Meaning:
The word secession is derived from
the Latin word secessio. It denotes, inter-alia, an action of seceding or
formally withdrawing from an alliance, a federation. It is different from
partition, which means division of a country into separate autonomous nation.
Classic example would be the Republic of Ireland which was carved out greater
Ireland. The other example closer to our region is the partition of India and
the new autonomous State of Pakistan. In 1972 the former East Pakistan seceded
from the Pakistan and became Independent Bangladesh.
Our own experience is the expulsion
of Singapore from Malaysia. It is hard to describe that as secession because
Singapore did not want to secede. It wanted to remain as part of Malaysia; but,
the Federal Government under the leadership of the then Prime Minister Tunku
Abdul Rahman decided to expel Singapore because of alleged irreconcilable
political differences. It was not a popular decision, because, even leaders in
UMNO found it difficult to support Tunku in expelling Singapore. Thus, it
cannot be said that Singapore seceded from Malaysia.
Secession is an overt act of person
or persons or body of persons who want to withdraw from a federation. It is not
partition, and it is not expulsion. Further, the secession of one territory
(State) does not necessarily mean the break up of the Federation. If we are
looking at an example the expulsion of Singapore did not affect the Federation
of Malaysia. However, anything akin to secession could lead to the eventual
breakup of the whole federation.
Reasons
for secession.
It is difficult to state what may
prompt a State to secede from the Federation. We can only look into other
countries and see the reasons that had led to secession there. Each secessionist
may have particular reason for withdrawing from the federation. Primarily it
could be due to suppressive measures of the Federal Government against a weak State
which prompts the affected State to demand secession. Unfair treatment - not
being treated as equal partner, or the Federal Government favours one State than
the others or there is lack of transparency, or lack of accountability, or
corruption is rife, or there is inequitable distribution of wealth, or the
Federal Government behaves as if it is a colonial master; or, there is complete
breakdown in the Federal Government and the use of repressive measures would destroy
the basis of the federation. We cannot safely say that these are the only
grounds that could ignite the desire to secession.
However, there could arise incidents
or frictions or disputes between a State and the Federation; and instead of
resolving them the federation uses them for its own benefit thus creating a
situation which becomes impossible for a State to remain in the federal unit.
Therefore, there can arise situations
unique in their own way incompatible to the continued existence of the
federation. Perhaps, the reasonable view that can be arrived at is that a
federation could last forever provided the objectives and conditions under
which they were created remain intact; but there could be adjustments in the
relationship consistent with changes that take place in the neighbouring
countries and in the world, and the changes in the mindset of the people but
the unitive element never questioned or challenged.
The Malaysian
Constitution and Secession:
The constitution of the Federation of
Malaya, which came into effect on 31 August 1957 does not mention about
secession. There is no reference to secession under the Constitution of
Malaysia which was created by the successful merger of the States of Malaya,
Singapore, and the Borneo Territories on 16 September 1963. However, since
Singapore was expelled on 9 August 1965, the question of secession would have
to be looked at from a different angle.
Expulsion and secession are two distinct
concepts. Expulsion results in consequence of the majority’s decision to expel
one State. Secession is an act by a State which finds it difficult to work with
the federation, and the federal government in particular, and decides to leave
the federation. Although Singapore’s expulsion cannot be a precedent to support
a demand for secession, it does give credence to the fact that if a State can
be expelled, it follows, a State can legitimately withdraw. Tunku Abdul Rahman,
who engineered the expulsion of Singapore would not have foreseen that it could
develop into a precedent for the future.
Although the Constitution is silent
over the question of secession, but it is said that there is an agreement that the
Borneo Territories would not secede. This could give the impression that the
merging States could not opt out of Malaysia; but what about the States of
Malaya? Or, what is the real position after Singapore was expelled?
The difficulty seems too obvious. If
it is true that the merging States could not secede, it follows that none of
them could be expelled. Thus, the expulsion of Singapore indicates that the
condition not to secede is not absolute. If the Federal Government with the
consensus of the States succeeded in expelling Singapore it is obvious that a
merging State could secede. The Federal Government had indeed agreed to the
course taken towards Singapore, and that has been approved by all the other
States.
Perhaps, it could be argued that the Singapore
question was different, and it does not apply to other States. We cannot forget
the idiom what is good for the goose is also good for the gender.
Can
secession be raised?
We have seen that secession in the
form of expulsion had indeed taken place and it was initiated by the Federal
Government which was not objected to by other States in the Federation.
We have also seen that the Federal
Constitution is silent about secession. The State Constitutions too have no
provision which could be effectively invoked to seek secession. This leaves us
with the point whether secession is a topic that can be canvassed
notwithstanding the fact that it is a question that raises more questions than
providing answers.
Generally speaking, secession should not
be an issue for discussion because it could destroy the very foundation of the
Federation.
The political scenario in the late
forties following the return of the British, the role played by the Malayan
Communist Party are worth recalling. There had been calls for the abolition of
the monarchy with the creation of a Republic of Malaya.
The swing towards this call could be
traced to the political development in Indonesia coupled with the fact that the
Communists had no inclination for monarchical institutions. With the
declaration of Emergency and all-out war against the Communists, the British
administration introduced the draconian Sedition Act in 1948. If we trace the
background of the Sedition Act 1948 which was introduced in England, it could
be gleaned that its main purpose was to protect the institution of monarchy.
The Sedition Act 1948 was used to quell freedom of speech and it also
effectively outlawed any talk of republicanism in Malaya, which continues even
today. Monarchy is now a part of Malaysia and it is an institution which
deserves respect and veneration. The Rulers also ought to carry in their bossom
love, respect, and veneration cannot be one-sided and they have to be
reciprocated with benign attitude, and rational approach in everything the
Rulers do.
Apart from the Sedition Act, Penal
Code in Section 121 provides that, waging or attempting to wage war or abetting
the waging of the war against the Yang di-Pertuan Agong, a ruler or Yang
di-Pertua Negeri as an offence. We cannot ignore a situation when the Attorney-General
would construe that call for secession as an attempt to wage war against the
Yang di-Pertuan Agong.
If could be seen that the combined
effect of the Sedition Act, and the penal provisions in the Penal Code would
indicate that secession could be construed as an act against the State,
therefore, punishable. The general view would appear that it is indeed
difficult to punish the call for secession. This is due to the unsatisfactory
state of the law. But, from the practical side, we have seen that the Federal
Government had in fact initiated expulsion, hence by order of things, if
expulsion is legal then, call for secession cannot be legally wrong.
Who can
ask for secession?
Whether a demand for secession or an
act aimed at secession is an offence or not is a point that would require
mature consideration. However, the question that looms at large is that who is
entitled to make a call or demand for secession. The question of secession had
arisen in consequence of a statement by the Johore Crown Prince to the effect that
if the agreement made when Johore joined the Federation is breached Johore may
withdraw.
This had indeed generated
considerable but cautious reaction because the statement was made by the Crown
Prince. Since the issue of secession was raised by the Crown Prince it must be
assumed that nothing said, discussed would be construed as a breach of the
provisions of the infamous Sedition Act 1948. Besides, the Sedition Act itself
provides that it would not be seditious if the words spoken (or written) or
discussed are in the best interest of the Ruler (Rulers).
It would therefore be necessary to
look into the constitutional provisions delineating the powers of the State and
of the Federal Government to pass laws.
The legislative powers have been
distributed in such a way that under Article 73 of the Federal Constitution,
(a) Parliament may make laws for the whole or any part of the Federation and
laws having effect outside as well as within the Federation; and (b) the
Legislature of a State may make laws for the whole or any part of that State.
In the light of this particular provision it could be safely said that only the
State legislature could demand secession.
Assuming a political party in a State
decides to secede from Malaysia, legally speaking it should get sufficient
numerical support in the State legislature to pass a law to break away from the
Federation. There seems to be no impediment to this form of approach. In
embarking upon a call for secession various factors need to be considered:
would the Federal Government agree to such a course? If it does not agree what
could be the repercussion? Could a State unilaterally declare Independence
(UDI) just as Rhodesia (now Zimbabwe) did?
Or, would the Federal Government
agree to hold a referendum in the State seeking secession to ascertain or
verify the wishes of the people as to whether they want to secede or remain in
the Federation. This could be cumbersome procedure and taking into
consideration of the people’s attitude, their mindset, and their non-exposure
to hard political realities coupled with the fact that racial and religious polarization
had reached the peak, any campaign towards secession could pit one race against
the other, one religion against another or others. We cannot deny that such a
referendum and the campaign thereof could be an acid test.
Solution!
It could be surmised that the framers
of the Constitution had deliberately omitted the thorny issue of secession.
This could be due to the confidence they had had in their mind that any dispute
could be resolved through effective form of mediation or through judicial
approach. It is this confidence that led to the incorporation of provisions in
the Constitution to enable the judiciary to adjudicate any dispute that may
arise between the State and the Federation or between States.
Should any State feel aggrieved by
the conduct of the Federation it is always open for that State to seek redress
in the Court; or, if a breach had occurred in the compliance of the
Constitutional provisions applicable to a State, relief could be had from the
Court. In this context Article 128 of the Federal Court could be invoked which
provides that the Federal Court to the exclusion of any other court shall have
jurisdiction to determine disputes on any question between the States or
between the Federation and any State. Section 81 of the Courts of Judicature
Act 1964 complements the aforesaid Constitutional provision. It could be safely
said that secession is not a solution as the Constitution indeed provides a
course to resolve disputes arising between States as well as between States and
the Federation.
Constitutional
Court:
At this juncture it would seem appropriate
to consider creating a Constitutional Court which should have exclusive
jurisdiction to hear cases involving the interpretation of the Constitutional
provisions and the implementation thereof. In establishing the Constitutional
Court it should be ensured that the judges are well-versed with the Malaysian Constitution
and also Constitutions of the other countries with identical provisions. Most
importantly these judges should respect the spirit of oath under the
Constitution.
Date: 27 October 2015 K.Siladass
