If laws of Sabah and Sarawak passed or made before Malaysia Day are State laws, they are subject to Article 75 of Federal Constitution — Hafiz Hassan

On the eve of Malaysia Day ten years ago, constitutional law expert Prof Dr Shad Saleem Faruqi reflected on the historical significance of Malaysia's formation. He noted that the Malaysia Agreement, signed on July 9, 1963, was more than a domestic pact; it was a binding international treaty between the UK, the Federation of Malaya, North Borneo (Sabah), Sarawak, and Singapore.

The Malaysia Act 1963, enacted by the Federation of Malaya Parliament on August 20, 1963, substantially restructured the constitutional framework of Malaya, including the amendment of 87 out of 181 Articles and 10 out of 13 Schedules of the Merdeka Constitution. Thirty-five new Articles were also inserted to grant guarantees of autonomy and a special position to Sabah and Sarawak.

However, Article 162, which dealt with the continuation of existing laws after Merdeka Day, did not include provisions for the laws of Sabah and Sarawak passed or made before Malaysia Day. This led to the question: if these laws were not considered existing laws, were they State laws subject to the Federal Constitution's Article 75?

According to Section 73 of the Malaysia Act 1963, the term "present laws" refers to the laws of the Federation, the Borneo States (Sabah and Sarawak), and Singapore passed or made before Malaysia Day. However, this does not include the Federal Constitution or any State Constitution, and the Malaysia Act 1963 itself.

Therefore, if the laws of Sabah and Sarawak were deemed State laws, they would be subject to Article 75 of the Federal Constitution. This means that if any State law was inconsistent with a federal law, the federal law would prevail, and the State law would be void to the extent of the inconsistency.