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Many Sabahans or those who are of Sabahan origin and the other people who reside, work, visit or frequent this blessed Land Below the Wind may not be aware of the legal formation and legal framework of Sabah. Since we are in the first week of the New Year and it is Visit Malaysia Year 2007, lets kick off by getting to know SABAH better – I mean getting to know Sabah legally speaking, of course.
LOCATION 1 – THE LEGAL EXISTENCE OF THE STATE OF SABAH
The modern legal and constitutional history of Sabah streches as far back as 1877 when the Sultanate of Brunei granted lands to Gustavus Baron de Overbeck. With due respect this ‘Mat Salleh’ person was appointed the Maharaja of North Borneo (as Sabah was then known) on 29th December 1877. The full list of treaties and engagements together with Orders of Her Britannic Majesty in Council(since Sabah was previously a colony of Great Britain) relating to Sabah prior to its joining Malaysia on 16th September 1963 and the laws made thereafter are as follows:-
TREATIES AND ENGAGEMENTS
1) Grant by Sultan of Brunei of Territory comprising Gaya Bay and
Sapangar Bay dated 29th December 1877
2) Grant by Sultan of Brunei of Territories from the Sulaman River to
the River Paitan dated 29th December 1877
3) Grant by Sultan of Brunei of Territories from Paitan to Sibuco
River dated 29th December 1877
4) Grant by Pangeran Tumongong of Brunei of the Provinces of Kimanis and Benoni dated 29th December 1877
5) Commission from Sultan of Brunei appointing Gustavus Baron de
Overbeck Maharajah of Sabah (North Borneo) and Raja of Gaya and Sandakan dated 29th December 1877
6) Grant by Sultan of Sulu of Territories and Lands, on the Mainland
of the Island of Borneo dated 22nd January 1878
7) Commission from Sultan of Sulu appointing Baron de Overbeck Datu Bandahara and Rajah of Sandakan dated 22nd January 1878
8) Charter Granted to the British North Borneo Company,
Westminister dated November 1st 1881
9) Grant by Pangeran Muda Damit Tejudin to the British North Borneo
Company of the River Putatan dated March 20th 1884
10) Cession by Sultan of Brunei, Pangeran Bandahara and Pangeran di
Gadong to the British North Borneo Company of Territory from Si
Putong to Kuala Paniow dated 5th November 1884
11) Madrid Protocol dated March 7th 1885
12) Confirmation of Cession of Palawan Island dated April 6th 1885
13) Agreement between Her Majesty's Government and the British
North Borneo Company dated 12th May 1888
14) Grant by Pangeran Shahbandar to the British North Borneo
Company of Territory of Padas Damit dated 2nd March 1889
15) Grant by Sultan of Brunei to the British North Borneo Company of
Territory between the Sepitong and Trusan Rivers dated September 7th 1901
16) Confirmation by Sultan of Sulu of Cession of certain Islands dated
22nd April 1903
Orders of Her Britannic Majesty in Council:
17) North Borneo Cession Order in Council 1946
18) Labuan Order in Council 1962
19) North Borneo Cession (Amendment) Order in Council 1950
20) North Borneo (Compensation and Retiring Benefits) Order in
Council 1963
21) North Borneo (Alteration of Boundaries) Order in Council 1954
22) North Borneo (Definition of Boundaries) Order in Council 1958
23) North Borneo and Sarawak (Alteration of Boundaries) Order in
Council 1962
24) North Borneo (Compensation and Retiring Benefits) Order in
Council 1963 - Amendment of Schedule
MALAYSIAN LAWS
25) Federal Constituition 1963
26) Sabah State Constituition 1963
27) Malaysian Act 1963
LOCATION 2: 1950 - TRANSFER OF POWERS & BIRTH OF MODERN DEMOCRATIC SYSTEM IN SABAH
7TH November 1950 is a historic date in the legal history of Sabah. For the first time the law making powers and government were transferred from the Governor of North Borneo to the newly established Executive and Legislative Councils and so the basis of a modern democratic and government system were established and set up. The Ordinance was cited as the Transfer of Powers Ordinance. The purpose of the Ordinance was “To make provision for the exercise in the Colony of powers and functions consequent upon the establishment of Executive and Legislative Councils”.
The relevant Section 2 (1) of the Ordinance read as follows:-
.
“2. Powers of Governor in Council.
(1) Where in any provision of the written law set out in the Schedule
any rights, duties and powers are conferred upon the Governor, such
rights, duties and powers shall be exercised by the Governor in
Council and such written law shall be amended accordingly.”
And so was born in Sabah the modern democratic state system.
LOCATION 3 : THE STATE CONSTITUTION OF SABAH
Do you know that the State of Sabah has a State Constitution. Well if you don’t its still not too late to find out as we take a guided tour of the Sabah State Constitution
Q1. Who is the head of the State of Sabah?
ANS: Yang di-Pertua Negeri
Article (1)
There shall be a Head of State for Sabah, to be called the Yang
di-Pertua Negeri, who shall be appointed by the Yang di-Pertua
Agong acting in his discretion but after consultation with the
Chief Minister.
Q2. How long is his term of office?
ANS: Article (1)
Everyone knows about the Federal Constitution but The Yang di-Pertua Negeri shall be appointed for a term of four years but may at any time resign his office by writing under his had 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.
Q3. Who is qualified to be the Yang di-Pertua Negeri and what is the disabilities imposed on the Yang di-Pertua Negeri while he is in office?
ANS: ARTICLE (2) Qualifications and Disabilities of Yang Di-Pertua Negeri
(1) A person who is not a citizen of is a citizen by naturalisation
shall not be appointed as the Yang di-Pertua Negeri.
(2) The Yang di-Pertua Negeri shall not hold any office of profit and
shall not actively engage in any commercial enterprise.
(3) A person shall not hold office as the Yang di-Pertua Negeri for
more than two terms either continuously or otherwise
Q4. Who carries out the Executive functions of the State
ANS:- ARTICLE 5. Executive Authority
The Executive authority of the State shall be vested in the Yang di-Pertua Negeri but executive functions may by law be conferred on other persons
Q5. Who are the other persons referred to in Article 5?
ANS: ARTICLE 6. The State Cabinet
1) There shall be a State Cabinet to advise the Yang di-Pertua
Negeri in the exercise of his functions.
(2) The Cabinet shall consist of a Chief Minister, and not more than
ten nor less than four other members, (to be styled "Ministers")
appointed in accordance with clause (3).
(3) The Yang di-Pertua Negeri 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 clause (2) in accordance with the
advice of the Chief Minister from among the members of the Assembly:
(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.
Q6. Besides the Chief Minister and the Ministers what are the provision
of the State Constituition for Assistant Ministers?
ANS: ARTICLE 7A. Assistant Ministers
(1) The Yang di-Pertua Negeri shall appoint not more than fourteen
Assistant Ministers in accordance with the advice of the Chief Minister
from among the members of the Assembly, but the Assistant Ministers so
appointed shall not be members of the Cabinet:
(2) Assistant Minister shall assist the Chief Minister and Ministers
in the discharge of their duties and functions.
Q7. Who allocates responsibility for the business of the Government of the State of Sabah?
ANS: ARTICLE 9. Allocation of Portfolios and Provision Regarding Private Business Interest
(1) The Yang di-Pertua Negeri 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.
(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.
LOCATION 4 : CHIEF MINISTER (INCORPORATION) ORDINANCE
Did you know that the office of the Chief Minister is a Corporation and a legal entity just like a corporation or society.
On 30th December 1949 the Chief Minister (Incorporation) Ordinance was passed to incorporate the Chief Minister, State of Sabah Under Section 2 of the Ordinance it reads that :-
“ Constitution of body corporate.
(1) the officer for the time being discharging the duties of the office
of Chief Minister, State of Sabah, and his successors in office, shall be
a body corporate under the name of “Chief Minister, State of Sabah”
(hereinafter called the “corporation”).
(2) The corporation for the purposes of this Ordinance may sue and be
sued in its said name and shall have perpetual succession and a corporate
seal, and the said seal may from time to time be broken, changed, altered
and made anew as to the corporation seems fit.”
Q. What are the powers of the Corporation?
ANS:- Under Section 3. Powers.
The corporation may acquire, purchase, take, hold and enjoy
moveable and immoveable property of every description, and may convey,
assign, surrender and yield up, mortgage, charge, demise, reassign,
transfer or otherwise dispose of, or deal with, any moveable and
immoveable property vested in the corporation upon such terms as to the
corporation seems fit.”
Q. How does the corporation execute documents or deeds?
ANS”- Article 4 reads:-
Execution of documents.
All deeds, documents or other instruments requiring the seal of
the corporation shall be sealed with the seal of the corporation in the
presence of the officer for the time being discharging the duties of the
office of Chief Minister, State of Sabah, or of an officer designated in
that behalf by Chief Minister, State of Sabah, by notification in the
Gazette, who shall sign every such deed, document or other instrument to
which the corporate seal is affixed, and such signing shall be sufficient
evidence that the said seal was duly and properly affixed and that the
same is the lawful seal of the corporation.”
Q: What is conclusive evidence of the appointment of a Chief Minister?
ANS:- Under Section 5 it reads:-
Notification to be conclusive evidence of appointment.
“ A notification in the Gazette of the appointment of any person to
hold or act in the office of Chief Minister, State of Sabah, shall be
conclusive evidence that such person was duly so appointed.”
LOCATION 5:- PEMIMPIN KEMAJUAN RAKYAT (PKR)
RAKYAT DEVELOPMENT LEADERS
Besides the Chief Minister, the Ministers and Assistant Ministers, the other political arm of the State Government created since 1981 is Raykat Development Leaders or PKRs as they are usually known.
On 1st April 1981 the legislature of the State of Sabah enacted the Rakyat Development Leaders Enactment 1981 which was an Enactment to provide for the appointment, remuneration, privileges and
other conditions of service of Rakyat Development Leaders.
Under Section 1 this Enactment may be cited as the Rakyat Development
Leaders
Enactment 1981 and shall be deemed to have come into force on the
1st day April 1981.
Q :- How are Rakyat Development Leaders appointed?
Ans: Under Section 2 it reads:
Appointment of Rakyat Development Leaders.
(1) The Chief Mhnister may in his discretion appoint such number of
persons as he may think fit to be Rakyat Development Leaders and may, at
any time and without assigning any reason therefor, terminate any such
appointment.
(3) A person appointed to be a Rakyat Development leader shall vacate
his office-
(a) if his appointment is terminated under the provisions of
subsection (1) of this section;
(b) if he resigns from his office by writing under his hand addressed
to the Chief Minister; or
(c) upon dissolution of the legislative Assembly.
Q. What are the duties of Rakyat Development Leaders?
Ans: Under Section 4 it reads:-
Duties of Rakyat Development Leaders.
(1) The duties and functions of a Rakyat Development Leader shall be
exclusively political in nature and shall in no circumstances extent to
the taking of any action in connection with the functioning or
administration of any department of the Government or with any matter
falling to be dealt with by the officer of any such department.
(3) Subject to the provisions of subsection (1), the duties and
functions of a Rakyat Development Leader shall be such as may be
determined by the Chief Minister from time to time and shall be executed
and performed by him in accordance with the directions of the Chief
Minister.”
LOCATION 6 :- THE DIVISIONS AND DISTRICTS OF SABAH
On 1st November 1950 the Legislature of North Borneo passed the ADMINISTRATIVE DIVISIONS ORDINANCE, - to provide for the division of the State for the purposes of Administration.
Under Section 1, it reads :-
“ Division of the State into divisions and districts.
The Yang di-Pertua Negeri may by proclamation divide the State
into divisions and such divisions into districts in such manner as may be
convenient for the purposes of administration either by describing the
boundaries of any such division or district or by reference to a map, and
may assign names to any such division or district. “
The Districts are as follows:
a) Kota Kinabalu:- Kota Kinabalu, Kota Belud,Ranau, Tuaran, Penampang, Papar, Kudat, Kota Marudu, Pitas
b) Sandakan:- Sandakan, Labuk and Sugut, Kinabatangan
c) Tawau:- Tawau, Lahad Datu, Semporna, Kunak
d) Interior:- Keningau, Tambunan, Pensiangan, Tenom, Beaufort, Sipitang, Kuala Penyu
LOCATION 7 :- SABAH – THE STATE WITH A HEART
On 2nd September 1976 the Legislature of the State of Sabah passed the Tun Fuad Foundaton Enactment which was an Enactment to provide for the establishment of the Tun Fuad Fund Foundation; the establishment of a Fund and the appointment of Trustees for the purposes of the management of that Fund and other matters
incidental thereto.
Q 1. What are the objects of the Foundation?
ANS: Under Section 2 it reads :-
“ Establishment of the Foundation and its objects.
There is hereby established the Tun Fund Foundation and the
objects for which the Foundation is established shall be—
(a) to perpetuate the good name of the late Yang Amat Berhormat Tun
Mohamed Fund Stephens;
(b) to achieve the aspirations and to perpetuate the good work of the
late Yang Amat Berhormat Tun Mohamed Fuad Stephens;
(c) to inculcate and promote mutual understanding among racial groups
and mankind;
(d) to promote peace and understanding among nations;
(e) to improve the standard of education in all fields and to uplift
the standard of living of the people;
(f) to provide or award studentships, scholarships, study grants,
study loans or other awards to any Malaysia citizen who is a
permanent resident in Sabah;
(g) to undertake such or any activities commercial or otherwise so as
to enhance the Fund.
Q 2. How is the Fund managed?
ANS: Under Section 4 it reads :-
“ Establishment and management of the Fund.
(1) For the purposes of enabling the Foundation to carry out its
objects there is hereby established a Fund to be known as the Tun
Fuad Foundation Fund.
(2) The Fund shall vest in and be managed by a Board of Trustees which
shall be a body corporate with perpetual succession and a common
seal with the power to sue and be sued, to hold movable and
immovable properties, to enter into or modify any contracts or agreement and subject as hereafter provided to convey, assign, surrender, mortgage, lease or otherwise dispose of movable and immovable properties vested in the Board upon such terms as it may think fit.
Well I would like to take you around to some more locations but that’s all the time we have folks. Hope you enjoyed this tour of legal landmarks in the laws of Sabah and look forward to bringing you to more destinations of law in Land Below The Wind.
