Veto Power for East Malaysia in Dewan Negara: a realistic pathway to realize spirit of MA63 and strengthen Malaysia’s federalism

Joint Statement by Sarawak ROSE, BERSIH, ENGAGE and Tindak Malaysia
September 21, 2024

Rise of Social Efforts (Sarawak ROSE), Coalition for Clean and Free Elections (Bersih), Engage and Tindak Malaysia supports the call for Sarawak, Sabah and Labuan to be given more than one-third of Senatorial seats.

A specific proposal, ‘Dewan Negara 35/100’ was made by Project Stability and Accountability for Malaysia (Projek SAMA) on Malaysia Day and has received mixed reception.

We see the demands for over-representation of East Malaysia in Dewan Rakyat and Dewan Negara as two closely-linked but separate issues that deserve detailed scrutiny and rational deliberation.

Our full position is as follows:

MA63

1. Discussion on how Malaysia’s federalism can be enhanced should be done inclusively, respectfully, factually, and honestly, without assuming ill intent of opposing views. We should acknowledge the context and considerations embedded in historical documents in the formation of Malaysia, which include the Cobbold Commission Report in 1962; the Inter-Governmental Committee Report (IGC Report) in 1962; the Malaysia Act 1963 (UK); the Malaysia Act 1963 (Malaysia); the Malaysia Agreement 1963 (MA63); the Supplementary Agreement to the Malaysia Agreement 1963, the Constitution of Malaya pre-1963 and the Constitution of Malaysia in 1963.
2. In enhancing Malaysia’s federalism, MA63 should be the floor, not the ceiling. We should aim to achieve the aspirations in MA63 and be prepared to go beyond MA63 on matters that receive consensus support across the South China Sea.

Bicameral Parliament in Federalism

3. It is a common practice for federations to have a bicameral parliament. The Lower House is to be elected on the principle of equality amongst citizens – “one person, one vote, one value” (OPOVOV) – and exclusively tasked with government formation, functioning like the accelerator in a car. Functioning as the guardian of state interests and the brake to force deliberation, the Upper House is often elected on the basis of equality amongst states (hence over-representing less-populated states) and even over-representation of special states.
4. Sarawak and Sabah voters form 17% of the national electorate, and already enjoy 25% of seats in the Dewan Rakyat. Further increasing it to 35% is worsening malapportionment and violating international standards of OPOVOV. Veto power achieved in this way is less democratic, and less likely to be realized due to political objections. There is another more realistic way to achieve veto power for Sarawak and Sabah.

Senatorial Reform and East Malaysia’s Veto Power

5. Malaysia’s feeble and unelected Dewan Negara is a weak link in our federalism that requires reform, on both having elected members and expanding states’ representation. While the Malayan Senate started with 22 state representatives and 16 federal appointees, Article 45(4) of the 1957 Federal Constitution also provided an easy pathway, by way of a parliamentary act without constitutional amendment, of having a Senate entirely consisting of elected state representatives, up to three per state.
6. Regrettably, the MA63 did not enhance the states’ power on the Article 45(4) pathway to create a veto bloc for Sabah, Sarawak and Singapore. Instead, as the number of state representatives was increased from 22 to 28 with Senators from Sabah, Sarawak and Singapore, the federal non-geographical appointees were also increased to 22 in 1963, and eventually 40 in 1978. Today, 44 federal appointees (including two representatives for Kuala Lumpur and one each for Labuan and Putrajaya) outnumber 26 state representatives in the 70-member Senate.
7. Dewan Negara enjoys the same power with Dewan Rakyat in three aspects: (a) two-third passage of all members in both Houses is necessary for ordinary constitutional amendments, generating the veto power of either House [Article 159(3)]; (b) both Houses may initiate laws [Article 66(2)]; (c) members of both Houses can be appointed as Ministers or Deputy Ministers [Articles 42(2)(b) and 43A(1)].
8. However, Dewan Negara can only delay – not veto – financial bills passed by Dewan Rakyat for one month and non-financial bills for one year. In the current status quo, the Senate’s lack of veto power are conditionally justified by the fact that Senators are not directly elected and have no popular mandate. Not allowing Dewan Negara to defeat budgets and potentially cause governments to collapse is also not unjustified to prevent budget deadlocks or frequent changes of government.
9. Instead of cynically labelling Dewan Negara as “rubber stamp”, Malaysians should remedy its peril by realising the reform which the constitutional drafters in 1957 had prepared its pathway in Article 45(4): an entirely elected Dewan Negara, which can legitimately vie for equal power as Dewan Rakyat to act as check and balance except for defeating budgets and ousting governments. Such extensive reform of course requires detailed deliberations which may take years.
10. The veto power for East Malaysia in Dewan Negara can even be established before the 16th General Election (GE16) by simply amending Article 45(1) to add senatorial seats for Sabah and Sarawak. The exact proportion of East Malaysian senators may be negotiated and decided upon cross-party consensus.
11. As both the existing and additional Sabah and Sarawak senators would be elected by the State Legislatures (effectively appointed by the State Governments) under the existing structure, they can collectively vote down any constitutional amendment that undermines the interests of East Malaysians, thereby effectively guaranteeing the right to veto by Sarawak and Sabah to safeguard their collective interests.
12. We therefore call for Dewan Negara, both government and opposition parties to study and discourse the best proposal to give East Malaysia veto power with Senatorial seats exceeding one-third before GE16.

Inter-State Apportionment for Dewan Rakyat

13. An honest scrutiny of MA63 finds no evidence that MA63 provided for one-third parliamentary seats for Sabah, Sarawak and Singapore such that Sabah and Sarawak should inherit Singapore’s share upon the latter’s exit in 1965.
14. Representation in the Federal Legislature was brought up to and discussed by the Cobbold Commission, and it recommended for the Election Commission to take into account the population of the territories, the size and their distances from the centre and the difficulty of communications in allocation of seats.
15. The IGC report and the MA63 only stated the allocation of seats for the four regions in the new 159-member Federal Parliament: Malaya, 104 (65.4%), Sarawak, 24 (15.1%), Sabah, 16 (10.0%) and Singapore, 15 (9.4%). As recommended in the IGC report, Article 161E(2)(e) of the Federal Constitution provides for the freezing of Sarawak’s and Sabah’s parliamentary representation at 15.1% and 10.0% respectively, but only for seven years up until the end of August 1970.
16. The ‘seven-years’ temporary arrangement underlines the fundamental flaw of Article 46, which allows Parliament to arbitrarily allocate seats to the states and federal territories without being bound by any formula of demographic and electoral weight. Cyclical increases of parliamentary seats, in four rounds from 1974 to 2005, have resulted in greater inequality between states. In the 15th General Election (GE15), a Selangor MP represented 167,175 voters in average, 2-3 times the average voters of his/her counterparts in Pahang (81,210 voters), Sabah (67,575) and Sarawak (62,680).
17. More problematically, as Dewan Rakyat is tasked with government formation, a 35% over-representation for the 17% East Malaysian voters means that a simple majority government can be formed with all East Malaysian parliamentarians and a mere 16% more West Malaysian parliamentarians. That would be effectively an electorally minority-backed government with majoritarian power. Such scenario is likely a recipe for political chaos that all Malaysians cannot afford to endure.
18. As advocates of clean, free and fair representation, we cannot in good conscience support even greater deviation from the “one person, one vote, one value” (OPOVOV) principle. Correction of historical marginalisation of East Malaysia in the past 61 years should be done through decentralisation and a senatorial veto-power.

Create the most viable path to achieve veto power for Sarawak and Sabah

19. Advocates of ‘Dewan Rakyat 35%’ risk putting all their eggs in one basket, which is unlikely to be realized by GE16 as the proposal would need to go through three stages:
    a. A consensus within the Madani Government on the allocation of seats for all states and federal territories (not just Sabah and Sarawak) in Article 46;
    b. The constitutional amendment in parliament which would be scrutinised by the Opposition; and
    c. Constituency delimitation which starts immediately after amendment of Article 46 but may take two years to complete.
20. Unless newer and more concrete proposals are mooted, the sole proposal so far is by Datuk Roger Chin, former President of the Sabah Law Society, to retain Dewan Rakyat’s 222 seats but transfer 21 seats from West Malaysia to Sabah and Sarawak. No Malayan states would willingly concede their seats, thereby making the realization of Sarawak and Sabah’s veto power to be contentious, acrimonious and unlikely to materialize.
21. This all-or-nothing approach is detrimental to prospects of achieving veto power for Sarawak and Sabah. By contrast, a simple addition of senatorial seats to Sarawak and Sabah can result in an immediate attainment of veto power in a prospectively elected and empowered Senate, which will also simultaneously strengthen Malaysia’s federalism in the long run.

By,
Rise of Social Efforts (ROSE)
Coalition for Clean and Free Elections (BERSIH)
ENGAGE
Tindak Malaysia