# Why You Can Be Turned Back at Kota Kinabalu: The Constitutional Safeguards for Sabah and Sarawak

> When Sabah and Sarawak joined the Federation in 1963 they kept a set of safeguards written into the Federal Constitution: control over immigration into the two states (including of Malaysians from the Peninsula), two extra legislative lists that give them powers the Peninsular states do not have, native courts and the special position of natives, special financial grants and revenue sources, and a rule that a defined group of these provisions cannot be amended without the consent of the state's Governor. This article sets out each safeguard descriptively — what the Constitution provides and where — without adjudicating any dispute over how they are honoured.

- Category: states
- Language: en
- Status: published
- Updated: 2026-07-24
- Canonical: https://negaraku.md/en/states/sabah-sarawak-safeguards

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Fly from Kuala Lumpur to Kota Kinabalu or Kuching and you land in Malaysia — same country, same passport, same currency — and then queue at an immigration counter. A Peninsular Malaysian who cannot state a good reason to be there can be given a pass limited to a few weeks, or turned back. That checkpoint is not a bureaucratic quirk. It is one of a set of safeguards written into the Federal Constitution when Sabah and Sarawak joined the Federation in 1963.

This article sets out what those safeguards are and where each is written — immigration control, the two extra legislative lists, the special position of natives and their courts, the special grants and revenue, and the amendment lock. It reports what the Constitution provides. It does not adjudicate any dispute over the Malaysia Agreement 1963 (MA63) or over how faithfully these provisions have been implemented.

## Immigration control: the safeguard you can see

The one safeguard an ordinary traveller meets is immigration. Two layers of law hold it up.

First, the Constitution. Article 9(2) gives every citizen the right to move freely throughout the Federation and reside anywhere in it — but Article 9(3) makes that right subject to laws restricting movement "as between" a state that has a special position under the Constitution and the other states. Sabah and Sarawak are the states with that special position, so Parliament is expressly permitted to restrict movement into them.

Second, the statute that exercises the permission. Part VII of the **Immigration Act 1959/63** places control over entry into, and residence in, Sabah and Sarawak with each state's own immigration authority. That control extends not only to foreigners but to Malaysian citizens from other states: a person from the Peninsula is, for immigration purposes at the state border, treated as entering a jurisdiction that decides its own admissions.

In practice this is why Sarawak and Sabah run their own entry channels and issue their own passes and work permissions, distinct from the federal process on the Peninsula. The mechanism is qualitative — a discretion to admit, limit, or refuse — rather than a fixed formula.

## Two extra legislative lists no Peninsular state has

Malaysia's Ninth Schedule normally divides law-making into a Federal List (List I), a State List (List II), and a Concurrent List (List III). Sabah and Sarawak get two additions the Peninsular states do not.

Under **Article 95B(1)**, the Ninth Schedule contains:

- **List IIA — Supplement to State List** for Sabah and Sarawak, and
- **List IIIA — Supplement to Concurrent List** for Sabah and Sarawak.

List IIA hands the two states exclusive law-making power over matters that, elsewhere in Malaysia, are federal or shared. Reported from the Schedule, they include:

| List IIA matter | What it covers |
| --- | --- |
| Native law and custom | Personal law (marriage, adoption, succession and the like) of natives, and the constitution, organisation, procedure and jurisdiction of native courts, including the right of audience in them |
| Incorporation of state authorities | Bodies and authorities established for state purposes |
| Ports and harbours | Other than those declared federal |
| Land survey and the Sabah/Sarawak land ordinances | Cadastral survey and demarcation |
| The Sabah railway | In Sabah only |
| Libraries, museums, and (for Sarawak) turtles and riverine fishing; water supplies and services | Various local and resource matters |

List IIIA adds shared-power subjects — among them personal law in specified areas, adulteration of foodstuffs, shipping under a certain tonnage, and the production and distribution of power in the states — where both the state and Parliament may legislate, with special rules on which prevails. **Article 95C** further allows federal law to delegate additional legislative and executive powers to the two states. The net effect is that Sabah and Sarawak legislate on a wider field than any Peninsular state.

## The special position of natives, and native courts

**Article 161A** protects the special position of the natives of Sabah and Sarawak. It does three things worth separating.

It **defines** who a native is — and it does so differently for each state. For Sabah, a native is, broadly, a citizen who is the child or grandchild of a person of a race indigenous to Sabah, born in Sabah or to a father domiciled there. For Sarawak, a native is a citizen belonging to one of the races the Constitution (read with state law) treats as indigenous to Sarawak, or of mixed parentage deriving exclusively from those races. These are two distinct legal tests, not one uniform definition.

It preserves the **reservation of land** for natives: Article 161A allows the states to continue reserving land for natives and to restrict dealings in it, an arrangement that would otherwise sit awkwardly with the equality provisions elsewhere in the Constitution.

And it underpins the **native courts**. Because native law and custom — including the constitution and jurisdiction of native courts — is a List IIA matter, each state runs its own native court system for customary matters, separate from the civil and Syariah courts. Alongside this, **Article 161B** restricts the right to practise before the courts in Sabah and Sarawak: appearing in them is confined to persons resident in the state, so the local Bar is protected from open competition by practitioners based elsewhere.

For how the native courts sit beside the two national court streams, see [Civil and Syariah Courts](/en/law/civil-and-syariah-courts). For the parallel — but separate — protection of the "special position" at federal level, see [Article 153](/en/law/article-153-special-position).

## Special grants and assigned revenue

The financial safeguards live in **Articles 112C and 112D**, read with the **Tenth Schedule**.

Article 112C requires the Federation to pay Sabah and Sarawak the special grants set out in **Part IV** of the Tenth Schedule for each financial year, and assigns to each state the proceeds of the taxes, fees and dues listed in **Part V** of that Schedule, so far as collected within the state. Part IV includes, for Sabah, a grant historically framed as two-fifths (40%) of the amount by which the Federation's net revenue derived from Sabah exceeds a defined baseline — a provision whose figure and its application have been the subject of review, negotiation and litigation between the two governments.

Article 112D provides the review mechanism: the special grants are to be reviewed from time to time by the Federal and State Governments together, and where they agree to alter, abolish or add a grant, the Yang di-Pertuan Agong gives effect to the agreement by order. The Constitution therefore sets up the grants as reviewable by agreement rather than fixed for all time — which is why the amounts and the intervals recur in public debate.

This article does not evaluate the outcome of any particular review or claim; it reports the mechanism the Constitution establishes.

## The amendment lock: what cannot change without consent

The safeguards above would mean little if Parliament could repeal them with an ordinary constitutional-amendment majority. **Article 161E** is the lock.

It provides that a defined set of provisions affecting Sabah or Sarawak cannot be amended without the concurrence of the **Yang di-Pertua Negeri** (the Governor) of the state affected — a consent requirement that sits *on top of* the two-thirds majority already needed to amend the Constitution. Reported from the Article, the entrenched matters include:

- citizenship rights connected with the state, and equal treatment in citizenship;
- the constitution and jurisdiction of the High Court in Sabah and Sarawak;
- the state's legislative and executive powers, and the financial arrangements between it and the Federation;
- religion in the state, the use of language, and the special treatment of natives; and
- the quota of the state's members in the Dewan Rakyat (the House of Representatives).

Because these Part XIIA protections and their related provisions are entrenched this way, a change the state's Governor does not agree to cannot be forced through by federal majority alone. For the broader structure of federal-versus-state powers this fits into, see [The Division of Powers Between Federal and State Governments](/en/government/federal-state-division).

## Common mistakes

**"Sabah and Sarawak immigration control is just a state administrative preference."** It rests on federal law and the Constitution: Article 9(3) permits the restriction, and Part VII of the Immigration Act 1959/63 exercises it. It applies to Malaysians from the Peninsula, not only to foreigners.

**"The safeguards are in the Malaysia Agreement, so they are not really enforceable law."** The safeguards described here are provisions of the Federal Constitution itself — Articles 9, 95B, 112C, 112D, 161A, 161B and 161E, and the Ninth and Tenth Schedules. MA63 is the 1963 treaty; these constitutional provisions are the enacted law that carries much of it.

**"A 'native' means the same thing across Malaysia."** Article 161A gives Sabah and Sarawak each its own definition of "native", and neither is the Article 160(2) definition of "Malay".

**"Parliament can amend these safeguards with a two-thirds majority like any other clause."** Article 161E adds a further requirement: the concurrence of the state's Yang di-Pertua Negeri for the entrenched matters it lists.

## Documented positions

The scope and implementation of these safeguards remain a live subject of public and legal discussion — reported here without endorsement. Commentary collected by bodies such as the Malaysian Bar and ConstitutionNet notes that the Constitution both entrenches the safeguards and leaves several of them — notably the financial provisions under Articles 112C and 112D — dependent on periodic review and agreement, which is why their day-to-day application is argued over even where the text is settled. NegaraKu.md states the provisions; it does not resolve those arguments.

## What's next

For the document all of these provisions sit inside, see the [Federal Constitution](/en/law/federal-constitution). For the 1963 agreement the safeguards implement, and the debate around it, see [MA63](/en/malaysia/ma63). For the two states themselves, see [Sabah](/en/states/sabah) and [Sarawak](/en/states/sarawak). For how these special powers fit the wider federal-state balance, see [The Division of Powers Between Federal and State Governments](/en/government/federal-state-division).

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*This article is classified as sensitive content (constitution) under NegaraKu.md's editorial policy because its subject is the entrenched constitutional position of Sabah and Sarawak within the Federation. It is written to remain descriptive — reporting what the Federal Constitution provides and where, without adjudicating any dispute over MA63 or over how these provisions are implemented — and is held as a provisional draft pending human review.*

## Sources

- Federal Constitution (Reprint 2020, as at 15 October 2020) — Articles 9, 95B, 95C, 112C, 112D, 161A, 161B, 161E, and the Ninth and Tenth Schedules — https://lom.agc.gov.my/ilims/upload/portal/akta/LOM/EN/Federal%20Constitution%20(Reprint%202020).pdf (Attorney General's Chambers of Malaysia (AGC))
- Federal Constitution — Ninth Schedule (Legislative Lists, including List IIA and List IIIA for Sabah and Sarawak) — https://sagc.sabah.gov.my/sites/default/files/law/NinthSchedule.pdf (Sabah State Attorney-General's Chambers)
- Federal Constitution — Tenth Schedule (Grants and Sources of Revenue Assigned to States, Parts IV and V) — https://sagc.sabah.gov.my/sites/default/files/law/TenthSchedule.pdf (Sabah State Attorney-General's Chambers)
- The Special Position of Sabah and Sarawak under the Federal Constitution (Constitutional Literacy series) — https://law.um.edu.my/menu%20-%20research%20files/CONSTI%20LIT%20files/2021.09.16/Special%20Position%20of%20Sabah%20and%20Sarawak%2016%20Sept%202021.pdf (Faculty of Law, University of Malaya)
- My Constitution: About Sabah and Sarawak — https://www.malaysianbar.org.my/article/about-us/committees/constitutional-law-committee/my-constitution-about-sabah-and-sarawak (Malaysian Bar — Constitutional Law Committee)
- Restoring Constitutional Equality to Sabah and Sarawak — https://constitutionnet.org/news/restoring-constitutional-equality-sabah-and-sarawak-do-proposed-amendments-malaysian-federal (ConstitutionNet (International IDEA))

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