The Kitingan case, the Borneo states, and the Malaysia.
By Bob Reece
Introduction
In about October 1992, I was asked by Mr. Harjeet Singh of the Kuala Lumpur legal firm of Shearn, Delamore & Co. if I would provide expert advice in the form of an affidavit in the case of Datuk Jeffrey Kitingan, a Sabah Kadazan-Dusun politician and Director of the Sabah Foundation who had been charged with seven offences involving the alleged corrupt transfer of funds to bank accounts in Hong Kong. As the bank concerned would not allow its staff members to testify in a Malaysian court, Malaysia's legal authorities had called upon the Hong Kong courts in April 1990 to lend their assistance in the collection of evidence which could then be presented in the Malaysian courts in order to secure Kitingan's conviction. Kitingan's lawyers challenged this, claiming that the charges were politically motivated and that under the terms of Section 77b of Hong Kong's Evidence Ordinance, this was sufficient grounds for Hong Kong not to lend its assistance. My affidavit was intended to be presented as an expert opinion that the charges were indeed politically motivated, something I had strongly suspected when I first heard of the attempted prosecution. As it happened, I had never met Datuk Jeffrey Kitingan or his brother, Datuk Pairin Kitingan, who was then the Chief Minister of Sabah, but I had kept close track of political events in Sabah and Sarawak since my time there as a journalist in the late 1960s and early 1970s and was aware of the subsequent constitutional changes which had eroded much of the special status, originally granted to the two Borneo states in Kuala Lumpur's desperate efforts to include them in the enlarged Federation as a counter-balance to predominantly Chinese Singapore. I was by no means a constitutional expert but I was well aware of the political agenda which underlay constitutional change: Kuala Lumpur's (or rather UMNO's) plan to run the Federation along highly centralized lines for the benefit of what was thought would be a Malay majority. I think that my name was put forward when Jeffrey Kitingan's lawyers asked my old friend Professor George Appell if he could recommend someone. George and Laura Appell had worked as anthropologists in Sabah for some years and were well acquainted with the Kadazan-Dusun community in which the Kitingans had become leading figures after the tragic demise of Datuk Fuad (Donald) Stephens, someone whom I had known well when I was a journalist for the Far Eastern Economic Review and subsequently in Canberra when he was Malaysia's High Commissioner. There were other authorities like the late Hugh Hickling, author of the 1963 Malaysian Constitution, who might have been considered more appropriate than myself from a constitutional point of view, but a political understanding of the historical relationship of the Borneo states with Kuala Lumpur was arguably just as important. Acting as an expert witness involved a visit to Kuala Lumpur and then Hong Kong where I was briefed by the defense solicitor and barrister before embarking on my affidavit. Using an extensive collection of legal documents and newspaper cuttings supplied by Harjeet Singh, together with the resources of the Library of the University of Hong Kong where my old friend Professor Wang Gung Wu was then ensconced as Vice-Chancellor, I set to work and managed to produce within a week what I thought was a fairly respectable document. Imagine my dismay, then, when the Hong Kong solicitor and his barrister colleague told me in no uncertain terms that it would simply not do. I felt like an undergraduate who had been handed back his essay and told to try a little harder! However, it was not the substance of the document that was unsatisfactory but the way in which it was presented. I was instructed that every assertion made had to be authenticated or supported in some way. It had to be based on legislative authority or otherwise represented as reflecting the consensus of legal or historical academic opinion in this area, or at base level as an expression of my own individual expert opinion. Further, instead of footnotes I had to furnish the actual published documents cited and refer to them as appendices listed as "Reece, R.H.W., Exhibit 1" etc. This latter task was onerous in its seemingly endless photocopying, arranging, and labeling of what became a meter-thick dossier, but it was nothing compared with the absolute slog of going through the draft and identifying every time I made an assertion of some kind. In the process I learnt a good deal about the differences between historical and legal verification. Every historical text is a mosaic or confection of assertions based on supposition, personal opinion, informed conjecture and unadorned hearsay as well as actual documentary evidence. The lawyers clearly think that we historians get away with murder, and perhaps sometimes we do. Their qualitative assessment of evidence of all categories has to be much more precise and authoritative and I became much more conscious of these categories and their important differentiations. Ironically, I may well be a better historian because of it. Altogether, it was a most edifying experience and I thought back to my high school headmaster who once advised me to go into law. I would certainly have made a lot more money, but at what cost? For one thing, there is the damage to the English language that lawyers do every day. The spiky and heavily hedged and qualified legalese into which I had been obliged to translate my gracefully flowing prose was barbaric to the eye. It makes me shudder even now as I read it for the first time in fifteen years. There were compensations, of course. I was accommodated in the executive suite of the Hong Kong Hilton where there was always a bottle of champagne in the ice bucket and fresh strawberries and canapes nearby. Christopher Bonsall, the charming Eurasian Hong Kong solicitor of the firm of Johnson, Stokes and Master, wined and dined me at the Hong Kong Cricket Club. I reflected with some satisfaction on the contrast with my earlier time in Hong Kong in 1968 when I was writing freelance for the Far Eastern Economic Review, living on noodles and sleeping on the settees of tolerant friends. I could not help thinking that the HK$100 I was now paying for a wonderful curry lunch at the Hilton would have supported me for a week or two back then when I could not even have afforded a cup of tea. I was able to return some of the hospitality shown me in earlier years by the Wangs and others, including the Australian architect, Alan Gilbert, and to finance his moonlight flit back to Melbourne with all his belongings after his company failed and he was left owing a fortune in rent. At last the affidavit met the strict standards set out by my legal friends and after a final session with them over champagne and canapes I returned to Western Australia and my envious family with a draft that needed only the final touches. My brother-in-law, who is a district court judge in Queensland and an extremely shrewd critic of the legal process, would probably have supported the Crown case. He wrote to me in these rather deflating but ultimately helpful terms:
After reading your affidavit, I have difficulty in understanding
how your evidence can be relevant. By way of illustration, I am
sure there are some in Queensland who think that the prosecution of
Joh [BjelkePeterson, the former Queensland Premier], Austin, Lane
et al was politically motivated. Even if that could have been
proved, it would have got the defence nowhere, because the sole
issue for the Court (which includes, in our system, the jury) to
consider is whether the Crown has proved the guilt of the accused
of the offence charged.
In any event, Mr Kitingan's legal advisers think that your evidence
is important for his defence. I do wonder whether you should
confirm with them--to ensure that they don't intend to, say,
release your affidavit (knowing that they can't use it at the
trial) in an effort to improperly influence or inflame local
opinion.
As I have read your affidavit I have found myself wondering at times
whether all of it can, in a legal sense, be said to be properly
admissible on the grounds of expert evidence. Generally the rule in
our system ... is that that witness can only speak of things he has
seen or heard himself--de visua et auditu--rather than express
opinions. A witness may give his opinion on matters provided that
they are matters calling for special skill or knowledge and provided
he is an expert in such matters.
To qualify as an expert the judge must be satisfied that "the field
of knowledge in which the witness professes expertise is a
recognised and organised body of knowledge outside his ordinary
experience of men and [that] ... the witness has sufficient
expertise in such field as would enable him to assist the
tribunal."
It seems to me that in the latter part of your affidavit you perhaps
wander from being an historian to proffering views, which, in truth,
are not matters of historical expertise, but conclusions of fact
which a layman, perhaps having had the historical context explained
to him, might draw. Look particularly at your paragraph 52, in which
you conclude that the charges "appear to relate directly to his
attempt to overturn ...". As you concede you do not know the
substance of the charges, would it not be better to say, say, "I
have no knowledge of the strength of the evidence intended to be
lead [sic] by the State in bringing the seven charges against Dr.
Kitingan. They have been presented at a time when he was seeking to
overturn etc.".
Needless to say, I accepted his excellent advice although his comparison with the Queensland cases was not entirely appropriate. The essence of the Hong Kong cases was whether the Malaysian request could be facilitated under Hong Kong law. Months later I learnt that the defense had been successful, Master Beeson of the Hong Kong Supreme Court finding that "the proceedings [against Datuk Kitingan] were of a political character and also an abuse of the process of the court ..." Master Beeson did not reject my affidavit in its entirety, as the Crown had insisted be done:
I treated it as the report of a trained historian who has a special
expertise in the history and politics of Malaysia with the
reservation that as the reporter was not available for oral
examination or cross-examination it must be treated with some
caution where matters purely of opinion were aired.
The Crown immediately challenged the decision, partly on the earlier grounds that my expert opinion should not be accepted. On 20th January 1994, in his final judgment on the appeal, Hon. Jones J upheld Master Beeson's earlier decision that the Hong Kong courts could not cooperate with their Malaysian counterparts, summarizing in six pages what he considered to be the most relevant parts of the background information I had provided in my affidavit.
There remains the question of whether Datuk Jeffrey Kitingan was in fact guilty of the offenses with which he had been charged, an issue which the highly technical Hong Kong cases had obscured and ultimately rendered irrelevant. I tried to meet Datuk Kitingan during a subsequent visit to Kota Kinabalu but found him strangely unwilling to see me in view of the part I had played in securing his non-prosecution. However, whether Datuk Kitingan was guilty or not, I remain satisfied that Dr. Mahathir's hand was closely involved in this action. I believe that his motivation was purely and simply to deal with a man who had become a political nuisance and a hindrance to his efforts both to bend Sabah's political system to the West Malaysian model and to ensure that the constitutional amendments which had brought Sabah and Sarawak under a much more centralized control from Kuala Lumpur would not be dismantled. It has to be conceded that the threat by Kadazan-Dusun political figures associated with the Kitingan brothers that Sabah might secede from the Federation was a cause for concern for the Kuala Lumpur government, although I believe that it was largely rhetorical in nature. I would prefer to draw a veil over the sad story of what has happened in Sabah politics subsequently, except to say that the introduction of UMNO has finally rendered the state politically "safe."
The Affidavit
[The text that follows has dispensed with the original apparatus of Exhibits but a full list is provided of all references used other than newspaper articles. All explanatory interpolations have been enclosed by square brackets.]
It is crucial to any understanding of the experience of Sabah within Malaysia since 1963 that the circumstances leading to the formation of the Federation of Malaysia should be briefly outlined and explained. On 27th May 1961, the Federation of Malaya's Prime Minister, Tunku Abdul Rahman, publicly proposed that Malaya, Singapore, Sarawak, North Borneo (Sabah) and Brunei be joined in a new political federation, to be known as "Malaysia." At that time the Federation of Malaya was a sovereign state, having achieved independence from Britain in August 1957. Singapore had been granted internal self-government in 1959 and had its own Prime Minister, Mr. Lee Kuan Yew, but was still a Crown colony in which the British government retained control of defense, foreign relations and internal security. North Borneo and Sarawak were Crown colonies, each under the authority of its Governor-in-Council. Political representation was more advanced in North Borneo than in Sarawak, an unofficial majority having been granted in North Borneo's Legislative Council in 1960. Brunei was a British Protectorate whose 1959 Constitution had provided for internal self-government, with the British government retaining responsibility for defense, foreign affairs and internal security. Provision was made for popular elections to a legislative council to be held in 1961 but supreme authority remained with the Sultan. The Parti Rakyat Brunei, established in 1956, was the first political party to appear in the three Borneo territories.
At the time of Tunku Abdul Rahman's announcement of the Malaysia proposal, there had been no prior consultations with the governments of Singapore, North Borneo, Sarawak and Brunei, although the suggestion of such an arrangement had been made earlier by British colonial officials, notably Lord Brassey, a Director of the North Borneo Company, in 1894 and Sir Cecil Clementi, Governor of Malaya and the Straits Settlements, in 1930. It was also taken up by Britain's Commissioner-General for Southeast Asia, Malcolm McDonald, during his term of office from 1949 until 1952. Finally, on 30th January 1960, the Governor of North Borneo, Sir Roland Turnbull, predicted the establishment of a "great Commonwealth member" consisting of the Federation of Malaya, Singapore and the Borneo territories as full partners.
There had also been an alternative official proposal for the closer linking of North Borneo, Sarawak and Brunei in a federation or confederation of British Borneo, which would lead to the independence of the constituent states and possibly to their ultimate incorporation in a wider political federation with Malaya and Singapore. This proposal was made by the British Governor of Sarawak, Sir Anthony Abell, on 23rd July 1957 and was later broadcast by him in more detail on 7th February 1958. It received support from indigenous political leaders in North Borneo and Sarawak, notably from Donald Stephens, a North Borneo Kadazan (indigenous Christian) who envisaged the achievement of independence by this means within two or three years. The proposal was rejected by the Sultan of Brunei, who favored instead a merger with the Federation of Malaya. However, it accorded with the vision of certain Parti Rakyat Brunei activists of a "greater Brunei" with all its "ancient territories," including North Borneo and Sarawak, restored.
As early as 1956, another alternative, the union of Malaya and the Borneo states of North Borneo and Sarawak, had been proposed and by 1960 was being discussed by the United Malays National Organisation ("UMNO"), the dominant party within Malaya's ruling Alliance coalition government. Finally, there was a strong initiative from Singapore for merger with the Federation of Malaya, motivated primarily at this point by the perceived economic benefits of a common market. In late 1960 the Central Executive Committee of the ruling People's Action Party announced a major policy decision that:
Merger between Singapore and the Federation is our immediate task
to be accomplished. But this should not rule out a broader
association between the Federation, Singapore, Sarawak, Brunei and
North Borneo--provided all the territories decide that is what they
want ... It is in everyone's interest in these territories that the
Federation, Singapore and Borneo should seek strength politically
and economically by closer association with each other.
The first step towards the fulfillment of Tunku Abdul Rahman's Malaysia proposal came on 23rd August 1961 when he and Singapore Prime Minister, Lee Kuan Yew, reached broad agreement on a merger of the two countries which would give the new Federal government control of defense, foreign affairs and internal security, and the Singapore government continued control of education and labor matters. On 15th November 1961 there was published by the Singapore government a White Paper setting out Heads of Agreement for the proposed merger. It was also announced by the British government on 13th October 1961 that Tunku Abdul Rahman had agreed to go to London in November "for discussions with the object of reaching an understanding on the broad issues and to prepare the way for consultation with the Borneo territories without which no commitment could be entered into." The outcome of these talks was a Joint Statement of 23rd November 1961 in which the British and Malayan governments expressed agreement on the desirability of the Malaysia proposal and announced the establishment of a joint government commission "to ascertain the views of the peoples of North Borneo and Sarawak." It was also agreed that the views of the Sultan of Brunei would be sought.
The membership of the Commission, which was to become known as the "Cobbold Commission" after its Chairman, Lord Cobbold, was announced on 16th January 1962 and it proceeded to hold hearings in North Borneo and Sarawak from 19th February to 18th April. Before the Commission's arrival in Borneo, the colonial governments of North Borneo and Sarawak published official papers strongly supporting the Malaysia proposal and urging the peoples of North Borneo and Sarawak to do likewise in their meetings with its members. In its Report, published on i st August 1962, the Commission came to the following conclusions about the reactions of the peoples of North Borneo and Sarawak to the Malaysia proposal:
About one-third of the population of each territory strongly
favours early realisation of Malaysia without too much concern
about terms and conditions. Another third, many of them favourable
to the Malaysia project, ask, with varying degrees of emphasis, for
conditions and safeguards varying in nature and extent: the warmth
of support among this category would be markedly influenced by a
firm expression of opinion by Governments that the detailed
arrangements eventually agreed upon are in the best interests of
the territories. The remaining third is divided between those who
insist on independence before Malaysia is considered and those who
would strongly prefer to see British rule continue for some years
to come. If the conditions and reservations which they have put
forward could be substantially met, the second category referred to
above would generally support the proposals. Moreover once a firm
decision was taken quite a number of the third category would be
likely to abandon their opposition and decide to make the best of a
doubtful job. There will remain a hard core, vocal and politically
active, which will oppose Malaysia on any terms unless it is
preceded by independence and self-government: this hard core might
amount to near 20 per cent of the population of Sarawak and
somewhat less in North Borneo.
The Report also made a number of unanimous general recommendations, too detailed to enumerate here, which can be seen to have accepted most of the principles embodied in the document known as the "Twenty Points," the important joint statement by North Borneo's political leaders of 29th August 1962 which is dealt with below. Following the publication of the Cobbold Commission's report, the British and Malayan governments made a joint statement on 1st August 1962 accepting its recommendations and announcing that "the proposed Federation of Malaysia should be brought into being by 31st August 1963." The statement also announced the establishment of an Inter-Governmental Committee "to work out the future constitutional arrangements and the form of the necessary safeguards" to be provided for North Borneo and Sarawak. According to the statement,
These safeguards will cover such matters as religious freedom,
education, representation in the Federal Parliament, the position
of the indigenous races, control of immigration, citizenship and
the State Constitutions.
The Inter-Governmental Committee's task was to recommend amendments to be made by the Malayan Parliament to the constitution of the Federation of Malaya which would provide these "safeguards," the intention being that the amended document would then become the constitutional basis of the enlarged Federation.
Chaired by Britain's Minister of State for Colonial Affairs, Lord Lansdowne, the Inter-Governmental Committee consisted of representatives of the governments of Britain, Malaya, North Borneo and Sarawak. After a preparatory meeting in Jesselton, North Borneo, on 30th August 1962, five sub-committees were established which held meetings in North Borneo, Sarawak, and Kuala Lumpur. The Inter-Governmental Committee completed its Report on 27th February 1963. On 9th July 1963 representatives of the governments of Britain, Malaya, Singapore, North Borneo and Sarawak then signed the "Malaysia Agreement" which committed them to membership of the Federation of Malaysia and to acceptance of the constitutional and other arrangements recommended by the Inter-Governmental Committee. On 29th August 1963 the Malayan government announced that the Federation would be inaugurated on 16th September 1963.
Prior to the completion of the inter-Governmental Committee's work, the legislatures of North Borneo and Sarawak welcomed in principle the decision of the British and Malayan governments to establish Malaysia by 31st August 1963. On 12th September 1962 the Legislative Council of North Borneo unanimously passed a motion to this effect, "provided that the terms of participation and the constitutional arrangements will safeguard the special interests of North Borneo ..." On 26th September the Council Negri (state legislature) of Sarawak unanimously passed a similar motion "on the understanding that the special interests of Sarawak will be safeguarded ..." On 1st September 1962 a referendum in Singapore had resulted in overwhelming support for a form of merger with Malaya which would allow Singapore to retain a substantial degree of autonomy.
In response to pressure from the governments of the Philippines and Indonesia, the Malayan government agreed at a conference in Manila in early August 1963 that a United Nations mission should visit North Borneo and Sarawak to ascertain indigenous reactions to the Malaysia proposal and to investigate whether the recent elections held there had been free and properly conducted. The government of Indonesia, in particular, had been critical of the failure to hold a plebiscite in North Borneo and Sarawak on the Malaysia proposal. A United Nations mission, headed by Sir Laurence Michelmore, subsequently visited Borneo and Sarawak from 16th August to 5th September. In his report on the findings of the mission, published on 14th September 1963, United Nations Secretary-General, U Thant, concluded: "there is no doubt about the wishes of a sizeable majority of the peoples of these territories to join in the Federation of Malaysia." Nevertheless, when the Federation of Malaysia was inaugurated two days later on 16th September 1963, the governments of the Philippines and Indonesia refused to recognize it.
I will now proceed to examine a further reason why the governments of Malaya and Singapore agreed to merge and why they, together with the British government, wished to include the two Borneo states of North Borneo and Sarawak and, if possible, Brunei, in the proposed federation.
As already mentioned, the initiative for a merger of Malaya and Singapore came originally from Singapore's ruling People's Action Party, but it was resisted for some time by Malaya's dominant party, UMNO, and leading Malay politicians including Prime Minister Tunku Abdul Rahman. The consensus of academic opinion is that a major factor in the Malayan government's eventual agreement to include Singapore in Malaysia was the fear of a left-wing socialist government there, a possibility which loomed large when Prime Minister Lee Kuan Yew's People's Action Party was defeated at a vital by-election on 19th April 1961 and then in the following year suffered a damaging internal split. This endangered its absolute parliamentary majority and suggested the possibility of a left-wing victory at the 1964 Singapore elections. Singapore's constitutional position was also due to be reviewed by the British government in June 1963, with the possibility that control over defense, foreign policy and internal security would be assumed by a left-wing government.
While it is the generally held academic opinion that Malay politicians wished to guard against what they perceived as Singapore's potential left-wing radicalism by having control of its internal security, it is also the opinion that they were keenly aware of the need to maintain the "racial balance," i.e., the political and cultural predominance of the Malays, within the proposed new political configuration. The ethno-religious arithmetic of the Malaysia proposal, according to the reported understanding of Malayan Prime Minister Tunku Abdul Rahman and the senior members of his UMNO party, was that in electoral and more broadly political terms the combined Chinese population of Singapore and Malaya, which outnumbered the Malay population, would be offset by the "Malay" population of North Borneo and Sarawak. It was generally believed at the time that in his discussions with the British government, Tunku Abdul Rahhman's "price" for taking Singapore into Malaysia was that North Borneo and Sarawak should also be included. In my view, he and other senior Malayan leaders saw the two Borneo states as an essential counter-weight to Singapore within the wider federation. In this connection, I endorse the view of one of the principal academic authorities on the formation of Malaysia that a crucial influence on Tunku Abdul Rahman's ethno-religious calculations was a report made to UMNO by Malaya's Ambassador to Indonesia, Senu bin Abdul Rahman, after a tour of North Borneo and Sarawak in 1960. Describing all the indigenous peoples of North Borneo and Sarawak as "Malays," Senu concluded that within a federation consisting of Malaya, Singapore, Sarawak, Brunei, and North Borneo, "Malays" would remain in the numerical majority.
However, Tunku Abdul Rahman's personal acquaintance with northern Borneo and its peoples was limited to a short visit to predominantly Malay Brunei in September 1958 and to Sarawak and Brunei in July 1961. In my view, the limits to his knowledge of Borneo's non-Muslim indigenous peoples were reflected in his statement, reported in the newspapers on 24th July 1961, that "From the text-books as the schools and by meeting the Dyaks [sic], I found out that the only difference between the so-called Dyak [sic] language and Malay is in the dialect just as there is a difference in the dialects of Selangor Malays and Kedah or Kelantan Malays." The Dayak (Iban) language is acknowledged by linguists as a distinctive language in its own right, not a "dialect" of Malay, although it possesses some similarities to Malay. In a major speech to the Malayan Parliament on 16th October 1961 formally advocating the Malaysia proposal, Tunku Abdul Rahman claimed that the integration of the two Borneo states within Malaya did not present the same problems as Singapore because of the "natural affinity" which existed between them and Malaya:
From the Federation's point of view, we are linked to the Borneo
territories not only by proximity and close association but also
because the Borneo territories have the same type of culture and
racial origin as the Malayans [i.e., Malays]. We have similar
customs--except, of course, in their case, they have some peculiar
local customs but they are local affairs--and we have similar
problems, economically or otherwise, and we even share the same
currency ...
In fact, the peoples of the two Borneo states possess a significantly different ethnic, cultural and historical background from that of the Malays. At the time of the negotiations on the Malaysia proposal, ethnic Malays comprised almost 50% of the population of Malaya, with Chinese making up almost 37%. However, the North Borneo official census taken on 10th August 1960 revealed that ethnic Malays there numbered only 1,645 and that it was Islamicized indigenous groups (notably Bajaus and Illanuns, who did not describe themselves as "Malays") who made up most of the state's 37.9% Muslim population. The largest single homogeneous ethnic category was the Kadazan-Dusun grouping of Christian and animist indigenes (30%) who were followed by the Chinese (23%). Furthermore, the Kadazan-Dusun grouping is generally regarded by anthropologists as having a greater ethnic and cultural affinity with some of the peoples of the Philippines, from where they probably migrated in remote times, than with the Malays.
The first reported reaction of the political leaders of North Borneo, Sarawak and Brunei to Tunku Abdul Rahman's Malaysia proposal came on 9th July 1961 from the United Front, which consisted of Ong Kee Hui (Chairman of the Sarawak United People's Party), A.M. Azahari (President of the Patti Rakyat Brunei), and Donald Stephens, who shortly afterwards established North Borneo's first political party, the United National Kadazan Organisation ("UNKO"). Referring to Tunku Abdul Rahman's recent visit to Brunei and Sarawak when he was reported to have said that he saw no need for the merger of North Borneo, Sarawak and Brunei or their independence before federation with Malaya and Singapore, the United Front announced after a meeting in the North Borneo capital of Jesselton (now Kota Kinabalu) that the "British Government should be advised that so far as the wishes of the people in the three [Borneo] territories are ascertainable, 'any plan in accordance with the pronouncements made by Tengku Abdul Rahman in Brunei and Sarawak would be totally unacceptable to the people of the three territories.'"
Donald Stephens was also reported as saying ten days later: "If we join Malaysia, the people who will come and take most of the top jobs will be from Malaya." In a major speech in Singapore on 10th August 1961, Stephens reiterated his belief that North Borneo should first achieve independence before discussing the Malaysia proposal:
My people feel that if North Borneo joins Malaya now as a state, it
would in fact mean that North Borneo would become not a state but a
colony of the federation of Malaya. As I have said before, these
fears are genuine. Not actually fear or suspicion of the sincerity
of Malaya to take us on as an equal partner but more the fear that
by virtue of our status as a British colony we would automatically
become a second-class state or a colony of Malaya ... We must have
at least self-government before we can talk, before we, the people
of the country, can decide for ourselves whether we want to become
partners in Malaysia. Self-government for us is a pre-requisite to
final settlement of the Malaysia question.
It is important to note that the Malaysia proposal is generally regarded by political scientists as having acted as a catalyst in the formation of political parties in North Borneo, the first being Donald Stephens' UNKO Party in August 1961, Datu (later Tun) Mustapha's Muslim-based United Sabah National Organisation ("USNO") in December 1961 and G.S. Sundang's United National Pasok-momogun Party ("UPKO") in January 1962. It is also important to note that Donald Stephens, a newspaper owner-editor and member of North Borneo's Legislative Council and Executive Council, was considered by a distinguished American academic visitor to North Borneo at that time as "being picked by more and more insiders as the coming Borneo politician." Due to Stephens' mixed Kadazan and Australian ancestry and his relations with the Chinese community by marriage, this observer described him as being "almost uniquely well qualified to represent the multiracial Borneo community."
A more positive response to the Malaysia proposal came on 3rd February 1962 in a Memorandum from the Malaysia Solidarity Consultative Committee which had been formed after the Commonwealth Parliamentary Association Regional Meeting in Singapore in July 1961. This meeting had provided the first opportunity for the political leaders of Malaya, Singapore, North Borneo and Sarawak to discuss the Malaysia proposal together. The Malaysia Solidarity Consultative Committee then held a series of four meetings of its own under the chairmanship of Donald Stephens, three of which were attended by Brunei observers. In the 3rd February 1962 Memorandum, general conditions were laid down for the achievement of the Malaysia proposal. Nevertheless, Donald Stephens continued to voice his criticisms of the Malaysia proposal and in Sarawak, the Dayak secretary-general of the Sarawak National Party, Stephen Kalong Ningkan, was strongly critical of those Borneo leaders who favored it.
The United Front's criticism of the Malaysia proposal was sustained until as late as 9th September 1962 when the three constituent parties dispatched a Memorandum to the United Nations Committee on Colonialism designed to internationalize their anti-Malaysia campaign. The Memorandum called on the United Nations to "intervene in the proposed transfer of sovereignty in Sarawak and Sabah on the ground that such a transfer is a denial to the peoples in these territories of their right to complete independence." Nevertheless, after what I believe was a concerted campaign of persuasion by the governments of Britain and Malaya, together with the vigorous intervention of Singapore Prime Minister, Lee Kuan Yew, there was a conditional acceptance of the Malaysia proposal by Donald Stephens's UNKO party, although G.S. Sundang's UPKO party continued to oppose the arrangement until June 1964 when it announced its acceptance of Malaysia as a fait accompli and merged with UNKO.
In my belief, the promise of M$500 million in economic development funds from the Federal government during the first five years of membership was a major advantage held out to the two Borneo states as an inducement to join Malaysia. At the time of the negotiations on the Malaysia proposal, oil had not been discovered in North Borneo and the timber industry was in its infancy. Consequently, it was dependent on outside financial assistance. Membership of the new Federation meant that North Borneo would have access to Singapore's duty-free goods and its important commodity market, together with private Singapore Chinese investment funds.
Nevertheless, it has been generally agreed by academic commentators that the crucial factor in changing the attitudes of those Borneo leaders, notably Donald Stephens, who had previously been opposed to joining Malaysia, was the question of security, highlighted in early December 1962 by the Brunei Rebellion and by Indonesia's outspoken opposition to the Malaysia proposal. On 30th August 1962, the Parti Rakyat Brunei won 16 seats in Brunei's first general elections on a platform of opposition to the Malaysia proposal. Motions critical of the proposal were submitted in advance by Parti Rakyat Brunei for the first scheduled meeting of the Council, which was postponed several times from September to 5th December 1962. These motions were disallowed by the Speaker. When the latter date was scheduled, Parti Rakyat Brunei submitted another motion in advance calling on the British government to keep Brunei out of Malaysia and to return North Borneo and Sarawak to Brunei's control, the new federation to be granted independence within a year. However, the Speaker of the Council refused to place the motion on the Council's agenda. On 8th December 1962, forces belonging to the underground military arm of Parti Rakyat Brunei seized control of the oilfield at Seria and its police station but failed to take the capital, Brunei Town, and to kidnap the Sultan. Within two weeks they were dislodged and dispersed by British troop reinforcements flown in from Singapore. In the meantime, Parti Rakyat Brunei leader, A.M.Azahari, had announced himself from Manila as Prime Minister of the unified state of Kalimantan Utara (northern Borneo) and was subsequently granted political asylum by the government of Indonesia which had expressed support for the insurgents. It also became apparent that the rebels had received military training in Indonesian Borneo.
In my view, the Brunei Rebellion had the effect of discrediting the alternative Borneo federation proposal, with which Azahari had been closely associated, and enhancing the Malaysia proposal. North Borneo's and Sarawak's political leaders condemned the Rebellion and in late December North Borneo's first direct elections were won almost unopposed by a coalition of parties now supportive of the Malaysia proposal. The possibility of invasion by Indonesia and a long-standing territorial claim to North Borneo by the Philippines had loomed large at a time when the British government was making it clear that it could only defend the Borneo states if they were part of Malaysia. In the view of one distinguished academic commentator, the Malaysian Federation might not have come about without this external pressure.
I shall now discuss Brunei's reaction to the Malaysia proposal. The Sultan of Brunei did not respond favorably to the proposal at first. However, after the Brunei Rebellion of December 1962 he demonstrated a keen interest in pursuing the possibility of Brunei's membership. Contemporary newspaper reports indicate that initial talks between the Brunei and Malayan governments held in March 1963 offered strong hopes of agreement, but more detailed negotiations in London in June broke down and finally failed. The consensus of academic opinion is that the question of Federal government control over Brunei's oil and gas revenue had been the major problem in the negotiations. The Malayan government was believed to have conceded that Brunei should maintain full control of its oil and gas revenue for the first ten years and instead of paying Federal tax, should make an annual contribution of MS50 million to the Federal treasury. However, the Malayan government reportedly insisted that thereafter the power of taxing this revenue should revert to the Federal government, and that it should have immediate control over revenue from any newly-discovered oil or mineral finds. There was also the question of the Sultan of Brunei's precedence in the Council of Rulers who would take it in turn to be Yang di-Pertuan Agong ("Head of State") of the new Federation for five-year terms. It has been suggested that a "sticking-point" was the Sultan's alleged insistence that he become the first Head of State. However, the predominant academic opinion is that it was Brunei's refusal to accept Federal government taxation of its oil and gas revenue which effectively kept it out of Malaysia.
It will be seen below that the control of revenue from oil and gas also became a major source of contention between the Federal government and the state government of Sabah, first during the Chief Ministership of Tun Mustapha in 1975 and subsequently during the Chief Ministership of Datuk Pairin Kitingan from 1987 to the present.
I shall now discuss the final phase of the negotiations which led to the signing of the Malaysia Agreement on 9th July 1963. One of the documents presented to the Inter-Governmental Committee (which we have seen was established in August 1962 under the chairmanship of Lord Lansdowne to decide on the constitutional details of the Malaysia proposal), was a memorandum signed by Donald Stephens, Datu Mustapha, and other leaders of the five North Borneo political parties which became known as the "Twenty Points," these parties being UNKO, USNO, UPKO, the Democratic Party, and the United Party. This document, dated 29th August 1962, was submitted to the Inter-Governmental Committee with the intention that the principles embodied in it should be incorporated in the Malaysian constitution in order to protect the special rights and interests of the peoples of North Borneo. A similar document consisting of eighteen points was also submitted by Sarawak's political leaders, many of which were similar to the Twenty Points. The Inter-Governmental Committee Report, which we have seen was published on 27th February 1963, reflected most of the principles embodied in the Twenty Points, which then found expression in the Malaysian Constitution or other contemporary legislation. While the Twenty Points document did not possess any legal/constitutional standing, it was clearly looked upon by North Borneo's political leaders as a charter of state rights and the basis of North Borneo's future relationship with the Federal government. It is for this reason, I believe, that Sabah's current political leaders continue to invoke it.
The most important subjects dealt with in the Twenty Points were, inter alia, as follows:
(i) Religion
(ii) Immigration
(iii) Native Rights
(iv) Borneonization
(v) Finances
(vi) Constitutional Safeguards
I shall now illustrate the main principles embodied in the Twenty Points and the way in which these were reflected, to a greater or lesser extent, in the Inter-Governmental Committee Report and were ultimately embodied in the new Federal Constitution and other contemporary legislation which complemented it.
Religion. According to Point I of the Twenty Points, "while there was no objection to Islam being the national religion of Malaysia there should be no State religion in Noah Borneo, and the provisions relating to Islam in the present Constitution of Malaya should not apply to North Borneo." The Inter-Governmental Committee Report recommended retention of Article 3 (1) of the Malayan Constitution providing that "Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation." However, it also recommended that "the Heads of State of the Borneo States should not be Head of the Muslim religion in the State...." Another concession was made to the representations of the North Borneo leaders in the Report's recommendation that the constitutions of the Borneo states could provide that a two-thirds majority vote of the state legislature would be needed to pass any law controlling or restricting "the propagation of any religious doctrine or belief among persons professing the Muslim religion." The Report further recommended (i) that "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 (ii) that "where federal law provides for special financial aid to Muslim religious education in pursuance of Article (2) [of the Malayan Constitution] the Malaysian Government would grant to the North Borneo and Sarawak Governments proportionate amounts for social welfare purposes in those States." The Malaysian Constitution duly embodied all these recommendations in Articles 161C and 161D.
Immigration. According to Point 6 of the Twenty Points, "control over immigration into any part of Malaysia from outside should rest with the Central Government but entry into North Borneo should also require the approval of the State Government." This was reflected in the recommendations of the Cobbold Commission Report and the Inter-Governmental Committee Report and although not embodied in the Malaysian Constitution, it was embodied in the amended Immigration Act of Malaya (No.27 of 1963) proclaimed on 26th August 1963.
Native Rights. According to Point 12 of the Twenty Points, "the indigenous races of North Borneo should enjoy special rights analogous to those enjoyed by Malays in Malaya ..." The Inter-Governmental Committee Report reflected this principle by recommending that in its application to North Borneo and Sarawak, the provisions of Article 153 of the Malayan Constitution relating to "Malays" and the special quotas, permits, licenses, and land reserved for them "should be construed as if "Natives" were substituted for "Malays." This recommendation was embodied in Article 161A of the Malaysian Constitution which gave the indigenous peoples of the Borneo states a privileged position similar to that of the Malays in Peninsular Malaysia as defined in Article 153.
Borneonization. Point 8 of the Twenty Points stated that "Borneanisation of the public service should proceed as quickly as possible." This was reflected in the recommendation of the Inter-Governmental Committee Report that
Borneonisation of the Public Services in the Borneo States is a
major objective of policy. For a number of years to come special
arrangements will be necessary to secure this objective and to
protect the legitimate interests of the Native peoples ...
This principle was not embodied in the Malaysian Constitution but was one of the many important matters left to be dealt with in government-to-government agreements between Federal and state authorities.
Finances. According to Point 11 of the Twenty Points, "North Borneo should have control of its own finance, development funds and tariffs." Differences on the question of financial autonomy could not be reconciled by the Inter-Governmental Committee and it is my view that the North Borneo representatives had to make substantial concessions to the Malayan government in order to save the negotiations on the proposed Federation. Under the formula finally adopted by the Inter-Governmental Committee, there were to be intermediate arrangements until a final agreement could be made which gave the state government a share of revenue. Under Articles 109, 110, 112C, and 112D of the Malaysian Constitution, it was provided that Sabah would derive its revenue from:
(i) Federal capitation and road grants assigned to it in Parts I and
(ii) II of the 10th Schedule;
(iii) Revenues from lands, mines and forests, sales of state land and property, tees for state services etc. as assigned in Part Ill of the 10th Schedule;
(iv) a special annual grant made by the Federal government as assigned in Part IV of the 10th Schedule; and
(v) special sources of revenue assigned to Sabah in Part V of the 10th Schedule, notably "import duty and excise duty on petroleum products," "export duty on timber and other forest produce," motor vehicle registration fees, port and harbor fees and state sales taxes.
Constitutional Safeguards. In two important respects, the recommendations of the Inter-Governmental Committee failed to reflect important principles set out in the Twenty Points. Firstly, Point 3 of the Twenty Points stated that:
Whilst accepting that the present Constitution of the Federation of
Malaya should form the basis of the Constitution of Malaysia, the
Constitution of Malaysia should be a completely new document
drafted and agreed in the light of the free association of States
and should not be a series of amendments to a Constitution drafted
and agreed by different States in totally different circumstances
...
In fact, the work of the Inter-Governmental Committee consisted of drafting amendments to the Constitution of the Federation of Malaya which were then enacted by the Malayan Parliament as the "Malaysia Act." My view is that the North Borneo representatives on the Committee were obliged to accept that, given the constraints of time set by the 31 st August deadline for the establishment of Malaysia, it was practically impossible to draft a completely new document.
Secondly, Point 16 of the Twenty Points stated:
No amendment, modification or withdrawal of any special safeguards
granted to North Borneo should be made by the Central Government
without the positive concurrence of the Government of the State of
North Borneo.
The power of amending the constitution of the State of North Borneo
should belong exclusively to the people in the State.
The relevant, if somewhat ambiguous, recommendation of the Inter-Governmental Committee Report was as follows:
It is considered desirable that modifications to the special
constitutional arrangements made in respect of a Borneo State
should, subject to the safeguard of the consent of the State
Government in cases where this is required, be capable of being
amended to the extent of bringing the State into line with the
present States of the Federation without the requirement that the
Federal Bill making such amendment should be supported by the votes
of not less than two-thirds of the total number of members of the
Houses of Parliament.
As a consequence of these recommendations, the Malaysian Constitution did not incorporate the safeguards originally required by the North Borneo representatives. In my view, this effectively facilitated subsequent amendment of the Federal Constitution in such a way as to remove most of the provisions which originally gave Sabah and Sarawak a special constitutional status within the Federation. Nevertheless, during the negotiations on the Malaysia proposal, the two Borneo states can, in my view, be seen to have acted as partners, if less than equal partners, with the Malayan and Singapore governments in the discussion of their collective future within the proposed new Federation. The special provisions for North Borneo and Sarawak within the negotiated constitution reflected the reality that their original standing in the Federation was significantly different from that of the constituent states of the Malayan Federation of 1957, i.e., Selangor, Negeri Sembilan, Johore, Pahang, Perak, Trengganu, Kelantan, Kedah, Perlis, Penang, and Malacca, whose respective governments had not been officially consulted on the Malaysia proposal and had not been parties to the subsequent negotiations for its realization. A consequence of this was the unsuccessful attempt on the part of the state government of Kelantan to obtain a declaration from the Supreme Court of Malaya either that the Malaysia Agreement and the Malaysia Act of the Malayan Parliament were void or that they were not binding on the state of Kelantan.
Within two years of the signing of the Malaysia Agreement, a series of events commenced which clearly demonstrated, in my view, that the new Malaysian government in Kuala Lumpur had not accepted the constitutional and political principles implicit in the Agreement relating to the special standing of the two Borneo states, preferring instead to treat the enlarged political entity as a unitary state necessitating strong centralized government control. This can be seen from:
(i) the dramatic separation of Singapore from the new Federation of Malaysia in 1965;
(ii) the unseating of Sarawak's first Chief Minister, Datuk Stephen Kalong Ningkan, in 1966;
(iii) the overturning and replacement of Tun Mustapha's USNO-led government in Sabah in 1976;
(iv) the creation of new parliamentary seats so as to favor Peninsular Malaysia;
(v) the enactment of a number of amendments to the Federal Constitution
(vi) relating to the special position of the two Borneo states.
These will now be discussed in detail.
The Separation of Singapore. The separation of Singapore from the Malaysian Federation, embodied in an agreement made between the governments of Malaysia and Singapore of 7th August 1965 and announced on 9th August by Tunku Abdul Rahman, is generally regarded as having taken place against the will of the Singapore government, amounting to a de facto "eviction." It also took place without any prior consultation with the governments of Sabah and Sarawak. Nor was there any subsequent attempt on the part of the Federal government to have them ratify it. The general academic opinion is that while there were other contributory factors, the separation of Singapore was precipitated by domestic political considerations. This was the attempt by Lee Kuan Yew's Singapore-based People's Action Party to establish itself in Peninsular Malaysia, becoming the political party of the Malaysian Chinese and ultimately replacing the Malaysian Chinese Association as UMNO's major partner in the ruling Alliance coalition government (the other party being the Malaysian Indian Congress). it is also believed that the People's Action Party's decision to contest the Peninsular Malaysian elections in April 1964 and its announced intention in November of that year to form a united opposition front contravened what Malaysian Prime Minister Tunku Abdul Rahman and his senior ministers regarded as a "gentlemen's agreement" that Singapore politics and Peninsular Malaysian politics should operate quite autonomously of each other. In this connection, Tunku Abdul Rahman was reported as saying on 21st August 1964: "The first sign of Singapore's attempt to have a hand in the affairs of Malaysia was in the latest elections [April 1964] when the PAP [People's Action Party] contested some of our constituencies. This was quite contrary to what we agreed."
It is the general academic opinion that the separation of Singapore was construed by many of Sabah's and Sarawak's political leaders as undoing the basis of the 1963 Malaysia Agreement in which Singapore's membership of the Federation offset what they perceived would otherwise have been the predominant influence of Malaya. Although the Malaysian Constitution did not provide for secession or expulsion from the Federation, it is my view that Singapore's separation was construed by Donald Stephens to mean that other component states could also secede or be expelled. Responding to the event, Donald Stephens, then Federal Minister for Sabah Affairs, expressed "grave concern" and on 16th August 1965 called for renegotiation of the terms of Sabah's membership of the Federation. When he also mentioned the possibility of holding a state referendum on the issue, Malaysian Prime Minister Tunku Abdul Rahman reportedly obliged him to resign as Federal Minister at the end of that month. In a radio broadcast on 22nd August 1968, the Prime Minister said that any one who intended to secede "by force or by any other action will be regarded as rebels and traitors and we will deal with them as such."
It is my view that Donald Stephens and other political leaders in Sabah viewed the separation of Singapore as dangerously shifting the political balance of the Federation in favor of Peninsular Malaysia's predominant power. Donald Stephens was reported on 20th June 1967 as saying that Malaysia was "moving towards a Unitary State system thinly disguised as a federation" and that he wanted an independent body to "reexamine" Sabah's status and rights within the Federation. He was further reported as saying: "a number of our safeguards are no longer safe; promises have been broken and although we are supposed to have a Federal system of Government, action taken on the part of the Central Government indicates that the policy is to do away with state rights as soon as possible and all power will be given to Kuala Lumpur."
The removal of Singapore's representation in the Federal Parliament meant that the Kuala Lumpur government could more easily obtain the two-thirds majority needed to amend the Federal Constitution, making possible amendments designed to reduce the special position of the two Borneo states. Under the formula agreed to by the Inter-Governmental Committee, the original allocation of seats in the Federal Parliament was as follows:
Peninsular Malaysia 104
Singapore 15
Sabah 16
Sarawak 24
Total 159
Reflecting the balance sought by the Borneo representatives on the Inter-governmental Committee, this distribution made it virtually impossible for the ruling Alliance coalition of Peninsular Malaysia to find the two-thirds parliamentary majority required to amend the Federal Constitution. However, as we shall see below, the separation of Singapore from the Federation and the subsequent creation of new Federal parliamentary electorates meant that the Federal government was able to obtain the necessary two-thirds majority and make significant amendments to the Constitution.
It has also been pointed out by some academic commentators that some of the Sabah leaders were concerned about the Malay-Islamic national cultural ideology which the Federal government in Kuala Lumpur had adopted and was promoting in its campaign of "national integration," which also involved the de-emphasizing of the ethnic distinctiveness of other groups, notably the Chinese. Lee Kuan Yew and his Singapore-based People's Action Party had challenged this policy from its own pluralist, egalitarian standpoint which envisaged a "Malaysian Malaysia," i.e., a culturally heterogeneous Malaysia in which no single ethnic group would possess special economic privileges of any kind or be acknowledged as possessing religious or cultural preeminence at a national level.
The Ningkan Affair. 1 shall now consider the "Ningkan affair," which 1 believe demonstrated for the first time that the Federal government in Kuala Lumpur would move swiftly to oust any chief minister of Sabah or Sarawak who was not to its liking, even when the government of the state was affiliated with the ruling Federal Alliance coalition. More importantly, it also demonstrated that the Federal government was able to enact legislation effectively overriding the state constitutions of the two Borneo states. On 22nd July 1963, Datu Stephen Kalong Ningkan, a Christian Dayak and secretary-general of the Sarawak National Party, was appointed Chief Minister of Sarawak and leader of the Alliance-affiliated coalition government in the state legislature. (It will be remembered that Datu Ningkan was one of the Sarawak leaders who had spoken out most strongly against the Malaysia proposal in July 1961 and was one of the last to accept it.) On 16th June 1966 the Governor of Sarawak, following representations said to have been made to him by a majority of members [of the state legislature], called on Datu Ningkan to resign. When he refused, the Governor then dismissed him from office the next day. Following a declaration by the High Court of Borneo on 7th September 1966 that the dismissal was void, the Malaysian Head of State on 14th September declared a state of emergency in Sarawak under Article 150 of the Federal Constitution. On 19th September the Federal government passed legislation amending the Sarawak Constitution and empowering the Governor of Sarawak during a fixed period to summon the legislature, suspend standing orders and issue directions binding on the Speaker. And on 23rd September the Governor called a meeting of the legislature which passed a vote of non-confidence in Datu Ningkan, who was dismissed the following day. Another Dayak leader, Penghulu Tawi Sli, was then appointed Chief Minister in Datu Ningkan's place. Datu Ningkan's subsequent action in the High Court of Borneo to reverse the second dismissal was unsuccessful, as was his appeal to the Privy Council. The case established beyond challenge the Federal government's right under Article 150(5) of the Malaysian Constitution "to make laws with respect to any matter....," including matters normally regarded as the prerogative of state governments under their constitutions. The inference drawn from this by one respected academic authority on Sabah and Sarawak was that "'states' rights' were seen to be held at the pleasure of the Federal government."
It is generally agreed by academic commentators that the principal policy issue which caused conflict between Datu Ningkan and the Federal government in Kuala Lumpur was his insistence on the continued employment of certain senior British expatriate officials until Sarawakians were trained to replace them--the policy of "Borneonization" whose basic principle, as we have seen, had been accepted in the Inter-Governmental Committee's Report. This was at variance, however, with the Federal government's own policy of "Malaysianization"--of replacing expatriates as quickly as possible with Kuala Lumpur-appointed officials, mostly of Peninsular Malaysian and Malay origin. Although only a small number of Peninsular Malaysian officials were appointed to Sarawak during these early years, they were in predominantly executive departmental positions such as the Federal Secretary, the Director of Education and the Director of Radio Malaysia in Sarawak. Opposition to "Malaysianization" was also expressed by senior Malay politicians in Sarawak who had welcomed the Federation: for example, Datu Abang Othman bin Hj. Moasili expressed the hope in the state legislature on 14th December 1968 that Federal officials "will not keep on continuing to regard themselves as somewhat superior, and by keeping themselves aloof they look somewhat like the former colonialists."
The Berjaya Coup. Subsequent events demonstrated that the Federal government in Kuala Lumpur was also prepared to act against Muslim-dominated state governments in Borneo. It has been generally accepted that the ruling Barisan Nasional multi-party coalition (which had been formed in 1974 as an enlargement of the former Alliance coalition) was closely involved in the establishment of a new party known as Bersatu Rakyat Jelata Sabah ("Berjaya") in Sabah in July 1975. This resulted in the defeat of Tun Mustapha's U SNO-led government at the state elections in April 1976 and his replacement as Chief Minister by Berjaya President and former state governor, Donald Stephens, who had in the meantime converted to Islam and was known as Tun Fuad Stephens.
The circumstances leading to what was generally perceived as a Kuala Lumpur-supported coup will be rehearsed briefly as they invite comparison with recent developments in Sabah, particularly with regard to the question of secession from the Federation. Tun Mustapha's well-documented extravagance at both governmental and personal levels had been given widespread publicity in numerous newspaper and magazine articles in a number of countries and in at least one published book. The Sabah state government was consequently reported to be in serious debt by the beginning of 1975 and the Federal government refused to approve an overseas loan of U S$200 million which it had arranged. Tun Mustapha had also for some time been reportedly resisting the Federal government's request to sign an agreement with Malaysia's national petroleum agency, Petronas, which would have effectively surrendered in perpetuity all of Sabah's offshore oil and gas revenues in return for a 5% share of annual profits. Large new hydrocarbon reserves had been discovered by Shell in Sabah's coastal waters in 1973.
On 23rd April 1975, Tun Mustapha presented to a meeting of USNO a paper, entitled "The Future Position of Sabah in Malaysia," which canvassed the possibility of Sabah seceding from the Malaysian Federation. It was also alleged that he had secret talks with Indonesian and Philippines leaders about Sabah's independence and his plan to create a new Sultanate, to be known as "Bornesia," incorporating Sabah, Sarawak, Brunei, Indonesian Borneo and possibly the Moro (Muslim) population of the nearby Sulu Archipelago of the southern Philippines. He was also alleged to have supplied arms to Muslim rebels in the southern Philippines. Resigning as governor on 23rd July 1975, Tun Fuad Stephens was reported on 27th July as accusing Tun Mustapha of conspiring to take Sabah out of the Federation and warning him of the consequences:
Any attempt at UDI [unilateral declaration of independence as was
done in Rhodesia] would not be possible because the security forces
in Sabah, including the police force are under the control of the
Federal Authorities who will undoubtedly be used by the Federal
Government to put down any attempt at rebellion or attempt at
declaring Sabah independence.
Apart from removing his control of internal security and police in May 1975, the Federal government took no punitive official action against Tun Mustapha for his widely-reported secessionist ideas. Nor was the Federal government's Anti-Corruption Agency directed to investigate the many damaging public accusations of corruption which had been made against him. However, the Federal government reportedly assisted in the formation of the new Berjaya party, led by Tun Fuad Stephens who resigned as governor to contest the forthcoming elections. In my view the Federal government's support for Berjaya and for Tun Fuad Stephens was conditional on the latter undertaking to sign the agreement with Petronas which Tun Mustapha had reportedly declined to sign. Berjaya was subsequently elected to government in April 1976, with Tun Fuad Stephens as Chief Minister. Immediately after Tun Fuad Stephens's death, together with other senior Berjaya ministers, in an as yet unexplained plane crash on 6th June 1976, Datuk Harris Salleh became Chief Minister. A week after his assumption of office, he signed the agreement with Petronas.
Electoral Distribution. We have already seen that the separation of Singapore in 1965 significantly altered the balance of parliamentary representation within the Federation in favor of Peninsular Malaysia. While the representation of Peninsular Malaysia has been subsequently increased [from] 104 to 133 seats, that of Sabah and Sarawak has been increased by only four additional parliamentary seats each. In my view, this substantially disproportionate increase in Peninsular Malaysia's parliamentary representation cannot be justified on the grounds of relative population increase. The following table sets out the significant shift in the weighting of parliamentary representation described above:
1963 1965 1993
Peninsular Malaysia 104 104 133
Singapore 15 n/a n/a
Sabah 16 16 20
Sarawak 24 24 28
Constitutional Amendments. Subsequent to the Kuala Lumpur government's ability to achieve a two-thirds parliamentary majority of 120 seats from Peninsular Malaysia itself, a number of important amendments were made to the Malaysian Constitution which, in my view, have almost entirely eroded the special standing of the two Borneo states within the Federation as it was originally negotiated. The principal amendments are as follows:
(i) Under the Constitution (Amendment) Act of 1976, Articles 161C and 161D limiting financial aid to Muslim institutions and religious instruction in Sabah were repealed.
(a) (ii) Under the Constitution (Amendment) Act of 1971 Article 161A, giving the "natives" of Sabah and Sarawak the same privileges within their own states as those enjoyed by the "Malays" in Peninsular Malaysia under Article 153, was repealed. Henceforth, the indigenous peoples of Sabah and Sarawak could properly be referred to as "Malays." The inevitable consequence of this was to deprive them of what had been their exclusive enjoyment of quotas relating to the public service, permits and licenses and other privileges conferred under Article 161A.
(ii) Under the Constitution (Amendment)Act of 1976, Article 1 (2) was altered with the effect that the separate listing of the two Borneo states as members of the Federation was eliminated.
It is my belief that this reflects the Federal government's long-term policy that Sabah and Sarawak were to have the same status within the Federation as the constituent states of the original Malayan Federation of 1957. In my view, this is the most politically symbolic of all the amendments to the Constitution relating to Sabah and Sarawak.
I shall now deal with events subsequent to the election of a new state government in Sabah in 1985. In 1984 a new political party was formed in Sabah, known as Parti Bersatu Sabah ("PBS') and led by a Christian Kadazan, Datuk Pairin Kitingan, who had resigned from Berjaya. In the state elections of April 1985, PBS won 25 of the 48 seats, which, together with one defection from another party, gave it a simple majority and thus the right to form the government and to have its leader sworn in as Chief Minister. Instead, however, Tun Mustapha, leader of the minority USNO party, made an extraordinary predawn bid to have himself sworn in as Chief Minister by the state governor. This became the subject of a legal action which eventually resulted in the confirmation of Datuk Pairin as Chief Minister.
In my view, the main reason for the loss of support by USNO and Berjaya and the success of PBS was the perception by many Sabahans that during their terms as Chief Minister, Tun Mustapha (1967-1976) and Datuk Harris Salleh (1976-1985) had actively cooperated with the Federal government in the reduction of Sabah's special status within the Malaysian Constitution. During Tun Mustapha's term as Chief Minister, for example, the USNO-dominated state legislature enacted legislation which replaced English with Bahasa Malaysia (Malay) as the official language and the principal medium of instruction and to make Islam the state religion. On 1st April 1984 during Datuk Harris's term as Chief Minister, the administration of the island of Labuan, formerly administered by the Sabah government, was transferred to Federal territorial jurisdiction. This enabled Peninsular Malaysians to enter Sabah through Labuan without being subject to the state's immigration controls. In my view, these concessions were made by Tun Mustapha and Datuk Harris to gain favor with and support from the Federal government.
From the time of PBS's surprise election victory on 21S' April 1985, the Federal government, in my view, demonstrated a marked unwillingness to acknowledge and cooperate with the new government headed by Datuk Pairin Kitingan. It failed to criticize the efforts by Tun Mustapha to have himself sworn in as Chief Minister or to take police action against what I believe to have been an organized campaign of bombings and arson planned by local interests to prevent PBS from forming the government. Nor did the Barisan Nasional in Kuala Lumpur agree to accept PBS into the national coalition until as late as June 1986, despite the latter's early application for membership.
The principal reason for this lack of cooperation, later developing into open hostility and active harassment, was, in my view, PBS's commitment to a platform of restoration of state rights commencing with the Sabah state elections of April 1985 and its subsequent invocation of the Twenty Points as the proper basis for Sabah's relationship with the Federal government. On 2nd January 1987, Dr. Jeffrey Kitingan, younger brother of Chief Minister Datuk Pairin Kitingan, issued a public statement in which he said that one of the main sources of unhappiness with the Federal government in Sabah was its apparent non-compliance with the original Twenty Points, which he regarded as the basis for Sabah's joining the Federation. He also stated that it was a common perception "that the federal leadership has been influencing the development of political events in Sabah to the detriment of the ruling party [PBS]." On 13th January 1987 Deputy Prime Minister Ghafar bin Baba was reported to have challenged PBS to substantiate the allegations and Dr. Kitingan accordingly produced a long memorandum addressed to the Federal government and entitled "The Twenty Points: Basis For Federal-State Relations For Sabah." After surveying the embodiment of the Twenty Points in the Malaysian Constitution and subsequent developments, Dr. Kitingan wrote:
In conclusion, it is shown that there are a number of critical
areas in which the Federal government has deviated from the
original spirit and meaning of the constitutional safeguards
granted to Sabah at the time of the formation of Malaysia ... The
principal areas in which there have been clear deviations with
respect to implementation are those which relate to matters
pertaining to Immigration, Religious freedom, Borneonisation,
Citizenship, Education, Finance, and Tariff Arrangements and
Constitutional safeguards.
I now wish to consider the Yayasan Sabah ("Sabah Foundation") with which Dr. Kitingan has been closely linked since May 1985. A charitable body established by the government of Tun Mustapha in 1966, the official purpose of the Sabah Foundation was to distribute more widely the income earned from the state's timber exports. From 1970 this took the form of annual cash payments to all adults and subsequently of educational scholarships tenable in peninsular Malaysia and overseas. It is my belief that, in practice, under the USNO-dominated government of Tun Mustapha and the Berjaya government of Datuk Harris Salleh, the cash payments were used to promote the popularity of the ruling coalition. An unofficial "milk-cow" of government, it was financed by substantial timber concessions operated by subsidiaries. With the appointment of Dr. Kitingan as chief executive of the Sabah Foundation by the new PBS state government in May 1985, it was reorganized and a commercial arm was established in the form of Innoprise Corporation Sdn. Bhd., resulting in a rapid improvement of its earnings. Under Dr. Kitingan's direction, the Sabah Foundation's activities were broadened to include a range of rural community development and youth projects throughout the state.
In November 1988 Sabah's Chief Minister, Datuk Pairin Kitingan, requested the services of the Sabah Foundation in terminating a private monopoly exercised over the shipping of logs from Sabah by a Japanese cartel and its local agent, Archipelago Sdn. Bhd., reported as being controlled by former Chief Minister Datuk Harris Salleh and a prominent Sabah Chinese businessman, Datuk Wong Chik Lira. The Foundation's commercial arm, Innoprise Corporation Sdn. Bhd., subsequently attempted to establish a properly regulated agency which would restore government control over the shipping of logs. Although this attempt was unsuccessful, it was reported at the time as having antagonized certain vested commercial interests enjoying close links both with the opposition Berjaya party in Sabah and UMNO in Peninsular Malaysia.
One of Dr. Kitingan's innovations within the Sabah Foundation was the establishment of the Institute for Development Studies, a policy research center or "think tank" designed to guide the state government in its future planning. Part of the work of the Institute for Development Studies was the publication of material intended to canvass issues relating to Federal-state relations, a notable example being "Sabah 25 Years Later 1963-1988" 0989) edited by Dr. Kitingan and his deputy director, Dr. Maximus Ongkili. The essays by various authors collected in this publication dealt in detail with the circumstances of Sabah's joining Malaysia, including the principles embodied in the Twenty Points document, and critically reviewed Sabah's subsequent experience within the Federation. The book contains, in my view, an elaboration of the case made out by Dr. Kitingan in his 1987 memorandum referred to above.
In early January 1990, Dr. Kitingan published a New Year's message in which he again raised some of the specific grievances held by the PBS government in relation to the Federal government:
(i) its latitude in allowing a former PBS Federal Deputy Minister to campaign against PBS;
(ii) its discrimination against Chief Minister Datuk Pairin Kitingan through Radio Television Malaysia's refusal to show him in a tourist film intended to promote Sabah;
(iii) its failure to act against the duplication of names on electoral rolls and the naturalization and electoral registration of large numbers of illegal immigrants;
(iv) its speedy registration of new opposition parties in Sabah; and
(v) its erosion of Sabah state powers in the areas of fisheries, mining and forestry "which might leave the State wholly dependent financially."
In his published message, Dr. Kitingan called specifically for the equal distribution of oil and gas revenue between the Federal and Sabah governments and for greater Sabah representation on Federal government boards and authorities, emphasizing that "our State should rightly be treated as a full partner in the Federation." At the same time, he anticipated that "Sabah and its State Government will face more harrassments [sic] in the years ahead."
I now wish to deal with what Dr. Kitingan reported as a major grievance--the naturalization and electoral registration of illegal immigrant workers from the southern Philippines. The population of Sabah itself, estimated recently at 1.4 million, has been swelled in recent years by illegal immigrant workers from the southern Philippines and Indonesia who are now estimated to number at least 250,000. It has been reported that many of these workers have been given "blue cards" (certificates of naturalization) by the Federal authorities in Sabah and that they accounted for most of the 50,000 new voters reported as having been registered on the electoral rolls in the six months between October 1989 and March 1990. This rapid increase can be compared with an increase of 72,000 over the four years from 1985 to 1989 reported by the Election Commission. (See "RHWR-4", p.21). It has also been reported that practically all of the newly-registered voters are Muslims from the southern Philippines and Indonesia. It is my belief that as they are indebted to the Federal authorities for their citizenship status and their opportunity to find employment, their political loyalties will be to UMNO Sabah ("UMNO Sabah") the Sabah branch of the party which dominates the ruling Barisan Nasional coalition at Federal level. In my view, their enrollment is likely to have the significant effect of producing Muslim majorities in a number of Federal and state electorates where they did not exist previously, thus facilitating the eventual election of an UMNO Sabah government.
In my view, the Federal government began to pursue a policy of direct harassment of the PBS government in April 1988 when Federal government tax investigators conducted a raid on four PBS leaders, including three state government ministers, searching their homes without prior notice and taking away papers. In June 1989 the Federal government's Anti-Corruption Agency began to investigate Dr. Kitingan, reportedly "leaking" some of the information it gathered to Sabah's opposition parties during the next few months without actually naming him, and then revealing his name in December. This, together with the Federal government's negative response to a number of his requests, led Sabah Chief Minister, Datuk Pairin Kitingan, to complain publicly in November 1989 that "certain Federal leaders" were attempting to topple his government. He noted that a Deputy Federal Minister originally appointed as a PBS member had been allowed by the Barisan Nasional Federal coalition government to retain his post even though he had since resigned from PBS and was leading an opposition party in Sabah opposed to the PBS. Datuk Pairin was also reported as claiming that the Anti-Corruption Agency's investigations of himself and his brother were politically motivated. He noted that the investigations had come on the eve of the by-election for the state seat of Ranau. The Anti-Corruption Agency is under the control of the Prime Minister's Department, the responsible Minister then and now being Prime Minister Dr. Mahathir.
On 18th January 1990 in his speech at the USNO annual assembly in Kota Kinabalu, Prime Minister Dr. Mahathir was reported as saying:
Some Sabahans had been given the opportunity to further their
education to an [sic] extent of becoming doctors, though not
necessarily being in the medical line, but apparently they have
forgotten the benefits of gaining independence through the
federation, but had instead chosen to create anti-Malaysia
feelings.
This was, in my belief, a veiled but unmistakable reference to Dr. Kitingan and his colleague, Dr. Maximus Ongkili, of the Institute for Development Studies. Five days later, Dr. Kitingan was arrested on the seven charges of corruption to which I have referred ... The timing of Dr. Kitingan's arrest, coming as it did after his controversial New Year message and the Prime Minister's sharp response to it, suggests to me that the charges were politically motivated.
During the two months before the Sabah state elections of 16th-7th July 1990, there was a series of arrests of four PBS supporters carried out by Federal Police Special Branch officers in connection with an alleged secession "plot" in Sabah. On 25th May 1990, during the annual Kadazan harvest festival, two Kadazans were detained under the Internal Security Act. One of them was Benedict Topin, executive secretary of the Kadazan Dusun Cultural Association, chairman of Sabah Air Sdn. Bhd. and a key PBS member. On 10th July 1990, a week before the elections, Tan Sri Abdul Rahim bin Nor, Deputy Inspector General of the Malaysian Police, was reported as having revealed details of the alleged plot. In my view, the timing of this dramatic allegation suggests that its motive was political. This is supported by the subsequent failure of the Malaysian Police or other Federal authorities to make public any evidence of a secession conspiracy. It is also significant, in my view, that Dr. Kitingan was charged on twelve counts of failure to disclose assets a week after PBS's electoral victory.
At its annual congress held on 15th October 1990, five days before Federal parliamentary elections, the PBS decided to leave the Barisan Nasional Coalition, which it had joined in June 1986, and to join the opposition coalition led by Parti Semangat '46. My view is that this decision expressed the belief of most PBS congress delegates that the Sabah government had not benefited from its time within the ruling national coalition--indeed, that Sabah's general position within the Federation had continued to deteriorate. Chief Minister Datuk Pairin Kitingan was reported as saying after the congress decision that his efforts to obtain certain concessions for the state from the Federal government in return for PBS's continued support for the Barisan Nasional had been unsuccessful.
The PBS announcement brought an angry response from the Barisan Nasional leadership. Deputy Prime Minister and Barisan Nasional secretary-general Abdul Ghafar bin Baba was reported to have described the PBS action as "a dirty political tactics [sic]." Prime Minister Dr. Mahathir himself was reported at the same time to have referred to the PBS presence within the Barisan Nasional coalition as having been like "a thorn in one's flesh" which had "caused the flesh to swell and suppurate." In my belief, responsibility for PBS's last-minute switch of political allegiance was attributed by the Prime Minister and his Deputy wholly to the Kitingan brothers. In fact, however, the newspaper reports of the PBS congress where the decision had been made did not indicate that they had advocated the move.
In my view, the campaign of harassment of the Sabah Foundation and Sabah government leadership was stepped up dramatically after the Barisan Nasional had been returned at the Federal elections of October 1990 with a strengthened majority. On 3rd January 1991, Dr. Maximus Ongkili, deputy director of the Institute for Development Studies, was taken in for questioning under the Internal Security Act but was released after a month. On 5th January 1991 Chief Minister Datuk Pairin Kitingan himself was stopped at a roadblock near the Chief Minister's office at the Sabah Foundation in Likas, Kota Kinabalu, and arrested on three charges of corruption. And on 16th January 1991, the manager of Innoprise Corporation Sdn. Bhd., Vincent Chung, was arrested under the Internal Security Act "on suspicion of being involved in a plot to bring about Sabah's secession from Malaysia." He was subsequently served with a two-year detention order signed by the Minister for Home Affairs, Dr. Mahathir.
On 21st February 1991 in a speech at a Kota Kinabalu rally marking the establishment of a branch of UMNO in Sabah, ("UMNO Sabah"), Prime Minister Dr. Mahathir was reported to have said that Dr. Kitingan and the Institute for Development Studies were planning, with the assistance of another country, to take Sabah out of Malaysia and make him its President. The Prime Minister alleged that by raising the "Twenty Point Issue" and accusing the Federal government of neglecting Sabah, Dr. Kitingan and the Institute for Development Studies were spreading hatred for the Federal government and working towards secession. He was reported to have said further on 21st February 1991: "Before, Sabah people never hated the federal government or the National Front," but that since the PBS came to power, statements were made, "especially by Jeffrey Kitingan, to give rise to hatred against the federal [government], and poison the minds of Sabahans."
Prime Minister Dr. Mahathir was reported as saying after the 21st February 1991 rally, when questioned by journalists why Dr. Kitingan remained free when he was fanning anti-Malaysia sentiments: "He [Dr. Kitingan] is free until the government decides he is a threat to the security of the country. At that stage, there are provisions in the law that we can use. If he is not a security risk we don't act." He was also quoted as saying that as there was no evidence of any planned use of violence against the Federal government, "we can still allow the agitators to remain free." No disclaimer was issued by the Prime Minister subsequent to the wide publication of these attributed remarks.
On 13th May 1991, four days after the newly-established UMNO Sabah's first by-election victory in the Muslim-majority seat of Kota Belud where former Chief Minister, Tun Mustapha, successfully represented the new party, Dr. Kitingan was arrested under the Internal Security Act on suspicion of "involvement in a plot to pull Sabah out of Malaysia." On 16th July 1991, the Deputy Home Affairs Minister, Datuk Megat Junid, announced that Dr. Kitingan's detention had been extended for a further two years by a letter signed by the Minister for Home Affairs, Dr. Mahathir. Nothing had been published to suggest that any of Dr. Kitingan's statements or actions subsequent to the Prime Minister's speech of 21 February had in fact made him a "security risk," but on 18th July 1991, Datuk Megat Junid told the Federal Parliament that there might be a White Paper providing details of the secession "plot." "Once investigations are completed," he was reported to have said, "something would be done to convince the public." However, no White Paper has since appeared, which suggests to me that the evidence of the alleged "plot" may not be very convincing to the public.
It is significant, in my view, that Dr. Kitingan's detention under the Internal Security Act took place within six weeks of public statements by Prime Minister Dr. Mahathir (also the minister responsible for the administration of the Internal Security Act) referring to him as a secessionist, an "agitator," and a potential threat to the security of Malaysia. It is also significant, in my view, that Dr. Kitingan's arrest took place four days after UMNO Sabah's victory in the Kota Belud by-election. I believe that this result was a political boost for the Prime Minister, suggesting to him that UMNO Sabah was capable of being elected to government in the state in place of PBS.
It is important to understand the crucial role of the Internal Security Act in Malaysian politics in recent years. Inherited from the British colonial government, which introduced it to deal with the aftermath of the Communist terrorist uprising of 1948-1960, the Internal Security Act has, in my view, and in the view of international organizations such as Amnesty International and Asia Watch, been employed by the Federal government in recent years to deal not only with key opposition politicians but with dissidents within the Federal ruling coalition. For example, one hundred people, many of them notable opposition politicians, were taken in for questioning in July 1987 in "Operasi Lallang" (Operation Long Grass) and sixty of these were subsequently detained under the Internal Security Act. In this case, a White Paper was published by the Ministry of Home Affairs to justify the application of the Internal Security Act. However, when one of the detainees, opposition politician Karpal Singh, subsequently secured his release by applying to the High Court of Malaysia by a writ of habeas corpus, the Act was then amended in June 1989 to exclude this form of application, except in cases of possible procedural irregularity.
Under Section 73(1)(b) of the Internal Security Act, a person can be held for questioning for a maximum of sixty days before the imposition of a maximum two-year detention order, renewable indefinitely, under Section 8(1). There is no provision that the detailed basis of the detention order be made public or that the detained person be brought to trial. It should be noted that the state of emergency for the whole of Malaysia declared by the Malaysian Head of State in May 1969 is still in force, enabling the blanket application of the Internal Security Act.
Under Section II of the Internal Security Act, there is also provision for detainees to appeal to a government-appointed Advisory Board against the allegations made against them. The Advisory Board may recommend to Malaysia's Head of State the release of a detainee if it believes that the case against him or her is insufficient to justify continued detention. However, the Minister for Home Affairs, who is responsible for the administration of the Internal Security Act, is not bound by these recommendations and is not obliged to state his reasons for rejecting them. l have been informed by Mr. Harjeet Singh of Shearn Delamore, Dr. Kitingan's Malaysian solicitors, and verily believe that in February 1992 the Advisory Board recommended that Dr. Kitingan be released from detention but that this was rejected by the Minister for Home Affairs, Prime Minister Dr. Mahathir.
In response to a question asked by opposition member, Lim Guan Eng, in the Federal Parliament on 23rd December 1992, Parliamentary Secretary for Home Affairs, Ong Ka Ting, stated that Dr. Kitingan was being held under the Internal Security Act for security reasons and not political reasons. In response to an earlier question by opposition member and former detainee, Karpal Singh, seeking the reasons for the rejection of the Advisory Board's recommendation that Dr. Kitingan be freed, the Parliamentary Secretary stated that the Minister's decision could not be questioned. He did not offer any further evidence of Dr. Kitingan's alleged involvement in a secessionist plot in Sabah, or refer to the possibility of a White Paper on the subject which had been mentioned two years earlier.
The case of Dr. Kitingan and the six other Sabahans under detention has been taken up by Amnesty International and Asia Watch, who have published and distributed detailed reports. In its report of October 1991, Amnesty International made the following statement:
Amnesty International is concerned that the seven detainees from
the State of Sabah held under the ISA [Internal Security Act]
without charge or trial may be prisoners of conscience held solely
for the non-violent exercise of their rights to free expression and
freedom of association, it recommends to the Government of Malaysia
that they be released immediately and unconditionally if they are
not to be formally charged with a recognizable criminal offence and
promptly tried in public in a court of law according to established
international standards for fair trial.
In reference to the general use made by the Malaysian government of the Internal Security Act in recent years, the same Amnesty International report stated:
Administrative detention is the practice of some countries,
including Malaysia, of detaining persons by the decision of an
administrative authority rather than a result of a judicial
process. Any system of administrative or preventive detention which
invests an executive authority to detain individuals without charge
or trial risks being used to circumvent the due process of law and
the authority of the courts. In such situations, individuals may be
arbitrarily detained for purposes of harassment or intimidation, as
a means of facilitating oppressive and illegal interrogation, or to
silence non-violent critics and political opponents of the
government exercising their basic human rights such as the rights
to freedom of expression and belief and to freedom of association.
These dangers are particularly present where the system of
administrative detention fails to provide detainees with any
opportunity for effective remedy of violation of their fundamental
right through a form of judicial appeal.
In my view, it is significant that Malaysia has not ratified the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights or the Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment. l further believe that it is largely the continued application of the Internal Security Act which has led the United Nations Development Programme to classify Malaysia in the "Low Human Freedom" category.
It is my considered opinion that the Federal government in Kuala Lumpur has been disinclined to accept the PBS government of Sabah since the latter's first election to office in 1985 and that from October 1990 it has actively pursued a political strategy designed to replace it with an UMNO Sabah government. The first part of this strategy has been to eliminate the leadership of PBS and of the Sabah Foundation in the belief that the Kitingan brothers are the vital "strong men" whose removal would demoralize and destabilize the PBS government. The second part of the strategy has been to establish UMNO Sabah, in place of USNO, providing a bridgehead for direct and permanent Federal political influence in the state through UMNO Sabah's eventual replacement of the PBS government. This has meant the abandonment of what had been the previous official policy of the Federal Barisan Nasional coalition (and of its predecessor, the Federal Alliance coalition) not to establish branches of its constituent parties in Sabah or Sarawak.
The third part of the strategy is the current attempt by Tun Mustapha, encouraged I believe by the Federal government, to overturn Sabah's so-called "anti-hop" legislation. Article 18(2)(d) of the Sabah Constitution, enacted by an amendment in May 1986, requires sitting members of the state legislature who wish to change their party allegiance to resign their seats. In my view, this legislation was a response by PBS to the long and continuing history in Sabah and Sarawak of money and other material inducements being systematically and successfully employed to change the party allegiances of sitting members. Similar legislation has recently been enacted by Sarawak's state legislature and has long existed in the Peninsular Malaysian state of Kelantan where the opposition Parti Islam has been in power for most of the period since 1957. However, the Kelantan law was successfully challenged in Malaysia's Supreme Court in 1992. In my view, this strategy is unlikely to be pursued much further because of the possible embarrassment to the Barisan Nasional coalition government of Sarawak which narrowly averted defeat in 1987 when a number of members of the ruling party crossed the floor of the legislature.
It is my belief that the Federal government's political harassment of the Sabah's PBS government has recently been accompanied by measures designed to place financial and economic pressure on the state. In a move officially explained as being designed to conserve forest resources and prevent illegal logging, Federal Primary Industries Minister, Dr. Lim Keng Yaik, announced in February 1991 that the export of round logs and sawn timber from Sabah would in future only be possible by means of Federal licenses issued by the Malaysian Timber Industry Board. Significantly, the same restriction was not imposed on Sarawak, whose exports of timber had reportedly been running at four times those of Sabah. And in December 1992, Dr. Lim Keng Yaik took the extreme step of announcing a "temporary" ban on the export of all sawn logs from Sabah as from 1 January 1993. The ban has in my view threatened the loss of more than 40% of the Sabah state government's independent income, namely the revenue from the export tax on timber.
The allocation of Federal aid funds for development projects can also be seen to have been used for political purposes in Sabah in recent years. For example, the allocation of MS6 million in Federal funds was announced by Barisan Nasional Secretary-General, Ghafar bin Baba, in April 1991, during a visit to Sabah. This allocation was for rural electrification in the Kota Belud area where a by-election was due to take place in the following month. When asked by a Sabah journalist if this allocation amounted to "money politics," Federal politician Datuk Abdul Kadir was reported as saying that he preferred to describe it as "development politics." In my view, the two terms were synonymous in this context.
At an administrative level, what I believe to have been a "freeze" by the Kuala Lumpur government on the Sabah state government since October 1990 was expressed in a petty but nonetheless symbolic way by the widely-reported exclusion of Sabah's most senior civil servant, State Secretary Datuk Simon Sipaun, from the annual national Conference of State Secretaries held in April 199 I. Datuk Sipaun had been invited to attend the previous national conference in July 1990.
I wish to refer briefly at this point to what I believe to be the level of knowledge possessed by the principal Federal government protagonists in the debate over Federal versus Sabah state rights. It is now more than thirty years since the negotiations on the formation of the Federation of Malaysia took place and there are very few still-active Federal politicians or political observers who experienced those events. One consequence of this is a notable lack of knowledge and understanding of the basic facts of those negotiations and their significance. Prime Minister Dr. Mahathir himself was reported as saying on 12th September 1991, in response to the call by PBS state assemblyman Datuk Monggoh Orow for a referendum on the issue of remaining in Malaysia, that there had been a referendum at the time of the Malaysia negotiations in which the people of Sabah and Sarawak had decided to "swim or sink" with Malaysia and that there would be no second chance. No referendum or plebiscite was in fact held in Sabah and Sarawak, although as we have seen, one was held in Singapore in September 1962.
Even the late Tunku Abdul Rahman, one of the principal participants in the negotiations leading to the formation of Malaysia, had by early 1987 either forgotten or confused the salient facts of Sabah's entry into the Federation. He was reported as saying in January 1987 that he could not comment on the Twenty Points because they were first raised "too long ago--even before 1963." He continued:
All I can remember is that the Cobbold Commission headed by Lord
Cobbold had drawn up the constitution which was accepted by Sabah.
If I am not mistaken, Sabah readily signed the Malaysia Agreement
and had accepted the Yang di-Pertuan Agong as the head of Islam in
the State.
We have already seen that the Constitution, as originally drawn up and enacted following the recommendations of the Inter-Governmental Committee, did not make Malaysia's Head of State the head of Islam in Sabah.
A revealing testament to higher-echelon Federal government bureaucratic attitudes to the original negotiations on the Malaysia proposal can be found in the observations reported to have been made to the press in Kota Kinabalu on 14th March 1991 by Malaysia's Inspector-General of Police, Tan Sri Haniff Omar:
There has been a lot of nonsense in some accusations, like the
"Twenty Point" [sic] agreement ... I had dug out records of the
Cobbold Commission reports, Malaysian Solidarity Commission [sic]
reports, inter-Governmental Commission [sic] reports, the Malaysia
Agreement and even the Malaysian Constitution just to understand
the whole issue surrounding the federation. I discovered that there
were many misleading things in the [Twenty Points] memorandum but
the fact is that if the intention was good, it could be thoroughly
researched and better explained ...
At the UMNO general assembly in early November 1992, Malaysian Deputy Prime Minister and Barisan National Secretary-General, Ghafar bin Baba, was widely reported in the Malaysian press as having issued a further challenge to PBS to debate the Twenty Points issue. In view of the fact that Datuk Pairin Kitingan and Dr. Jeffrey Kitingan had been calling for such a debate themselves since as early as 1987, and that by December 1992 Dr. Kitingan (and six other Sabahans) had already been imprisoned without trial for almost two years on allegations of secessionist plotting consequent on his public canvassing of the Twenty Points agenda, this, in my opinion, was an instance of remarkable hypocrisy.
While I have no knowledge of the substance of the seven criminal charges made against Dr. Kitingan, I am convinced that they must be seen in the broader context of issues and the sequence of events which I have outlined above: the history of the negotiations leading up to the formation of Malaysia and the special status achieved within its Constitution by Sabah and Sarawak by virtue of those negotiations; the direct and decisive interventions by the Kuala Lumpur government in the political affairs of Sarawak in 1966 and Sabah in 1975; the systematic and almost complete removal of the special constitutional status of Sabah and Sarawak by means of a series of legislative amendments enacted since 1971; and the concerted efforts by the Federal government, particularly marked since October 1990, to unseat the PBS government in Sabah by politically eliminating the two Kitingan brothers and to erect in its place an UMNO Sabah state government unlikely to disturb the pattern of tightening Federal control or to resist the removal of the few remaining special constitutional provisions relating to the two Borneo states.
In overall summary, there is, in my considered view, a clearly discernible design in the actions of the Malaysian Federal government to remove the special constitutional status of Sabah and Sarawak in the Federation and to place them on the same footing as the component states of Peninsular Malaysia which originally made up the Federation of Malaya. Constitutional and other legislative changes enacted by the Federal government, together with political and administrative interventions, have enabled it to exert increasing pressure on the PBS-led state government of Sabah. Furthermore, any voiced objections or resistance to this process on the part of Sabah's Christian political leaders and any invocation by them of the original negotiations and agreements leading up to Sabah's incorporation in Malaysia, notably the Twenty Points, have been treated as evidence of a desire to secede from the Federation and nothing short of treason.
Finally, in reference to the way in which the special constitutional position and rights of Sabah and Sarawak have been, in my view, systematically extinguished, including the special position and rights of their indigenous inhabitants, and to the resistance this process has aroused in Sabah in particular, it is appropriate to cite the 1972 opinion of Tan Sri Mohd. Suffian bin Hashim, who was later to become Lord President of Malaysia's Supreme Court. In his "Introduction to the Malaysian Constitution" this internationally respected jurist wrote in relation to amendments made by the Federal Parliament to the Sedition Act in 1970 to "entrench" (i.e., to place beyond all debate and challenge) Articles 152, 153 and 159 of the Federal Constitution relating to the special rights reserved for Malays in Peninsular Malaysia following the Kuala Lumpur riots of 13th May 1969:
The bargain arrived at as a result of the give and take and
compromises of the representatives of the major communities during
the talks leading to independence, was a solemn pact constituting
the very foundation of the nation and any attempt to ridicule, or
deride or whittle away the decisions that have been entrenched in
the constitution will bring nothing but trouble, and certainly the
events of 13 May 1969...have shown the nature and scale of the
disaster that could strike the country should present and future
generations forget the background to the labours of our
multi-racial constitution makers, and attempt to disturb the
delicate balance written into the various articles.
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--, Malaysia: Administrative Detention of Sabahans, October 1991.
Campbell, B. 1986 Sabah under Harris': A collection of speeches by Datuk Harris bin Mohd Salleh as Chief Minister of Sabah 1976-1985, Kuala Lumpur: Penerbit Warisan.
Hunter, E. 1976 The Misdeeds of Tun Mustapha: A Brief History of the Dictatorial Rule of Tun Mustapha under the guiding hand of Datuk Syed Kechik 19671976, Hong Kong: Ed Hunter Enterprises.
Kitingan, Jeffrey G. 1987 The 20 Points: Basis for Federal-State Relations For Sabah, Kota Kinabalu: The Author.
1990 Cabaran-Cabaran Untuk Sabah Dalam 1990s, Kota Kinabalu: The Author.
Lee Kuan Yew, The Battle for Merger, Singapore: Govt. Printing Office, [1961?] News from Asia Watch, 18 October 1991.
Ross-Larson, B. 1976 The Politics of Federalism: Syed Kechikin East Malaysia, Singapore: Ross-Larson.
Zaini Hj. Ahmd, ed. n.d. The People's Party of Brunei: Selected Documents, Petaling Jaya: Insan.
Zulkifli Ahmad 1990 Escape From Tyranny in Malaysia, Petaling Jaya: Penerbitan Dinamik.
Bob Reece
Professor of History
School of Social Sciences and Humanities
Murdoch University
Western Australia
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