Agreement relating to Malaysia between United Kingdom of Great Britain and Northern Ireland, Federation of Malaya, North Borneo, Sarawak and Singapore/Annex B

by the Governments of the United Kingdom of Great Britain and Northern Ireland, Federation of Malaya, North Borneo, Sarawak and Singapore

THE CONSTITUTION OF THE STATE OF SABAH
PART I
THE STATE GOVERNMENT
Chapter 1—The Head of State

Yang di-Pertua Negara.

1. (1) There shall be a Head of State for Sabah, to be called the Yang Yang di-Pertua Negara, who shall be appointed by the Yang di-Pertuan Agong acting in his discretion but after consultation with the Chief Minister.

(2) The Yang di-Pertua Negara shall be appointed for a term of four years but may at any time resign his office by writing under his hand addressed to the Yang di-Pertuan Agong, and may be removed from office by the Yang di-Pertuan Agong in pursuance of an address by the Legislative Assembly supported by the votes of not less than two-thirds of the total number of the members thereof.

(3) The Yang di-Pertuan Agong, acting in his discretion but after consultation with the Chief Minister, may appoint a person to exercise the functions of the Yang di-Pertua Negara during any period during which the Yang di-Pertua Negara is unable to do so himself owing to illness, absence or any other cause ; but no person shall be so appointed unless he would be qualified to be appointed as Yang di-Pertua Negara.

(4) A person appointed under clause (3) may take the place of the Yang di-Pertua Negara as a member of the Conference of Rulers during any period during which, under that clause, he may exercise the functions of the Yang di-Pertua Negara.

Qualifications and disabilities of Yang di-Pertua Negara.

2. (1) A person who is not a citizen or is a citizen by naturalisation shall not be appointed as Yang di-Pertua Negara.

(2) The Yang di-Pertua Negara shall not hold any office of profit and shall not actively engage in any commercial enterprise.

Civil List of Yang di-Pertua Negara.

3. The Legislature shall by law provide a Civil List of the Yang di-Pertua Negara, which shall be a charge on and paid out of the Consolidated Fund and shall not be diminished during his continuance in office.

Oath of office of Yang di-Pertua Negara.

4. The Yang di-Pertua Negara, and any person appointed under Clause (3) of Article 1, shall before exercising his functions take and subscribe in the presence of the Chief Justice or of a Judge of the High Court an oath in the form set out in Part I of the Schedule.

Chapter 2—The Executive

Executive authority.

5. (1) The executive authority of the State shall be vested in the Yang di-Pertua Negara but executive functions may by law be conferred on other persons.

State Cabinet.

6. (1) There shall be a State Cabinet to advise the Yang di-Pertua Negara in the exercise of his functions.

(2) The Cabinet shall consist of—

(a) a Chief Minister and not more than eight nor less than four other members appointed in accordance with clause (3); and

(b) three ex officio members, namely the State Secretary, the State Attorney-General and the State Financial Secretary.

(3) The Yang di-Pertua Negara shall appoint as Chief Minister a member of the Legislative Assembly who in his judgment is likely to command the confidence of a majority of the members of the Assembly and shall appoint the other members mentioned in paragraph (a) of clause (2) in accordance with the advice of the Chief Minister from among the members of the Assembly :

Provided that if an appointment is made while the Legislative Assembly is dissolved a person who was a member of the last Assembly may be appointed but shall not continue to hold office after the first sitting of the next Legislative Assembly unless he is a member thereof.

(4) Notwithstanding anything in this Article, a person who is a citizen by naturalisation shall not be appointed Chief Minister.

(5) The Chief Minister shall not hold any office of profit and shall not actively engage in any commercial enterprise.

(6) The Cabinet shall be collectively responsible to the Legislative Assembly.

Tenure of office of members of Cabinet.

7. (1) If the Chief Minister ceases to command the confidence of a majority of the members of the Legislative Assembly, then, unless at his request the Yang di-Pertua Negara dissolves the Assembly, the Chief Minister shall tender the resignation of the members of the Cabinet other than the ex officio members.

(2) A member of the Cabinet other than an ex officio member may at any time resign his office by writing under his hand addressed to the Yang di-Pertua Negara, and a member of the Cabinet other, than the Chief Minister or an ex officio member shall also vacate his office if his appointment thereto is revoked by the Yang di-Pertua Negara acting in accordance with the advice of the Chief Minister.

(3) Subject to clauses (1) and (2), a member of the Cabinet other than the Chief Minister or an ex officio member shall hold office at the pleasure of the Yang di-Pertua Negara.

Oaths of office of members of Cabinet.

8. Before a member of the Cabinet exercises the functions of his office he sha11 take and subscribe in the presence of the Yang di-Pertua Negara the oath set out in Part II of the Schedule.

Allocation of portfolios and provision regarding private business interests.

9. (1) The Yang di-Pertua Negara may, in accordance with the advice of the Chief Minister, assign to a member of the Cabinet responsibility for any business of the government of the State, including the administration of any department of government, and any member of the Cabinet, other than an ex officio member, to whom such responsibility is assigned shall be styled " Minister ".

(2) A member of the Cabinet shall not engage in any trade, business or profession connected with any subject or department of government for which he is responsible, and shall not, so long as he is engaged in any trade, business or profession, take part in any decision of the Cabinet relating to that trade, business or profession or in any decision likely to affect his pecuniary interests therein.

Yang di-Pertua Negara to set on advice.

10. (1) In the exercise of his functions under this Constitution or any other law, or as a member of the Conference of Rulers, the Yang di- Pertua Negara shall act in accordance with the advice of the Cabinet or of a member thereof acting under the general authority of the Cabinet, except as otherwise provided by the Federal Constitution or this Constitution ; but shall be entitled, at his request, to any information concerning the government of the State which is available to the Cabinet.

(2) The Yang di-Pertua Negara may act in his discretion in the performance of the following functions—

(a) the appointment of a Chief Minister ;

(b) the withholding of consent to a request for the dissolution of the Legislative Assembly.

(3) The Legislature may by law make provision for requiring the Yang di-Pertua Negara to act after consultation with, or on the recommendation of, any person or body of persons other than the Cabinet in the exercise of any of his functions except—

(a) functions, exercisable in his discretion ; and

(b) functions with respect to the exercise of which provision is made in the Federal Constitution or any other Article of this Constitution.

State Secretary, State Attorney-General and State Financial Secretary.

11. (1) The offices of State Secretary, State Attorney-General and State Financial Secretary are hereby constituted, and appointments thereto shall be made by the Yang di-Pertua Negara acting in accordance with the advice of the Chief Minister, who shall select for appointment a person whose name is included in a list submitted for the purpose by the Commission and shall, before tendering his advice, consult the Government of the Federation.

(2) The State Secretary, the State Attorney-General and the State Financial Secretary shall not be removed from office or suspended from the exercise of the functions of his office except on the like grounds and in the like manner as a member of the Commission.

Chapter 3—Capacity as respects property, contracts and suits

Capacity of State as respects property, contracts and suits.

12. (1) The State shall have power to acquire, hold and dispose of property of any kind and to make contracts.

(2) The State may sue and be sued.

PART II
THE LEGISLATURE

Constitution of Legislature.

13. The Legislature of the State shall consist of the Yang di-Pertua Negara and one House, to be known as the Legislative Assembly.

Composition of Legislative Assembly.

14. (1) The Legislative Assembly shall consist of—

(a) the Speaker ;

(b) three ex officio members, namely, the State Secretary, the State Attorney-General and the State Financial Secretary;

(c) such number of elected members as the Legislature may by law prescribe, elected in such manner as may be provided by Federal or State law ;

(d) such number of other members (hereinafter referred to as "nominated members"), not being more than six, as the Yang di-Pertua Negara may appoint.

(2) Until the Legislature otherwise prescribes the number of elected members shall be eighteen.

The Speaker.

15. (1) The Speaker shall be appointed by the Yang di-Pertua Negara from among persons not subject to any of the disqualifications for appointment as nominated members of the Legislative Assembly set out in Article 17.

(2) The Speaker shall hold office for such period as may be specified in the instrument by which he is appointed, shall vacate his office—

(a) if he resigns it by writing under his hand addressed to the Yang di-Pertua Negara ; or

(b) if he becomes subject to any of the disqualifications for appointment as a nominated member of the Legislative Assembly set out in Article 17.

(3) Any question whether a person is qualified to be appointed as Speaker shall be determined by the Yang di-Pertua Negara whose decision shall be final.

(4) During any absence of the Speaker from a sitting of the Legislative Assembly or any vacancy in the office of Speaker such member of the Assembly as may be determined by the Standing Orders of the Assembly shall act as Speaker.

(5) The Legislature shall by law provide for the remuneration of the Speaker, and the remuneration so provided shall be a charge on and paid out of the Consolidated Fund, and shall not be diminished as respects any holder of the office of Speaker after his appointment.

Qualifications of members.

16. Every citizen of or over the age of twenty-one years who is resident in the State is qualified to be elected as an elected member or appointed as a nominated member of the Legislative Assembly, unless he is disqualified for being a member by the Federal Constitution or this Constitution or by any such law as is mentioned in Article 17. Disqualification for membership of Legislative Assembly.

17. (1) Subject to the provisions of this Article, a person is disqualified for being elected as an elected member or appointed as a nominated member of the Legislative Assembly if—

(a) he is and has been found or declared to be of unsound mind ;

(b) he is an undischarged bankrupt ;

(c) he holds an office of profit other than that of Native Chief ;

(d) having been nominated for election to either House of Parliament or to the Legislative Assembly, or having acted as election agent to a person so nominated, he has failed to lodge any return of election expenses required by law within the time and in the manner so required ;

(e) he has been convicted of an offence by a court of law in any part of the Federation and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand dollars and has not received a free pardon in respect thereof;

(f) he is disqualified under any law relating to offences in connection with elections to either House of Parliament or to the Legislative Assembly by reason of having been convicted of such an offence, or having hi proceedings relating to such an election been proved guilty of an act constituting such an offence ; or

(g) he has voluntarily acquired citizenship of, or exercised rights of citizenship in, a foreign country or has made a declaration of allegiance to a foreign country.

(2) Paragraph (c) of clause (1) shall not apply to the appointment of a person as a nominated member.

(3) The disqualification of a person under paragraph (d) or paragraph (e) of clause (1) may be removed by the Yang di-Pertua Negara and shall, if not so removed, cease at the end of the period of five years beginning with the date on which the return mentioned in paragraph (d) of that clause was required to be lodged, or, as the case may be, the date on which the person convicted as mentioned in paragraph (e) of that clause was released from custody, or the date on which the fine mentioned in that paragraph was imposed ; and a person shall not be disqualified under paragraph (g) of clause (1) by reason only of anything done by him before he became a citizen.

(4) In paragraph (g) of clause (1) " foreign country " has the same meaning as in the Federal Constitution.

Tenure of seats of members.

18. (1) Every elected or nominated member of the Legislative Assembly shall vacate his seat in the Assembly on a dissolution of the Assembly.

(2) An elected or nominated member shall also vacate his seat in the Assembly if—

(a) he ceases to be qualified for election or appointment as such a member of the Assembly ;

(b) he resigns his seat by writing under his hand addressed to the Speaker ; or

(c) he is absent without the leave of the Speaker from every sitting of the Assembly for three consecutive meetings.

(3) for the purposes of paragraph (c) of clause (2), "meeting" means any sitting or sittings of the Assembly commencing when the Assembly first meets after being summoned at any time and terminating when the Assembly is adjourned sine die or at the conclusion of a session.

Decision as to disqualification.

19. If any question arises whether the Speaker or a member of the Legislative Assembly has ceased to be qualified for appointment or election as such, the decision of the Assembly shall be taken and shall be final:

Provided that this Article shall not be taken to prevent the practice of the Council postponing a decision in order to allow for the taking or determination of any proceedings that may affect the decision (including proceedings for the removal of the disqualification).

Penalty for unqualified person sitting or voting in the Legislative Assembly.

20. Any person who sits or votes in the Legislative Assembly, knowing or having reasonable ground for knowing that he is not entitled to do so, shall be liable to a penalty not exceeding two hundred dollars for each day on which he so sits or votes, which penalty shall be recoverable as a civil debt in the High Court at the suit of the State Attorney-General.

Summoning, prorogation and dissolution of Legislative Assembly.

21. (1) The Yang di-Pertua Negara may from time to time summon the Legislative Assembly, and shall not allow six months to elapse between the last sitting in one session and the date appointed for its first sitting in the next session.

(2) The Yang di-Pertua Negara may prorogue or dissolve the Legislative Assembly.

(3) The Legislative Assembly shall, unless sooner dissolved, continue for five years from the date of its first sitting and shall then stand dissolved.

(4) Whenever the Legislative Assembly is dissolved, a general election shall be held within sixty days from the date of the dissolution and the new Legislative Assembly shall be summoned to meet on a date not later than ninety days from that date.

(5) Whenever the seat of an elected member has become vacant for any reason other than a dissolution, the vacancy shall, within sixty days from the date on which it is established that there is a vacancy, be filled by election in accordance with the provisions of this Constitution.

Oath of Speaker and members.

22. (1) The Speaker shall before exercising the functions of his office take and subscribe before the Yang di-Pertua Negara the oath set out in Part III of the Schedule and every member of the Legislative Assembly shall before taking his seat take and subscribe the said oath before the Speaker.

(2) If a member has not taken his seat within three months from the date on which the Legislative Assembly first sits after his election or appointment, or within such further period as the Assembly may allow, his seat shall become vacant.

Address by Yang di-Pertua Negara.

23. The Yang di-Pertua Negara may address the Legislative Assembly and may send messages thereto.

Procedure of Legislative Assembly.

24. (1) Subject to the provisions of this Constitution, the Legislative Assembly shall regulate its own procedure and may make Standing Orders for that purpose.

(2) The Legislative Assembly may act notwithstanding any vacancy in its membership, and the presence or participation of any person not entitled to be present or to participate shall not invalidate any proceedings.

(3) Subject to clauses (5) and (6) and to clause (2) of Article 43, the Legislative Assembly shall, if not unanimous, take its decision by a simple majority of members voting ; and if the Speaker is absent the member presiding shall cast his vote whenever necessary to avoid an equality of votes but shall not vote in any other case, and if the Speaker is present and there is an equality of votes upon any question the motion shall be lost.

(4) Members absent from the Legislative Assembly shall not be allowed to vote.

(5) The Standing Orders of the Legislative Assembly may provide, as respects any decision relating to its proceedings, that it shall not be made except by a specified majority or by a specified number of votes.

(6) No Bill making provision for controlling or restricting the propagation of any religious doctrine or belief among persons professing the Muslim religion shall be passed by the Legislative Assembly unless it has been supported on the second and third readings by the votes of not less than two thirds of the total number of the members thereof.

(7) No Bill or amendment involving expenditure from the Consolidated Fund may be introduced or moved in the Legislative Assembly except by a member of the Cabinet.

(8) For a period of ten years after Malaysia Day, and thereafter until the Legislature by law otherwise provides, all proceedings in the Legislative Assembly may be in the English language.

(9) If objection is taken by any member present that there are present (besides the Speaker or member presiding) fewer than one quarter of the total number of members and after such interval as may be prescribed in the Standing Orders of the Legislative Assembly, the person presiding ascertains that the number of members present is still less than one quarter of the total number of members, he shall thereupon adjourn the Assembly.

Privileges of the Legislative Assembly and members.

25. Subject to Article 72 of the Federal Constitution, it shall be lawful for the Legislature by law to determine and regulate the privileges, immunities or powers of the Legislative Assembly ; but no such privileges, immunities or powers shall exceed those of the Federal House of Representatives.

Exercise of legislative power.

26. (1) The power of the Legislature to make laws shall be exercised by Bills passed by the Legislative Assembly and assented to by the Yang di-Pertua Negara.

(2) All laws passed by the Legislature shall be styled Enactments and the words of enactment shall be "Enacted by the Legislature of the State of Sabah ".

(3) A Bill shall become law on being assented to by the Yang di-Pertua Negara, but no law shall come into force until it has been published in the Gazette, without prejudice, however, to the power of the Legislature to postpone the operation of any law or to make laws with retrospective effect.

Supremacy of Constitution.

27. Any Enactment passed on or after Malaysia Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

PART III
FINANCIAL PROVISIONS

No Taxation unless authorised by law.

28. No tax or rate shall be levied by or for the purposes of the State except by or under the authority of law.

Consolidated Fund.

29. (1) All revenues and moneys howsoever raised or received by the State from whatsoever source shall, subject to this Constitution and any law, be paid into and form one fund to be known as " the Consolidated Fund ".

(2) There shall be charged on and paid out of the Consolidated Fund, in addition to any grant, remuneration or other moneys so charged by any other provision of this Constitution or by State law—

(a) all debt charges for which the State is liable ; and

(b) any moneys required to satisfy any judgment, decision or award against the State by any court or tribunal.

(3) For the purposes of this Article, " debt charges " include interest, sinking fund charges, repayment or amortisation of debt and all expenditure in connection with the raising of loans on the security of the Consolidated Fund and the service and redemption of debt created thereby.

Annual financial statement.

30. (1) The Yang di-Pertua Negara shall, in respect of every financial year, cause to be laid before the Legislative Assembly a statement of the estimated receipts and expenditure of the State for that year, and, unless the Legislature in respect of any year otherwise provides, that statement shall be so laid before the commencement of that year.

(2) The estimates of expenditure shall show separately—

(a) the total sums required to meet expenditure charged on the Consolidated Fund ; and

(b) subject to clause (3), the sums respectively required to meet the heads of other expenditure proposed to be met from the Consolidated Fund.

(3) The sums referred to in paragraph (b) of clause (2) do not include—

(a) sums representing the proceeds of any loan raised by the State for specific purposes and appropriated for those purposes by the law authorising the raising of the loan ;

(b) sums representing any money or interest on money received by the State subject to a trust and to be applied in accordance with the terms of the trust ; and

(c) sums representing any money held by the State which has been received or appropriated for the purpose of any trust fund established by or in accordance with State law.

(4) The statement of estimated receipts and expenditures shall also show, so far as is practicable, the assets and liabilities of the State at the end of the last completed financial year, the manner in which those assets are invested or held and the general heads in respect of which those liabilities are outstanding.

Supply Bills.

31. The heads of expenditure to be met from the Consolidated Fund Supply in respect of any financial year but not charged thereon, other than expenditure to be met by such sums as are mentioned in clause (3) of Article 30, shall be included in a Bill, to be known as a Supply Bill, providing for the issue from the Consolidated Fund of the sums necessary to meet the expenditure and the appropriation of those sums for the purposes specified therein.

Supplementary and excess expenditure.

32. If in respect of any financial year it is found—

(a) that the amount appropriated by the Supply Enactment excess for any purpose is insufficient, or that a need has arisen for expenditure, expenditure for a purpose for which no amount has been appropriated by the Supply Enactment ; or

(b) that any moneys have been expended for any purpose in excess of the amount, if any, appropriated for that purpose by the Supply Enactment,

a supplementary estimate showing the sums required or spent shall be laid before the Legislative Assembly, and the heads of any such expenditure shall be included in a Supply Bill.

Withdrawals from Consolidated Fund.

33. (1) Subject to the following provisions of this Article, no moneys shall be withdrawn from the Consolidated Fund unless they are—

(a) charged on the Consolidated Fund ; or

(b) authorised to be issued by a Supply Enactment.

(2) No moneys shall be withdrawn from the Consolidated Fund except in the manner provided by Federal law.

(3) Clause (1) shall not apply to any such sums as are mentioned in clause (3) of Article 30.

(4) The Legislature may, in respect of any financial year, by law authorise, before the passing of the Supply Enactment, expenditure for part of the year and the issue from the Consolidated Fund of any moneys required to meet that expenditure.

Public Accounts Committee.

34. The Legislative Assembly shall appoint a committee of the Assembly, to be called the Public Accounts Committee, which shall examine the accounts in respect of each financial year showing the appropriation of the sums granted by the Legislature to meet the expenditure of the State and such other accounts as may be laid before the Assembly.

Financial Year.

35. For the purposes of this Part " financial year " means the period of twelve months ending on the thirty-first day of December in any year or such other day as the Legislature may by law prescribe.

PART IV
THE PUBLIC SERVICE

The Public Service Commission.

36. (1) There shall be a Public Service Commission for the State which shall consist of a Chairman and not less than three or more than eight other members, each of whom shall be appointed by the Yang di-Pertua Negara after consultation with the Chief Minister.

(2) The Yang di-Pertua Negara may after consultation with the Chief Minister, designate any member of the Commission, other than the Chairman, as a deputy chairman of the Commission :

Provided that the number of members of the Commission so designated shall not at any time exceed two.

(3) A person shall not be appointed to be a member of the Commission if he is, and shall cease to be such a member if he becomes—

(a) a public officer :

Provided that a public officer may be appointed to be a member of the Commission if he is on leave prior to retirement ;

(b) a member of either House of Parliament or of the Legislative Assembly ;

(c) a member, officer or employee of any local authority ;

(d) a member of any trade union, or of any body or association affiliated to a trade union ; or

(e) the holder of any office in any political association.

(4) Subject to clauses (3) and (5), every member of the Commission shall, unless he earlier resigns his office by writing under his hand addressed to the Yang di-Pertua Negara, hold office for a period of five years from the date of his appointment or for such shorter period as may be specified in the instrument by which he is appointed.

(5) If the Chief Minister, or the Chairman of the Commission after consulting with the Chief Minister, represents to the Yang di-Pertua Negara that a member of the Commission ought to be removed from office for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, the Yang di-Pertua Negara shall appoint a tribunal in accordance with clause (6) and shall refer the representation to it ; and, if the tribunal so recommends, the Yang di-Pertua Negara shall remove that member from office by writing under his hand.

(6) A tribunal appointed under clause (5) shall consist of not less than three persons who hold or have held office as Judge of the Federal Court or of any High Court in the Federation or, if it appears to the Yang di-Pertua Negara expedient to make such appointment, persons who hold or have held equivalent office in any other part of the Commonwealth.

(7) A tribunal appointed under clause (5) shall regulate its own procedure and may make rules for that purpose.

(8) Where a representation has been made to the Yang di-Pertua Negara under clause (5), he may on the recommendation of the Chief Minister suspend the member concerned from the exercise of his functions pending the report of the tribunal on that representation.

(9) Where, during any period, a member of the Commission has been granted leave of absence by the Yang di-Pertua Negara or is unable, owing to his absence from the State, illness or any other cause, to discharge his functions as such a member, the Yang di-Pertua Negara may appoint as a temporary member of the Commission to exercise his functions during that period, any person who would be qualified to be appointed in his place ; and the appointment of any such temporary member shall be made in the same manner as that of any other member of the Commission.

(10) Before exercising the functions of his office every member of the Commission shall take and subscribe before the Chief Justice or some other Judge of the High Court the oath in the form set out in Part IV of the Schedule.

(11) Members of the Commission shall be paid such remuneration as the Legislature may by law provide, and such remuneration shall be a charge on and paid out of the Consolidated Fund.

(12) Subject to the provisions of this Constitution, the terms of service of the members of the Commission—

(a) shall be such as the Legislature may by law prescribe ; and

(b) in so far as they are not so prescribed, shall be determined by the Yang di-Pertua Negara.

(13) The remuneration and other terms of service of any member of the Commission shall not be altered to his disadvantage after his appointment.

(14) For the purposes of Clause (13), in so far as the terms of service of a member of the Commission depend upon his option, any terms for which he opts shall be taken to be more advantageous to him than any others for which he might have opted.

Functions of Commission.

37. (1) Subject to the provisions of the Federal Constitution and of this Constitution, it shall be the duty of the Commission to appoint, confirm, emplace on the permanent or pensionable establishment, promote, transfer and exercise disciplinary control over members of the public service.

(2) The Legislature may by law provide for the exercise of other functions by the Commission.

(3) In clause (1), " member of public service " does not include any person whose remuneration is calculated at a daily rate, and " transfer " does not include transfer without a change of rank within a department of Government.

(4) The Yang di-Pertua Negara may designate as special posts any posts in the public service held by the head or deputy head of a department or by an officer who in his opinion is of similar status, and an appointment to any post so designated shall not be made in accordance with clause (1) but shall be made by the Yang di-Pertua Negara on the recommendation of the Commission.

(5) Before acting, in accordance with clause (4), on the recommendation of the Commission, the Yang di-Pertua Negara shall consider the advice of the Chief Minister and may once refer the recommendation back to the Commission in order that it may be reconsidered.

(6) State law and, subject to the provisions of any such law, regulations made by the Yang di-Pertua Negara may provide for the exercise by any public officer, or by any board of public officers, of any of the functions of the Commission under clause (1) :

Provided that—

(a) no such law or regulations may provide for the exercise by any such officer or board of officers of any power of first appointment to the permanent or pensionable establishment or of any power of promotion (other than promotion to an acting appointment) ; and

(b) any person aggrieved by the exercise by any such officer or board of officers of any power of disciplinary control may appeal to the Commission within such time and in such manner as may be prescribed by any such law or regulations, and the Commission may make such order thereon as it may consider just.

(7) The Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate to any public officer, or to any board of public officers appointed by it, any of its functions under clause (1) in respect of any grade of members of the public service, and that officer or board shall exercise those functions under the direction and control of the Commission.

(8) In respect of members of the public service who are employed in posts ancillary to the police force, or in respect of any grade of members of the public service who are so employed, functions of the Commission may, under clause (6) or (7), be made exercisable by an officer or board of officers of the police force as if he or they were a public officer or board of public officers.

(9) No person shall be appointed under this Article to or to act in any office on the personal staff of the Yang di-Pertua Negara without the concurrence of the Yang di-Pertua Negara acting in his discretion ; and the offices which are to constitute the personal staff of the Yang di-Pertua Negara for the purposes of this clause shall be such offices in the public Service as the Yang di-Pertua Negara, after consultation with the Chief Minister, may by order prescribe.

(10) The Commission shall make an annual report on the discharge of its functions to the Yang di-Pertua Negara, who shall cause copies of the report to be laid before the Legislative Assembly.

Procedure of Commission.

38. (1) At any meeting of the Commission three members, who shall include the Chairman or Deputy Chairman, shall form a quorum.

(2) Subject to clause (1), the Commission may act notwithstanding any vacancy in its membership, and any proceeding of the Commission shall be valid notwithstanding that some person not entitled to do so took part therein.

(3) The Commission may, subject to the provisions of this Constitution, regulate its procedure and make rules for that purpose, and, with the consent of the Yang di-Pertua Negara, may, in connection with the discharge of its functions, confer powers and impose duties on any public officer or any authority of the Government of the State.

Impartial treatment of State employees.

39. All persons of whatever race in the same grade of the service of the State shall, subject to the terms and conditions of their employment, be treated impartially.

Regulations regarding the public service.

40. Subject to the provisions of any State law, the Yang di-Pertua Negara may make regulations for all or any of the following matters, that is to say—

(a) the division of offices in the public service into Divisions and Services ;

(b) the prescribing of Schemes regulating the recruitment, service and promotion of public officers ;

(c) the conduct and discipline of the public service.

PART V
GENERAL PROVISIONS

Safeguarding position of Natives.

41. (1) It shall be the responsibility of the Yang di-Pertua Negara to safeguard the special position of the Natives and the legitimate interests of other communities in accordance with the provisions of this Article.

(2) The Yang di-Pertua Negara shall exercise his functions under this Constitution and under State law in such manner as may be necessary to safeguard the special position of the Natives, and to ensure such degree of participation by Natives as he may deem reasonable in the public service of the State, and in the receipt of scholarships, exhibitions and other similar educational or training privileges or special facilities given or accorded by or with the approval of the State Government and, when any permit or licence for the operation of any trade or business is required by State law, then, subject to the provisions of that law and this Article, in such trade or business.

(3) The Yang di-Pertua Negara may, in order to ensure in accordance with clause (2) the participation by Natives in the public service and in the receipt of scholarships, exhibitions and other educational or training privileges or special facilities, give such general directions as may be required for that purpose to the Commission, or to any authority charged with responsibility for the grant of such scholarships, exhibitions or other educational or training privileges or special facilities; and the Commission or authority shall duly comply with the directions.

(4) In exercising his functions under this Constitution and under State law in accordance with clauses (1), (2) and (3), the Yang di-Pertua Negara shall not deprive any person of any office in the public service held by him or of the continuance of any scholarship, exhibition or other educational or training privileges or special facilities enjoyed by him.

(5) This Article does not derogate from the provisions of Article 39.

(6) Where by any existing State law a permit or licence is required for the operation of any trade or business the Yang di-Pertua Negara may exercise his functions under that law in such manner, or give such general directions to any authority charged under that law with the grant of such permits or licences, as may be required to ensure such degree of participation in such trade or business by Natives as the Yang di-Pertua Negara may deem reasonable ; and the authority shall duly comply with the directions.

(7) Nothing in this Article shall operate to deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him or to authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of a person any permit or licence when the renewal or grant thereof might reasonably be expected in the ordinary course of events.

(8) Where by any State law any permit or licence is required for the operation of any trade or business, that law may make provision to ensure participation by Natives in such trade or business ; but no such law shall for the purpose of ensuring such participation—

(a) deprive or authorise the deprivation of any person of any right, privilege, permit or licence accrued to or enjoyed or held by him; or

(b) authorise a refusal to renew to any person any such permit or licence or a refusal to grant to the heirs, successors or assigns of any person any permit or licence when the renewal or grant might in accordance with the other provisions of the law reasonably be expected in the ordinary course of events, or prevent any person from transferring together with his business any transferable licence to operate that business ; or

(c) where no permit or licence was previously required for the operation or the trade or business, authorise a refusal to grant a permit or licence to any person for the operation of any trade or business which immediately before the coming into force of the law he had been bona fide carrying on, or authorise a refusal subsequently to renew to any such person any permit or licence, or a refusal to grant to the heirs, successors or assigns of any such person any such permit or licence when the renewal or grant might in accordance with the other provisions of that law reasonably be expected in the ordinary course of events.

(9) Nothing in this Article shall empower the Legislature to restrict any trade or business solely to Natives.

(10) In this Article, "Native" means a person who is a citizen, is the child or grandchild of a person indigenous to the State, and was born (whether on or after Malaysia Day or not) either in the State or to a father domiciled in the State at the time of the birth.

The Public Seal.

42. The Yang di-Pertua Negara shall keep and use the Public Seal of the State for all things that shall pass that Seal ; and, until a Seal shall be provided for the State, a stamp bearing the inscription " State of Sabah: Public Seal of the State " may be used as the Public Seal of the State.

Amendment of Constitution.

43. (1) Subject to the following provisions of this Article the provisions Arandment of this Constitution may be amended by an Enactment passed by the Legislature but may not be amended by any other means.

(2) Subject to clause (3), a Bill for making an amendment to this Constitution shall not be passed by the Legislative Assembly unless it has been supported on the second or third readings by the votes of not less than two-thirds of the total number of members thereof.

(3) Clause (2) shall not apply to a Bill for making—

(a) any amendment consequential on a law prescribing the number of elected members of the Legislative Assembly ; or

(b) any amendment for the purpose of bringing this Constitution into accord with any of the provisions of the Eighth Schedule to the Federal Constitution as for the time being in force.

(4) In this article "amendment" includes addition and repeal.

Authorised reprints of Constitution.

44. The Legislative Assembly may from time to time by resolution authorise the Government Printer to print copies of this Constitution including all amendments in force at the date of such authorisation ; and any such copy so printed be deemed for all purposes to be a true and correct copy.

Re-appointment and re-election.

45. Where any person has vacated any office established by this Constitution he may, if qualified, again be appointed or elected to that office in accordance with the provisions of this Constitution.

Interpretation.

46. (1) In this Constitution, unless the context otherwise requires—

" the Cabinet " means the State Cabinet ;

" citizen " means a citizen of the Federation ;

" the Conference of Rulers " means the Conference of Rulers constituted by the Federal Constitution ;

" the Commission" means the Public Service Commission of the State ;

" existing law " means any law having effect as part of the law of the Colony of North Borneo or any part thereof immediately before the commencement of this Constitution ;

" the Federal Constitution " means the Constitution of the Federation and includes the Malaysia Act, 1963 ;

" Federal law " means—

(a) any existing law continuing to have effect as part of the law of the State or any part thereof after the commencement of this Constitution to the extent that it is by virtue of the provisions of the Federal Constitution treated as a Federal law ; and

(b) any Act of Parliament, or other law of the Federation relating to matters about which Parliament has power to make laws, which extends to the State ;

" the Federation " means the Federation to be known, on and after Malaysia Day, by the name Malaysia ;

" the Gazette " means the official Gazette of the State ;

" the High Court" means the High Court in Borneo constituted by the Federal Constitution;

" the Legislature " means the Legislature of the State ;

" Malaysia Day" means 31st August, 1963 ;

" office of profit " has the same meaning as in the Federal Constitution ;

" Parliament " means the Parliament of the Federation ;

" public officer " means a person holding or acting in any office of emolument in the public service ;

" the public service " means, subject to the provisions of clause (2), the public service of the State ;

" session " means, in relation to the Legislative Assembly, the sittings of the Assembly commencing when it first meets after its prorogation or dissolution and terminating when it is prorogued or is dissolved without having been prorogued ;

" sitting " means, in relation to the Legislative Assembly, a period during which the Assembly is sitting continuously without adjournment, and includes any period during which the Assembly is in committee ;

" the State " means the State of Sabah ;

" State law " means—

(a) any existing law continuing to have effect as part of the law of the State or any part thereof after the commencement of this Constitution to the extent that it is by virtue of the provisions of the Federal Constitution treated as a State law ; and

(b) any law made by the Legislature ;

" the Yang di-Pertuan Agong " means the Yang di-Pertuan Agong of the Federation.

(2) In this Constitution references to an office in the public service shall not be construed as including references to the office of—

(a) Yang di-Pertua Negara, Chief Minister or other Minister or member of the Executive Council Speaker or Member of the Legislative Assembly, a member of the Commission, a member of the Pardons Board constituted for the State under the Federal Constitution ; or

(b) save in so far as the legislature may by law prescribe, a member of any council, board, panel, committee or other similar body (whether incorporated or not) established by or under any law.

(3) In this Constitution, unless the context otherwise requires, a reference to the holder of an office by the terms designating his office shall be construed as including a reference to any person for the time being acting in that office.

(4) Unless the context otherwise requires, any reference in this Constitution to a specified Part or Article or to the Schedule is a reference to that Part or Article of, or to the Schedule to, this Constitution and any reference to a clause or paragraph is a reference to that clause of the Article or paragraph of the clause in which the reference occurs.

(5) The Interpretation Ordinance, as in force at the commencement of this Constitution, shall apply for the purpose of interpreting this Constitution and otherwise in relation thereto as it applies for the purpose of interpreting and otherwise in relation to a written law within the meaning of that Ordinance.

Commencement.

47. Subject to the provisions of Part VI, this Constitution shall come into operation immediately before Malaysia Day.

PART VI
TRANSITIONAL PROVISIONS

Existing laws.

48. (1) Subject to the provisions of this Article and to any provision made on or after Malaysia Day by or under Federal law or State law, all existing laws shall on and after the commencement of this Constitution continue to have effect but shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the provisions of this Constitution.

(2) Subject as aforesaid and without prejudice to the generality of clause (1), references in any existing law to the colony of North Borneo or any officer holding office under the Government of the colony or to any authority or body constituted in or for the colony shall be construed on and after the commencement of this Constitution as references to the State or to the corresponding officer, authority or body respectively.

(3) (a) The Governor of the colony of North Borneo may by order made at any time before Malaysia Day make such modifications in any existing law as appear to him to be necessary or expedient in consequence of the promulgation of this Constitution or the passing of the Malaysia Act, 1963

(b) This clause shall come into operation on the publication of this Constitution in the Gazette.

(c) An order made under this clause shall have effect from such date, not being later than the commencement of this Constitution, as may be specified therein.

(4) (a) The Yang di-Pertua Negara may by order at any time after during the commencement of this Constitution and before the end of August, 1965, make such modifications in any existing law, to the extent that it is by virtue of the provisions of the Federal Constitution treated as a State law, as appear to him to be necessary or expedient in consequence of the promulgation of this Constitution or the passing of the Malaysia Act, 1963.

(b) An order made under this clause shall have effect from such date, not being earlier than the commencement of this Constitution, as may be specified therein.

(5) Any provision made by an order under this Article with respect to any law may be amended or repealed in like manner as that law.

(6) An order made under clause (3) shall be laid before the Legislative Assembly as soon as may be on or after Malaysia Day and an order made under clause (4) shall be so laid as soon as may be after it is made.

(7) In clauses (3) and (4) "modification" includes amendment, adaptation and repeal.

Succession to property.

49. (1) Subject to the provisions of this Article, all property and assets which immediately before the commencement of this Constitution were vested in Her Majesty for the purposes of the colony of North Borneo shall on the commencement of this Constitution vest in the State.

(2) Any land in the State which immediately before the commencement of this Constitution was vested in Her Majesty shall on the commencement of this Constitution vest in the State.

(3) Any property which was immediately before the commencement of this Constitution liable to escheat to Her Majesty shall on the commencement of this Constitution be liable to escheat to the State.

Rights, liabilities and obligations.

50. (1) All rights, liabilities and obligations of Her Majesty in respect of the government of the colony of North Borneo shall on the commencement of this Constitution become rights, liabilities and obligations of the State.

(2) In this Article rights, liabilities and obligations include rights, liabilities and obligations arising from contract or otherwise, other than rights to which Article 49 applies.

First Yang di-Pertua Negara.

51. The first Yang di-Pertua Negara shall be a person nominated before Malaysia Day by Her Majesty and the Yang di-Pertuan Agong, and appointed shall be for a term of two years beginning with Malaysia Day.

Transitional provisions relating to the Legislature.

52. (1) Subject to the provisions of this Article, the Legislative Council established by the North Borneo (Legislative Council) Orders in Council 1950 to 1961 shall remain in being on and after Malaysia Day and shall, unless sooner dissolved by the Yang di-Pertua Negara, stand dissolved on 1st June, 1964.

(2) The Legislative Council continued in being by this Article shall be known as the Legislative Council of the State of Sabah, and until its dissolution the Legislative Assembly provided for by Article 14 shall not be established and, subject to the provisions of this Article, references in the other provisions of this Constitution to the Legislative Assembly shall, so far as the composition of the Legislative Council so admits, be construed as references to the Legislative Council.

(3) In place of the Governor as President of the Legislative Council there shall be a Speaker of the Legislative Council appointed in accordance with Article 15.

(4) A person who is a Temporary Member of the Legislative Council immediately before the commencement of this Constitution shall vacate his seat in the Council on its commencement.

(5) Where a vacancy occurs among the Official or Nominated Members of the Legislative Council the Yang di-Pertua Negara after consultation with the Chief Minister may appoint a person to fill the vacancy.

(6) A person who is an Official or Nominated Member of the Legislative Council immediately before the commencement of this Constitution shall remain a member of the Council irrespective of whether he is a citizen of Malaysia and consequently, while he is such a member by virtue of this clause, the provision of Article 16 that only citizens of Malaysia shall be qualified for membership of the Legislative Assembly shall not apply in relation to such a member of the Legislative Council.

(7) Notwithstanding the provisions of clause (3) of Article 17 (which, among other things, exempts from the operation of paragraph (g) of clause (1) of that Article anything done before he becomes a citizen of Malaysia) if, while he is not a citizen of Malaysia, an Official or Nominated Member of the Legislative Council does any of the things referred to in the said paragraph (g) he shall vacate his seat in the Council.

(8) A person is disqualified for being appointed as an Official Member of the Legislative Council if he does not hold an office in the public service and paragraph (c) of clause (1) of Article 17 shall not apply to the appointment of a person as such a Member, but notwithstanding clause (2) of that Article, the said paragraph (c) shall apply to the appointment of a person as a Nominated Member of the Legislative Council.

(9) Subject to clause (8) the provisions of this Constitution shall apply in relation to Official Members of the Legislative Council as they apply in relation to Nominated Members of the Council.

(10) The Standing Orders of the Legislative Council as in force immediately before the commencement of this Constitution shall, until they are replaced by Standing Orders made on or after Malaysia Day by the Legislative Council or the Legislative Assembly be the Standing Orders of the Legislative Council and the Legislative Assembly respectively but shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the provisions of this Constitution.

Transitional financial provisions.

53. (1) Part III, except Article 28, shall not come into operation until 1st January 1964.

(2) Until the coming into operation of Part III, any sums which under this Constitution (including Part III) are a charge on the Consolidated Fund shall be a charge on the revenues and other funds of the State and payment thereof shall be made by virtue of this clause without further authority of any law.

(3) Nothing in clause (1) shall prevent the making of any provisions or doing of any other thing before 1st January 1964 for the purposes of Part III in respect of the financial year beginning on that date.

Transitional provisions relating to Public Service Commission.

54. (1) Any person who, immediately before the commencement of this Constitution, holds office as Chairman, Deputy Chairman or any other member of the Public Service Commission established by the North Borneo (Public Service Commission) Order in Council, 1963, shall, as from the commencement of this Constitution, hold the like office as a member of the Commission established by this Constitution as if he had been appointed thereto under Article 36 for a period of two years from the commencement of this Constitution.

(2) Any regulation made by the Governor under the North Borneo (Public Service Commission) Order in Council, 1963, and in force immediately before the commencement of this Constitution shall—

(a) to the extent that they make provision in relation to the Commission established by the North Borneo (Public Service Commission) Order in Council, 1963, or the public service of the colony of North Borneo for matters for which, in relation to the Commission established by the Constitution or the public service of the State, provision may be made under clause (6) of Article 37, Article 38 or Article 40, have effect as from the commencement of this Constitution as if they were regulations or rules made under that clause or Article 38 or Article 40, as the case may be and

(b) subject to paragraph (a), shall be treated as an existing law for the purposes of Article 48.

Existing Officers.

55. (1) Subject to the provisions of the Federal Constitution and this Constitution, any person who immediately before the commencement of this Constitution is in the service of the Crown in respect of the government of the colony of North Borneo shall—

(a) on the commencement of this Constitution cease to be in such service and become a person in the service of the State of Sabah ;

(b) so long as he continues in such service, be entitled to terms and conditions of service not less favourable than those applicable to him immediately before the commencement of this Constitution ;

(c) be deemed to have been appointed on the commencement of this Constititution to hold or to act in any office in the service of the State corresponding to that which he holds or is acting in immediately before the commencement of this Constitution and to have taken any oath in connection therewith required by law.

(2) For the purposes of clause (1)—

(a) any terms or conditions of service for which, on or after Malaysia Day, a person opts shall be deemed to be not less favourable than those applicable to him immediately before the commencement of this Constitution ;

(b) the offices of State Secretary, State Attorney-General and State Financial Secretary shall be regarded as corresponding respectively to the offices of Chief Secretary, Attorney-General and Financial Secretary of the colony of North Borneo ; and

(c) the Yang di-Pertua Negara may by order declare that any other office specified in such order shall be regarded as corresponding to another office so specified.

(3) Clause (1) does not apply to the Governor of the colony of North Borneo.

Secondment of members of the public service to Federal service.

56. (1) All persons who on the commencement of this Constitution are members of the police force in the State (and are not on leave pending retirement) shall on Malaysia Day be seconded to the police force of the Federation.

(2) Where on Malaysia Day any post in the judicial and legal branch of the public service becomes a post in the judicial and legal service of the Federation any person serving in that post on the commencement of this Constitution shall on Malaysia Day be seconded to the judicial and legal service of the Federation.

(3) Subject to Clause (4), where on Malaysia Day or any day thereafter any post in the public service becomes a post in the general public service of the Federation any person serving in that post immediately before that day shall on that day be seconded to the general public service of the Federation.

(4) Clause (3) shall not apply to persons in such grades of service as the Yang di-Pertua Negara may, with the consent of the Yang di-Pertuan Agong, direct.

(5) The power conferred on the Yang di-Pertua Negara by clause (4) may be exercised by the Governor of the colony of North Borneo at any time after the publication of this Constitution in the Gazette.

Compulsory retirement to facilitate appointment of local candidates.

57. (1) If the Chief Minister so requests, the Commission shall consider whether there are more local candidates suitably qualified for appointment to, or promotion in, any branch of the public service specified by the Chief Minister than there are vacancies in that branch that could appropriately be filled by such local candidates ; the Commission, if satisfied that such is the case, shall, if so requested by the Chief Minister, select officers in that branch to whom this Article applies and whose retirement would in the opinion of the Commission cause vacancies that could appropriately be filled by such suitably qualified local candidates as are available and fit for appointment and inform the Chief Minister of the number of officers so selected ; and if the Chief Minister specified a number of officers to be called upon to retire (not exceeding the number of officers so selected) the Commission shall nominate that number of officers from among the officers so selected and by notice in writing require them to retire from the public service ; and any officer who is so required to retire shall retire accordingly.

(2) An officer who has been given notice by or on behalf of the Government of the State or of the colony of North Borneo that he will continue to be employed in the public service for a minimum period specified in the notice shall not be required to retire under clause (1) before the expiry of that period.

(3) This Article applies to—

(a) any entitled officer as defined in the Schedule to the North Borneo (Compensation and Retiring Benefits) Order in Council, 1963 ; and

(b) any officer on probation who, if he had been confirmed in his appointment, would have been such an entitled officer.

Public Board.

58. (1) There shall be a Police Board for the State which shall consist of—

(a) the Chairman of the Commission, who shall be the Chairman of the Board ;

(b) the State Attorney-General ;

(c) the senior officer of police in the State ; and

(d) a person designated by the Director of Police Affairs.

(2) Notwithstanding clause (1) of Article 37, it shall be the duty of the Police Board to exercise disciplinary control over members of the public service who are seconded to the police force.

(3) The Police Board may, by directions in writing and subject to such conditions as it thinks fit, delegate to any police officer, or to any board of police officers appointed by it, any of its functions under clause (2) in respect of any rank in the police force, and that officer or board shall exercise those functions under the direction and control of the Police Board.

(4) The functions conferred by this Article shall be exercised in accordance with the provisions of any Federal law prescribing offences against police force discipline and the punishment that may be imposed for any such offence.

(5) At any meeting of the Police Board two members including the Chairman or, if the Chairman is not present, three members shall form a quorum ; and if on any question the votes of the members present are equally divided the Chairman may exercise a casting vote.

(6) Subject to clause (5), the Police Board may act notwithstanding any vacancy in its membership, and any proceeding of the Board shall be valid notwithstanding that some person not entitled to do so took part therein.

(7) Subject to the provisions of this Article, the Police Board may regulate its procedure and make rules for that purpose.

Modification of form of oath in certain cases.

59. When a person who is not a citizen is required by this Constitution to take an oath on becoming an ex officio member of the Cabinet, the Speaker or an ex officio member of the Legislative Assembly, an Official or Nominated Member of the Legislative Council or the Chairman of the Commission, the words "and allegiance" shall be omitted from the oath.