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Malay State Or Territory Of Malaysia: A Historical Perspective

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Recently, Sabah and Sarawak have changed their status from ‘States’ to ‘Territories’. These two states reckon that they will have a better deal as a territory of Malaysia rather than being on their own two feet managing the articles as outlined in MA63. In this regard, some quarters point out that the phrase ‘State’ and ‘Territory’ is functionally the same, nothing will change in identifying Sabah and Sarawak as ‘Territories of Malaysia’ rather than as ‘States’.

As per our Constitution, there are two components of Malaysia, the States of Johor, Selangor, Negeri Sembilan, Melaka, Pahang, Terengganu, Kelantan, Selangor, Perak, Kedah, Perlis, Sabah and Sarawak and the Federal Territories of Kuala Lumpur, Putrajaya and Labuan. All the states of Malaysia, except Sabah and Sarawak, were institutionalised as the Federation of Malaya (Persekutuan Tanah Melayu) in 1948, whereas Sabah and Sarawak were included in 1963.

With the change of status for the state of Sabah and Sarawak, the original Federation of Malaya (1948) and Federal Territories remain. These two other states practically become the ‘Territories of Malaysia’ since they both have Local Assembly unlike the Federal Territories.

However, it has also been brought to our attention that the Malay Rulers are currently being persuaded to follow the examples of Sabah and Sarawak, the argument being ‘State’ and ‘Territory of Malaysia’ are functionally the same as both have Local Assembly. It’s just a name isn’t it not?

We beg to differ!

Let us talk about the thinking that might come from this assertion. The two Commonwealth Nations, Australia and Canada are Federation. In fact, Australia Day is actually Federation Day. Let us talk about Australia; initially, it consists of the States of New South Wales, Victoria, South Australia, Queensland, Western Australia and Tasmania. And then we have the Northern Territory administered from South Australia, and Australian Capital Territory plus territory of New Guinea. These States and Territories existed after the arrival of the British colonial power.

The previous doctrine used by the colonizers was ‘Doctrine of Discovery’. The Doctrine of Discovery originates from the Treaty of Tordesillas by the Pope of Vatican in the year 1493, granting European Christian monarchs ownership right in new discovered lands, sovereign and commercial right over indigenous people, and established as international law at least to the European. This is what they said “If the lands were not occupied by Christians they were considered vacant and therefore could be defined as ‘discovered’, whereby sovereignty, dominion, title and jurisdiction are claimed, no matter if there is the indigenous people inhabiting the land.” That doctrine is the basis of empire building and colonization by the Western powers. Later, once settled by the Westerners, this became the doctrine of ‘Terra nullius’, allowed for the British Crown to grant land, dominion, title and jurisdictions to its colonial interests especially in Australia and Canada.

Of course the doctrine of ‘Terra nullius’ is offensive to the aboriginals and the native people who inhabited such lands. Going back to Australia, Papua New Guinea got its independence in 16th September 1975, Northern Territory became a State in 1st July 1978, and Australia Capital Territory got its self-government in 6th December 1988. The consequence for the independence for all the territories was an establishment of legislative assemblies.

So as it stands, for the casual observers, the term ‘State’ and ‘Territory’ in the Australian sense was equivalent. That is in accordance with ‘Terra nullius’, in which the territory or state did not originally possess a recognisable form of government before the arrival of British. That policy is also used in Canada for Yukon Territory, Northwest Territories and Nunavut. Even today, the doctrine of “Terra nullius” is still in use in Canada!

Based on this, even Sarawak was never ‘Terra nullius’ and had a recognised polity beforehand, it was Santubong and other Malay States before amalgamation under Brunei Sultanate and finally Kingdom of Sarawak under Brooke Dynasty in 1841. But it became a British Colony after cession by the last White Rajah, Charles Vyner Brooke to the British Crown in 1946. That made her status to be similar to the Straits Settlements, which are Penang and Malacca in the Peninsular.

Sabah is more interesting, her past is more challenging than Sarawak. She was once under control of Brunei Sultanate, but later was challenged by Sulu Sultanate. The territory seems never to have been ceded formally, but the Sulus continued to claim the territory, with Brunei weakened and unable to resist. Later she was under pressure by the Spanish Empire and subsequently became a British protectorate in 1888. But the status changed to British Crown Colony after British Military Rule in 1946. Thereby the status becomes similar to Sarawak.

The long history of the Malay States points to the fact that it is never ‘Terra nullius’. They were recognised kingdoms since the time of Srivijaya Empire, whose existence predates many major European nations or even the United States. They have their own history, culture and destinies. We are talking of a period of more than a millennium. Even the Malacca Sultanate that succeeds Srivijaya, have its own written constitution (Kanun Melaka) and its successor States adopt versions of that constitution. The Malay States were sovereign on their own right! They existence predate even the United States!

In fact, during the negotiation that led to the dissolution of Malayan Union, the Malay Rulers insist that the polity to replace the Malayan Union must be Federation of Malay States or Federation of Malaya. His Highnesses do not want any phrase such as ‘Malayan’ or ‘Union’, and demand to emphasis of their separate sovereignty, dignity of Rulers and have full control over Islam and Malay Customary Prerogatives or ‘adat’.

His Highnesses also demand that the phrase ‘States’ must be understood to be an inherent, independent and recognised political arrangement. We can confirm this by checking the British records and thesis written about Malayan Union. That is why the motto in the Malaysian Coat of Arms is “Bersekutu Bertambah Mutu” or “Federation leads to Goodness”. Therefore the phrase Malay States is more than pure semantics. Of course, this led to the formation of Federation of Malaya in 1948. That became the template for Malaya in 1957 and Malaysia in 1963.

Most importantly, Sabah and Sarawak received their sovereignty from the MA63, whereas through the sovereignty of the Malay Rules, the Federation of Malaya is instituted.

As a conclusion, in the Kerajaan Melayu historical context, it is a mistake to assume that the term ‘Territory’ and ‘State’ are equivalent as per the British terms of refence according to their colonial experience. In the local context, there are clear demarcation between the term ‘Territory’ and ‘State’. These differences refer to the local experience that underpins the demand of the Malay Rulers during negotiations with the British in the formation of the Federation of Malaya.

It should be stressed that Clause 155 of the Federation of Malayan Agreement signed on the 21st January 1948 stated as follows: “save as expressed herein, this Agreement shall not affect the sovereign and jurisdiction of Their Highnesses the Rulers in their several States” (The Federation of Malaya Order in Council, 1948, Gazette Notification No 6, February 5, 1948, No I, Vol 1).

The Sovereignty of the Malay Rulers in all the Malay States underlines the rights and definition of the Malays, Islam and Malay Customs to be embedded in the Federal Constitution. Any changes to this ‘sacred position’ will need the unanimous assent to the Rulers’ Council. Any initiative to change the status of the Malays State to become the territory of Malaysia, we believe is a step in the wrong direction. Isn’t it not a step too far to become a unitarian state, a ‘de facto’ Malayan Union 2.0? Therefore the phrase ‘Malay States’ is not something to be trifled with.

Muzaffar Mohamad
[email protected] Suzana Othman

Pertubuhan Kesedaran Melayu & Islam (KEMUDI)

From: FB Pertubuhan Kesedaran Melayu & Islam

*This is the writer’s view and does not necessarily represents samudera.my*

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