Thursday, October 29, 2015

Secession can destroy foundation of federation

K Siladass   


COMMENT We have seen that secession in the form of expulsion has indeed taken place, as in the case of Singapore, and that it was initiated by the federal government, with the move not objected to by the other states in the federation of Malaysia.
We have also seen that the federal constitution is silent on secession. The state constitutions, too, have no provisions that can effectively be invoked to seek secession.
This leaves us with the point as to whether secession is a topic that can be canvassed, notwithstanding the fact that it is a question that raises more questions than provides answers.
Generally speaking, secession should not be an issue for discussion because it can destroy the very foundation of the federation.
The political scenario in the late 40s, following the return of the British (after the Japanese Occupation) and the role played by the Malayan Communist Party are worth recalling. There had been calls, too, 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.
Secession can be an act against the state
The Sedition Act 1948 was used to quell freedom of speech in Malaya 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 bosom love, respect and veneration, which cannot be one-sided and they have to be reciprocated with a benign attitude and rational approach in everything the rulers do.
Apart from the Sedition Act, Section 121 of the Penal Code provides that waging or attempting to wage war or abetting the waging of war against the Yang di-Pertuan Agong, a ruler or Yang di-Pertua Negeri is an offence. We cannot ignore a situation when the attorney-general would construe a call for secession as an attempt to wage war against the Yang di-Pertuan Agong.
It can 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, and 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 a 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, who is entitled to make a call or demand for secession?
The question of secession had arisen in consequence of a statement by the Johor Crown Prince Tunku Ismail Sultan Ibrahim (photo) to the effect that if the agreement made when Johor joined the federation is breached, Johor 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 or 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 (or 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 can safely be said that only the state legislature can demand secession.
Assuming that 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, 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 a cumbersome procedure and, taking into consideration the people’s attitude, their mindset and their non-exposure to hard political realities, coupled with the fact that racial and religious polarisation have 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.
And, for the 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 an effective form of mediation or through the 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 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 constitution 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.
Setting up a Constitutional Court
At this juncture it would seem appropriate to consider creating a Constitutional Court with the exclusive jurisdiction to hear cases involving the interpretation of the constitutional provisions and their 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.

K SILADASS is an advocate and solicitor in practice.


Read more: https://www.malaysiakini.com/news/317622#ixzz3pxmlBccc

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