A Six-Part Constitutional Series by the Borneo’s Plight in Malaysia Foundation (BoPiMaFo)
By DANIEL JOHN JAMBUN, President Borneo’s Plight in Malaysia Foundation (BoPiMaFo)
This series examines the constitutional questions raised in the Sabah State Legislative Assembly following Tamparuli Assemblyman Datuk Seri Wilfred Madius Tangau’s statement that several federal laws affecting Sabah may have been enacted without Sabah’s consent.
The purpose of this series is not to prejudge every disputed federal law as unconstitutional. It is to identify the constitutional authority relied upon, determine whether legally required consent was obtained, demand disclosure of the relevant records, and call for corrective action wherever Sabah’s rights may have been unlawfully diminished.
PART ONE
THE SPEAKER SHOULD ALLOW SABAH’S BREACHED RIGHTS TO BE PARTICULARISED — NOT SILENCE THE QUESTION
Borneo’s Plight in Malaysia Foundation refers to the proceedings in the Sabah State Legislative Assembly concerning the Malaysian Border Control and Protection Agency Act 2024, commonly known as the AKPS Act.
During the sitting, Tamparuli Assemblyman Datuk Seri Wilfred Madius Tangau asked whether the Federal Government had obtained Sabah’s consent before drafting, tabling and passing legislation affecting Sabah’s constitutional rights.
Madius further stated that a number of federal laws had previously been enacted without Sabah’s consent.
Speaker Datuk Seri Kadzim Yahya reportedly directed Madius to retract that statement on the grounds that it was “sweeping”, “not good” and unsupported by proof that the relevant decisions had been made in bad faith.
With respect, Madius was raising a legitimate constitutional question concerning the relationship between Sabah and the Federation.
The proper response should not have been to silence the question or demand its retraction.
If the statement was considered too broad, the Speaker should have invited Madius to identify the disputed laws, table the relevant documents and particularise the constitutional rights that may have been breached, diminished or exercised without lawful authority.
The Sabah State Legislative Assembly is the proper forum in which such matters should be examined openly, responsibly and on the evidence.
BAD FAITH IS NOT THE CONSTITUTIONAL TEST
A constitutional breach does not become lawful merely because the Federal Government claims to have acted honestly or in good faith.
A law, executive measure or administrative arrangement may be unconstitutional, beyond legal authority or inapplicable to Sabah even without evidence of dishonesty, malice or bad faith.
The constitutional inquiry is not whether federal officials acted with an improper motive.
The proper questions are:
1. Did the federal measure affect Sabah’s territory, immigration autonomy, legislative or executive authority, natural resources, revenues or constitutional safeguards?
2. Did Parliament or the Federal Executive possess the constitutional authority to take the measure concerned?
3. Was Sabah meaningfully consulted where consultation was politically, administratively or constitutionally appropriate?
4. Where Sabah’s consent, concurrence or legislative approval was constitutionally required, was it lawfully obtained?
5. Was the matter properly considered by the Sabah State Cabinet where executive approval was required?
6. Was it debated and approved by the Sabah State Legislative Assembly where a State law, resolution or legislative consent was constitutionally necessary?
7. Was the Yang di-Pertua Negeri involved where State legislation, assent, concurrence or the exercise of powers vested in the Head of State was required?
8. Did the measure diminish any constitutional safeguard or foundational assurance upon which North Borneo agreed to participate in the formation of Malaysia?
These are legitimate constitutional questions that should be examined openly in the State Legislative Assembly.
When an elected representative raises a question concerning the constitutional legality of federal action, the answer should not be retraction.
The answer should be evidence, particularisation and debate.
In Part Two: Why Sabah’s consent must be expressed through its constitutional institutions—and cannot be replaced by the signature of an individual political leader.
PART TWO
SABAH FORMED MALAYSIA — ITS CONSTITUTIONAL CONSENT CANNOT BE PERSONAL OR POLITICAL
Sabah did not enter Malaysia as a conquered territory, subordinate province or colony of the Federation of Malaya.
North Borneo participated in the formation of Malaysia pursuant to the Malaysia Agreement 1963 and the constitutional arrangements, safeguards and assurances negotiated before Malaysia came into existence.
Malaysia was not formed through the unconditional absorption of North Borneo into Malaya.
Sabah participated in the formation of Malaysia as one of the Borneo territories whose consent, safeguards and constitutional arrangements were indispensable to the creation of the new Federation.
After Malaysia Day, Sabah became a State of the Federation, but it did not become a territory without constitutional personality, protected rights or institutional authority.
It did not exchange British colonial rule for political subordination to the Federal Government.
The Federal Government must not treat Sabah’s territory, natural resources, revenues, immigration safeguards, legislative powers or constitutional protections as assets that may be transferred, diminished or permanently placed under federal control merely through administrative convenience or political arrangement.
No territory, property, constitutional safeguard or governmental authority belonging to Sabah should be surrendered, transferred or substantially altered except pursuant to lawful constitutional authority.
Where the Federal Constitution requires Sabah’s consent or concurrence, that consent must be expressed through the appropriate constitutional institutions of the State.
Depending upon the nature of the matter, that may involve:
1. consideration and approval by the Sabah State Cabinet;
2. debate and approval by the Sabah State Legislative Assembly where State legislation, a resolution or legislative consent is required; and
3. the assent, concurrence or constitutional participation of the Yang di-Pertua Negeri where the matter requires State legislation or the exercise of powers vested in the Head of State.
A private undertaking or signature by an individual political leader cannot automatically be treated as the constitutional consent of Sabah.
A Chief Minister, Minister or other office-holder does not personally own Sabah’s territory, petroleum, continental shelf, immigration authority, revenues or constitutional rights.
Those interests belong to the State and people of Sabah and must be dealt with through lawful constitutional processes.
The governing principle must therefore be clear:
Nothing belonging to Sabah should be permanently surrendered, transferred out of Sabah’s control or substantially diminished without lawful constitutional authority and, where required, the constitutionally expressed consent of Sabah.
That is not separatism.
It is the elementary meaning of constitutional government, federalism and the rule of law.
CONSENT MUST BE CONSTITUTIONAL
Where Sabah’s territory, property, resources or constitutional safeguards were purportedly surrendered or altered through an agreement, vesting instrument, executive decision, emergency measure or federal law, the Federal and State Governments must disclose:
1. what constitutional or statutory authority was relied upon;
2. who authorised the action;
3. whether the Sabah Cabinet formally approved it where executive approval was required;
4. whether the State Legislative Assembly debated and consented where legislative consent was constitutionally necessary;
5. whether the required State law was enacted;
6. whether the Yang di-Pertua Negeri gave the constitutionally required assent or concurrence;
7. whether the Conference of Rulers gave its consent where Article 2(b) applied;
8. whether the State Attorney-General advised on its legality;
9. what compensation or financial consideration was received; and
10. whether Sabah’s institutions and people were informed of the permanent consequences.
Without the constitutionally required steps, the signature or agreement of an individual office-holder should not be presumed to amount to the lawful and binding consent of the State of Sabah.
A political arrangement made behind closed doors cannot replace the constitutional authority of Sabah’s institutions.
In Part Three: The AKPS Act, Sabah’s immigration autonomy and the continuing threat to Sabah’s demographic and electoral security.
PART THREE
IMMIGRATION AUTONOMY, THE AKPS ACT AND SABAH’S DEMOGRAPHIC SECURITY
Sabah’s authority over entry into the State was not an ordinary administrative privilege granted at the discretion of Putrajaya.
It arose from the safeguards negotiated during the formation of Malaysia and was implemented through the Malaysia Agreement 1963, the Inter-Governmental Committee Report, the Immigration Act 1959/63 and the special constitutional protections applicable to Sabah.
The Sabah Government itself has acknowledged that implementation of the AKPS framework could affect Sabah’s immigration autonomy, particularly if control over entry points or the issuance of Not-To-Land directions were transferred from the existing Sabah immigration structure to a centrally controlled federal agency.
If the AKPS Act was drafted, tabled and passed without proper engagement with Sabah on provisions affecting those powers, that is precisely the type of federal action Madius Tangau was entitled to question.
The subsequent postponement of its implementation does not erase the constitutional concern.
On the contrary, the postponement indicates that the possible effect upon Sabah’s immigration autonomy was sufficiently serious to require intervention by the State Government.
The State Assembly should therefore require full disclosure of:
– whether Sabah was consulted before the AKPS Bill was tabled;
– whether the Sabah Cabinet approved or objected to its proposed application in Sabah;
– whether the State Attorney-General advised on its constitutional implications;
– whether any existing Sabah immigration power would be transferred, restricted or subordinated;
– whether any constitutional safeguard protected by Article 161E was engaged; and
– whether any form of State consent, concurrence or legislative action was required.
DEMOGRAPHIC AND ELECTORAL SECURITY
Sabah’s immigration safeguards were intended not only to regulate physical entry into the State but also to protect Sabah’s political, demographic and electoral integrity.
The findings and evidence recorded during the Royal Commission of Inquiry into Immigrants in Sabah revealed serious irregularities involving identity documents, citizenship processes and the registration of persons as voters.
The continuing failure of federal institutions to identify, investigate and remedy the electoral consequences of those irregularities raises serious questions concerning:
– Sabah’s immigration autonomy;
– citizenship safeguards applicable to Sabah;
– the integrity of Sabah’s electoral roll;
– the political rights of Sabah’s indigenous peoples; and
– Sabahans’ continuing ability to determine the government of their own homeland.
This represents a potential breach not merely of administrative responsibility but of the fundamental security assurances associated with Sabah’s participation in the formation of Malaysia.
The State Assembly should require the Federal Government and the Election Commission to disclose what concrete measures have been taken to identify and remedy any continuing electoral consequences arising from the matters examined by the Royal Commission of Inquiry.
Sabah’s immigration autonomy cannot be treated as a ceremonial power while decisions affecting entry, identity documents, citizenship and electoral registration determine the political future of the State.
The postponement of the AKPS Act is a welcome defensive measure, but Sabah cannot defend only those rights presently under threat while refusing to examine rights that may already have been eroded.
