[CALS] 60 Years of Malaysia Agreement: Historical and Contemporary Issues

On 15 September 2023, CALS hosted a one-day symposium, “60 Years of Malaysia Agreement: Historical and Contemporary Issues” at NUS Law Bukit Timah Campus. The symposium was part of a research project by Professor Andrew Harding (National University of Singapore) and Professor James Chin (University of Tasmania) that aims to examine critically some of the key issues and controversies surrounding the Malaysia Agreement.

The speakers for this conference were, Dato Sri JC Fong (former Attorney-General of Sarand and current legal advisor to the Sarawak Government); The Honourable Justice Duncan Sikodol (High Court of Bintulu); Dr Yogeswaran Subramaniam (Associate Member, Centre for Malaysian Indigenous Studies & lawyer); The Honourable Justice Datuk Yew Jen Kie (Retired Judge of Court of Appeal) and Dr Dian A H Shah (National University of Singapore) as Moderator.

Session 1: 60 years of Malaysia: Political and Legal Developments

Professor James Chin kick started the day’s discussion with a discourse on the political developments in Sabah and Sarawak. He compared the different stages of politics between Sabah and Sarawak and spoke of the historical grievances that underscores the Malaysia Agreement. In closing, Prof Chin provided key takeaways from the past 60 years and gave insights as to what the futures of both Sabah and Sarawak will depend upon.

Professor Harding continued the discussion on the legal aftermath of the Malaysia Agreement, where he touched on the constitutional asymmetry in Sabah and Sarawak, as well as discussed federalism in the two states. He indicated six possible ways for the states to achieve greater autonomy, which includes but were not limited to the reliance on existing federal constitutional guarantees, seeking the fulfilment or annulment of the Malaysia Agreement and demanding special devolved powers. He concluded with his view that states should strive to fulfil the Malaysia Agreement while keeping in mind what should not be devolved instead of focusing on what should be devolved.

Session 2: Legal Landmarks

In Session 2, Dato Sri JC Fong covered key constitutional developments in Sarawak since Malaysia Day. These include Sarawak’s nationalism Post World War II, Sarawakian’s expectations of the 1963 Malaysia Agreement, The 1966 Sarawak Emergency and its implications, and the Federal takeover of Sarawak’s oil and gas resources. He noted the effects of the extension of the Education Act 1961 to Sarawak in 1976, and the erosion of rights agreed under the Malaysia Agreement. He also discussed the annulment of the Proclamation of Emergency in 2011, its effects on Sarawak, and her future.

The Honourable Justice Datuk Duncan Sikodol followed on with the development of Sabah Native Court in 1963. He described the evolution, structure, and future of the Native Court, and explained the laws governing the native courts pre and post-1992, as well as the legal source of powers of the native courts. Justice Sikodol also highlighted some of the issues with infrastructure, resources and manpower, and shared his recommendations to achieve equality of courts.

Session 3: Native Customary Land Rights

In the final session, Dr Yogeswaran Subramaniam touched on legal pluralism in Sabah and Sarawak with a focus on constitutional safeguards for native land customs. Dr Yogeswaran observed the limitations of native land customs by statute and the judicial curtailment evidenced in TR Sandah. He closed off with a perceptive reflection that there remains constitutional potential to better accommodate native land laws and customs in Sabah and Sarawak.

For the final presentation, the Honourable Justice Datuk Yew Jen Kie detailed native customary land rights from a historical perspective. She examined the Sarawak Land Code (CAP 81) as well as the amendments to the Code between 1996 and 2000, and the Sabah Land Code (CAP 68). She also spoke the Sarawak International Ordinace 2005 (CAP 61) followed by the 2018 amendment to the Sarawak Land Code. Justice Yew concluded her presentation by elaborating on the judicial approach to addressing evidentiary challenges faced by native claimants.

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