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‘A Measure of Autonomy’: Federalism as Protection for Malaysia’s Indigenous Peoples

Published online by Cambridge University Press:  01 January 2025

Andrew Harding
Andrew Harding*
Affiliation:
National University of Singapore
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Abstract

This article is a case study of federalism in Malaysia as applied to the East Malaysian states of Sabah and Sarawak, which joined the federation in 1963. It is only in the case of these two states, in the context of Malaysia, that federalism is designed to deal with ethnic issues, the majority in both states being Indigenous people. Protection of these states’ Indigenous people was a priority in 1963 and special status was given to these states in order to provide such protection. The study finds, nonetheless, that this special status has been eroded over the last 55 years by political interference by the federal government, and that the special status of these two states has proved ineffective, and indeed largely unacknowledged at the federal level. Accordingly, this study finds that federalism as protection for Indigenous people has been ineffective and the situation of the Indigenous people has as a result deteriorated over time. The solution, it is suggested, is through democratic empowerment at the state level and for federalism to provide deeper forms of constitutional protection.

Type
Article
Information
Federal Law Review , Volume 46 , Issue 4 , December 2018 , pp. 557 - 574
Copyright
Copyright © 2018 The Australian National University

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References

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42 See, eg, the list of states in the amended Federal Constitution (Malaysia), art 1.

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44 See, eg, the extensive coverage of Sarawak corruption allegations in Sarawak Report (2018) Sarawak Report <http://www.sarawakreport.org/>; and ‘Sarawak Governor accused of funnelling corruption proceeds into Canada real estate’, Starits Times, 20 April 2018.

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52 See Jaclyn L Neo, Dian AH Shah and Andrew Harding, Introduction to I-CONnect Symposium: Malaysia Boleh! Constitutional Implications of the Malaysian Tsunami (21 June 2018) I-CONnect <http://www.iconnectblog.com/2018/06/introduction-to-i-connect-symposium-malaysia-boleh-constitutional-implications-of-the-malaysian-tsunami/>.

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54 They are so called in Sabah and Sarawak, following Annexes to the IGC Report of 1962, for which see Inter-Governmental Committee (Great Britain and Malaya) above n 39.

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56 Ie, gradual conversion of public service positions so that they would be held by Sarawakians or Sabahans.

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59 Federal Constitution (Malaysia), art 159(3).

60 Harding, above n 19, ch 3. Currently Sabah (25) and Sarawak (31) have 56 seats out of 221 in the Federal Parliament.

61 The literature is too much, and too marginal to present concerns, to cite here, but for further discussion and citations, see Dian A H Shah, ‘Religion, conversions, and custody: Battles in the Malaysian appellate courts’ in A Harding and Dian A H Shah (eds), Law and Society in Malaysia: Pluralism, Religion and Ethnicity (Routledge, 2017) ch 7.

62 Federal Constitution (Malaysia), art 161E(2). See also Harding, above n 19.

63 Constitution (Amendment) Enactment, State Enactment No 8/1973, introducing art 5A into the State Constitution. See also Chin, above n 20, 171ff.

64 Ibid 154.

65 Ibid 157. For the position of native people as bumiputera, see J Chin, ‘Second class bumiputera? The taming of the Dayaks and Kadazandusun of East Malaysia’ in S Lemiere (ed), Misplaced Democracy: Malaysian Politics and People (SIRD, 2014).

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73 Joseph Tawie, ‘Prioritise issue of Penan rape’ on Hornbill Unleashed (30 September 2011) <https://hornbillunleashed.wordpress.com/2011/09/30/23924/>.

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75 Wong Chin Huat, ‘Time for a Second Federation in Malaysia?’, Penang Monthly, 13 September 2013.