Devolution of Powers in Sarawak: A Dynamic Process of Redesigning Territorial Governance in a Federal System
[This article is in press with the Asian Journal of Comparative Law [2017:1], and will be published online in July 2017]
Devolution is a process that needs to be distinguished from federalism, even though in this case study they overlap. Federalism is an arrangement which pools the sovereignty of previously or supposedly independent entities in an arrangement that preserves the sovereignty of both federation and states within their areas of operation. It is clearly necessary to have a written constitution defining these areas and a means (usually in practice the apex court or a constitutional court) of enforcing the bargain. Devolution on the other hand is the ‘transfer of powers from a superior to an inferior political authority … involving … transfer to a subordinate elected body, on a geographical basis, of functions at present exercised [centrally]’. Federalism is thus a condition of existence usually depending on a prior bargain, whereas devolution is a process of change which does not necessarily have any defined ultimate outcome. It is quite possible, as we will see in this case study, to have devolution within a federal state, although its significance and its implementation may differ from devolution within a unitary state. In this context devolution indicates the transfer to the state(s) of powers beyond those already constitutionally reserved for exercise at the state level.
II. CONSTITUTIONAL DESIGN: FORMAL OR INFORMAL CHANGE?
Designing territorial governance is a complex and difficult task which is not simply an afterthought to centralised constitution-making: it implicates everything in the constitutional order, from the separation of powers to representative democracy and fundamental rights. Territorial governance allows for local difference and local preference; autonomy, ownership; the liberation of political and administrative energies; and the avoidance of duplicated or counter-productive efforts. Moreover, scholarly discussion of federalism and devolution, as two models of territorial governance, stresses always the need for a sense of the spirit of the enterprise, for both federal and devolved structures involve a need for deep coordination, collaboration and cooperation between different levels of government. Designing territorial governance needs to be taken therefore in the broadest sense, including potentially all kinds of devolution, subsidiarity, decentralization, deconcentration, and (crucially in this case study) delegation. Across Asia, with developmental states facing challenges of legitimacy, there are now many examples of devolved powers and redefinition of central-local relations. This is due not just to issues of identity but to the fact that local ownership of, for example, development projects, produces better results because decision-makers at the local level know more – and care more – than those higher up. In an example from Kuching referred to in the discussions, a state-funded bridge was said to have been completed more than three years before a federal-funded bridge, construction of which had been started earlier (a subtext is that in Sarawak with its many rivers and dense jungle, bridges are of supreme infrastructural importance).
Devolution recognises the logic that ownership and knowledge create incentives, efficiency, effectiveness, and the ability simply to prioritise in line with what is valued locally. That this is recognised in Sarawak was palpable in the Kuching discussions. At the same time there was a clear recognition of the fact that an issue like devolution can lead to consequential changes and chain reactions. In pursuing devolution some longer-term and even from-left-field implications of change need to be expected and carefully canvassed where possible. Reversing 50 years of understanding as to local-central relations would have impacts both in Sarawak and on Malaysia as a whole; indeed it could have geopolitical impacts given the Philippines’ historic claim to Sabah. In rejecting both secession and constitutional amendment the Sarawak policy-makers displayed an acute understanding of these issues. Whether their stance continues to satisfy public opinion in this regard, given the heightened expectations of the 2016 state elections, remains to be seen: the danger is that the result might prove too little for the electorate, and too much for the centre.
In the Malaysian context it is perhaps fortunate that the constitution-makers of 1957 and 1963 provided several methods of modifying the extent of state powers in practice without formal constitutional amendment. They recognised the need for a cooperative form of federalism. New forms of constitutional federalism may in this way be allowed to wrap around the fundamental constitutional structures, using devolution as a decentralizing mechanism. Federal constitution-makers and territorial-governance advocates are well advised to keep this in mind.
Federalism and devolution can both be designed in an asymmetrical manner. This means that powers granted to lower-level governments do not follow a single consistent pattern, but are customized to the conditions or desires of the lower-level territory or territories in question. Symmetry is generally a characteristic of federalism; nonetheless Quebec, Yukon, and Nunavut have asymmetrical powers within Canada’s federal constitution, as do Sabah and Sarawak within Malaysia’s. Devolved powers, on the other hand, do tend to be asymmetrical. Within the emerging devolved constitutional structure in the United Kingdom it can be seen that Scotland, Wales, and Northern Ireland display different models of devolution, offering a useful laboratory of recent experience. Indeed the Scottish experience, in addition to that of Quebec, had particular traction in the Kuching discussions: traction in terms of revealing what is technically and politically possible, and perhaps also legitimate, rather than offering very precisely a model to follow. For present purposes this study takes ‘devolution’ of powers in Sarawak to embrace devolution equivalent to that which might occur in a unitary (non-federal) state, or enhancement (if necessary, asymmetrically) of powers within the existing federal structure. On this basis I assume that use of the word ‘devolution’ does not actually prejudge the relevance of various ways, short of constitutional amendment, of giving more power in practice to the state of Sarawak than it currently has, and therefore a broad definition is implied. Devolution in Sarawak could, and probably will, involve statutory delegation and specific administrative procedures. For example, in education it is possible (indeed highly desirable in this instance) for the federation to delegate statutory powers to the state, and for teachers to be appointed, and curriculum changes to be made, as an administrative matter by state authorities. In this context a major policy issue is the medium of instruction in schools, which is clearly a matter closely related to the ethno-linguistic makeup of the state, having deep cultural as well as political and even economic importance. A main plank art of Sarawak’s devolution demand is to embrace English as the medium of instruction and as an official language equal in status to the Malaysian national language (Bahasa Melayu).
III THE PARAMETERS OF SARAWAK DEVOLUTION AS A CONSTITUTIONAL ISSUE
Here it is necessary to understand in general terms the position of Sarawak in the Malaysian federal system, and why issues of territorial governance arise.
The Malaysia Agreement of 1963 was an international treaty between Sarawak, North Borneo [Sabah], Singapore, the UK, and the Federation of Malaya, establishing the basis for a new, or rather amended, federal bargain. Prior to that Agreement discussions had taken place giving rise to an understanding of the modus operandi in the new structure. The Malaysia Agreement and consequent amendments to the Federal Constitution were designed to give legal effect to the new federal arrangements. Thus in Sarawak considerable attention is given to the ’18 points’ (in Sabah the equivalent is the ’20 points’) reflecting the pre-Agreement discussions, which operate in popular imagination (although not directly in law) as a kind of Bornean ‘Magna Carta’. One very plausible view of this is that over half a century these rights have been disregarded and eroded.
Space precludes detailed consideration of the history and controversy of the 18/20 Points. James Chin has summarized the key issues as follows:
(i) Islam’s status as a national religion was not applicable to Sabah and Sarawak. While there was no objection to Islam being the national religion of Malaysia there should be no State religion in Sabah and Sarawak, and the provisions relating to Islam in the Constitution would not apply to them.
(ii) Immigration control was vested in the state governments of Sabah and Sarawak.
(iv) No amendments or modification of the safeguards granted under the 20/ 18 Points could be made by the federal government without the agreement of the Sabah and/ or Sarawak government.
(v) There would be no right to secede from the Federation.
(vi) The indigenous peoples of both states would enjoy the same ‘special’ rights given to the Malay community in Malaya.
(vii) Sabah and Sarawak were to be given a high degree of autonomy over their financial affairs. They would retain control of their own finance, development expenditure and tariff.
The 18/ 20 Points do not take legal form, and seemingly cannot independently be the basis of litigation for their enforcement. Nonetheless, in the case of Fung Fon Chen the High Court in Kota Kinabalu and the Court of Appeal accepted that in principle the Malaysia Agreement could form the basis of a legal suit, even though the plaintiffs’ suit on the basis of failure to obverse the ‘Borneanisation’ provisions of the Agreement was ultimately denied by a majority in the Court of appeal on the issue of standing.
Nonetheless the 18/ 20 Points have political potential at the very least. According to Sarawak’s Legal Counsel and former Attorney-General Datuk JC Fong, devolution ‘has to be in reality, the “reclaiming” of autonomy which Sarawak ought to have as a truly “equal partner” in the federation’. In this sense devolution can, in his view, be seen as a fulfilment of the obligations under Article VII of the Malaysia Agreement to implement the above principles, which it is felt in Sarawak have not been honoured in practice. This echoes the words of the Cobbold Commission, which in recommending federalism for Sarawak in 1963 laid down the idea that the new federation was a partnership as opposed to a take-over of the new states by the federal power.
Many Sarawakians consider that the original guarantees, constitutionalized or otherwise, have been eroded or simply ignored in practice, and that the Constitution despite its guarantees has failed to prevent this happening. If the idea is literally to reclaim in the name of Sarawak autonomy lost to the centre ‘unconstitutionally’, or contrary to original agreements and understanding, then the answer to the problem is constitutional amendment. And here the implication would be that the process stops right there because autonomy according to the original bargain would have been achieved. However, to argue on the basis of history, while it has political appeal, somewhat precludes the possibility of a compete rethink in light of experience and modern conditions. The prevailing (and it is suggested, maturer) opinion in Sarawak at the official level is that approaches leading towards constitutional amendment are unlikely to produce substantial and relevant change. Having said that, it was noticed by the author that in workshop discussions in Kuching, much attention was paid to the larger issues of formal constitutionalism that are raised when devolution is discussed; in doing so one group involving the author completely and automatically disregarded the list of questions that had been ‘set’ for it to answer by the organisers, focusing instead on a number of fundamental constitutional concerns. This is an illustration of the difficulty in setting limits to devolution.
As an example, we can examine the issue of Sarawak’s parliamentary representation, wich was raised in the discussions. Originally the three acceding states were given, collectively, 33% of federal parliamentary seats, which in effect enabled them, acting together, to block constitutional amendments at the threshold, given the requirement of two thirds’ majorities in both houses to pass a bill amending the Constitution. When Singapore departed in 1965 the Singapore seats were simply discounted, and Sabah and Sarawak were left between them with around 25% of the seats, which remains the position today. As a result the only effective bulwark against adverse constitutional amendments, from a Sarawak perspective, is the state government; in other words in reality only the state’s Chief Minister stands in the way.
To make matters worse, there is a penumbra of uncertainty surrounding the issue of which amendments do actually ‘affect’ Sarawak. For example, a notorious, far-reaching constitutional amendment (to Article 121 on judicial power) affecting the judicial power and the Syariah (religious) Courts, which are state not federal courts, was passed in 1988 without reference to Sarawak. This amendment has spawned an immense literature, which does not, however, address the matter from a Sarawak perspective, and assumes the formal validity, as opposed to the problematical consequences, of the amendment. The 1988 amendment, Sarawak officials and lawyers plausibly maintain, is invalid in Sarawak due to lack of prescribed constitutional process, which requires the consent of the state government for amendments affecting Sarawak. The issue does not stop short at constitutional amendments. There may be many issues of legislation and administration at the federal level that affect Sarawak, where state consent does not even formally arise. Do such measures affecting Sarawak even have to be adverse to the state’s interests to make the constitution and federalism relevant? Federal and state officials might, one may imagine, differ on these questions. Judicial pronouncements seem to indicate that the Malaysia Agreement as well as the Federal Constitution’s provisions protecting Sarawak come into play at this juncture. But the issue is still murkily implemented in practice.
I have digressed on this issue to indicate that in the final analysis a neat and complete excision of formal constitutional questions is ultimately not, in devolution, necessarily entirely possible, advisable or supported.
For all that, there can be no doubt that, if constitutional change were contemplated, other, strategic, questions would arise. What would be the implications for Sabah, which has similar issues to Sarawak? Would a common case, or at least common cause, have to be made, and would that be possible? Indeed, what about the other eleven states? Princes of the royal house of Johor, for example, have during 2015 rattled states-rights sabres, reminding the federation of what they allege to be its ‘right to secede if their [federation] agreement is not honoured’. The echoes of a debate on constitutional change would sound differently in every part of the country. What indeed would persuade the federal government and two-thirds of the MPs that constitutional amendment was even required, particularly given the scope of existing powers as well as the devolution that is possible without amendment? Moreover, the two-thirds’ majority requirement means that opposition parties, not just the federal government (the BN coalition government has 122 seats in a 221-seat lower house), would need to support an amendment before it could be carried. If Sarawak were to propose such amendment, we can therefore envisage a very protracted debate that might well result in a negative answer. To compare, a debate about Islamic criminal laws affecting state-federal relations has been under debate publicly since the early 1990s and is still far from being resolved.
Sarawak leaders have already canvassed the problems involved in formal constitutional change. The complex nature of the constitutional politics involved makes this direction look hazardous as we have seen. In spite of this, however, the symbolic effects of change will be of great importance to many people, whichever road is taken. It did not go unnoticed even outside Sarawak, for example, that in July 2013 the Sarawak Government reenacted the ceremony ending British rule in Sarawak on the equivalent date in 1963. The implication of this is profound. It is nothing less than a powerful statement that Sarawak was originally independent, if only for a few days. This implied that Sarawak’s adherence to the federation is a matter of choice, not compulsion. It bespeaks an original sovereignty. It was also noted that the ashes of the last Rajah Muda (crown prince) of the Brooke dynasty had been returned to Kuching from New Zealand for reburial in the family graveyard at Fort Margherita on the Sarawak River. Where pride is involved, symbolism is indeed powerful. For this reason current politics indicates that devolution will need to be a real assertion of autonomy, not just some kind of efficiency gain. Unfortunately, the federal government appears to consider devolution to be an underwhelmingly modest form of administrative streamlining. One cannot help thinking that they will be forced to have second thoughts.
The question then might be, what is the best division of powers now, 50 years after the original bargain, and irrespective of that bargain? This approach is an attractive option as it is relatively easier to make practical gains looking forward compared to arguing about history. It has the disadvantage that autonomy would not be formally guaranteed, except insofar as it already is - that is, inadequately. Accordingly it should be possible to proceed with devolution in an inductive and experimental fashion. Hopefully a few years of experience under more devolved powers would persuade the federal government that pursuing flexible devolution using the Constitution’s existing provisions contains no serious danger. Further changes could then be made in the light of experience and perhaps also changing perceptions of Malaysian central-local relations more generally. Undoubtedly the experience since 2008 that several states can be governed by federal opposition parties without the sky falling in is instructive and positive, despite the existence of some political tensions arising from this situation. There is also to be taken into account the demand for a return to elected local government. This too may impact on Sarawak, even though (or perhaps because) local government is within the state’s power. If devolution is gained, one might ask, why not take the logic further, devolving power within as well as to the state? It may turn out that in unleashing and building on national sentiment in Sarawak, a large territory with much local diversity, democratic aspirations may be unwittingly encouraged go further than the present leaders have imagined. This may be one of the unpredictable consequences of devolution.
The really critical issue, however, is of course finance. Without adequate fiscal provision extra powers – even existing powers - are mere illusion. In fact more powers would quickly become a burden, not a boon. Here again the Constitution offers great flexibility, especially for Sabah and Sarawak. To this issue we now turn.
V SCOTTISH DEVOLUTION AS A COMPARATOR
In Kuching in October 2015 Scotland was seen as a totemic example of claiming and obtaining devolved powers in a (crucially) Westminster-system government within the Commonwealth. The comparison is apt, or at least of interest, if only because it was considered to be so. The differences between the two situations are of course very great, but in some respects Scotland affords some useful ideas for Sarawak and the comparison indicates that devolution has traction both in unitary states and federal systems.
First, it is important to note that the UK does not have a federal constitution, nor is its constitution written or supreme law, as is the case with Malaysia. This is important in that the UK constitution is the outcome of processes of development taking place over 800 years (these include devolution since 1999); whereas the Malaysian Constitution is programmatic, the foundation of a new nation. Fortunately Sir Ivor Jennings, who was an expert in federal systems, did such a good job that his 1957 design of federal, state and concurrent powers, as a member of the Reid Commission, has scarcely had to be tinkered with except to take account of Sarawak and Sabah’s accession in 1963.
The form of federalism embraced by the Malaysian Constitution is, as we have seen, very much an asymmetric form with regard to Sabah and Sarawak, which compares well with the UK’s asymmetric arrangements with regard to Scotland. An important consequence of the distinction between devolution within a unitary state and a federal state, as we have also seen, is that in the former situation sovereignty remains vested at the centre – in the case of the UK, with Parliament. In Malaysia’s case the Constitution is supreme and sovereignty is technically shared between the federation and the states. As indicated above, this is symbolically and constitutionally very important. There is actually an advantage here for Malaysia in the sense that in the UK there was no existing structure to work with to achieve either a process or an outcome for devolution. Devolution was achieved via special legislation and a referendum, and has been implemented via administrative ‘concordats’ and special arrangements both administrative and legislative. Of critical importance, however, for the UK, was that although there was no existing Scottish legislature or executive, there was a civil service in the form of the Scottish Office, whose functions were simply transferred to the new Scottish institutions. That the civil service for Scotland was therefore derived from that of the UK itself is without doubt a major reason for the relatively smooth devolution in Scotland’s case. This is one aspect at least from which Sarawak can learn much to its advantage. However, the clear disadvantage of devolution is that devolved powers, once given, can be taken away. For this reason, the relevance of devolution in a federal state is coloured by implications regarding sovereignty. This has not gone unnoticed in Sarawak.
There are nonetheless advantages in having a written constitution, which the UK is not able to enjoy. If that constitution is also capable of flexibility then the best of both worlds may be expected. If it is federal, then there is also no need to create new legislative or executive bodies. All that is required is to enhance the powers available and find means to sustain and check those powers. There is no need, for example, to hold a referendum on constitutional change, because processes already exist under the constitution to accomplish what is required.
Concurrent powers are extensive as applied to Sarawak under Schedule 9 of the Constitution. They include social welfare, family law including protection of women and children, national parks, physical planning, public health, water supply, and shipping.
 Andrew HARDING and Mark SIDEL, eds, Central-Local Relations in Asian Constitutional Systems (Oxford: Hart Publishing, 2015), ch.1; John HATCHARD, Muna NDULO, and Peter SLINN, Comparative Constitutionalism and Good Governance in the Commonwealth: An East and Southern African Perspective (Cambridge: Cambridge University Press, 2004), 184.
 Anthony KING, The British Constitution (Oxford: Oxford University Press, 2007), 212.
 Andrew HARDING and James CHIN, eds, 50 Years of Malaysia: Federalism Revisited (Singapore: Marshall Cavendish, 2014), 50; Andrew HARDING, ‘Will things fall apart in the Malaysian federation?’, East Asia Forum, 28 August 2015, http://www.eastasiaforum.org/2015/10/28/will-things-fall-apart-in-the-malaysian-federation/ [accessed 6 February 2017].
 Harding and Sidel, supra note 3.
 Andrew HARDING and Peter LEYLAND, Constitutional Courts: A Comparative Study (London: Wildy, Simmons and Hill, 2010).
 Peter LEYLAND, ‘The multifaceted constitutional dynamics of UK devolution’, (2011) 9:1 International Journal of Constitutional Law 251.
 The Malaysian Prime Minister has indicated hostility to the notion of secession: ‘Sabah, Sarawak secession issue non-negotiable’, The Star Online, 30 November 2014: http://www.thestar.com.my/News/Nation/2014/11/30/Sabah-Sarawak-secession-issue-nonnegotiable/[accessed 6 February 2017]. In March 2015 four people were charged with sedition for advocating secession: ‘4 charged with sedition over Sabah, Sarawak secession, report says’, The Malaysian Insider, 16 March 2015.
 Mahavera, supra note 10; Harding and Chin, supra note 6, at 184.
 ‘Hudud will be the Last Straw for Sabah, Sarawak’, Freemalaysiatoday, 6 April 2016, at http://www.freemalaysiatoday.com/category/nation/2015/04/06/hudud-will-be-last-straw-for-sabah-sarawak/ [accessed 6 February 2017].
 ‘Finer details on Sarawak’s devolution of powers in the works, says Adenan’, The Rakyat Post, 4 November 2015, http://www.therakyatpost.com/news/2015/11/04/finer-details-on-sarawaks-devolution-of-powers-in-the-works-says-adenan/[accessed 6 February 2017]; Adenan claimed, according to this report, that 45 policies have already been changed in pursuit of this devolution policy. Adenan passed away on 17 January 2017; his policies, said his successor, will be continued.
 ‘Last of the rajahs: Powerful chief minister bows out – or does he?’, The Economist, 15 February 2014.
 ‘Sabah-Sarawak to remain as BN’s fixed deposit, says local leader’, The Malaysian Insider, 11 April 2015.
 Malaysia Agreement 1963, signed 9 July 1963, between The United Kingdom, the Federation of Malaya, Singapore, Sarawak and North Borneo.
 Tan Tai Yong, Creating ‘Greater Malaysia’: Decolonization and the Politics of Merger (Singapore: Institute of Southeast Asian Studies, 2008).
 Steven RUNCIMAN, The White Rajah: A History of Sarawak, 1841-1946 (Cambridge: Cambridge University Press, 2011).
 This common understanding of the events of July-September 1963 has recently been disputed by historian Michael Leigh: ‘July 22 1963 not Sarawak’s independence day, says historian’, The Malaysian Insider, 9 November 2015.
 Andrew HARDING, The Constitution of Malaysia: A Contextual Analysis (Oxford: Hart Publishing, 2012), ch.5.
 Albert LAU, The Malayan Union Controversy 1942-1948 (Oxford: Oxford University Press, 1991).
 Harding and Chin, supra note 6, 18, 103.
 These are contained in the Federal Constitution, Part XIIA, and are discussed in detail below.
 Harding and Chin, supra note 6, 34, 154.
 Andrew HARDING, ‘Protection of the Indigenous Peoples of Sabah and Sarawak under Malaysia’s Constitution’, in Harding and Chin, supra note 6, 187; Andrew HARDING, ‘Legal Pluralism and the Constitutional Position of East Malaysia’s Indigenous Peoples: The View from the Longhouse’, in Gary BELL and Veronica TAYLOR, eds, Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of MB Hooker (Singapore: ISEAS, 2017).
 ‘Masing Wants Review on State’s Position in Malaysian Federation’, The Borneo Post, 16 November 2013.
 James CHIN, ‘Federal-East Malaysia Relations: Primus Inter Pares?’, in Harding and Chin, supra note 6, 153ff.
 Watts, supra note 1; Daniel ELAZAR, Exploring Federalism (Tuscaloosa: University of Alabama Press, 1987); Cheryl SAUNDERS, “Constitutional Arrangements of Federal Systems” (1995) 25(2) Publius 61; Cheryl SAUNDERS, “Collaborative Federalism” (2002) 61(2) Australian Journal of Public Administration 69. Elazar (at 5) refers to federalism as an arrangement ‘of partnership, established and regulated by a covenant, whose internal relationship reflects the special kind of sharing that must prevail among the partners, based on mutual recognition of the integrity of each partner and the attempt to foster a special unity among them’.
 Harding and Sidel, supra note 1, ch.1.
 ‘Philippines under Duterte to Stake Claim on Sabah Depsite Malaysia’s Warning’, Asia Times 6 June 2016, at http://atimes.com/2016/06/philippines-under-duterte-to-stake-claim-on-sabah-despite-malaysias-warning/ [accessed 6 February 2017].
 Jeremy WEBBER, The Constitution of Canada: A Contextual Analysis (Oxford: Hart Publishing, 2014), ch.6.
 Harding, supra note 22.
 See Leyland, supra note 9.
 As this article was being written a disagreement broke out between the Sarawak government and the Federal Government over the non-recognition of Malaysia’s Unified Education Certificate (UEC) for Chinese schools, described by Sarawak’s Chief Minister as ‘stupid’. Sarawak wishes to control education policy, and as an illustration of how devolution might impact such issues, the Sarawak Government has recognised the UEC for state employment purposes: ‘Putrajaya Stupid for not Endorsing Unified Examination Certificate, Says Sarawak Chief Minister’, Malay Mail Online, 3 November 2015, http://www.themalaymailonline.com/malaysia/article/putrajaya-stupid-for-not-endorsing-unified-examination-certificate-says-sar/[accessed 6 February 2017].
 Malaysia Agreement 1963, signed 9 July 1963, between The United Kingdom, the Federation of Malaya, Singapore, Sarawak and North Borneo.
 Supra note 6, at 154-5.
 I.e., gradual conversion of public service positions so that they would be held by Sarawakians or Sabahans.
 See Federal Constitution, Article 153.
 Report of the Commission of Enquiry, North Borneo and Sarawak, 1962, para. 237.
 Federal Constitution, Article 159(3).
 Harding, supra note 23, ch.3. Currently Sabah (25) and Sarawak (31) have 56 seats out of 221 in the Federal Parliament.
 The literature is too much and too marginal to present concerns to cite here, but for further discussion and citations, see Jaclyn NEO, ‘What's in a name? Malaysia's "Allah" controversy and the judicial intertwining of Islam with ethnic identity, (2014) 12(3) International Journal of Constitutional Law 751.
 Federal Constitution, Article 161E(2).
 ‘Johor Crown Prince Warns that the State May secede if Putrajaya Breaches Federation’s Terms’, 16 October 2015: http://www.straitstimes.com/asia/se-asia/johor-crown-prince-warns-that-state-may-secede-if-putrajaya-breaches-federations-terms[accessed 6 February 2017].
 Andrew HARDING, “The Keris, The Crescent and the Blind Goddess: The State, Islam and the Constitution in Malaysia”, (2002) 6 Singapore Journal of International and Comparative Law 154.
 Harding and Chin, supra note 6, at 11.
 See below note 87 and text.
 Khairil Azmin Mokhtar, ‘Confusion, Coercion and Compromise in Malaysia’s Federalism’, in Harding and Chin, supra note 6, 221.
 Andrew HARDING, “Local democracy in a multi-layered constitutional system: Malaysian local government reconsidered”, ch.7 of Harding and Sidel, supra note 3.
 Shafruddin Hashim, “The Constitution and the Federal Idea in Peninsular Malaysia” (1984) Journal of Malaysian and Comparative Law 138, 156.
 Fong, supra note 31, ch.5. For an example, see Malaysia Today, ‘What AG’s Report Says about Selangor’, www.malaysia-today.net/mtcolumns/newscommentaries/44428-what-ags-report-says-on-selangor, 25 October 2011 [accessed 6 February 2017].
 Federal Constitution, Schedule 10, Part I.
 Article 109; for details as to how this works, see Fong, supra note 31.
 Fong, supra note 31, at 107, states the total State deficit for 2006 as RM193 million.
 ‘Sarawak to Seek RM500 Million More from the Federal Government for Rural Development’, Bernama, 31 October 2015: http://www.bernama.com/bernama/v8/sp/newssports.php?id=1185366/[accessed 6 February 2017]. This is intended mainly for bridges and roads.
 Article 114.
 Article 110.
 Fong, supra note 31, at 98-103.
 Considerable disquiet was expressed in Kuching over the enactment of the Malaysia Territorial Seat Act (Act 750) which in the eyes of many in Sabah as well as Sarawak was an attempt to plunder Borneo’s natural resources: see, e.g., ‘Petronas-Putrajaya Has no Rights in Borneo Waters’, Free Malaysia Today, 31 March 2014: http://www.freemalaysiatoday.com/category/nation/2014/03/31/petronas-putrajaya-has-no-rights-in-borneo-waters/[accessed 6 February 2017].
 Under Tripartite Agreements of 1975, involving the Federal Government and the Governments of Sabah, Sarawak and Terengganu.
 ‘Adenan Pledges to Keep Fighting for 20% Royalty’, The Malaysian Insider, 6 August 2015.
 Fong, supra note 31, at 103, n24.
 Fong, supra note 31, at 120.
 Official statistics adduced by the State Secretary of Sarawak October 2015, on file with the author.
 For example the Sewell motion which has been invoked on many occasions: Leyland, supra note 9, at 259.
 Leyland, ibid., at 256.
 2016, c.11.s
 Harding, supra note 22.
 Above n.12.
 Harding and Chin, supra note 6, at 41.
 Leyland, supra note 9, 255.
 Ibid., 256.
 Federal Constitution, Sch.10.
 Leyland, supra note 9, at 258.
 Harding and Chin, supra note 6.
 Michael KEATING, “Policy Convergence and Divergence in Scotland under Devolution”, (2005) 39:4 Regional Studies 459.
 ‘PM Explains Devolution of Power to Sabah, Sarawak’, Bernama, 16 September 2015: http://www.bernama.com/bernama/v8/fe/newsfeatures.php?id=1171884/[accessed 6 February 2017].
 Relevant statutes such as the Education Act 1996 (s.5), and the Federal Constitution itself (Article 95C: order of the Yang di-Pertuan Agong) envisage such delegation.
 M Ratnavale v Government of Malaysia (1961) 1 lNS 58; Azman Abdullah v Ketua Polis Negara (1997) 1 CJ 257. I am indebted to JC Fong for information regarding these issues of delegation; precedents for Orders under the Federal Constitution, Article 95C, may be found in his paper, supra note 44, at 13.
 Supra note 43.
 Fong, supra note 44, at 99.
 Article 76(1)(c). See also Article 76A, which gives States limited powers to pass laws on Federal matters.
 Article 80(1).
 Act 155.
 Article 80(5).