HOW TO MAKE NATIONAL SECURITY BILL "USELESS" AGAINST SARAWAK

NATIONAL SECURITY BILL 2015

On 1 December 2015, Minister in the Prime Minister's Department Shahidan Kassim tabled a new bill for its first reading in Dewan Rakyat. It gives the National Security Council (NSC) extensive powers to deal with national security issues. Following which, the House has passed the Bill on 3 December. The bill gives powers to the council headed by PM Najib to arrest anyone without a warrant once an area is declared a security area.

MALAYSIA CONSTITUTION

Laws of Malaysia. Federal Constitution. 

Inconsistencies between federal and State laws.

75. If any State law is inconsistent with a federal law, the federal law shall prevail and the State law shall, to the extent of the inconsistency, be void.  

From the federal constitution, it was easily understand by the first glance that the federal law shall prevail if there is any inconsistencies between the federal law made by the Malaya masquerading as Malaysia federal government (Central government) and the state government. This is only true to the extend of the States in the Malaya federation such as Perlis, Pahang, Johor, Malacca etc.  

However, in case of the Central government and Sarawak state government relationship, the reading of the Article 75 of the Federal Constitution must be read hand-in-hand with the Report of the Inter-Governmental Committee (IGC) and the Malaysia Agreement 1963 (MA63). 

If there is any inconsistencies between the federal and the state laws in term of Sarawak, IGC and MA63 is more supreme than any federal law as such documents is an international agreement between the government bearing registration number 10760 at the United Nations. Thus, any inconsistencies of the federal laws itself must be referred to the IGC and MA63 for further elaboration.

REPORT OF THE INTER-GOVERNMENTAL COMMITTEE, 1962.

Malaysia. Report of the Inter-Governmental Committee, 1962.

Annex A. Legislative List, Administrative Arrangement and Assurance.

General

      It is accepted that in the early years after the establishment of Malaysia as few changes as possible should be made in the administrative arrangements in the Borneo States affecting the day to day lives of the people. During this period certain Federal powers should be delegated to the State Government.

      Some administrative details have been included. Others remain to be worked out. 

Legislatives Lists as in the Ninth Schedule to the Federation of Malaysia Constitution. List I. Federal List. 2. Defence, etc. (Federal)

Subject to internal security considerations, licensing powers in respect of shot guns and their ammunition and in respect of a waiver or reduction of licensing fees, should be delegated to the Borneo State Governments. The function of licensing should be exercised by the State Governments in consultation with the Police. 

As it was state in the Annex A of the IGC, as an assurance, any administrative arrangement subject to the Sarawak state government, there should be as few changes as possible should be made in the administrative arrangements in the Borneo States and certain Federal powers should be delegated to the State Government.

This means that even though Sarawak agree to give certain power to the Central government and in this case defence etc., it did not mean that this given power was absolute and exclusively belong to the Central government. 

As for the defence arrangement, there were caveats and condition which means that there were conditions that the Central government must fulfil, in order for the Central government to get these powers from Sarawak. Such conditions for defences etc. is Subject to internal security considerations of Sarawak state government where such legislative measure should be delegated to the Borneo State Governments.

The Central government must first fulfil the conditions set out in Annex A of the IGC, otherwise the power of the NSC is not enforceable or that it is illegal for the Central government to make law that would diminished the power of the Sarawak state government. It wll be illegal for the Central government to enforce Emergency through NSC in Sarawak without the consent of Sarawak state government. 

MALAYSIA AGREEMENT 1963

Malaysia. Agreement concluded between the United Kingdom of Great Britain and Northern Ireland, the Federation of Malaya, North Borneo, Sarawak and Singapore. 

TITLE III. Legislative Powers and Administrative Arrangement. 

37 (1) It is hereby declared that the power of Parliament to make laws with respect to a matter enumerated in the Federal List includes power to authorise the Legislatures of the States or any of them, subject to such conditions or restrictions (if any) as Parliament may impose, to make laws with respect to the whole or any part of that matter.

     (2) Notwithstanding Article 75, a State law made under authority conferred by Act of Parliament as mentioned in Clause (1) may, if and to the extend that the Act so provides, amend or repeal (as regards the State in question) any federal law passed before that Act.

     (3) Any matter with respect to which the Legislature of a State is for the time being authorised by Act of Parliament to make laws shall for purposes of Articles 79, 80 and 82 be treated as regards the State in question as if it were a matter enumerated in the Concurrent List. 

It was again clearly state in the Malaysia Agreement 1963, Title III, that the power of Parliament to make laws (Federal List) is subject to such conditions or restrictions (if any). Such conditions or restrictions in case of Sarawak is outline in the Annex A of the IGC. 

In case of defense etc., the power of Parliament to enforce Emergency in Sarawak through NSC was subject to the conditions and restrictions which is the approval of the Sarawak state government.

This means, the Emergency declaration in any part of Sarawak through NSC can only be applicable after the approval of the Sarawak state government, otherwise it was illegal for the Central government to imposed Emergency in any part of Sarawak for that matter. 

Sarawak state government has the power to repeal any federal law as State law made under authority conferred by Act of Parliament as mentioned in Clause (1) may, if and to the extend that the Act so provides, amend or repeal (as regards the State in question) any federal law passed before that Act.

Any inconsistencies in relationship between the Central government and Sarawak government lastly, must be treated as regards the State in question as if it were a matter enumerated in the Concurrent List. Concurrent List means any laws is subject to the approval of both Central and Sarawak state government. Emergency declaration in any part of Sarawak, must be subject to approval by both the Centrall government and Sarawak state government to be effective. Otherwise, it is illegal.

NSC DID NOT REDUCE THE RIGHTS OF SARAWAK

It was interesting when Chong Chieng Jen from Malaya-based party of DAP during debate in parliament state that the passing of the NSC Bill will reduces and diminishes the rights of Sarawak. Here is where he get it all wrong. NSC did not reduce or even diminishes even a specks of the rights of Sarawak.

The rights of Sarawak is fully safeguards and outline in the IGC and MA63. IGC and MA63 cannot be change by the Parliament. NSC cannot change these two documents. These two documents is beyond the reach of the Parliament as only the government concerned can changes any agree terms of the IGC and MA63. Only the government of Malaya, Sarawak and Sabah through a new rountable meeting and committee can change the IGC and MA63. For example when changes the date of Malaysia Day from 31st August 1963 to 16 September 1963 was made on 28 August 1963 through the agreement of the such governments.

CONCLUSION

In conclusion, it was clear that any legislature matter in case of defense etc., that was under the Federal Lists, still subject to the approval or repeal by the Sarawak state government. If the Central government declare Emergency in any part of Sarawak, it still need to be subject by the approval of the Sarawak state government.

Choose your government wisely as they're the one responsible to safeguard Sarawak, If Emergency do happen in Sarawak, it is due to the approval of the Sarawak state government. Sarawak PBB-led government will be responsible if it do happen.

*New information will be continue to be added in this article at a regular basis as per requirement.

Author: Zulfaqar bin Sa'adi. Information Chief of State Reform Party (STAR).