Enact laws in Sabah to cover gaps of authority under Concurrent List, says senior lawyer

KOTA KINABALU: Sabah should be more proactive in enacting laws to have greater legal coverage on matters that fall under both state and federal jurisdictions, says senior lawyer Datuk Roger Chin.

He said the state government could update its laws on shared legislative matters between the state and Federal Government under the Concurrent List.

“The Concurrent List offers a unique space for shared legislative authority between the Federal and state governments,” he said, explaining that it was outlined in the Ninth Schedule of the Federal Constitution and encompasses various critical subjects impacting citizens’ daily lives such as public health, cooperatives and animal welfare.

He said Sabah should emulate Sarawak’s strategy by covering the gaps of authority to strengthen its legislation for the benefit of citizens in the state.

It is important to note that many of these Sarawakian orders were declared specifically in response to the unprecedented challenges posed by the Covid-19 pandemic, he added.

He said Sarawak’s proactive approach ensured greater control over public health regulations within the state and prevented federal intervention, demonstrating the effectiveness of strategic legislation under the Concurrent List.

However, he pointed out a caveat as federal legislation prevails in cases of conflict between state and federal laws in the Concurrent List.

He said to address legislative gaps, the state could enact its own legislation in areas lacking in federal law (“lacunae” or legal gaps), strengthening its overall legal infrastructure with more robust response to new challenges.

“Proactive legislation allows Sabah to establish a strong foundation for its preferred regulations, making it more difficult for federal legislation to override them entirely.

“This ensures a greater degree of autonomy in shaping the legal landscape and protecting Sabah’s specific interests,” he added.

Chin, a former Sabah law Society (SLS) president, said such proactive legal legislation went beyond simply reacting to federal legislation.

“By taking a proactive stance, Sabah can shape the legal landscape for areas under concurrent jurisdiction and ensure that these regulations are not solely dictated by federal interests, but rather reflect Sabah’s unique circumstances and aspirations, empowering Sabah to chart a course for the future that best serves its citizens,” he said.

Chin said a proactive legislative strategy for Sabah would offer the state leverage on the Concurrent List and enhance its legislative autonomy.

He suggested that a comprehensive review be carried out on the Concurrent List with a legal team thoroughly analysing each area to identify gaps where federal legislation was currently absent.

“Where federal laws are lacking, Sabah has the power to enact its own legislation,” he said, adding that it would help the state establish a foundation for regulations tailored to its specific context.

“For instance, Sabah could enact a modern and comprehensive Public Health Act, addressing areas not covered by its outdated Public Health Ordinance,” he added.

He said such state enactments would give the state “first mover advantage” in areas not covered by federal law.

“Any subsequent federal legislation on the same subject would now need to consider the existing state law,” he said, adding that it would reduce the likelihood of direct conflict and strengthen Sabah’s bargaining position in negotiations.

“Federal lawmakers would have to demonstrate a compelling improvement upon the existing state framework,” he added.

“By following the Sarawak model and strategically enacting its own legislation, Sabah can move towards a more empowered and self-determined future within the Malaysian Federation,” he added.