Wednesday, October 28, 2015

Will things fall apart in the Malaysian federation?

So is secession a real possibility? And why has the issue of federalism suddenly emerged after half a century of relative calm?

Secession is not realistic for Johor, or even for Sabah or Sarawak. Advocating secession constitutes the crime of sedition in Malaysia, making it difficult to create momentum behind a secession movement. The Johor princes have said that secession is possible and a right of the Johor ‘nation’, only if the federal government does not honour the federation agreement. That agreement involves guaranteeing Islam as the state religion, non-interference by the federation in the Johor constitution and maintenance of the state’s armed forces. But all of these aspects of the agreement are currently being met. So by the princes’ own reckoning there is no case for Johor’s secession.

The federal constitution does not provide for secession. But secession by agreement is possible, as happened when Singapore left the federation in 1965. Generally, in the absence of agreement Johor would have to show that the state was folded into the federation without any real consent; convince the international community that there is a case for self-determination, based on ethnicity, culture, and history; or show that there is intolerable persecution.

In Sabah and Sarawak, some locals express their discontent in terms of demanding secession, but officials do not take this position. Given the economic weaknesses, in terms of dependency and underdevelopment, of the states that support devolution, it is unlikely that they could manage as independent entities. They have oil and gas, but for how long? Could they do the same as Brunei after it became independent from the United Kingdom in 1984? Could they defend themselves? Even federal forces were not able to prevent Datu Lahad incursions by Sulu militants in Sabah in 2013.

If secession is off the table, where does the argument go? What is being seriously discussed in Sabah and Sarawak is devolution of powers. The central government should arguably take another look at the formal division of powers in the federation. When the federation was formed in 1963, it involved four states (Malaya, North Borneo, Sarawak and Singapore) loosely tied together. But this has given way to a tight federation of 13 states. Renegotiating the original bargain might be possible.

Sabah and Sarawak argue that they have no more status than Perlis or Malacca — the smallest states in the federation. Sarawak exceeds West Malaysia in land area, and has different demographics and culture from Peninsular Malaysia. Guarantees were given prior to the 1963 Malaysia Agreement that, they argue, have not been honoured in practice. Sabah and Sarawak’s natural resource advantages have been eroded by unfair royalty provisions. There is interference in the state government, in civil service appointments and in religious issues. Why, they ask, are these two states resource-rich but income- and services-poor?

The Malaysian prime minister has offered some modest devolution of powers to Sarawak. But these are marginal in terms of Sarawak’s perception of its difficulties. Why, for example, was a state-funded bridge completed three years before a federally funded bridge, which started earlier? Why was a statute passed affecting what Sarawak considers to be its continental shelf without consulting the state government? Why are there so many duplications of effort between the state and the federation? The prime minister’s idea of devolution goes nowhere near resolving such issues.

A sense of ownership and an understanding of local problems works wonders for governance. It is for this reason that almost every country across Asia has, in recent years, devolved power to local entities. Even a state as small as Singapore has its town councils. Indonesia, Myanmar, Vietnam and China all devolved more power than Malaysia, whose federal and local government structures are stuck in a 1960s time warp.

To achieve ownership states need powers, but to make their exercise effective they need money. Sabah and Sarawak have extensive powers, which Johor does not. They have sources of funding, which Johor does not. But funding is currently inadequate to develop Sabah and Sarawak according to their own priorities. All states have a road grant to recognise the expense of maintenance. But for Sabah and Sarawak the problem is that there are insufficient roads to begin with and most communication is actually by river, so this does not fix the issue. Clearly, one size will not fit all.

The federal government needs to rethink its powers in the new politics. After half a century of tight control it needs to let go. A proper interface with state government is needed. Delegation of statutory powers and use of the flexibility afforded by the constitution will help.

To rephrase Yeats, if the centre holds on too much, things will fall apart — further indeed than they might imagine.

Professor Andrew Harding is Director of the Centre for Asian Legal Studies, National University of Singapore; a contributor and co-editor with James Chin of 50 Years of Malaysia: Federalism Revisited (Singapore, Marshall Cavendish, 2014); and contributor and co-editor with Mark Sidel of Central-local Relations in Asian Constitutional Systems (Oxford, Hart Publishing, forthcoming).

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