KUCHING: It is a fact of life in Sarawak that there are many mixed marriages between the natives and non-natives (Bumiputera and non-Bumiputera).
The downside has been that children in such marriages have, for a long time, not been recognised as natives, and thus denied certain privileges including inheriting their native customary land. To be specific, this has been the case for over 58 years.
Fortunately, this is now a thing of the past after the Constitution (Amendment) Bill 2022 (Act A1642) which includes the amendment of Article 1 (2), Article 160 (2) and Article 161A (6) and (7) of the Federal Constitution came into force from last Feb 11.
Under the amendments, the native status of people in Sabah and Sarawak will no longer be decided by the federal government but instead by the Sabah and Sarawak governments through their respective constitutions.
In the recent State Legislative Assembly (DUN) sitting, 12 more indigenous groups, namely, Bagatan, Bakong, Bemali, Berawan, Dali, Lakiput, Jatti Miriek, Narom, Sa’ban, Tatau, Tring and Vaie were recognised as native races of Sarawak. They were included in the Interpretation (Amendment) Bill 2022 which was unanimously passed on Feb 15.
New Sarawak Tribune in an exclusive interview spoke with Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar, who is one of the very important figures behind the historic amendment.
Could you explain the background of Article 161(a) Clauses (6) and (7) of the Federal Constitution?
When Malaysia was established in 1963, we had two separate groups namely the Bumiputera and non-Bumiputera communities. In Malaya, there are the Malays and non-Malays while in Sabah and Sarawak there are natives and vice-versa.
When amendments were made to the then Federal Constitution in 1957, there were two framework clauses included for Sarawak natives in Article 161(A) clauses (6) and (7). Clause (6) states that only marriages between the listed Sarawak Bumiputera ethnic groups produce Bumiputera children. Say, if an Iban marries a Malay their children are Bumiputera. This has implications because the definition is very limited.
Clause (7) only lists 23 Bumiputera groups in Sarawak such as Malay, Iban, Bidayuh, Kenyan, Penan, Melanau and so on. Perhaps the opinion of the people at that time was to preserve the descendants of the indigenous people of the state. The enactment ultimately affected the generations born in mixed marriages after 1963.
Initially, the proposed amendment was for Clause (6) only, but our in-depth study found that the list in Clause (7) also needs to be amended as the list of 23 races was made in 1963. As of September last year, it was acknowledged that there are over 70 ethnic groups in Sarawak.
After further discussions will all MPs, cabinet ministers and Chief Minister Datuk Patinggi Tan Sri Abang Johari Tun Openg who unanimously agreed, I brought the matter to Kuala Lumpur at the Special Committee Meeting on Constitutional Amendment chaired by the Attorney General of Malaysia together with Attorney General of Sabah and Sarawak.
Why is it important to amend Article 161(a) clauses (6) and (7)?
Because of the amendment, the definition of indigenous race is no longer provided for by the Federal government. The determiner of the native status of people in Sabah and Sarawak now lies in their state constitutions.
Before this, only children of Sarawak indigenous couples such as Iban and Malay spouses or mixed marriage between indigenous people such as an Iban married to a Malay were recognised as Bumiputera. However, children from marriages of indigenous people and other races such as Chinese or Sarawak natives with peninsular Malays are not considered Bumiputera.
The recognition is now given to Sarawak children with mixed parentage even though only one parent is native as per the Interpretation (Amendment) Bill 2022 which was passed during the recent DUN sitting. The amendment thus solves many serious legal problems affecting children of mixed marriages including the issue of inheritance and transfer of land ownership.
What were the challenges?
We wanted the matter to be amended together with Article 1 (2) and Article 160 (2) of the Federation Constitution as agreed upon in the Malaysia Agreement 1963 (MA63) when Sabah, Sarawak and Malaya formed Malaysia as equal partners.
This is why when the Pakatan Harapan (PH) government tried to amend Clause (2) of Article 1 of the Federal Constitution in 2019, Gabungan Parti Sarawak (GPS) did not support the Bill as it was incomplete and did not bring benefits to Sarawak unless the definition of Federation was amended.
After being appointed to my current portfolio, I took the matter to Parliament despite having to go through many stages. This was a first during my time as a minister in that I conducted more than 30 engagement sessions with various parties including MPs, attorney generals, and political parties to gain support for important amendments to the Bill to restore the rights of the people of Sabah and Sarawak.
I also thank Prime Minister Datuk Seri Ismail Sabri Yaakob for establishing a memorandum of understanding (MoU) between PH and the government for the approval of this amendment to the Federal Constitution.
As a result, the Constitution (Amendment) Bill 2022 for amendment of Article 160 (2) and Article 161A (6) and (7) of the Federal Constitution was passed in the Dewan Rakyat on Dec 14 last year with the support of 220 MPs or 100 per cent. In the Dewan Negara, support was given by 49 MPs on Dec 23 last year.
How was the role of the GPS state government in this?
This amendment would not have been successful or gone smoothly without strong support from the state government. The inspiration and start of the amendment were initiated and driven by Sarawak.
There was a chronology of our meetings and engagement sessions. For instance, on Sept 25 last year Chief Minister Datuk Patinggi Tan Sri Abang Johari Tun Openg together with all GPS members held a meeting in Kuala Lumpur. This was followed by a meeting of the Rakan Sekutu on Oct 11, discussions with Abang Johari in Kuching on Oct 11 and then a nearly three-hour meeting for the MA63 Special Council which was also attended by Minister in the Prime Minister’s Department (Sabah and Sarawak Affairs) Datuk Seri Dr Maximus Ongkili and chaired by the prime minister on Oct 18.
It has always been one of the main focuses of the GPS government to fight for matters related to MA63 to restore the sovereignty and rights of Sarawak as enshrined in the Federal Constitution. This was not only about the MA63 but also the 1962 Intergovernmental Committee (IGC) Report.
Now that the amendment has come into force, how do you feel about the achievement?
I feel elated and pleased not only personally but as the minister in charge. We have managed to achieve what was raised by the late Tok Nan (former Chief Minister Pehin Sri Adenan Satem). He started the efforts to demand the state’s rights and privileges as written in the MA63.
With the amendments, it will not be too hard for the Bornean states to negotiate with the federal government according to their rights as promised during the formation of Malaysia. It is now up to the Sabah and Sarawak governments to take follow-up actions.
It gives me great satisfaction to hear and see the people’s reactions to the amendments. Many Sarawakians, especially those in mixed marriages, have expressed their gratitude and appreciation to me.
What are your hopes from here on?
I hope that the federal and state governments will continue to hold discussions with Sabah and Sarawak to evaluate matters that must be given priority. The amendments provide a starting point for both Bornean states to discuss and list out their rights and needs as spelt out in the IGC report and MA63.
We must carefully view, examine, and discuss these matters so that the people of Sabah and Sarawak can reap the benefits of the amendments. This will be in line with the aspirations of our former leaders who fought for Sabah and Sarawak to be equal to Malaya, particularly in terms of financial allocation from the federal government.
I also have hopes about matters close to my heart such as the establishment of the Judicial Appointments Commission branch in Sabah and Sarawak as per the MA63 which provides that the governors of Sabah and Sarawak shall have jurisdiction over them.
