no excuse not to pay ia.in the way of Formation of Malays

Unlikely entitlement still binding Published on: Wednesday, July 22, 2015 Email to a friend Printer Friendly Kota Kinabalu: Former Chief Minister Tan Sri Harris Salleh believes it is unlikely that the 40 per cent entitlement is still legally binding based on his association with both Federal and State governments during his 50 years of public life. "What may have transpired was that the payment of 40 per cent was based on any increase of revenue from the 1963 collection. And it may be that this provision is only limited to a period of 10 years from Malaysia Day. "This limitation is applicable to many provisions in the Federal Constitution including immigration power given to Sabah which was only valid until 1974 or 10 years," he said in a statement, Tuesday. According to Harris, there was a requirement that within 10 years from Malaysia Day there must be consultations between Federal and State Government as to whether to extend these provisions. "As far as I can recollect there was no consultation on the immigration provision. It is being carried on as nobody is prepared to stir the hornet's nest," he said. Harris said the 10th Schedule of the Federal Constitution was clearly written in simple English. In all fairness, there is no need for a committee to look into this issue since it was straight forward, he said. "Clause 2 of the 10th Schedule under Part IV ("Special Grants to States of Sabah and Sarawak") reads as follows: 2.(1) In the case of Sabah, a grant of amount in each year to two-fifths of the amount by which the net revenue derived by the Federation from Sabah exceeds the net revenue which would have been so derived in the year 1963 if —- (a) The Malaysian Act had been in operation in that year as in the year 1964; and (b) The net revenue for the year 1963 were calculated without regard to any alteration of any tax or fee made on or after Malaysia Day, ("Net revenue" meaning for this purpose the revenue which accrues to the Federation, less the amount received by the State in respect of assignments of the revenue). The only issues to be resolved here, he said, are: • Why the Federal Government stopped payment after 1974, i.e. 10 years after Malaysia Day, • Whether the 10th Schedule had been amended or revoked, • Whether the provision lapsed after 10 years of Malaysia Day, • If it can be ascertained that Sabah is entitled to the 40 per cent, what is the amount, and • What options does Sabah have if Sabahans think Sabah is entitled but the Federal Government thinks otherwise. Can Sabah sue the Federal Government? Once these issues are established one way or the other, then the normal course of action should take place. On the other hand, if Sabah's entitlement is beyond doubt legally, all that is needed is for the Sabah State secretary to write to the Chief Secretary of the Federal Government requesting for the payment of 40 per cent, backdated to 1975 for RM100 billion [estimated] – which is a lot of money for Sabah, he said. He said on the other hand if the 10th Schedule is no longer legally binding then it is only fair to inform the people of Sabah accordingly. "If it is still binding then all the 10 Chief Ministers including myself must be cursed by Sabahans for failing to claim Sabah's rights. If Sabahan politicians are unwilling to demand payment from the Federal Government, Sabah has some high powered civil servants like the Attorney General and Treasurer General," he said. Harris said the revelation at a Seminar on Public Diplomacy recently that the Federal Government is legally committed to pay Sabah 40 per cent of any revenue derived (collected) from Sabah from first day of the formation of Malaysia must be a "windfall from heaven" that will send Sabahans into the astrosphere of financial excitement. A delegation met the Prime Minister on July 15 on this issue, indicating the importance of the legal standing of the payment as specified in 10th Schedule of the Federal Constitution. "It was also mentioned that the Federal Government had stopped payment of 40 per cent in 1974. The 40 per cent payment has stopped for 40 years. Both the Federal and State Governments have not raised or discussed this payment. "No one has produced a reason for the action of the Federal Government to stop payment. Basing on the conclusion of the seminar and after 40 years it would appear that all the Chief Ministers from 1963 to the present day – a total of 10 Chief Ministers or State Governments must be either ignorant of the Federal Government's legal obligation to pay 40 per cent of the revenue generated in Sabah to Sabah. "Maybe these past Chief Ministers are simply not sufficiently conversant with the English Language," he said. Harris said with the exception of late Tun Mustapha, late Tun Said Keruak, Tun Sakaran Dandai and himself, all the other six Chief Ministers namely Tan Sri Joseph Pairin Kitingan, Datuk Osu Sukam, Datuk Seri Yong Teck Lee, Tan Sri Bernard Dompok, Tan Sri Chong Kah Kiat and Datuk Seri Musa Aman are highly qualified professionals like lawyers, economists and others. "Yong, who was an important member of the panel, did not produce a reason as to why he did not make the claim for payment of this 40 per cent when he was Chief Minister. "If indeed it is true that the Federal Government has to pay the 40 per cent to Sabah, why have these 10 Chief Ministers failed to demand payment? It is quite puzzling. "It is a lot of money that Sabah can receive under Schedule 10 of the Federal Constitution – Sabah could have received extra billions of Ringgit for our economic development," he said. The Seminar on Public Diplomacy organised by the Foreign Ministry with the Universiti Malaysia Sabah was attended by high profile people over two sessions. In the first session, constitutional lawyer, Edmond Bon claimed that Sabah is entitled to 40 per cent of the total revenue derived or collected by the Federal Government, which the Federal Government did not pay to Sabah for 40 years. But Harris said that one of Bon's glaring omissions was that he failed to mention items to be included in the calculation of the 40 per cent. In the second session, Bon had said that he had gathered eight lawyers to undertake a study and, if necessary, to claim and submit legally on the issue of 40 per cent of the revenue as enshrined in Schedule 10 of the Federal Constitution. This issue was then raised to the Prime Minister. The meeting with the Prime Minister included high power opposition personalities like Star Reform Party Chief Datuk Dr. Jeffery Kittingan, former PKR Tuaran Chief Ansari Abdullah, Zainal A Jamain, Secretary General of Parti Kerjasama Rakyat and Bon himself. It was reported that the Prime Minister agreed to form a special committee to study the issue as to whether Federal Government is legally committed to pay Sabah 40 per cent of the revenue it has collected. HARRIS said there was no need for a committee to look into the payment of 40 per cent, but a committee is required to review all aspects of the "marriage" between Sabah and Malaysia. He suggested that the committee look into the disparity of control among the 11 states. "There are many controls appearing only to have been imposed by Sabah and Sarawak over Malaysians coming from the other nine states. The people of Sabah can work, and Sabah lawyers can practise in the other nine states but Sabah does not reciprocate," he said. At the same UMS seminar, the rights of Sabah within the framework of the 20 points and the Malaysia Agreement were also brought up. "What has not been emphasised in the same seminar is the undisputed fact that the Malaysian Constitution is supreme. The Malaysian Constitution is the operating law that governs, among other things, the relationship between the Federal Government and State Governments, including Sabah. "If there is anything that Sabah is unhappy about, Sabah has 26 MPs who can bring the issues up to Parliament. When Malaysia came into existence, the Malaysian Parliament became supreme and takes precedence over the 20 points and/or the Malaysian agreement. The 20 points and Malaysia Agreements are not laws. "If Sabahans feel strongly that the Federal Government has shortchanged Sabah in anything under the 20 points or the Malaysian Agreement, our MPs should fight to protect our rights and for these to be incorporated into the Constitution or in an Act of Parliament. "Persistence in harping on any unhappiness under the 20 points or Malaysia Agreement will not be productive or help us. Our MPs, whom we have elected to represent us in Parliament as well as "protector of Sabah's rights", must fight and protect our interest in Parliament – this is the right venue to fight for our rights," Harris said. "Then there are also the continuous claims that Sabah has been shortchanged of Sabah's rights. So far the nine states never claim that over 300,000 Sabahans working in their states are taking away jobs from their people. 300,000 is quite a staggering figure. "This also proves that Sabahans prefer to work in these nine states rather than working in Sabah. "Why? Because they can enjoy many things that are better in the other states than working in Sabah, like better working conditions, higher salary and conducive living. "There may be more Sabahans seeking jobs in other states than other Malaysians working in Sabah," he said. On immigration, Harris said the Berjaya Government extended welcome to all Malaysians to Sabah to work or conduct businesses. "Has Sabah been overwhelmed by other Malaysians in the last 50 years? The answer is no. West Malaysians working or staying in Sabah up to the present time is only estimated to no more than 20,000. "These 20,000 are mostly "towkeys" or businessmen and professionals. They are not working as rubber tappers or lorry drivers depriving Sabahans of jobs," he said. A number of leaders are still expressing their unhappiness on Sabah Rights and Immigration but they forgot or simply chose to ignore that the other nine states within Malaysia also have their rights too. "Let it be known that some organisations and leaders in these nine states are now actively considering asking Parliament to give them same power as those given to Sabah and Sarawak on immigration. "If Parliament agrees to give them the power of immigration controls, this will mean that the 300,000 Sabahan workers must apply for work permits. This will cost money and time. "Nevertheless, if the nine states refuse to give work permits to the 300,000 Sabahans they have to come back to Sabah to seek for work. What employment can Sabah offer to these returning Sabahans?" he asked. Of course the "tit-for-tat" situation is unlikely to happen, he said, adding that the people of the other nine states will simply just accept whatever Sabahans say or action until such time when they became unbearable.