‘A Measure of Autonomy’: Federalism as Protection for Malaysia's Indigenous Peoples
| Author | Andrew Harding |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| DOI | http://doi.org/10.1177/0067205X1804600405 |
| Subject Matter | Article |
PROTECTION FOR MALAYSIA’S INDIGENOUS PEOPLES
Andrew Harding*
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.
I INTRODUCTION
This article examines Malaysian federalism from the perspective of its utility in serving
to protect the rights and interests of Indigenous people. Indigenous protection as an
issue for federalism is principally relevant to the East Malaysian states of Sabah and
Sarawak. These two states have a different status from the other eleven states of the
federation, having formed Malaysia in 1963, together with the already existing and
independent Federation of Malaya. As we will see, protection of Indigenous people, who
form the majority in each of these states, was a principal concern at the time. Over the
last 55 years this protection has been eroded along with the erosion of state autonomy
more generally. The constitutional mechanisms emplaced to ensure autonomy have not
succeeded in their purpose. The Malaysian case indicates that political dominance and
undemocratic interference in state government can undermine the very autonomy to
which the protection of Indigenous people is linked. Accordingly, this article offers no
comfort to those who consider that federalism is a useful means to protect Indigenous
people, at least unless strong and effective constitutional protection for state autonomy
is put in place. In Malaysia’s current reform process the issue of the status of Sabah and
Sarawak is under discussion with a view to rectifying the erosion of their autonomy,
*
Professor of Law, National University of Singapore.
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which was supposed to be guaranteed in 1963. Within this process it will be essential to
take account not just of autonomy, but of the need to protect the Indigenous peoples’
customary land rights and their human rights more generally. Even with constitutional
protection, a democratic renewal will be needed to prevent the political manipulation
that has occurred in the past, where the federal power has interfered in state politics for
its own ends.
II HISTORICAL BACKGROUND
South East Asia is one of the most ethnically diverse regions of the world. Its diversity
extends to almost every other type of diversity that might impact on government—
social, linguistic, cultural, religious, geographical, political and economic. One would
expect to find federalism very much in play to resolve the conflicts to which this
diversity inevitably gives rise. Yet oddly Malaysia is the only federal system to be found
in the whole of North or South East Asia. And in cases of geo-strategic difficulty, such
as Hong Kong and Macao, Aceh, and Muslim Mindanao, it is asymmetrical devolution
that has been employed as a solution in preference to federalism.1 Even in Malaysia
federalism has not on the whole come about or been maintained for six decades because
of the diversity that characterises Malaysian society. Indeed ethnic, linguistic, and
religious diversity tend on the whole to cut across state boundaries rather than being
defined by them. There are, it is true, some geographical congruencies within this
diversity. Nonetheless, important as inter-ethnic relations always are in Malaysia, they
barely impact on federal-state relations as such. As we will see, the East Malaysian states
of Sabah and Sarawak are notable exceptions and are therefore the focus of this study,
with particular reference to the Indigenous peoples of those two states, who form a
majority of their populations.
Malaysia was referred to by TN Harper as having ‘the classic pluralistic society’.2
Since the independence of Malaya in 1957 the country has struggled with the problem
of accommodating the contradictory interests of the majority Malay/Muslim
community, the Chinese, and other groups amongst the 179 officially recognised
ethnicities. The Indigenous people of Sabah and Sarawak are officially and legally styled
‘native’, a term that comprises a large number of tribal people who are indigenous to
those two states, including the Iban, Murut, Kadazan, Kenyah, Penan, and many other
groups. The Federal Constitution in fact defines in great detail the Indigenous people of
Sabah and Sarawak, defining them as ‘native’ to those states.3 Since there are Malays
1
A Harding, ‘Subnational Constitutionalism in Asia’ in D Law et al (eds), The Oxford Handbook
of Constitutional Law in Asia (Oxford University Press, forthcoming). For federalism in
Myanmar, see D Williams, ‘A second Panglong Agreement: Burmese federalism for the
twenty-first century’ in A Harding and Khin Khin Oo (eds), Constitutionalism and Legal Change
in Myanmar (Hart Publishing, 2017) 47.
2
T N Harper, The End of Empire and the Making of Malaya (Cambridge University Press, 2001)
2.
3
Article 161A states:
(6) In this Article ‘native’ means—(a) in relation to Sarawak, a person who is a citizen and either
belongs to one of the races specified in Clause (7) as Indigenous to the State or is of mixed blood
deriving exclusively from those races; and (b) in relation to Sabah, a person who is a citizen, is the
child or grandchild of a person of a race Indigenous to Sabah, and was born (whether on or after
Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth.
(7) The races to be treated for the purposes of the definition of ‘native’ in Clause (6) as Indigenous
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who are indigenous to these two states, they are included in the definition, but this
group does not include the Malays of Peninsular Malaysia (ie, Malaya). The Iban
constitute around 30 per cent of Sarawak’s population, while the Kadazan are the largest
group in Sabah at 17 per cent.4 Taken altogether, the Indigenous peoples at around 2.2
million constitute just over half of the population of these two States. It is these people
who are described as ‘Indigenous’ for the purposes of this article. ‘Native’, as we have
seen, is an equivalent term carrying legal connotation under statute law and the
Constitution. From the early 1970s the term ‘bumiputera’ (ie, ‘sons of the soil’) was in
use to capture both the Malay/Muslim majority and the native people of Sabah and
Sarawak.5 Federalism emerged as the defining structure of government in Malaya in
1948, not because of the inter-ethnic conflict of the immediate post-war years, but
because the Malays would not accept the abolition of their traditional states with their
ancient monarchies. A unitary state would for them have been an intolerable destruction
of their very culture and identity.6 This might seem puzzling given the historic emphasis
on maintaining ‘Malay unity’ and ‘Malay hegemony’ in Malaysia.7 Yet it remains a fact
that part of this identity relates to the historic and cultural uniqueness of each of the nine
Malay states of Peninsular Malaysia, that is, those having a traditional ruler as head of
state.
Accordingly, in 1948 with the Federation of Malaya Agreement,8 the nine Malay
states and the two Crown colonies of Penang and Malacca were folded into a federal
structure, and it was this federation that gained independence under the Constitution of
the Federation of Malaya in 1957. Other ways than federalism were found to deal with
inter-ethnic conflict. Principally, affirmative action was entrenched in the independence
Constitution, by virtue of articles 3 and 153. This was to ensure the continued recognition
of the special position of Islam and of the Malays, but also the right of non-Muslims to
profess and practice their own religions, and what article 153 calls the ‘legitimate
interests’ of the non-Malays.9 None of this was of direct interest to Sabah (at the time
called ‘North Borneo’) or Sarawak, which were crown colonies.
In 1963 the Federation was enlarged to incorporate three new states on somewhat
different terms from those given to the eleven states federated in 1948. A Memorandum
to Sarawak are the Bukitans, Bisayahs, Dusuns, Sea Dayaks, Land Dayaks, Kadayans, Kalabits,
Kayans, Kenyahs (including Sabups and...
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