1 Introduction

Sabah (then North Borneo) joined the Federation of Malaysia (then Malaya), along with Sarawak and Singapore in 1963. The admission of Sabah and Sarawak (also collectively known as the East Malaysian states), as sub-national entities, into the Federation of Malaysia (Malaysia) was preceded by the conclusion of the Malaysia Agreement, signed in London on 9 July 1963 (MA63). The new Federation of Malaysia then was officially unveiled on 16 September 1963. In principal, MA63 accords Sabah and Sarawak a special position within Malaysia . Constitutionally guaranteed by the Malaysian Federal Constitution, Sabah and Sarawak get to retain a number of its own laws, privileges and rights that enable the leaders, to a greater extent, to develop both states independently according to the needs of the sub-national entities.

2 Historical Context: Developments and Entrenchments of Constitutional Asymmetry

Since the eighteenth century, Malaya, Sabah (then North Borneo), Sarawak , Singapore and Brunei were all part of Great Britain (Britain) colonies in the Southeast Asia region. By the nineteenth century, the demarcation of the borders of each one of the colonies was already established. The idea to form an independent entity, otherwise known as Malaysia that combined all of these colonies, first surfaced in 1942 when Britain began to seriously pursue the idea. This was part of what some British historians refer to as the “Grand Design”. 1 In 1949, Britain appointed Malcolm Donald as Britain Commissioner General to attempt the possibility of unifying all of those dominions. 2 Nevertheless, Britain had to improvise the plan when the Federation of Malaya came into being on 31 August 1957—minus Singapore , North Borneo, Sarawak and Brunei. Nonetheless, they still went ahead with the plan to unify the remaining dominions into an improvised entity called North Borneo Federation. Yet, Britain had been forced to shelve the plan due to, among others, the strong presence of Communist-led subversive movements (especially in Sarawak) and the fervent oppositions by the locals.

Britain then put forth the idea to the then Prime Minister of Malaya, Tunku Abdul Rahman, to expand the federation by incorporating the colonies. Tunku accepted the offer and together with Britain, drafted the plans to realise the proposal. The expansion, as a matter of fact, can be seen as a multi-pronged strategy by Britain to suppress the spread of Communism into Borneo, nullify the Philippine’s claim on Sabah , halt Indonesia’s expressed desire to take over the two colonies and finally to subdue Brunei’s internal revolt. After a series of meetings and consultations involving political parties and persons of interests, the leaders of Sabah, Sarawak and Singapore finally agreed to support the formation of Malaysia on 3 February 1962. 3 Brunei opted to stay out of Malaysia primarily because it wanted to retain total control over its petroleum resources. Besides, Brunei was technically more of a Great Britain protectorate than it was a colony. Thus, taking into account these two reasons, among other things, Brunei decided to keep the status quo. It only became independent 21 years later i.e. in 1984.

Following the 1962 agreement, Britain and Malaya began taking the necessary steps. As aforementioned, Malaya, then consisting of 11 former Britain colonies in the Malay Peninsula of Southeast Asia, was officially formed on 31 August 1957. Six years later, on 16 September 1963, the three other Britain colonies i.e. Singapore , Sabah and Sarawak were officially federated with the existing states of Malaya, thereafter known as the Federation of Malaysia (Malaysia). However, this new federation showed the first sign of trouble less than 23 months later when it expelled Singapore on 9 August 1965 due to significant and profoundly different political and economic perspectives between the sub-national government of Singapore and the central government. Adding up to the mounting tensions was the growing communal hostility between the majority Malays in the Peninsula and the Chinese who made up the majority in Singapore.

The racial friction, among others, gradually led up to two racial riots on 21 July and 2 September 1964 in Singapore. 4 These, to a certain extent, also served as the precursors to the first ever racial riot involving the two ethnic groups on 13 May 1969 in and around the capital city of Kuala Lumpur with loss of lives claimed to be in the excess of hundreds. The central government responded quickly. Headed by the then Deputy Prime Minister Tun Abdul Razak, Kuala Lumpur formed the National Operation Council (NOC)—an emergency administrative body—which then immediately imposed a nationwide two-week long martial law and suspended Parliamentary rule, among other things. After administering the country for three years, NOC restored Parliamentary rule and was disbanded in 1971.

3 Political Asymmetries

3.1 Variations in Size of Population

Malaysia is a multi-racial state comprising the Malays, Chinese, Indian, Sabah natives, Sarawak natives and various other sub-ethnics. Collectively, the Malays and all the natives are categorised as the Bumiputera (sons of the soil) and the rest as non-Bumiputera (immigrants). In 2017, it was estimated that Malaysian population was 32 million, for which the Malays and the other Bumiputera 5 (native) formed 68.8% from the population followed by the Chinese at 23.2%, Indians at 7% and others at 1%. 6 For Sabah , its current population is about 3.6 million. The Bumiputera forms about 2.3 million for which the Kadazan/Dusun 7 and the Bajau forming the two largest ethnic groups at 0.6 million and 0.5 million respectively. The Chinese and Indian form the non-Bumiputera group at 0.3 million and 0.1 million. 8 As for Sarawak , in 2010, its total population was 2.4 million. 9 And like Sabah, Sarawak has its fair share of Bumiputera population too. The Dayak communities constitute about 40%—out of which the Iban (or also known as Sea Dayak) makes up 30% followed by the Bidayuh (Land Dayak).The non-Bumiputera, on the other hand, who is largely made up of the Chinese constitutes about 24.2% of the population. 10

3.2 Variations in Territory

Malaysia is located in the Southeast Asia. The state is divided into two regions which are West Malaysia (Peninsular Malaysia) and East Malaysia. Peninsular Malaysia comprises of 11 sub-national entities while East Malaysia, also known as Borneo states, comprises of two sub-national entities i.e. Sabah and Sarawak . Peninsular Malaysia has an area of 131,587 square kilometres (sq. km). 11 It borders Thailand on the north and Singapore on the south. The two sub-national entities of East Malaysia share borders with Brunei and the Kalimantan region of Indonesia. Roughly, East Malaysia occupies the northern section of the island of Borneo. Sarawak covers an area of 124,449 sq. km while Sabah, on the other hand, has an area of 74,398 sq. km. 12

3.3 Variations in Economy

Since its formation in 1963, Malaysia’s economy has grown from agricultural-based to that of manufacturing-based. Its economy has drastically diversified from one that relied heavily on the export of raw materials (rubber and tin) to one that includes manufacturing, petroleum and natural gas and palm oil. 13 In the past eighteen years, Malaysia’s annual Gross Domestic Growth (GDP) averaged 4.81% from 2000 until 2018, reaching an all-time high of 10.30% in the first quarter of 2010. 14 According to International Monetary Fund (IMF), Malaysia’s economy continued to perform strongly, with higher than anticipated growth at 5.8% in 2017 with a projected growth of 5.3% for 2018. Currently, its economic growth is running above potential, driven by strong global demand for electronics and improved terms of trade for commodities, such as oil and gas. On the domestic front, Malaysia’s strong employment is boosting private consumption, and investment is also helping to drive growth. 15 Sabah and Sarawak have been enjoying the economic growth too. As an instance, Sabah’s economy has grown in the past five years by about 25% from a GDP of RM59.3 billion in 2011 to RM73.8 billion in 2016. 16 Besides, Sabah is the largest palm oil producer in Malaysia . The palm oil industry contributes about 40% to the entity’s GDP making it the largest contributor to Sabah’s economy. In addition to that, tourism sector is also showing positive growth. It recorded more arrivals of tourists every year i.e. 2.8 million tourists in 2011 to 3.4 million in 2016. The arrivals had translated into an estimated RM7.2 billion in tourism receipts. 17

As for Sarawak, the main drivers of its economy are oil and gas, timber and agriculture. Sarawak is known for its booming tourism industry too, thanks to its environmental biodiversity and multicultural population. Primary industries such as mining, agriculture and forestry made up more than 30% of Sarawak’s economy in 2013. 18 Sarawak recorded 3.2% economic growth in 2017 despite the uncertainties in the international crude oil prices. 19 Sarawak plays an important and strategic role in Malaysia’s economy overall. Its shares of national GDP for nine years until 2013 stood at an average of 10% and its per capita income of RM41,115 in 2013 was among the highest in the country. 20

Yet, in spite of the positive numbers and being rich in natural resources like timber, palm oil and petroleum, Sabah and Sarawak’s economies are still lagging far behind vis-à-vis other sub-national entities in Malaysia . 21 For instance, in a 10-year period statistics i.e. 2005–2015, Malaysia’s average national per capita income was RM37,104. For the same duration, Sabah’s was RM19,734 making it the second poorest sub-national entity in Malaysia after Kelantan (RM12,075). 22 The statistics also show that the sub-national entity with the highest national per capita income was Kuala Lumpur (in the Peninsular Malaysia) i.e. RM94,722 with a population of only 1.8 million. Sarawak , for its part, recorded per capita income of RM44,012 with a population of 2.4 million. Obviously, there are no easy and quick explanations to justify the striking gaps. However, on a whole, one can see that sub-national entities with higher dependency on agricultural and natural resources are generally low-income States while those with a high proportionate of services in their GDP tend to be high-income ones. 23 To be fair, Sabah agriculture sector makes up about 27% of Sabah’s economy—the highest in Malaysia . 24 In addition to that, in 2017, while the minimum salary in the Peninsular Malaysia was set at RM1000 while the minimum wage set for Sabah and Sarawak was RM80 lesser i.e. RM920. 25 As far as median monthly income is concerned, the Department of Statistics Malaysia’s Salaries & Wages Survey Report indicates that Sabahans on average earn about RM1240 and Sarawakians at RM1350. As a comparison, average salary in the Peninsular Malaysia is RM2050 with the lowest in Kelantan at RM1200 and the highest in Putrajaya at RM3250. Going by these figures, they invariably imply the existence of a notable gap in terms of socio-economic development particularly between Sabah, Sarawak and the other sub-national entities, among other things.

3.4 Variations in Political Landscape

On 31 August 1957, Malaya secured its independence from Britain marking the birth of Malaya Federation that consisted of 11 sub-national entities. Among others, it was considered as one of the solutions to Britain strategy of maintaining effective centralised control of post-colonisation in as much as to protect and safeguard the political rights and the privileges of the native Malays. 26 As aforementioned, in 1961, Tunku Abdul Rahman accepted Britain’s offer to form the Federation of Malaysia that would comprise Malaya, Sabah , Sarawak and Singapore . On 16 September 1963, Malaysia was formed based on the Malaysia Agreement 1963. Politically, due to the pluralist nature of its societal make-up, ethnic-based politics is naturally inevitable. Pursuant to that, ethnic-based political parties emerged to represent the main ethnic groups in Malaysia . They include, among others, the United National Malay Organisation (UMNO) for the Malays, the Malaysian Chinese Association (MCA) for the Chinese and the Malaysian Indian Congress (MIC) is for the Indians.

Essentially, Malaysia practises “consociationalism ” in managing its multi-ethnic society. Barisan Nasional (BN), which is a coalition of ethnic-based political parties, as an example, had been in power for more than 60 years until its first defeat ever in the 14th General Election (GE14) when it lost to the opposition coalition known as the Alliance of Hope (Pakatan Harapan [PH]). 27 The defeat was historical in Malaysia’s political history because it was also the first time ever that Malaysians saw a change of government at the federal level since its independence in 1957. The sub-national elections were held simultaneously with GE14, except for Sarawak that had previously run its election in 2016.

3.5 Variations in Identity

Literally, the term “ Bumiputera ” is commonly used to distinguish between the native and the non-native. While the native, as a term, is associated with those indigenous people or the “original” inhabitants of the land, the non-native, on the other hand, apparently is associated with those who were brought to the land by Britain during the colonial rule, mostly as labourers and planters in mining and plantation industries (immigrants). Technically, the term “ Bumiputera ” is a political invention. The word originates from the Malay language, meaning “indigene”. It is a combination of two words: Bumi and Putera. As aforementioned, Bumi means soil while Putera means son. Its rough translation in English means “son of the soil”.

In Peninsular Malaysia , the Bumiputera essentially refers to the Malays; and in East Malaysia, it includes all the indigenous groups of Sabah and Sarawak , religion notwithstanding (Article l61A of the Malaysian Federal Constitution). 28 As for Sabah, the Bumiputera is categorised into Malays, Kadazan/Dusun, Bajau, Murut and Other Bumiputera . The Kadazan/Dusun, as the largest Bumiputera community has 40 sub-ethnic groups such as Murut, Bisaya, Tatana, Rungus, Sungei, Lundayeh, Kimaragang and Lotud. In Sarawak , Dayak community is the largest Bumiputera group. The Dayak group who lives in the interior is collectively known as the “Orang Ulu” or upriver people comprising the Kenyah, Kayan, Kelabit, Lun Bawang, Berawan, Penan and others. 29

By and large, there are three major and large groups of Bumiputera in Malaysia ; the Malay in Peninsular Malaysia, Bumiputera (Kadazan/Dusun) in Sabah and Bumiputera (Dayak) in Sarawak . The non-Bumiputera (Chinese), on the other hand, are the largest non-Bumiputera group in all three provinces . Having said that, each one of the three Bumiputera groups has its own language, culture and religion. While the Malay people are generally of Islamic faith, practise Malay culture and speak Malay language, the majority of Kadazan/Dusun are of Christianity and Animism, have own cultural heritage and speak Kadazan language. Likewise, the Dayak in Sarawak are also largely of Christianity and Animism, with own culture and speak Dayak language. 30

The term Bumiputera is one important aspect in Malaysia because it implies certain rights and privileges which are not available to the non-Bumiputera. As an instance, a Bumiputera gets to enjoy 5% discount when purchasing properties anywhere throughout Malaysia . The principal purpose of this policy is to increase properties ownership among the Bumiputera vis-à-vis the non-Bumiputera so as to balance equity and property ownership among the population, which has been dominated by the non-Bumiputera since independence. Apart from that, it is important to note that since the federal constitution was first drafted in reference to the Bumiputera in the Peninsular, the application of the term was only extended to the Bumiputera in Sabah and Sarawak when both joined Malaysia in 1963. Therefore, by context, the term “ Bumiputera ” carries different connotation and thus, a degree of distinctions, when applied to the Malay (Peninsular Malaysia), Kadazan/Dusun (Sabah) and Dayak (Sarawak) due to the well-defined differences in time-context, identity and cultural markers.

4 Logic Behind Constitutional Asymmetries and Their Evolution

4.1 Asymmetries in the Set-Up of the Federation

The incorporation of Sabah and Sarawak as sub-national entities into the Federation of Malaysia has paved the way for subsequent constitutional amendments. In more ways than one, the amendments indicate notable asymmetries in the set-up of the Federation of Malaysia. The amendments in turn were heavily influenced by three key documents i.e. the 20-points, 18-points and Malaysia Agreement 1963 (MA 63). Subsequently, these three played a vital role in the division of powers between the federal government and the sub-national entities i.e. Ninth Schedule of the Federal Constitution. Considering the significance of the aforementioned documents, it is only pertinent that the succeeding discussion provides a succinct overview of them, as follow. 31

4.1.1 The 20-Point Memorandum for Sabah and 18-Point Memorandum for Sarawak

Prior to the formation of Malaysia in 1963, a series of events had taken place in order to sort out overarching issues and facilitate the integration of Sabah and Sarawak into Malaysia. Among others, Malaya together with Britain had set up a Commission of Inquiry, headed by Lord Cameron Cobbold (henceforth referred to as the Commission), to assess the views of the political parties, associations and individuals of Sabah and Sarawak on the possibility of them joining Malaysia . The Commission’s findings indicated that about 1/3 of the populations were in favour for, another 1/3 also in favour for but with varying terms and conditions and another 1/3 could not choose between Malaysia or to remain under Britain’s rule. The Commission also found that more or less than 20% of the populations were against the formation of Malaysia . In total, the Commission received no less than 2200 letters and memorandum, out of which 600 came from Sabah and 1600 from Sarawak . The memorandums were sent by council members of town boards, districts, organisations, political parties, workers unions and even religious leaders. 32

Following the finding, Malaya and Britain Government formed the Inter-Governmental Committee (IGC) to work out a new constitution for the proposed new federation of Malaysia , with the existing constitution of Malaya serving as the basic framework. Members of the IGC came from members of the Legislative Council of North Borneo and the Council Negeri of Sarawak , apart from representatives from Malaya and Britain. Upon the formation of the IGC, the alliance of political parties in Sabah came up with a 20-points Memorandum that would have served as the minimum constitutional safeguards for Sabah in Malaysia . The 20-points Memorandum, as the name suggests, contains 20 matters that Sabah wanted to be incorporated into the Federal Constitution. Basically, Sabah wanted the central government’s guarantee of its rights and powers regarding religion, language, sub-national constitution, head of federation, name of the federation, immigration , right of secession, Borneanisation, 33 Britain officers, citizenship, tariffs and finance, special position of indigenous races, sub-national government, transitional period, education, constitutional safeguards, representation in Parliament, name of head of state, name of state and land, forests, local government, etc. With some modifications, the IGC accepted the memorandum and recommended them to be incorporated into the new constitution.

Likewise, Sarawak’s 18-Point Memorandum was almost identical to Sabah’s 20-Point Memorandum. The differences however came in the contents of the demands particularly in language, head of state, immigration , Borneonisation, citizenship, finance, representation in the federal parliament, state government, transitional period and education. For instance, Sarawak wanted the head of state to come from the state’s indigenous communities but how he should be chosen would be discussed later. Sabah, however, did not explicitly mention the ethnic background of the head of state but suggested that the head of state be named Yang di Pertuan Negara. In education, Sarawak wanted a legislation to safeguard the Sarawak National Education Policy but Sabah requested that the existing educational system in Sabah be maintained and therefore wanted it to be under state control. 34

4.1.2 The Malaysia Agreement 1963 (MA63) 35

Upon the acceptance of the 20-Point and 18-Point Memorandums, Malaya together with Britain, Sabah , Sarawak and Brunei signed MA63 on 9 July 1963, in accordance with the constitutional instruments annexed thereto. For its part, MA63 contains 11 articles and 11 Annexes (Annex A–K). Among others, Article I states that the Colonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existing sub-national entities of the Federation of Malaya as Sabah , Sarawak and Singapore in accordance with the constitutional instruments annexed to this Agreement and the Federation shall thereafter be called “Malaysia ”.

4.2 Further Developments

The preceding documents are often regarded and referred to as one of the major sources for the often acrimonious relations between the central government and the sub-national governments, particularly those of Sabah and Sarawak . For a start, the MA63 Agreement is in fact an international agreement bearing the United Nations’ registration number of 10760–10761. It has been claimed that the Malaysian Federal Constitution has undergone more than 700 amendments but not one single amendment has been made to MA63. 36 Yet, despite the incorporation of the 20-Points and 18-Points into MA63, and for all that it matters for, the perception persists that the unique position of Sabah and Sarawak as sub-national entities in the federation have been gradually diluted over the years, and in consequence to that, persistent perception of “unfair treatment” by the central government.

James and Tazudin argue that there has been clear breach of MA63 by way of certain constitutional amendments. 37 Both are convinced that the central government had made the amendments under the pretext of promoting national integration and standardisation of sub-national laws and those of central. 38 This, to some degree, may be tantamount to be a form of abuse of Article 159 by the central government. Article 59, for the record, states that the “Parliament may amend the federal constitution according to the federal laws”. Since any amendments of the constitution requires only 2/3 majority votes in the Parliament, James and Tazudin insist that the central government had put this to great use when both Sabah and Sarawak were most of the time dependent to the federal government for financial and other kinds of supports. 39 In other words, both had been too weak to stand up against the federal government.

Another case in point was the controversial implementation of tourism tax. In 2017, the unilateral announcement of the tax by the Federal Minister of Tourism had shocked the leaders of Sabah and Sarawak. Citing the need to respect MA63 as the main argument, the leaders insisted that such an introduction of a new tax should first be brought to the attention and subsequently consented to by both the central and the sub-national governments. The public spat between the federal minister and sub-national ministers finally ended when the central government allowed both Sabah and Sarawak to be exempted temporarily from the implementation of tourism tax. 40

Such a relatively acrimonious relation is not something new. It has been going on for quite some time that some parties had even openly called for secession. In 1991, Jeffrey Kitingan, the younger brother of the then Sabah Chief Minister Joseph Pairin Kitingan, was one of eight individuals who was arrested under the Internal Security Act (ISA) for being allegedly involved in subversive political activities to take Sabah out of the Malaysian federation. 41 Jefrey eventually spent about three years in prison before being released in 1994. There had been no subsequent major arrests made in relation to what Jeffrey had been accused of. Nevertheless, as recent as 2011, a United Kingdom-based separatist movement headed by Doris Jones that calls itself Sabah Sarawak Keluar Malaysia (SSKM) has been actively engaging the public to support their cause to force Sabah (and Sarawak ) to cede from Malaysia . At the time of writing, SSKM website is still accessible and is actively promoting its cause. 42 Doris remains at large until today though.

The latest validation of such a “unfair treatment” perception by the central government has come in the recent national 14th election (9 May 2018). Two major coalitions of rival political parties i.e. PH and BN had come out with their own manifestos that touch specifically on MA63. On top of that, BN, being the ruling government had set up special committees headed by members of parliament from Sabah and Sarawak to carry out preliminary study on MA63 since 2009. PH, on the other hand, also promised that it would set up a Special Cabinet Committee to study and implement justly and fairly the provisions of MA63 within 100 days after winning the election. 43 As it turns out, PH did win the election. However, whether or not PH would deliver the promise, the fact remains that the perception of being “unfair treatment” by the federal government among Sabahans and Sarawakians can be said to be well-founded and justified.

5 Detecting Constitutional Asymmetry Within the System

5.1 The Distinct Status of Sub-national Entities

Part I of the Malaysian Federal Constitution sets out four distinct features of the federation. While Article 1 (2) mentions the names of the sub-national entities, clause 4 of the same article delineates the names of three federal territories namely Kuala Lumpur, Putrajaya and Labuan. While both Kuala Lumpur and Putrajaya were once part of Selangor, Labuan was once part of Sabah. All these were technically surrendered to the central government for economic and administrative purposes, among other things. They were made as such by way of Constitutional Act (amendment) (No. 2) 1973, 2001, and 1984 respectively. Put under direct rule of the central government, headed by a Federal Territory Minister, each one of the federal territories has its own local council (incorporated holdings), own mayor and even own holidays.

Subsequently, Article 2 defines the power of the Parliament to admit other (new) sub-national entities to the federation and, with the consent of the other entities and of the Conference of Rulers, alter the boundaries of any of the sub-national entities. With regard to religion, Article 3 determines Islam as the religion of the state while also expressly accepting the free practice of other religions. As aforementioned, Article 4 then specifically highlights the supremacy of the Federal Constitution and that should there be any inconsistencies of laws passed by the sub-national and central legislative assemblies after Malaysia Day i.e. 16 September 1963, the law of the federation shall then prevail. In relation to this, while the Malaysian Federal Constitution guarantees the existence of sub-national constitutions, the latter may under certain conditions make required legal provisions to secure compliance with the Malaysian Federal Constitution in the case of deliberate disregard of its provisions (Article 71 of Federal Constitution). With regard to Sabah and Sarawak, the constitution adds a “safeguard mechanism” for the constitutional position of Sabah and Sarawak , as sub-national entities, in Article 161E. Specifically, the constitution guarantees that after the formation of the federation of Malaysia , no amendment to the constitution made in respect of the admission to the federation of the sub-national entities of Sabah and Sarawak shall be made, except in matters involving citizenship (Part III: Supplementary Provisions Relating Citizenship), and that no modification to the constitution of the Sabah and Sarawak except for the purpose of equating or assimilating its position to the position of the other sub-national entities. Put it differently, Sabah’s and Sarawak’s positions within the federation remain unique and special in relation to other sub-national entities.

Besides, the constitution also states that any amendment to the constitution must be made with the concurrence of the Head of the State (Yang di-Pertua Negeri) especially for matters over citizenship, the constitution and jurisdiction of the High Court in Sabah and Sarawak and the appointment, removal and suspension of judges of that court, matters with respect to which the Sabah’s and Sarawak’s legislative assemblies may (or Parliament may not) make laws, and the executive authority of Sabah and Sarawak sub-national governments in those matters, and (so far as related thereto) the financial and religious arrangements between the central government and the East Malaysian states, language and special treatment of natives and allocation of quota of East Malaysian representation in the Parliament.

5.1.1 Representation

As at 2017, Malaysia has 222 parliamentary seats. The following table has the breakdown of the latest data of some selected sub-national entities representation in Parliament.

Table 1 indicates that out of 222 Parliamentary seats, Sabah has 25 seats (11%). It is the third highest after those of Sarawak i.e. 31 seats (14%) and Johor i.e. 26 seats (12%). Hitherto, the determination of the total numbers of Parliamentary seats and the subsequent redelienation of constituent boundary fall under the exclusive authority of the Election Commission of Malaysia (EC). Part VIII of the Malaysian Federal Constitution states that the EC may run the aforementioned exercise for every eight years. EC, however, does not necessarily oblige itself to follow the 8-year interval rule. Additionally, the number of seats allocated to each sub-national entity depends on a number of factors such as the size of population, density and geographical size. As an instance, Selangor is the most densely populated entity i.e. 6.3 million with the most numbers of voters. 44 As such, despite being only 7930 sq. km, it has 22 parliamentary seats.

Table 1 Sub-national entity’s representation in parliamenta
Full size table

As for Sabah, it has 25 seats. Despite having only 3.9 million populations, its size is almost ten times the size of Selangor. In the same vein, Sarawak with a roughly 2.7 million population has 31 seats. It short, the allocation of the Parliamentary seats depends much on political asymmetries i.e. the variations in size of population and in territory . Still, Article 161E (e) of the Malaysian Federal Constitution maintains that the provision of a quota of members in the Parliament to be not less and in proportion to the total allocated to the other sub-national entities. In other words, while in principle seats are allocated according to the size of the population, there is a guarantee for Sabah’s and Sarawak’s representation in Parliament to not go below a certain threshold.

5.1.2 The Judicial System

In general, Malaysia’s judicial system has three basic structures. While the Federal Court, Appeal Court and the Special Court form the Apex Courts (first-level structure), the High Courts of Malaya and those of Sabah and Sarawak form the Superior Courts (second-level structure) followed by the Session, Magistrate and Native courts as the Subordinate Courts (third-level structure). The Federal Court is the highest court of appeal. It replaces the Supreme Court (constituted in 1985) and is headed by the Chief Justice. The other members of this court are the President of the Court of Appeal, the two Chief Judges of the High Courts of Malaya and Sabah and Sarawak, and seven other Federal Court Judges. Next, the Court of Appeal is headed by the President of the Court of Appeal itself and has ten other judges, excluding the President. Subsequently, the High Courts of Malaya and Sabah and Sarawak are courts of equal jurisdiction and status. Each court is headed by a Chief Judge, who is appointed by the Agong or King (for sub-national entities in the Peninsular Malaysia ), upon advice by the Prime Minister. The appointment of the heads of the High Court of Sabah and Sarawak, on the other hand, requires the Prime Minister to consult the Chief Ministers of both sub-national entities, not Agong.

As for the jurisdictions of the courts, the Federal Court hears appeals (both civil and criminal) from the Court of Appeal. Among others, it provides advisory opinion to the Malaysia Government, if required. Specifically, it resolves disputes between the state and sub-national governments. The Court of Appeal, subsequently, hears appeals (both civil and criminal) from the High Court who in turn hears appeals from the Sessions and Magistrates’ Courts. Nevertheless, it needs to be stressed here that both courts have the powers to overrule state laws. 45 The Special Court, on the other hand, hears any civil or criminal action instituted by or against Agong or any of the nine Malay Rulers. At the bottom of the structure is the Native Courts of Sabah and Sarawak . They hear disputes concerning breach of customary law among the natives of Sabah and Sarawak. By virtue of the Malaysian Federal Constitution, Native Courts and the enforcement of native customary law are considered as sub-national matters to be regulated by sub-national legislative assembly. 46

5.2 Powers and Competences

5.2.1 Distribution of Legislative Powers

As far as legislation is concerned, the Federal Constitution defines the legislative powers of both central and sub-national legislative assemblies. For example, the central legislative assembly (Parliament) may make laws pertaining to matters in Federal and Common Lists only (Ninth Schedule). Accordingly, the sub-national legislative assembly then may make laws pertaining to State and Concurrent Lists only. However, should there be any inconsistency of the laws; the federal law will categorically prevail. For any matters not set out in any one of the three lists, the sub-national legislative assembly has the power to make the relevant laws. This power is known as the “Residual Legislative Power of State” (Article 77).

Besides, Article 94 (1) categorically mentions the executive authority of the central government on, among others: (1) the provision of education, publicity, and demonstration for the inhabitants of any sub-national entity (2) any of the matters with respect to which the legislature of a sub-national entity may make laws and (3) establishing ministries or departments of government to exercise the functions of the federal government under Article 93 (to conduct inquiries, surveys and publish statistics) and in relation to matters within the legislative authority of a sub-national entity that include local government and town and country planning. However, the federal constitution does provide additional protection for Sabah and Sarawak, as the incorporation of MA63 provisions into the Federal Constitution would have shown, among other things. Part XIIA (Additional Protections for the States of Sabah and Sarawak) of the Federal Constitution affirms that, instead of Malay, Sabah and Sarawak may use English for official purposes in the sub-national legislative assemblies and in the court of law. Still, as aforementioned, Malay remains the current official language for use in the court of law in Sabah and Sarawak.

Other than that, Article 161B of the constitution also restricts the extension to non-residents of the right to practice before courts in the sub-national entities of Sabah and Sarawak. In other words, lawyers from the other sub-national entities are not allowed to practise freely in Sabah and Sarawak without first obtaining the relevant work permits and permission. The prohibition also applies for cases before the Federal Court or the Court of Appeal when sitting in the sub-national entities of Sabah and Sarawak, among other things.

Up to a certain extent, the restriction can also be linked to Sabah’s and Sarawak’s insistence of the exclusive control of its own domestic immigration authority. Through this control, Sabah and Sarawak require the citizens of Malaysia from other sub-national entities to have special pass and/or documents (Dokumen Perjalanan Terhad or Limited Travel Document) that are valid for either 3 months or 5 years to enter Sabah and Sarawak, even for a short visit. By the same measure, they are required to obtain a work permit before they can apply for a trading licence. Reasons for the prohibition vary. However, according to Tan Sri Majid Khan, a former political secretary of the first Chief Minister of Sabah , prior to joining the federation of Malaysia , Sabah had only about 300 graduates with 95% of them were teachers with only two were natives. 47 The rest were non-natives. Accordingly, for fear of being overwhelmed by non-native professionals, experts and expatriates, Sabah introduced the prohibition to protect the interests of the natives.

Moreover, there are a number of modifications in the legislative power for the sub-national entity of Sabah (Part VI: Relations Between The Federation and The States—Chapter 1—Distribution of Legislative Powers). In order to illustrate this, Article 95B (1) states that, in the case of Sabah—“the supplement to State List (List II) set out in the Ninth Schedule shall be deemed to form part of the State List, and the matters enumerated therein shall be deemed not to be included in the Federal List or Concurrent List”. Likewise, any supplement to the Concurrent List (List III) sets out in the same Schedule shall, subject to the State List, be deemed to form part of the Concurrent List, and the matters enumerated therein shall be deemed not to be included in the Federal List. Subsequently, in matters involving taxes, upon meeting certain conditions, the sub-national legislature assembly of Sabah may make laws for imposing sales taxes, and any sales tax imposed therein shall be deemed to be among the matters enumerated in the State List and not in the federal list (emphasis is mine).

5.2.2 Distribution of Executive Powers

In relation to the Ninth Schedule, as aforementioned, apart from the Federal List and State List, the Federal Constitution also states additional jurisdictions in the State List (for Sabah and Sarawak) that include native law, custom, ports and harbour and railway (for Sabah only) (List IIA [Article 95b (1) (a)]). As for the Concurrent List, it categorises 14 aspects that both sub-national and central governments have common jurisdictions over. They include, among others, social welfare, scholarship, drainage, irrigation, public health, fire safety measures, national parks, culture, sport and housing. Similarly, the Concurrent List also adds List IIIA (Article 95b (1) (b)) that includes laws on transportation, marriage, shipping and hydro-electricity supply for Sabah.

The constitution also provides for the specific distribution of executive powers. Among others, Article 80 sets out that the executive authority of the Federation shall extend to all matters with respect to which Parliament may make laws and the executive authority of a sub-national entity to all matters with respect to which the legislature of that sub-national entity may make laws. Yet, the same article also limits the executive authority of the Federation i.e. it does not extend to any matter enumerated in the State List, except in conducting inquiries (Article 93) and inspection of work (Article 95) and only to matters under the Concurrent List as may be provided by federal or sub-national law. The operation of the executive authority of federal government into the sub-national entity must also be approved by the sub-national legislative resolution.

Likewise, the federal law may provide that the executive authority of a sub-national entity shall extend to the administration of any specified provisions of federal law and may for that purpose confer powers and impose duties on any authority of the sub-national entity. Both may as well agree on a joint work “for the performance of any functions by the authorities of the one on behalf of the authorities of the other and such arrangements may provide for the making of payments in respect of any costs incurred under the arrangements”. In the case of default of payments for services rendered, both may opt for settlement by tribunal as may be determined by the Chief Justice of the Federal Court. Furthermore, the Federal Constitution also provides for the exclusion for the sub-national legislative assembly of Parliament’s power to pass uniform laws about land or local government (Article 95D. See also Article 91, 92, 94, 95A). In other words, Article 95A states that Sabah and Sarawak have the option of not having to follow the policy formulated by the National Land Council or by the National Council for Local Government, as the case may be, but its representatives shall not be entitled to vote on questions before both of the Councils. Despite not having the right to vote, if the Councils want to proclaim an area in Sabah or Sarawak as a development area, they still are required to obtain the agreement of the Yang di-Pertua Negeri of Sabah or Sarawak.

5.3 Fiscal Autonomy

The fiscal autonomy of Sabah and Sarawak, as aforementioned, may also relate to Chapter 3—Distribution of Financial Burdens of the Federal Constitution. Thus, for financing of expenditure relating to matters on the Concurrent List, Article 82 states that the burden of that expenditure is borne by the Federation, if the expenditure results either from federal commitments or from sub-national entity’s commitments undertaken in accordance with federal policy and with the specific approval of the Federal Government, and by the concerned sub-national entity , if the expenditure results from the latter’s own commitment. In terms of the power to borrowing money, a sub-national entity “shall not borrow except under the authority of its law”. In addition to that, the sub-national entity should only borrow from the Federal Government or pre-approved banks or any other financial institutions. Similarly, a sub-national entity “shall not give any guarantee except under its authority, and such guarantee shall not be given except with the approval of the Federal Government and subject to such conditions as may be specified by it”.

As for the borrowing powers of Sabah and Sarawak, Article 112B does not restrict its power to do as such within its own law, provided that it obtains prior approval from Bank Negara or the Central Bank. As for auditing purpose, the General Auditor shall have the power to audit and submit reports relating to the accounts of sub-national governments of Sabah and Sarawak, or to the accounts of any public authority exercising powers vested in it by the State law, to the Yang di-Pertuan Agong (Head of the Federal Government) and to the Yang di-Pertua Negeri (Head of the State Government) (Article 112A). In matters involving special grants and assignments of revenue to the sub-national entities of Sabah and Sarawak and in addition to capitation, road grants and sources of revenues assigned to States (Part I, II and II of Tenth Schedule), the federal government shall provide, in this case Sabah and Sarawak, with a grant of amount in each year to two-fifths of the amount by which the net revenue derived by the Federation from East Malaysia exceeds the net revenue. Additionally, Sabah and Sarawak enjoy additional sources of revenue (Part V) which include, inter alia, import and excise duty on petroleum products, export duty on timber and other forest produce, air and land transportation licencing fees, State sales taxes, fees and dues from state-owned ports and harbours and water supplies and services (also water rates).

On another note, as long as medicine and health remains an item in the Concurrent List and expenses in respect of that item are borne by Sabah and Sarawak, it is entitled for another 30% of all customs revenue . Apart from that, Sabah and Sarawak also get to enjoy export duty on minerals (other than tin) (Article 110) (3a). These special grants, however, are subject to reviews on a five-year interval by both the federal and state government in concurrence with Yang Dipertuan Agong. The reviews must take into consideration of the financial standing of the federal government and the needs of the East Malaysian states.

5.4 Conclusion: A Case of Strong or Weak Constitutional Asymmetry?

Most importantly, the 20-Point and 18-Point Memorandum and the subsequent MA63 and amendments in the Federal Constitution, and all the relevant autonomy (quasi-autonomy) in status, legislative and executive powers as well as fiscal powers do suggest a strong, intentional constitutional asymmetry. All these have then led to a number of circumstances that make Sabah and Sarawak unique as opposed to other sub-national entities in Malaysia . Firstly, as a result of the pressing needs for the incorporation of Sabah and Sarawak into the Federation of Malaysia , they get to bargain on their own terms. This condition, apparently, has somewhat “elevated” the status of Sabah and Sarawak and in due process has resulted in a number of favourable and desirable rights, privileges, exemptions and division of powers that give rise to Sabah’s and Sarawak’s prevailing special position within the federation. Such a position is in itself a testament of constitutional asymmetry which unfortunately does not necessarily augur well with the other sub-national entities in the federation.

Secondly, Sabah and Sarawak get to enjoy a degree of fiscal autonomy as in the case of the freedom to impose sales tax, and the rights to collect additional revenues from its ports and harbours, the rights to borrow money (though still subject to the approval of Central Bank) plus the provisions of special annual grants. This makes it all the more explicit that Sabah and Sarawak do indeed enjoy substantial fiscal autonomy. Thirdly, Sabah and Sarawak also get to retain their own separate ministerial systems, plus the right to choose their own official language and religion. This has helped to highlight the quasi-autonomy that Sabah and Sarawak enjoy in terms of executive decision-making. This is also further substantiated by the existence of the Tenth Schedule which sets out the jurisdiction of the federal government and state government.

Still, as the preceding discussions indicate, the federal government invariably has the upper hand as to the extent of such an asymmetry. Article 4 (1) states that the Federal Constitution is the supreme law of the Federation and any law passed after independence found to be inconsistent with the Federal Constitution shall be void. Besides, the final interpretation of all relevant acts, laws and provisions eventually rests with the executive body at the federal level, especially when the sub-national government is ruled by a rival political party or a coalition. Both Sabah’s and Sarawak’s financial or legislative autonomy, in reality, also appear to be subject to the sole discretion of the federal government.

6 Linking Constitutional Asymmetry to Multinationalism

MA63, and the Tenth Schedule , among other things, for all that they stand for, have set the foundation for constitutional asymmetry and the tone of multinationalism. For its part, MA63 has created a hindrance to symmetrisation in the constitution of Malaysia . The fact that Sabah and Sarawak have independent executive authority over their own domestic immigration laws, plus the requirement for Malaysian citizens from other sub-national entities to get a work permit in order to apply for trade licence in East Malaysia also further emboldens such a feeling. On top of that, lawyers from other sub-national entities also are not permitted to practise in East Malaysia . Yet, the same rules and regulations do not apply to the people of Sabah and Sarawak entering, residing and working in the other sub-national entities in Malaysia. Apparently, these are all made possible constitutionally by MA63 and the Federal Constitution themselves. Still, one needs to accept the fact that MA63, and the resulting constitutional asymmetry , was most possibly the best instrument for Sabah and Sarawak , as sub-national entities, at the time of their incorporation into the Federation of Malaysia .

However, in reality, despite such a special status of Sabah and Sarawak, substantial parts of the special rights and privileges as outlined in MA63 remain unfulfilled. In other words, despite the intentional constitutional asymmetries, primarily brought about MA63 that paved the way for the formation of the federation, they have somewhat unable to live up to the expectation of the people of Sabah and Sarawak . As a matter of fact, in the last five decades, such has led to years of feuds of all sorts between the East Malaysian sub-national entities and the central government. Apparently, the federal government, for the most part, since 1965, has instead centralised and strengthened more of its powers vis-à-vis those of Sabah and Sarawak. The growing centralisation of power by the federal government has essentially caused both Sabah and Sarawak to be left lagging behind in term of economies as opposed to the other sub-national entities especially in Peninsular Malaysia . The slow economic progress and sub-standard infrastructural developments, among other things, have caused widespread dissatisfaction among the general public in both Sabah and Sarawak. Therefore, political and economic asymmetries and the consequential constitutional asymmetry have paradoxically begun to produce undesirable results for Sabah and Sarawak especially in terms of economy and political status. Apart from the issue of failing national integration that is accelerated in part by distinct cultures, religions and languages among the Bumiputera in the Peninsular, Sabah and Sarawak, one should not be surprised if the option of secession remains to be frequently talked about by and among the people of Sabah and Sarawak . That said, regardless of how one looks at it, there is certainly a strong case for the federal government to revisit the preceding documents so as to make the federation sustainable for years to come.

Notes

  1. 1.

    A. J. Stockwell (ed.), British Documents on the End of Empire— Malaysia (London: Institute of Commonwealth Studies, 2004), xxxvii.

  2. 2.

    D. S. Ranjit Singh, ‘Formation of Malaysia: Revisiting the IGC Report, the 20-Points and the Malaysia Agreement 1963’, SEEDS Workshop Series on Building Malaysia—Historical Truth Behind the Formation of Malaysia and the Way Forward, 12 November 2014, Kota Kinabalu, Sabah , Malaysia .

  3. 3.

    Ibid.

  4. 4.

    National Library Board Singapore , ‘Communal Riots of 1964’, http://eresources.nlb.gov.sg/infopedia/articles/SIP_45_2005-01-06.html (accessed 19 April 2018).

  5. 5.

    According to Syahredzan Johan, the term “bumiputera ” or “pribumi” does exist in the context of the natives of Sabah and Sarawak . Article 161A of the Federal Constitution lists down the ethnic groups recognised as natives of Sabah and Sarawak. Read more at https://www.thestar.com.my/opinion/online-exclusive/a-humble-submission/2017/07/27/what-defines-a-bumiputra-as-we-debate-this-issue-it-is-important-for-us-to-get-all-the-terminology-r/#Iw2aypDvZCgqHUBF.99.

  6. 6.

    Department of Statistic Malaysia , 2017, available online, https://www.dosm.gov.my (accessed 11 June 2018).

  7. 7.

    The KDCA (Kadazan/Dusun Cultural Association) constitution, Article 6 (1) defines the Kadazan/Dusun “as the definitive indigenous people of Sabah comprising the following dialectical ethnic groups: Bonggi, Bundu, Dumpas, Gana, Garo, Ida’an, Kadayan, Kimaragang, Kolobuan, Kuijau, Lingkabau, Liwan, Lobu, Sonsogon, Lundayo (Lundayeh), Makiang, Malapi, Mangkaak, Minokok, Murut, Nabai, Pingas, Paitan, Rumanau, Rungus, Sinobu, Sinorupu, Sukang, Sungei, Tatana, Tangara, Tidong, Tindal, Tolinting, Tobilung, Tombonuo, Tuhawon, Tutung, Bisaya, Lotud”.

  8. 8.

    Department of Statistics Malaysia, 2017, available online, https://www.dosm.gov.my (accessed 10 June 2018).

  9. 9.

    The Official Portal of Sarawak Government, available online (accessed 14 July 2018).

  10. 10.

    Department of Statistics Malaysia , ‘Population Distribution and Basic Demographic Characteristics’ (2010), 11, 62–81. Government of Malaysia.

  11. 11.

    ‘Malaysia , Size and Location’, available online, http://www.nationsencyclopedia.com/Asia-and-Oceania/Malaysia-Location-size-and-extent-.html (accessed 13 February 2018).

  12. 12.

    ‘Jabatan Tanah Dan Ukur Sabah ’, available online, http://www.jtu.sabah.gov.my/homepage/index.cfm?section=administration&action=structure&lang=BM (accessed 13 June 2018).

  13. 13.

    ‘Malaysia ’, Encyclopaedia Britannica, available online, https://www.britannica.com/place/Malaysia/Economy (accessed 13 June 2018).

  14. 14.

    ‘Malaysia GDP Annual Growth Rate’, Trading Economics, available online, https://tradingeconomics.com/malaysia/gdp-growth-annual (accessed 13 June 2018).

  15. 15.

    ‘IMF News’, International Monetary Fund, available online, https://www.imf.org/en/News/Articles/2018/03/07/NA030718-Malaysias-Economy-Getting-Closer-to-High-Income-Status (accessed 10 June 2018).

  16. 16.

    ‘Sabah Economy Stays Strong—Teo’, Borneopost Online, available online, http://www.theborneopost.com/2017/12/29/sabah-economy-stays-strong-teo (accessed 13 June 2018).

  17. 17.

    Ibid.

  18. 18.

    ‘The State of Sarawak ’, Economic Research, Malaysian Rating Corporation Berhad, www.marc.com.my (accessed 15 July 2018).

  19. 19.

    ‘Sarawak Records 3.2% Growth’, The Star Online, 10 September 2017 (accessed 15 July 2018).

  20. 20.

    ‘The State of Sarawak ’, Economic Research, Malaysian Rating Corporation Berhad, www.marc.com.my (accessed 15 July 2018).

  21. 21.

    Sulaiman Mahbob, ‘Inequality and Economic Growth’, available online, https://www.nst.com.my/news/2016/09/173534/inequality-and-economic-growth (accessed 13 June 2018).

  22. 22.

    Chan Kok Leong, ‘Kelantan, Kedah, Sabah Score Lowest in Per Capita Income’, 17 April 2017, available online, https://www.themalaysianinsight.com/s/1739/ (accessed 1 March 2018).

  23. 23.

    Ali Salman, Director of IDEAS, as cited by Chan Kok Leong, ‘Kelantan, Kedah, Sabah Score Lowest in Per Capita Income’, 17 April 2017, available online, https://www.themalaysianinsight.com/s/1739/ (accessed 1 March 2018).

  24. 24.

    ‘Sabah Shows Biggest Decline in Poverty—Rahman’, Borneopost Online, 11 October 2017, available online, http://www.theborneopost.com/2017/10/11/sabah-shows-biggest-decline-in-poverty-rahman/ (accessed 15 March 2018).

  25. 25.

    Metro, ‘Gaji minimum pekerja swasta diselaraskan’ (Salary in the private sector to be streamlined), available online, https://www.hmetro.com.my/mutakhir/2017/10/272400/gaji-minimum-pekerja-swasta-diselaraskan (accessed 12 March 2018).

  26. 26.

    Mohd Agus Yusoff, Malaysian Federalism: Conflict of Consensus (Bangi, Selangor: UKM, 2006).

  27. 27.

    PH is also a political coalition comprises of People’s Justice Party (PKR), Malaysian United Indigenous Party (PPBM), Democratic Action Party (DAP) and National Trust Party (AMANAH).

  28. 28.

    R. Mason and O. Ariffin, ‘The “Bumiputera Policy”: Dynamics and Dilemmas’, Kajian Malaysia , 21, Nos. 1–2 (2003).

  29. 29.

    Minority Rights Group International, World Directory of Minorities and Indigenous Peoples—Malaysia: Indigenous peoples and ethnic minorities in Sarawak, January 2018, available online, https://www.refworld.org/docid/49749ce83a.html (accessed 14 July 2018).

  30. 30.

    Cindy Richard Thing, Sejarah Interaksi Orang Cina Dan Dayak Di Sarawak , available online, http://www.myjurnal.my/filebank/published_article/22933/091_101.PDF (accessed 11 July 2018).

  31. 31.

    Data contained in the following discussion are mostly sources from a number of workshops and dialogue sessions the author had attended. They include: (1) S. Vanugopal on “Legal Aspects of the Formation of Malaysia and Constitutional Issues in Federal-State Relations”, SEEDS Workshop Series on Building Malaysia —Historical Truth Behind the Formation of Malaysia and the Way Forward, 12 November 2014, Kota Kinabalu, Sabah , Malaysia (2) D. S. Ranjit Singh, “Formation of Malaysia : Revisiting the IGC Report, the 20-Points and the Malaysia Agreement 1963”, SEEDS Workshop Series on Building Malaysia—Historical Truth Behind the Formation of Malaysia and the Way Forward, 12 November 2014, Kota Kinabalu, Sabah , Malaysia and (3) Sharing session on 12 November 2014, Kota Kinabalu, Sabah, Malaysia with Abdul Majid Khan, Former Political Secretary to the late Tun Fuad Stephens from 1964 to 1965. Tun Fuad was a member of the IGC Report, one of the founders of Federation of Malaysia 1963 and Sabah’s first Chief Minister from 1963 to 1964 (4) Dialogue Session on Malaysia Agreement 1963 with Pandikar Amin Mulia, Malaysia Parliament Speaker, 11 March 2018, Kota Kinabalu, Sabah, Malaysia.

  32. 32.

    James F. Ongkili and Tazudin Tarupian, ‘44 Tahun Malaysia Timur Merdeka: Cabaran, Dilema dan Hakikat 20 Perkara Dalam Pembangunan Sabah’, in Prosiding Seminar Sabah Setelah 50 Tahun Malaysia Merdeka (Shah Alam, Malaysia: Universiti Teknologi MARA, 2007), 2.

  33. 33.

    Borneonisation roughly refers to the employment of more Sabah and Sarawak natives in all sectors of employment, politics and economy.

  34. 34.

    H. Luping, ‘The Formation of Malaysia Revisited’, in G. J. Kitingan and J. M. Ongkili, Sabah: 25 Years Later: 1963–1988 (Kota Kinabalu: Institute of Development Studies, 1989), 1–59.

  35. 35.

    United Nations, ‘Malaysia Agreement 1963’, 750, Nos. 10760–10761, United Nation: New York, 1970, available online, https://treaties.un.org/doc/Publication/UNTS/Volume%20750/v750.pdf (accessed 1 March 2018).

  36. 36.

    Ask Legal, ‘Constitution: 5 Facts You Didn’t Know About the Malaysia Agreement 1963’, June 2017, available online, https://asklegal.my/p/5-facts-about-the-malaysia-agreement-1963 (accessed 8 March 2018).

  37. 37.

    James F. Ongkili and Tazudin Tarupian, ‘44 Tahun Malaysia Timur Merdeka: Cabaran, Dilema dan Hakikat 20 Perkara Dalam Pembangunan Sabah ’, in Prosiding Seminar Sabah Setelah 50 Tahun Malaysia Merdeka (Shah Alam, Malaysia: Universiti Teknologi MARA, 2007), 8–10.

  38. 38.

    Ibid.

  39. 39.

    Ibid.

  40. 40.

    ‘Sarawak , Sabah Agree to Defer Implementation of Tourism Tax’, The Star, 5 July 2017

  41. 41.

    Sabah Chief Minister’s Brother Arrested Under Internal Security Act, 15 May 1991, available online, www.ucanews.com (accessed 4 March 2018). See also Daily Express, ‘Jeffrey’s Experience of the ISA’, 25 September 2011.

  42. 42.

    SSKM—SSU (UK), Sabah Sarawak Keluar Malaysia—Sabah Sarawak Union (Sabah Sarawak Exit Malaysia ), available online, www.sabahsarawakmerdeka.com/p/about-us.html (accessed 10 May 2018).

  43. 43.

    Astro Awani, ‘PRU14: Ini perbandingan manifesto dari aspek Sabah dan Sarawak’, available online, http://www.astroawani.com/berita-politik/pru14-ini-perbandingan-manifesto-dari-aspek-sabah-dan-sarawak-173420 (accessed 10 Julai 2018).

  44. 44.

    For more information, see The Star, EC explains the New Boundaries, available online, https://www.thestar.com.my/news/nation/2018/03/29/ec-explains-the-new-boundaries (accessed 30 March 2018).

  45. 45.

    Malaysian Insights, ‘Federal Court Judgment on Indira Gandhi Case’, available online, https://www.themalaysianinsight.com/s/34948 (accessed 1 July 2018).

  46. 46.

    Rafidah Salleh, ‘Native Courts System in Sabah : Will It Continue to Survive?’ 2014, https://doi.org/10.13140/2.1.1674.4005, available online, http://www.sabah.gov.my/mlgh/nativecourtsenactment1992.pdf (accessed 18 April 2018).

  47. 47.

    Sharing session on 12 November 2014, Kota Kinabalu, Sabah , Malaysia with Abdul Majid Khan, Former Political Secretary to the late Tun Fuad Stephens from 1964 to 1965. Tun Fuad was a member of the IGC Report, one of the founders of Federation of Malaysia 1963 and Sabah’s first Chief Minister from 1963 to 1964.