Report of the Commission of Enquiry, North Borneo and Sarawak, 1962/CHAPTER 4/general matters

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Report of the Commission of Enquiry, North Borneo and Sarawak, 1962
Malaysia, Report of the Inter-Governmental Committee, 1962
by the Governments of the United Kingdom of Great Britain and Northern Ireland, Federation of Malaya on the Commission of Enquiry in North Borneo and Sarawak Regarding The formation of Malaysia 1961-1962
Recommendations on certain general matters

pages 45–52

Section A.—Recommendaiions on certain general matters.

148. We make the following general recommendations, wich are unanimous except where otherwise stated:

(a) A decision of principle about the future of the territories should be taken by Governments as soon as possible.
(b) Many witnesses who appeared before us argued that an entirely new Federal constitution should be drawn up. But we are satisfied that the complication of jettisoning the existing Constitution of the Federation of Malaya and drawing up an entirely new Federal Constitution are such as to make this proposal impraticable. We have examined the Federation of Malaya Constitution and have concluded that it could be taken as a basis for the purpose of the creation of Malaysia. With the necessary amendments to the constitution, we envisage the entry of the two Borneo territories as States within the Federation With their admission, the Federation of Malaya would cease to exist as a political entity, and would be succeeded by the Federation of Malaysia. There would continue to be a strong Central Government, with the states enjoying a measure of autonomy and retaining their individual identity. In view of the special circumstances which apply to the Borneo territories, autonomy and safeguards should be given in certain matters which are not enjoyed by the other states. We are anxious in this connexion that some form or guarantee should be provided whereby no amedment, modification or withdrawal of whatever special powers of safeguards may be given can be made by the Central Government without the positive concurrence of the Government of the state concerned. We feel strongly that appropriate provisions should be made in the Constitution to ensure that the special safeguards for the interests of Sarawak and North Borneo, as territories in the new Federation, are mantained. We would, at the same time, wish to reiterate the principle that the power of amending the Constitution of each State belongs exclusively to the people in the State
We therefore recommend that the existing Constitution of the Federation of Malaya should be taken as the basis of the Constitution of the new Federation with such amendments and safeguards as may be necessary. We also recommend that no amendment, modification or wlthdrawal or any special safeguard granted should be made by the Central Government without the positive concurrence of the Government of the State concerned.

(c) Head of the Federation

We encountered strong feelings among some communities that the Heads of Sarawak and North Borneo States should be eligible for appointment as Head of the Federation, Whilst we sympathise with this feeling we see no way of meeting it without undue disturbance to the existing arrangements in Malaya. we therefore limit ourselves to recording the point.

(d) Name of the Federation

We encountered some opposition to the name "Malaysia", particularly from a number of non-Muslim elements of the population in Sarawak. This opposition stems from the same cause as the anxieties about Religion, Language and the Head of Federation, with which we deal elsewhere in this Section. They all reflect the fears held by the non-Malays and non-Muslims that the effect of Malaysia will be to put them in a position inferior to that of the Malays and Muslims. We cannot see, however, that any other name would be appropriate in view of the geographical historical relevance or the name of Malaysia and its wide current usage, We believe moreover, that in fact objections to the name would not persist for long. We recommend, however, that the word "Malaysia" should be generally incorporated into the Malay language; at present it is widely into Malay as "Melayu Raya".

(e) Religion

Feeling on the point ran much stronger. There are differences of opinion among the Commission.

(i) Views of the Chairman and British members

The non-Muslim communities are most insistent that there should be complete religious freedom as to woship, education, and propagation, in the Borneo territories.
We recommend the provisions in the exiting Federal Constitution of Malaya that Islam is the national religion and that certain public expenditure may be incurred for Islamic purpose. All Muslim communities would welcome the provision that Islam should be national religion of the Federation. But even with guanrantees of freedom of religion for the Borneo States, we have met with strong resistance from many non-Muslim communities to the idea that these Federal provisions should apply to the Borneo territoties. We consider (which have a non-Muslim majority) to decide for themselves at a later stage when fully elected representative bodies have been constitued. We recommend therefore that the Borneo territories in the meantime.

(ii) Views of Malayan members

We think that all Muslim communities would welcome a provision that Islam should be the national religion of the Federation. Amongst the non-Muslim who appreared before us there was a substantial number who would not object to the present practice in the Federation of Malaya, as they are satisfied with provisions for fundamental liberties and freedom of religion in the Malayan Constitution. There were, however, a number of non-Muslim who most anxious that there should be no national religion for the Federation; a great many of them, however, would be prepared to consider that Islam might be made the national religion provided that it should not be the religion of their particular State.
Taking these point fully into consideration we are agreed that Islam should be the national religion for the Federation. We are satisfied that the proposal in no way jeopardises freedom of religion in the Federation, which in effect would be secular.
There remain, however, some objection to the provisions in the existing Constitution of the Federation of Malaya that certain public expenditure may be incurred for Islamic purposes. We feel unable to make any positive recommendation in this respect as this resistance, though strong, is small and any recommendation for a Constitutional provision to meet this objection will do violence to present provisions in the Malayan Constitution which the weight of opinion does not require. We therefore limit ourselves to recording the point.

(f) Language

(i) National language

The Constitution of the Federation of Malaya provide that Malay is the national language. Objection is felt in some quarters to the idea this provision should apply to the Borneo territories and the British members of the Commision consider that this a matter for the peoples of the Borneo territories to decide for themselves when fully elected representative bodies have been constituted. The Chairman and the Malayan members feel that, as in fact Malay already approached more nearly than other language to a "lingua franca" in Borneo, this point need not give any offence to the non-Malay population, and that no derogation from the Federal

(ii) Official language

With regard to official languages, a majority of opinion favours Malay and English as official languages without any time limit in the Borneo States. The Chairman and the British members recommend that a provision to this effect be made in the Constitution.
The Malayan members feel that from consideration of Malaysia taken as a whole, such a provision as a permanent feature cannot be readily acceptable without doing undue violence to the existing provisions of the Constitution of the Federation of Malaya. They recommend, therefore, that provision should be made which. while not affecting the position of Malay as the national language for the Federation of Malaysia, would ensure the continuance of English as an oflicial language in the Borneo territories along with Malay for it period of 1O years after the establishment of Malaysia and to continue thereafter until such time as the Central Government in consultation with the State Governmnent of the territory concerned provides otherwise. The Central Government should not institute any move without prior consultalion with the State Government.

(iii) With regard to the languages for debates and discussions in the State Assemblies of the Bomeo territories, the Malayan members recommend that these be in Malay, English or any of the indigenous languages at present in use in the respective Assemblies. for a period of 10 years afier the establishment of Malaysia and thereafter until such time as the Central Government in consultation with the State Government of the territory concerned provides that only the national language may be used. The Central Government should not institute any move without prior consultation with the State Government. The Chairman and British members recommend that this provision should remain in force without time limit, until and unless the State Government decide otherwise.
(g) Immigration

It has been widely represented to the Commission by all races and communities in North Borneo and Sarawak that the small population of the two territories in relation to their size makes it essential to provide them with protection against unrestricted movement of people from other

parts of the Federation, We have no doubt that this is a legitimate and essential requirement. We think, however, that control over immigration into any part of Malaysia from outside should rest with the Central Government. subject to the provise that such entry into Sarawak or North Bomeo should also require the approval of the State Govenment concerned. The Federal Government should guarantee the unrestricted entry for purposes of employment of persons recruited by the State Government, except on grounds of security.
In relation to the question of entry from any other Malaysian territories into Sarawak or North Borneo, we recommend that it should be subject to the control of the respective States. The free movement or persons in the service of the Centra| Government such as Federal officials, should, however, be guaranteed by the State Government
The Federal Government will have a clear interest in the movement or, for example, persons known to be subversive The State Government

will be well aware of security aspects and will be able to take this into account in controlling entry into their States
We consider that the present Visitor's Permit valid for three months should be retained in order to encourage exchange of visits among the peoples of Malaysia and the creation of a Malaysian sense of national unity. We would recommend also that there should be no restrictions on movement from the Borneo territories into Malaya.
We are aware that the provision relating to the restricted freedom of movement of Citizens would conflict with the Fundamental liberties as guaranteed under the Constitution, but in view of the very special nature of the situation, we strongly recommend that appropriate constitutional provision be made to facilitate such arrangement.

{h} Right In Secede

A number of witnesses suggested that there should be 2 trial period with a right to secede from the Federation after a stated number of years. We believe that inclusion of a secession clause would mean a constitution throughout the trial period of political and perhaps racial divisions. We feel that if it is decided to create a Federation, the decision should be made wholeheartedly and without reservations We do not recommend inclusion of a secession clause.

(i) Borneanisasion of the public service should proceed as quickly as possible.

{j) Every effort should be made to encourrege British Officer to remain in the Service until their places can be taken by qualified people from the Borneo territories

(k) Citizenship
We have already made it clear in Chapters l and 2 that this is a matter to which the Chinese communities in both Sarawak and North Borneo attach such importance that it influeitces the attitude of many of them towards the Malaysia proposals as a whole. They fear that the arrangements under the pre—Merdeka Constitution of the Federation of Malaya might be applied to them
At present persons of any race born in either of the two territories are automatically citizens of the United Kingdom and Colonies; and aliens. regardless of race, who have resided in either territory throughout

the I2 months preceding their applications and also have milled there or in the United Kingdom or one of its other dependencies for four years out of the seven preceding that 12 months and intend to continue such residence are eligible to apply in the Governor for natutraiisatian as citizens of the United Kingdom and Colonies. Additional requirements are evidence of good chamcter and a sufficient knowledge of the English language ora language recognised in the territory as being on an equality with the English language. In practice Malay has been accepted.
Although the great majority of the Chinese in both Sarawak and North Borneo have either been born in one or other territory or have resided there for a substantial number of years, only 3 small proportion of those who were not born locally have in fact applied for citizenship. It is necessary to secure sponsors; some expenseis involved; and there has up to now been no particular advantage in bewining a citizen. Moreover. many Chinese might not have been able to pass a language test in any language other than their own. It was on behalf of iliis considerable body of non-citizens that requests were made to its that the qualifications for citizenship in Sarawak and North Borneo afier Malaysia names into being should remain the same, or approximately the same, as those now in force for citizenship of the United Kingdom

and Colonies. There was readiness in some cases to agree to a rather longer qualifying period residence such as seven or eight years Instead of live.
We have considerable sympathy with these requests, although we believe that the fears of the Chinese are usually based on a misunderstanding of the present position in Malaya.
Our attention has been drawn to the memorandum in setting out the Heads at Agreement for a merger between the Federation of Malaya and Singapore (Singapore Command Paper No. 33 of I961) in which it has been agreed that 2 Singapore citizenship will be retained which will atttomatically carry with it nationality of the new Federation of Malaysia. We have considered Whether on this analogy there is a case for creating a separate citizenship for the Borneo territories which would carry with it nationality of Malaysia We have found no special reason to suggest such a separate citizenship tor the Borneo territories. There is no local legislation on on ensliip at present in either Sarawak or North Bomeo—as there is ill Singapore—and we believe that the recommendations that we make below wi meet the more important of the points which have been made to us.

We recommend as follows:

(i) A citizen of the United Kingdom and Colonies born in Sarawak or North Borneo or naturalised in either territory before the date on which Malaysia comes into effect should by operation of law become a citizen of the Federation of Malaysia. We include in this category persons who were born in either or the territories before the dates on which they became British colonies. There is, however, one qualification that needs to be made. Some persons in this category might have severed all connexion with Borneo and the other territories that will form Malaysia. There needs to be evidence or permanent residence and we accordingly recommend that a person in this category shall be deemed to be permanently resident in a territory if he has resided in either territory (or partly in the one and partly in the other) for a continuous period or five years immediately before the formation of Malaysia. We consider it important that there should be the minimum of formality in establishing such permanent residence. We recommend further that periods of absence should not be regarded as a break in continuous residence.
(ii) A person resident in Sarawak or North Borneo on the date on which Malaysia comes into being should be eligible to apply for registration as a citizen of Malaysia at any time during the first eight years after that date if:

(a) he has resided before Malaysia in either territory (or partly the one and partly the other) or after Malaysia in any of the territories of the Federation for periods amounting to 8 out of the 12 years preceding his application and which include the 12 months immediately preceding his application;

(b) he intends to reside permanently in the Federation; and

(c) he is of good character.

For the purposes or such an application a person should be deemed to be of good character in the circumstances provided in Article 18 (4) of the Constitution of the Federation of Malaya, i.e., unless he has during the three preceding years been convicted of a criminal offence for which he has been sentenced to death or imprisonment for twelve months or more and in respect or which he has not received a free pardon

Again, as with the previous category, we consider that the formalities for obtaining citizenship should be reduced to the minimum so that as few dificulties as possible are put in the way of people who have made their homes in the Bomeo territories and who wish to remain in Malaysia as citizens. During the period of the application of these arrangements we recommend that the existing provision in Sarawak and North Borneo regarding a language test should apply we also recommend that there should be a waiver For a limited period of the language test in respect of persons above a oer1ain age.

We also recommend that such an applicant should take the citizenship oath In the term prescribed in the existing Constitution of the Federation of Malaya.

We further recommend that it a person obtains a certificate of citizenship under this arrangement it should be possible for him to app|y, at the same time that he obtains his own certificate, for the grant of a certificate of citizenship in respect of any of his minor children born before that date and ordinarily resident with him in Malaysia.

(iii) Subject to the above points, we recomrtieiid that after Malaysia the existing provisions of the Constitution of the Federation or Malaya relating to the acquisition and termination of citizenship should apply mutatis mutandis.

This will mean, inter alia , that all persons born in the Borneo territories afier Malaysia will be citizens of Malaysia by operation of law, provided that one of their parents is a citizen, or is a permanent resident of the Federation. If our recommendation is approved. we regard it as important that adequate publicity should be given to this point in order to dispel the doubts that were frequently expressed to us about the position of the non—natives.

(iv) The citizenship provisions which we have recommended above should be subject to the special guarantee that we have recommended in paragraph 148 (b) of this report.

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