Penang a federal territory? Impossible, says constitution expert

Gurdial-Singh-NijarGEORGE TOWN: It is impossible to make Penang a federal territory given what is stated in the Federal Constitution, a law expert said.

“Actually, you can’t,” constitution expert Gurdial Singh Nijar said in reference to the recent furore over an idea from Federal Territories Minister Tengku Adnan Mansor about making Penang, Langkawi and parts of Malacca new federal territories.

Article 1(2) states that Penang is one of the 13 states in the federation, and Article 2 states that even merely altering the boundaries of any state requires consent of that particular state and the Conference of Rulers.

While the federal government can possibly carve out some territory within a state to be ceded and made a federal territory, as in the case of Kuala Lumpur and Putrajaya, which were part of Selangor, and Labuan island that used to belong to Sabah, it cannot take an entire state.

“You cannot just take over a state. There is no provision for that,” the former Universiti Malaya law professor told FMT.

“The state and its institutional governance structure is prescribed by the constitution itself. You cannot change that. It’s the basic structure mandated by the constitution.

“There are also prescribed functions of state jurisdiction. The state has exclusive jurisdiction in matters like land tenure, which even the federal government cannot interfere. You can’t change anything on this exclusive list without state consent,” he said.

States have power over matters not listed in the Ninth Schedule of the Federal Constitution, which details the specific responsibilities of the federal and state governments. States can make their own laws on matters such as land tenure, Islam and local government.

“Also, the federal government cannot alter the state boundaries without the state legislature and the Conference of Rulers’ consent. The same applies if the federal government wants to carve out a territory within the state,” Gurdial said.

He said the constitution could not be amended to make Tengku Adnan’s idea possible because it ran counter to the fundamental structure of a federal-type constitution.

“Even if Barisan Nasional was able to win back Penang through the general election, it still would not be possible to cede the entire state to make it a federal territory.

“There are things even a ruling government cannot change.”

Gurdial said the idea of making Penang a federal territory and dismantling its entire structure was “so preposterous”, describing it as an “immature, not well-thought out comment”.

Tengku Adnan spoke of the idea of turning Penang, Langkawi island in Kedah and parts of Malacca into federal territories during a radio interview with business station BFM last week on the occasion of FT Day, which fell on Feb 1. He has been heavily criticised since by the Penang government and opposition MPs.

On Saturday, he reportedly said the idea was to help the Malays in Penang, whom he claimed were sidelined by the opposition-led state government. Yesterday, he said the prices of homes would be more affordable if Penang were to be made a federal territory.

Shallow argument

Ilham Centre executive director Mohamad Hisommudin Bakar said although it was true that federal territories did have some economic and social advantages, Tengku Adnan’s argument that the Malays in Penang were sidelined by the administration was “shallow”.

“If Malay development and success are the yardsticks for making an Unfederated Malay State (Negeri Tidak Bersekutu) a federal territory, surely these will be measured in the existing federal territories. Are Malays completely taken care of in Kuala Lumpur, Labuan and Putrajaya?

“Isn’t a proposal to protect a certain race a statement with racist elements? Surely it is not good to have a minister, who should represent all races, say such things,” he told FMT.

Hisommudin said Tengku Adnan’s proposal was entirely a political statement meant to serve Umno and BN’s interests, and could be seen an a “last attempt” to neutralise the influence and dominance of DAP’s politics in Penang.

“When there is no state legislative assembly, they can wipe out DAP from the state. They can stop DAP from advancing and prevent the opposition from spreading its influence.

“They may be thinking they can curb the political and economic strength the DAP has obtained through the administration of Penang. Under federal rule, projects and tenders will be controlled by the federal territories minister,” he said.

In Malaysia, states are headed by sultans or governors, and governed by state governments. In a state election, which most times coincides with the general election, citizens elect assemblymen, who form the state legislature assemblies, which make local policies.

The state governments are led by a chief minister (in Penang, Malacca, Sarawak and Sabah) and menteri besar (in states with sultans) from the majority party in their respective state assemblies.

The present federal territories are governed by the federal territories ministry, with Parliament making all their policies.

Each territory is represented by MPs in the Dewan Rakyat and appointed senators in the Dewan Negara. The local governments there are also federal-controlled, such as the Kuala Lumpur City Hall, Putrajaya Corporation and Labuan Corporation.

Historically, Kuala Lumpur, the former state capital of Selangor that became the national capital in 1948, was the first federal territory in Malaysia.

In Feb 1, 1974, Kuala Lumpur was ceded from Selangor and put under direct federal rule as a federal territory after BN lost its majority in the state in the 1969 general election that saw the May 13 racial riots.

The government at the time feared that the federal and Selangor governments would clash as they were led by opposing parties if Kuala Lumpur stayed a part of the state. The impact of yielding Kuala Lumpur to the federal government was BN securing Selangor until the 2008 general election.

Labuan island, formerly part of Sabah until it was ceded in 1984, serves as an offshore financial centre, while Putrajaya – ceded by Selangor in February 2001 – functions as the administrative capital of the federal government.