Going to Betong for Gawai…

Leaving for Betong at 9.00 am on May 29th, 2007 to June 3rd, 07.

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Gawai Festival a.k.a. the Dayak Harvest Festival celebrated every 1st day of June.

Land Mine Phrases

Land Mine Phrases

“It seems that your knowledge of Islam is so shallow. that remarks by you shows your complete ignorance of other religion especially Islam. You should do your homework more, like reading more Islamic sites.” (Source)

The classic “I am forever right and you are forever wrong” attitude such as this will never resolve any problem, conflict or issues. This is, in fact, the best way to retain the status quo. Dear reader, this attitude does not apply just to Muslims but to everyone in a wide variety of issues. It can be about law, politics, ideologies, philosophy, automobile… Just name it, such statements are not confined exclusively to religion.

In my view this degrading and demeaning mentality is worst than any plague and it should be given the pandemic status. In negotiation, a person with this attitude will only cause the negotiations to either fail or last longer than intended… Then again, isn’t this the strategy the world implores?

If you are every going to reply to any of my entries here, or try to contact or engage me in a conversation, be sure to leave this mentality somewhere I can never detect. If I do, I will ignore you. You have been warned.

SPECIAL POSITION OF SABAH AND SARAWAK by Prof. Shad Saleem Faruqi

Special position of Sabah and Sarawak
Shad Saleem Faruqi
Under the Federal Constitution, Sabah and Sarawak enjoy a special position vis-a-vis the federal government.

The position of Sabah and Sarawak is akin to the special position of Kashmir in the federation of India; and of Quebec and Nunavut in Canada. Northern Ireland in the United Kingdom’s unitary set-up and Corsicans in France’s centralised government are conferred similar autonomy.

Financial provisions

Money represents power and is at the heart of government. Under Articles 109-112D, the states derive their revenue from two sources:

>> Sources assigned to the state in Part III of the Tenth Schedule.

>> Special grants made by the federal government. No unilateral review without the consent of the Borneo states is allowed: Article 112D(6).

In the matter of Sabah and Sarawak, additional sources of revenue assigned to the two states under Part IV and V of the Tenth Schedule include import duty, excise duty on petroleum products and export duty on timber and other forest produce.

Legislative powers

Sabah and Sarawak have exclusive legislative power over land, agriculture, forestry and local government: Articles 95D, 95E.

The two states are not bound by Article 76(4) which permits Parliament to encroach on state powers for purpose of ensuring uniformity on matters of land and local government. The two states have special powers to legislate on federal matters like carriage of goods by land: Borneo States (Legislative Powers) Order 1963 and Article 95C(1).

Under Article 161B, the Sabah assembly’s consent is needed if an Act of Parliament permits peninsular lawyers to practise in East Malaysia or alters a residence requirement.

Judiciary

There is a special High Court of the Borneo states. A special consultation process exists relating to appointment, removal and suspension of judges of the High Court in Sabah and Sarawak. In addition, Native Courts exist and are permitted to enforce native law and custom.

Land

Sabah and Sarawak are not required to follow any policy formulated by the National Land Council. Under Article 161A(5), Malay Reservation laws do not apply in these states. Instead, reservation of land for natives is allowed. Under the Land Ordinance Cap 68 native customary land rights are protected. There are some restrictions on transfer of native titles to non-natives.

Language

The two states were granted 10 years from Sept 16, 1963 to use English for official purposes. Even after 1973, the Constitution (Amendment) Enactment 1973, the National Language Application Enactment 1973 and Article 161(3) of the Federal Constitution require that any Act relating to, or restricting use of English, shall be subject to consent of the Sabah and Sarawak assemblies.

Special position of indigenous races

Article 161A provided for reservation of positions in the public service. This Article was repealed in 1971 when the special position of natives was brought under Article 153 on par with Malay privileges.

But many questions surround the provisions for the protection of indigenous races.

>> Definition of “native” in Article 161A(6)(b) suffers from gender bias.

>> Sabah Interpretation (Definition of Native) Ordinance 1952 seems to conflict with Article 161A(6)(b) of the Federal Constitution.

>> There was a political attempt some years ago to introduce the concept of “peribumi” to unite all natives under one concept and to extinguish individual nationalities.

>> There are questions about whether protection under Article 153 to the natives of East Malaysia is available only in Sabah and Sarawak or nationwide.

Amendments

Under Article 161E(2), some amendments to the Federal Constitution require the concurrence of the Yang di-Pertua Negeri of Sabah and Sarawak.

The matters are: citizenship, judiciary, federal-state relationship, religion, language, special rights of natives, allocation of quota of members in Parliament from Borneo states.

Protection during emergency

Article150(6A) provides that even in times of emergency, Parliament cannot legislate on native law and custom in Sabah and Sarawak.

Representation in Parliament

Although the population of Sabah and Sarawak is relatively small, due to their large territories, these states are over-represented in the 222-member Dewan Rakyat. Under Article 46, Sabah has 25 MPs and Sarawak, 31. However, the two states together constitute only 22.2% of the Dewan. This means that they cannot veto or block constitutional amendments.

Challenges ahead

In response to its glorious diversity, Malaysia built a cultural mosaic, not a melting pot. Its various peoples are like the colours of a rainbow - separate yet not apart. But there are challenges.

The special privileges and position of Sabah and Sarawak are seen by some as an obstacle to national integration. It is submitted that national unity is an evolutionary process and cannot be legislated.

In matters like Islam, Bahasa Melayu, Labuan, representation in the Dewan Rakyat, Sabah and Sarawak have gone along with integrative forces from the peninsula. But the menace posed by the large number of illegal immigrants has created tension in East-West Malaysia relations. The issue of “Islamic state” also requires in-depth discussion in the context of the two states.

The writer is Professor of Law at Universiti Teknologi Mara. Comments: feedback@thesundaily.com

Updated: 11:20AM Thu, 28 Sep 2006
Source: theSun

MALAYSIA DAY REMEMBERED by Prof. Shad Saleem Faruqi

Malaysia Day remembered
Shad Saleem Faruqi
Last Saturday was Malaysia Day. Forty-three years ago on Sept 16, 1963, the Federation of Malaya was transformed into the Federation of Malaysia. But not without opposition locally and internationally.

On Sept 10, 1963, the state government of Kelantan challenged the impending Malaysia Day Agreement and the Malaysia Act on a number of grounds.

First, that the proposed changes required the consent of each of the constituent states, including Kelantan, and this had not been obtained.

Second, that the Ruler of Kelantan should have been a party to the Malaysia Agreement and he was not.

Third, that there is a constitutional convention that the Rulers of the individual states should be consulted before any significant modifications to the Merdeka Constitution are legislated.

In a historic judgment, the High Court ruled that Article 159 nowhere requires consultation with the states prior to the admission of new provinces into the federation.

As to the alleged constitutional convention, the court observed correctly that conventions are informal political practices not enforceable in a court of law.

And so, the Federation of Malaya expanded to 14 states. A new name (Malaysia) was emblazoned on the political firmament. Significant new rules were established to regulate the special relationship of the new entrants with the Federal Government.

Due to its over-assertiveness, Singapore was ousted in 1965. But in relation to the Borneo states, the conviction remains strong that due to their cultural, religious, linguistic and ethnic diversity, Sabah and Sarawak should continue to enjoy greater autonomy than the Peninsular Malaysian states.

The reasons for this special treatment need to be examined in the light of the need for national integration and the conflicting imperative to accommodate distinct national communities.

Strong central government

In legal and political thinking, it is generally agreed that federal systems (as opposed to unitary ones) can be used to accommodate diverse nationalities. Such systems can provide workable solutions to the tension between the desire to maintain the territorial integrity of existing states and the desire of “national” communities for self-government.

However, in 1957, the Constitution-makers intended to create a “federation with a heavy central bias”.

In the following areas, the federal government was given overriding powers over the states of Peninsular Malaysia:

>> Amendments to the Constitution did not require the consent of the states: Article 159.

>> Emergency powers in the hands of the federal government could override the rights of the states: Article 150(4) and 150(6).

>> Federal Parliament was authorised to enact laws within the jurisdiction of the states for the purpose of implementation of treaties: Article 76(1)(a) and (2).

>> Subject to some procedural requirements, federal Parliament was authorised to enact laws on state matters with the object of promoting uniformity of laws: Article 76(4).

>> All state Constitution are required to show compliance with the Federal Constitution: Article 71(3).

>> Many policy-making bodies dominated by the federal government were created in relation to areas otherwise allocated to the states: Articles 91, 108, 139.

>> Development plans of the federal government could override state rights: Article 91(1).

>> Allocation of finances and tax-sharing showed a heavy central bias.

But in relation to Sabah and Sarawak, the firm conviction of all parties was that the “Borneo states” will enjoy greater autonomy.

This was based on a number of historical events, among them the Resolution of the Malaysia Solidarity Consultative Committee (1961), Resolution of the Legislative Council of North Borneo (1962), the Report of the Cobbold Commission (1962) and the Twenty-Point Manifesto of the Sabah Alliance (1962).

The Report of the Inter-Governmental Committee/ Landsdowne Committee (1963), the Malaysia Agreement (1963) and Malaysia Act 1963 were all inspired by the belief that in the new Federation of Malaysia, Sabah and Sarawak should retain their individuality, enjoy greater autonomy and be vested with safeguards for the special interests of their peoples.

Politics of accommodation

Sabah and Sarawak’s special position in the federation is justifiable due to a number of socio-political, economic, geographical and legal factors. Among them are:

>> Sabah and Sarawak’s cultural and religious distinctiveness from Peninsular Malaysia.

>> The huge territories and massive resources they contribute to the federation. Their combined area is 198,069 sq km, exceeding Peninsular Malaysia’s 131,681 sq km. The coastline of the two states is 2,607km compared to the peninsula’s 2,068km.

>> Continuing problems of poverty and underdevelopment in these states.

>> The 1963 pact between the Federation of Malaya, United Kingdom, North Borneo, Sarawak and Singapore.

>> International law basis to the guarantees for Sabah and Sarawak.

Nation-building

In federal societies there is a constant tension between the need to promote a common sense of belonging and the legitimate demand of distinct communities for preservation of their cultural and territorial distinctiveness.

Nation-building is a very laudable and desirable goal. But given the reality of cultural, religious, linguistic and ethnic diversity in almost all countries, it is wise to acknowledge that if a sense of nationhood is to evolve, there should be no attempt to impose an artificial uniformity by way of cultural or religious homogeneity.

From the beginning, the forefathers of the Federal Constitution recognised that nation-building must rest on factors that are not tailored to suit any particular community. And so a special position was worked out for Sabah and Sarawak.

Dr Shad Faruqi is Professor of Law at UiTM. Comments: feedback@thesundaily.com

Updated: 11:29AM Thu, 21 Sep 2006
Source: http://www.sun2surf.com/article.cfm?id=15551

On the 38th Anniversary of the May 13th…

Only after going through the paper on the way to the airport did I realize that today was the anniversary of the May 13th Racial Tragedy. Also, in the paper was the launching of the National Integration Master Plan or something like that and a number of articles regarding “living in harmony”, integration etc.
This might shock some of my readers as I am known to be a pro-Independence person. I did mention over and over again that I support independence of the State of Sarawak after all integration efforts have failed… Therefore I welcome the launching. Then again, this is just the beginning as the Plan is yet to be implemented, tried and tested. The critical fields which need attention are the implementation, development and improvement stage. The later two should always be on going.
Like all products and plans, there will be skeptics, critics as well as those who just refuse to cooperate. These people, whether part of the civil service or not, will hamper the process for integration. I cast my doubtful eyes on them, honestly. The person who proposed the plan was just the Minister in the Prime Minister’s Department. Didn’t the Prime Minister himself complained of the civil service during the “falling ceilings” incidents? His words were “I have reminded these people to do something about it but they only wait for something bad to happen before they actually do something”. Well, more or less. They dare to ignore the request of the prime minister, what more to say a plain minister.
Next, the fundamental values underlying the Plan are tolerance and respect. Two values which are lacking among a number of people I have encountered. They only see their way as being THE way and everyone must respect THEM but it is not necessary the other way around. These individuals come from various races, not just the Natives of Sarawak and Sabah or the Malays. This “trait” is common, real and present irrespective of ethnic, status, class, religion, race etc.
I am - in a way - glad that the Minister in charge of integration hails from Sabah, another state other than Sarawak where races and ethnicities are extremely diverse. I pray that Dr. Maximus Ongkili’s brainchild achieve its intended onjectives.