present in consultation with the State Government concerned;

(vi) to enable local wishes to be fully consulted and taken into account as far as possible, the Directors of Education of the Borneo States should continue to be advised by the respective existing Boards of Education and the local Education Committees; and

(vii) in the case of Sarawak the local authorities should continue to be used as agents for primary education, and

(b) when expansion of higher education facilities was being considered by the Malaysian Government the requirements of the Borneo States should be given special consideration and the desirability of locating some of the institutions in the Borneo States should be borne in mind.

18. Citizenship

(1) Any citizen of the United Kingdom and Colonies who—

(a) was born in North Borneo or Sarawak or was naturalised or registered as a citizen of the United Kingdom and Colonies in North Borneo or Sarawak, and

(b) was ordinarily resident on Malaysia Day in North Borneo, Sarawak or Brunei;

should become a citizen of the Federation of Malaysia by operation of law on Malaysia Day.

(2) Any person of or over the age of eighteen years and ordinarily resident in Sarawak or North Borneo on Malaysia Day but who does not become a citizen of Malaysia by operation of law should be entitled during the first eight years after Malaysia Day to be registered as such a citizen if he satisfies the Federal Government that—

(a) he has resided before Malaysia Day in North Borneo, Sarawak or Brunei (whether in one or more of them) or after Malaysia Day in any part of Malaysia for periods amounting to seven out of the ten years preceding his application and which include the twelve months immediately preceding his application;

(b) he intends to reside permanently in Malaysia;

(c) he is of good character; and

(d) (except in the case of a person who has attained the age of forty-five years and who applies within two years after Malaysia Day) he is able to satisfy the existing language test applicable to applicants for naturalisation in North Borneo or Sarawak as a citizen of the United Kingdom and Colonies.

(3) There should be no presumption as to good character on the lines of the former Article 18 (4) of the Federal Constitution that provision has proved inconvenient in operation and has been repealed. Applicants for registration should be required to take the citizenship oath in the form prescribed in the existing Federal Constitution.

(4) It was considered that Article 15 (2) of the existing Federal Constitution makes adequate provision for the registration of the minor children of persons who obtain citizenship by registration. Should there be no federal registrar of citizens in either of the Borneo States powers of registration should be delegated to the State Secretary under paragraph 4 of the Second Schedule to the Federal Constitution.

(5) The Constitution should provide that the provisions recommended in sub-paragraphs (1) and (2) above should not be amended or repealed in their application to a Borneo State without the concurrence of the Government of the State concerned, (6) Subject to the provisions recommended in sub-paragraphs (1) and (2) above, the provisions of the Federal Constitution relating to the acquisition and termination of citizenship should apply mutatis mutandis. As regards persons born within Malaysia after Malaysia Day, arrangements should be made to secure that, where one of the parents was a citizen or permanent resident of Malaysia, this fact should be entered in the register of births.

(7) The Constitution should provide that no amendment of the citizenship provisions referred to in sub-paragraph (6) above should be made that discriminated against the inhabitants of the Borneo States.

19. Federal Legislature

(1) Two members of the Senate should be elected for each Borneo State in accordance with Article 45 (1)(a) of the Constitution. Article 45 (1)(b) of the Constitution should be amended to increase the number of appointed members of the Senate by six in respect of the accession of North Borneo and Sarawak to Malaysia. An assurance should be given that, on the occasion of the first appointments of these additional members after Malaysia Day, at least two would be appointed from North Borneo and at least two from Sarawak after consultation with the Chief Minister of the State concerned.

(2) Article 46 (1) should be amended to increase the number of elected members of the House of Representatives from one hundred and four to one hundred and fifty-nine (including the fifteen proposed for Singapore). Of the additional members sixteen should be elected in North Borneo and twenty-four in Sarawak. The proportion that the number of seats allocated respectively to Sarawak and to North Borneo bears to the total number of seats in the House should not be reduced (except by reason of the granting of seats to any other new State) during a period of seven years after Malaysia Day without the concurrence of the Government of the State concerned and thereafter (except as aforesaid) shall be subject to Article 159 (3) of the existing Federal Constitution (which requires Bills making amendments to the Constitution to be supported in each House of Parliament by the votes of not less than two-thirds of the total number of members of that House)

(3) The question of elections to the House of Representatives is dealt with in paragraph 25.

20. State Constitutions

(1) The first Head of State should be a person nominated before Malaysia Day by Her Majesty the Queen and His Majesty the Yang di-Pertuan Agong and should be appointed by him for a period of two years. Thereafter the Head of State should be appointed by the Yang di-Pertuan Agong acting in his discretion after consulting the Chief Minister of the State. The Head of State should be known as the Yang di-Pertua Negara in the case of North Borneo and as the Governor in the case of Sarawak and should exercise similar functions to those of the Governors Malacca and Penang.

(2) As regards Article 71 (4) which enables the Federal Parliament to make provision for giving effect in a State to "the essential provisions" of a State Constitution set out in the Eighth Schedule or for removing from a State Constitution provisions inconsistent with the essential provisions, the question whether a State Constitution does not contain the essential provisions or contains provisions inconsistent with them should be one which is ultimately determinable by the Courts and not one depending solely on the opinion of the Federal Parliament.

(3) Subject to sub-paragraph (4) below Part I of the Eighth Schedule to the Federal Constitution should apply to the Borneo States in the same way as it applies to the States of Penang and Malacca subject to the following modifications—

(a) the definition of "office of profit" in Article 160 (2) should be amended by the addition of a provision to the effect that the expression shall not include the office of Chief Minister or any other member of the Executive Council or Speaker or any other member of the Legislative Assembly of the State. In order to make it clear that a Ministerial system is not precluded in the Borneo States this amendment should apply to them as if the reference to the office of Chief Minister included a reference to the office of any Minster;

(b) Clause 2(3) of the Eighth Schedule should allow persons who are citizens by registration to be appointed Chief Minister;

(c) the Legislative Assembly should be able to choose its Speaker either from among the members of the Assembly or from among persons who are not members but are qualified to be members;

(d) Sarawak should be allowed to call their Executive Council "the Supreme Council" and to call their Legislative Assembly "the Council Negri";

(e) in section 4(1), the words after "provide" should not apply, and

(f) provision should be made giving a member of the Legislative Assembly who becomes subject to the disqualification mentioned in section 6 (1)(e) a period of grace during which to pursue an appeal against his conviction or sentence, and securing that during that period the member should be suspended from taking part in the proceedings of the Assembly

(4) Until the expiration of ten years after Malaysia Day, or such earlier date as the Federal Government may, in relation to either State, prescribe with the concurrence of the Government of that State, provision on the lines of Part II of the Eighth Schedule, which, will require amendment in the light of the terms of the draft State Constitution, should apply. This would ensure that the essential parts of the State Constitution are not amended in such a way that the amendments would constitute a backward step from the position on Malaysia Day.

21. Distribution of Legislative Powers

(1) The modifications to the Legislative Lists which should be made in respect of the Bomeo States are set out in Annex A to this Report. (2) New provision should be inserted in the Federal Constitution enabling the Federal Parliament by law to empower a State Legislature to legislate, either unconditionally or subject to such conditions and restrictions as may be specified in the law, on a matter on the Federal List. Until such time as Parliament otherwise provides, this power and the power to authorize the State to exercise federal executive authority under Article 80 (4) should also be exercisable in relation to the Borneo States by order made by the Yang di-Pertuan Agong which should be required to be laid before both Houses of the Federal Parliament as soon as practicable after it has been made.

(3) To the extent that power to legislate on a matter on the Federal List is conferred on a State Legislature, the principles contained in Article 82 regarding the distribution of financial burdens should apply as respects that State as if the matter were one enumerated in the Concurrent List.

(4) A reference to the law or custom of Natives (defined as in paragraph 29) should be inserted after the reference to Muslim law or custom of the Malays in Article 76 (2).

(5) Article 76 (4), which empowers the Federal Parliament to legislate on certain State matters for the purpose of ensuring uniformity of law and policy, should not apply to the Borneo States.

22. Land

(1) So as to ensure that State Governments are consulted with regard to the acquisition under Article 83 of alienated as well as unalienated, land in the State for Federal purposes, Article 83 (5)(a) should not apply to the Borneo States. (2) Article 88 should, subject to the preceding paragraph, be replaced by provision on the following lines:—

"Parliament may by law make any provision necessary to adapt Articles 83 to 86 in order that they may apply to land in the States of North Borneo, Malacca, Penang, Sarawak and Singapore as nearly as practicable, having regard to differences in the system of land tenure, in the same manner as they apply to land in other States."

(3) Article 89, which relates to Malay reservations, should not apply to the Borneo States and instead there should be provision in the Constitution enabling the legislature of a Borneo State to make provision with respect to the reservation or alienation of land to Natives of the State (For the meaning of the expression Natives, see paragraph 29 of this Report).

(4) In Article 91, which relates to the establishment and functions of the National Land Council, the last phrase of Clause 5, which reads "and the Federal and State Governments shall follow the policy so formulated", should not apply to the Borneo States. The representatives of the Borneo States would participate in the Council as members without vote.

(5) Article 92 should be amended in its application to the Borneo States so as to provide that the concurrence of the State Government concerned will be required in respect of any development plan which it is proposed should be put into operation in that State.

(6) The last phrase of Article 94 (1), which reads “and the agricultural and forestry officers of any State shall accept any professional advice given to the Government of that State under this Clause", should not apply to the Borneo States and instead provision should be made that the heads of the Agriculture and Forestry Departments of those States shall consider any professional advice given to the Government of that State under Article 94 (1).

23. National Council for Local Government

The last phrase of Article 95A (5), which reads "and the Federal and State Governments shall follow the policy so formulated", should not apply to either of the Borneo States until such time as the Federal Parliament with the concurrence of the State Legislative Assembly concerned otherwise provides. The representative of a Borneo State would participate in the Council as a member without vote until such time as the State has accepted the obligation to follow the advice formulated in the Council under Article 95A (5).

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1. These amounts should bear the same proportion to the amount of special financial aid paid from Federal revenue as the amount of Federal revenue derived from a Borneo State during the financial year in question and retained in the Malaysian Government bears to the total Federal revenue for that year.