Thursday, October 29, 2015

Secession - an overt action of a state to get out of a federation

K Siladass 


COMMENT 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.
Secession is different from partition, which means division of a country into separate autonomous nations. A classic example would be the Republic of Ireland, which was carved out of 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 Pakistan and became the independent nation of 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.
Singapore wanted to remain as part of Malaysia, but the federal government under the leadership of the then-prime minister Tunku Abdul Rahman Putra (photo) 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 break-up 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, prompting the affected state to demand secession.
Unfair treatment - not being treated as equal partner, or the federal government favouring 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 with 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.
The Malaysian Constitution and secession
However, 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 Constitution of the Federation of Malaya, which came into effect on Aug 31, 1957, does not state 'secession'. There is also no reference to secession under the Federal Constitution of Malaysia, which was created by the successful merger of the states of Malaya, Singapore, and the Borneo Territories on Sept 16, 1963. However, since Singapore was expelled on Aug 9, 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.
Singapore’s expulsion cannot be a precedent
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 that a state can also 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, 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. Then, 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 cannot secede, it follows that none of them can 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 the other states. We cannot forget the idiom: what is good for the goose is also good for the gander.
Tomorrow: Part II - Can secession be canvassed as a topic in the country?

K SILADASS is an advocate and solicitor in practice.


Read more: https://www.malaysiakini.com/news/317437#ixzz3pwl8w1dI

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