Legal effect of the laws of Sabah and Sarawak passed or made before Malaysia Day necessitates looking into the Federal Constitution and Malaysia Act 1963 — Hafiz Hassan

The legality of detention orders made under laws passed before Malaysia Day in Sabah and Sarawak requires an examination of the Federal Constitution and the Malaysia Act 1963. In the case of Re Datuk James Wong Kim, the Federal Court in Re Datuk James Wong Kim, Minister of Home Affairs, Malaysia & Ors v Datuk James Wong Kim Min [1976] held that a regulation under the Preservation of Public Security Regulations (PPSR) could not lawfully order a detainee to be detained outside the state at the time of the order.

This decision was unanimous, with each judge delivering a separate judgment. Lord President Suffian explained that before Malaysia Day, the Sarawak legislature had the power to make laws on internal security, but the detaining authority could not order a person detained outside Sarawak. After Malaysia Day, Sarawak became a member state of Malaysia and internal security fell under the federal jurisdiction.

However, the laws passed before Malaysia Day were saved by Section 73 of the Malaysia Act, which deemed them to have effect according to their tenor within Sarawak only. This means that any law passed before Malaysia Day on matters that became the domain of Parliament after Malaysia Day continues to have effect only within Sarawak.