Constitution of the State of Sarawak

Last updated July 25, 2023

Constitution of the State of Sarawak was incorporated in 1963 in the state of Sarawak following the formation of federation of Malaysia.^[1] It consists of six Chapters, 58 Articles, and one Schedule.^[2]

Provisions

Article 41 of the Sarawak Constitution stated that the state constitution can only be amended by an Ordinance enacted in the state assembly and may not be amended by other means. However, the British Privy Council, during the 1966 Sarawak constitutional crisis, judged that the federal parliament has the absolute power to amend the Sarawak constitution when the state of emergency is declared but is only on a temporary basis.^[3]

Amendments

The first amendment to the Sarawak Constitution was passed on 25 June 1964. This amendment allowed other people to assume the role of the Speaker if the original Speaker unable to perform his duty. Another amendment was to remove the unrealistic expectation that indirect elections should be held within 60 days in all circumstances. On the other hand, the intergovernmental report (IGC report) stipulated that direct elections in Sarawak should be held before 16 September 1968 (4 years after the formation of Malaysia) or otherwise the Council Negri will automatically be dissolved. However, the amount of work involved in delineating new electoral boundaries had to delay the direct elections until May 1969. To prolong the lifespan of the Council Negri, the Malaysian federal constitution had to be amended.^[4]

In 1976, Articles 4(1) and (2) of the Sarawak constitution were amended into "The Yang di-Pertuan Agong shall be the head of religion of Islam in Sarawak" and "the Council Negri is empowered to make provisions for regulating Islamic affairs through a Council to advise the Yang di-Pertuan Agong". Such provisions enabled Council Negri to pass ordinances regarding Islamic religious affairs.^[5]^[6]

Following the 2021 amendment to the Constitution of Malaysia, the office of Chief minister of sarawak was formally changed to "Premier of Sarawak" in the Sarawak Constitution.^[7]

Provisions under the Malaysian federal constitution

According to Australian historian Vernon L Porritt, the Malaysian federal government, by installing a more pliable state government in Sarawak, was able to amend the federal constitution without much resistance, especially regarding the use of the Malay language and propagation of Islam in Sarawak. The amendment of the federal constitution enables the full integration of Sarawak as a state in Malaysia.^[4]

Upon the formation of Malaysia, Article 161E(2)(a) to (5) was written into the Malaysian federal constitution which stated that special safeguards for Sarawak may not be removed by the federation without the approval of Yang di-Pertua Negeri (Governor) of Sarawak. The 1963 court case involving The Government of the State of Kelantan v The Government of the Federation of Malaya and Tunku Abdul Rahman Putra Al-Haj stated that the federal government has the power to amend the federal constitution with two-thirds majority in parliament. In 1977, the case Loh Kooi Choon v Government of Malaysia further clarified that the federal government may not implement the federal constitution amendments that affect the safeguards in Sarawak even with two-thirds majority if approval from the Governor of Sarawak is not obtained.^[3] The special safeguards include:^[3]

Article 113(6) that requires separate reviews on the number of federal and state constituencies in Sarawak.
Article 121 which requires the separation of jurisdictions between the High Court in Sarawak and High Courts in Malaya
All Articles in Chapter 8 of Part VI
All Articles in Part XIIA
List IIA and List IIIA in the Ninth Schedule (regarding federal and state legislative lists)
Part IV and Part V of the Tenth Schedule (regarding the grants and sources of revenue assigned to states)

During the 1966 Sarawak constitutional crisis, the Malaysian federal government declared a state of emergency in Sarawak. Using emergency powers, the federal parliament passed the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966 which enabled the federal government to unilaterally amend the constitution of Sarawak without obtaining the approval of the Governor of Sarawak. This amendment gave power to the governor of Sarawak Abang Haji Openg to convene a Council Negri meeting and dismiss the chief minister Stephen Kalong Ningkan by passing a vote of no confidence during the sitting.^[4]

To prevent the dissolution of the Council Negri way too early before a direct election is feasible in Sarawak, the [Federal] Constitution (Amendment) Act, 1968 was enacted. This amendment enabled the Council Negri to extend its tenure until 1969 Malaysian general election. However, racial riots broke out on 13 May, which interrupted the general election.^[4] After the 13 May incident, Malaysian parliament passed [Federal] Constitution (Amendment) Act, 1971, that empowers Dewan Rakyat (House of Representatives) to pass laws restricting freedom of speech touching the special position of the Malays, the sovereignty of the rulers, the national language (Malay), and constitutional provisions on citizenship. Speeches delivered in Dewan Rakyat itself and all state legislative assemblies in the country (including Council Negri of Sarawak) were not exempted from this law.^[4]

On 13 July 1976, all the Sabah and Sarawak MPs supported the Malaysian parliament bill which downgraded both the states from being equal partners to Malaya as a whole to one of the 13 states in the federation by amending Article 1(2) of the Federal constitution.^[8]

On 27 August 1976, Malaysia Act Constitution (Amendment) Act 1976 was passed where Articles 161C and 161D were repealed. Both Articles described the non-prominence of Islam in Sarawak. The repeal of 161C allowed the passing of laws that enable special financial provisions to establish and maintain Muslim institutions or Muslim education in Sarawak without the consent of the governor of Sarawak. The repeal of Article 161D removed the two-thirds majority requirement in the Council Negri to pass laws that restrict the propagation of other religions to Muslims. The removal of these two Articles upholds Islam as the religion of the federation as enshrined under Article 3 of the federal constitution and removed the barriers to the propagation of Islam in Sarawak.^[4]

The Malaysian parliament also enacted the "Legal Profession Act 1976", trying to unify the legal profession throughout Malaysia, including Sarawak. The Act also contains a section named 11(1)(c) which stated that if such Act is approved in Sarawak state legislative assembly, would abolish the "Advocates Ordinance of Sarawak (Chapter 110)" that requires any person practising legal profession should be born in Sarawak or domicile in Sarawak for at least past five years. However, such Act has not been enacted in Sarawak state legislative assembly. Thus, Sarawak is not bounded by this parliamentary Act.^[3]

In 1984, Constitution (Amendment) Act was passed where 8th Schedule 11(3) stated that a bill approved in the Council Negri will eventually become state law even if the governor of the state did not give assent within 15 days. Another amendment stated that the federal court of Malaysia is the supreme court of the country; thus any appeal to the British Privy Council against the federal court judgment is not allowed.^[4]

On 23 October 1985, Constitution (Amendment) Act 1985 was passed that increased the parliamentary seat allocation for Sarawak from 24 to 27 out of 180 seats in the Malaysian parliament, due to an increase of Sarawak voters to 597,237.^[4]

In 1988, Articles 83-6 of the federal constitution were amended to allow state governments to hand over lands to federal governments, turn over the rights of the reserve lands to the federal government, and enable the federal government to retain alienated land that was no longer needed. In return, state governments will be compensated accordingly. The prime minister of Malaysia, Mahathir Mohamad stated that such amendments are necessary for the federal government to carry out privatisation, economic, and development plans.^[4] In July 2023, the federal government returned 52 lots of undeveloped land to Sarawak. Meanwhile, Sarawak would return all the premiums back the federal government.^[9]

During 2021 amendment to the Constitution of Malaysia, four amendments were passed namely: amendment to Article 1(2) to restore the position of Sabah and Sarawak as "territories" instead of "state" in Malaysia, amendments to Article 160(2) that added Malaysia Day into the list of definitions and added Malaysia Agreement to define the term "federation" of Malaysia. Another amendment was Article 161A that the federal constitution no longer defines original races in Sarawak. Instead, the power to define races is placed under the government of Sarawak.^[7]

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References

↑ Agreement relating to Malaysia between United Kingdom of Great Britain and Northern Ireland, Federation of Malaya, North Borneo, Sarawak and Singapore/Annex C . 1963 – via Wikisource.
↑ "The Constitution of the State of Sarawak (until Article 50)". Suruhanjaya Perkidmatan Awam Sarawak (Sarawak public service department). Retrieved 19 May 2023.
1 2 3 4 Awang Mahadil (2014). The Relationship between Federal System of Malaysia And The Special Sovereign Rights Of Sarawak State (Dissertation Paper 2014, 1st Class) (Bachelor of Laws thesis). Aberystwyth University. doi:10.13140/2.1.5113.5048.
1 2 3 4 5 6 7 8 9 Porritt, Vernon L (2007). "Constitutional change in Sarawak 1963-1988: 25 years as a state within the federation of Malaysia". Borneo Research Bulletin. 38: 159–171. Archived from the original on 6 April 2023. Retrieved 19 April 2023.
↑ Faisal, S Hazis (2012). Domination and Contestation: Muslim Bumiputera Politics in Sarawak. Institute of Southeast Asian Studies. p. 86. ISBN 9789814311588. Negri is empowered to make provisions for regulating Islamic affairs...
↑ "The Constitution of the State of Sarawak (1981 edition, until Article 24)" (PDF). Catholic Lawyers Society. Attorney-general's chambers, Kuching. Archived from the original (PDF) on 9 June 2021. Retrieved 20 May 2023.
1 2 "MA63 amendments passed". The Borneo Post. 22 July 2022. Archived from the original on 28 January 2023. Retrieved 7 June 2023.
↑ Chia, Jonathan (19 October 2016). "All round aye from Sabah, Sarawak". The Borneo Post. Archived from the original on 19 October 2016. Retrieved 20 October 2016.
↑ Ling, Sharon. "Historic Kuching post office among 52 plots of land returned to S'wak, says Premier". The Star (Malaysia). Archived from the original on 20 July 2023. Retrieved 23 July 2023.