(Oct 23): In a recent op-ed entitled 'Malaysia’s Constitution is pluralist — and that’s good for all its people' (Sept 30 2025), my National University of Singapore colleague Dr Jaclyn Neo argued persuasively in favour of a pluralist idea of the Malaysian constitution. 

She argues that we should not take a monistic view of it because in essence the constitution involves a number of different traditions and protects a variety of potentially conflicting interests. 

Just as Malaysia has numerous different kinds of produce (my own simile here), such as palm oil, rice and exotic fruits, we should not seek to ‘mono-crop’ the legal and constitutional heritage. After all, this heritage embraces monarchical traditions and democratic, parliamentary institutions; Malay custom and Bornean native custom; Islam and guarantees of religious freedom; special privileges of bumiputera and legitimate interests of non-bumiputera; property rights and Malay land reservation, and so on.

I wish here, in similar vein, to bring to the fore the country’s federal structure as another aspect of pluralism. It is a structure that should be seen as a strength not a weakness.

In essence, federalism, although it is not so easy to define, implies both national federal government and state or provincial government, each operating within a distinct sphere over which it has exclusive constitutional authority. 

The courts ultimately police the line between federal and state powers so that neither can trespass upon the other’s ground. In 2023, for example, in Nik Elin Nik Rashid’s case the Federal Court struck down as unconstitutional 16 Kelantan criminal laws ostensibly passed under the state power over religion. Legislating on criminal law, said the court, was a federal not a state power.

By dividing powers in this way the constitution ensures that the political system is healthily ventilated. We are now used to combinations of parties in opposition at the federal level taking power at the state level. Changes in government have occurred peacefully and uncontroversially at the state level. 

No longer is the Prime Minister said to ‘appoint’ a Menteri Besar. Some parties even compete only at the state level and not nationally. There are also more than 30 parties holding seats in state and federal legislatures. 

Plurality of viewpoints and even policies is ensured by federalism. It was not for nothing that the Nazis of early 1930s Germany carried out a coup against Germany’s largest state government, that of Prussia, as one of their first assaults on democracy. They went on to abolish the lander or states forming an important pillar of the democratic Weimar constitution.

So does Malaysia’s federal system help ensure the kind of pluralism Jaclyn Neo argues for?

I argue that it does. But it is important to understand how it does so, especially when we address the really important and topical issue in federalism today — the constitutional status of Sabah and Sarawak.

Many countries have federalism (or its cousin, regional autonomy) because of ethnic or religious differences. Think of Quebec in Canada, Scotland in the UK, Aceh in Indonesia, or the Central Asian republics under the Soviet Union. 

In Malaysia by contrast, for the most part religious adherence and ethno-cultural and language differences are spread quite evenly across the states. There is more difference between say Kuala Terengganu and the Terengganu countryside than between Terengganu and Kelantan or Kedah. 

You could also drive from Johor to Selangor without quite realizing you had crossed state boundaries. Yet at the same time the states do have their separate identities, and it was these different identities and histories that resulted in the rejection of the Malayan Union in 1946 and the adoption of a federal structure in 1948. 

Penang is more Chinese, Kelantan is more traditionally Muslim, Negri Sembilan (itself originally a federation) has its unique adat laws, Johor its own strongly monarchical tradition. And so on. 

Even the food changes — Penang laksa, Kelantan nasi kerabu... just imagine how different Malaysia would be if everything were bland and uniform across all 13 states.

In the cases of Sabah and Sarawak, there are of course deeper cultural, ethnic, political and economic differences than are found amongst the states of Malaya. Both states have a majority of indigenous people. Both are also highly diverse in their populations, but in ways that are different from West Malaysia. Multiculturalism and development also have different meanings in these two states. Historic attempts to flatten out the diversity are now having adverse consequences in these states.

It is sometimes argued that federal systems are inherently unstable and are liable over time to collapse inwards to the centre or outwards towards separation. 

Malaysia, however, has proved to be a stable federation. Despite a degree of hyper-centralisation during the period of BN dominance, the practical operation of federalism now resembles more than it used to the notion of the 1956 Reid Commission that states should exercise a "measure of autonomy". 

In fact some states, especially but not only Sabah and Sarawak, are asking for quite a lot more than a mere measure of autonomy. They increasingly want a measure of decentralisation involving more powers and more money with which to execute them. They have a point. 

Thailand is reckoned to be highly centralised, yet 30% of revenue goes to its 76 provinces. The figure for (federal) Malaysia is less than 10%. Making concessions to this type of demand does not tend to break up the federal system or weaken the government. Rather it reinforces it. It gives the people more control over the decisions that affect them. This is a process we call subsidiarity.

The challenge now faced by Malaysian federalism is how to reconcile two conflicting contingencies. The first is a form of federalism that has been in practice more centralised than most such systems, embodying what is called ‘cooperative’ federalism or even ‘quasi-federalism’, emphasizing strong inter-governmental relations. The second is the special status and greater autonomy that Sabah and Sarawak consider their right under the Malaysia Agreement of 1963, and also the popular aspiration in those states, irrespective of that Agreement.

Federalism is like a kids’ game of stick stack. One false move can collapse the complex structure. It requires careful implementation, and respect for the proper division of powers. 

But efficiency and efficacy require flexibility and good inter-governmental relations. The federal system has served Malaysia well for many decades. 

As the political system inches its way towards a new definition of federalism, the pluralism of its institutions and the diversity of its population should be seen as a resource, not an obstacle.

Andrew Harding is Professor of Law at University of Reading Malaysia; Visiting Professor at the Centre for Asian Legal Studies, National University of Singapore; Adjunct Professor at the Faculty of Law, Universiti Malaya; Visiting Professor at the University of Oxford; Visiting Professor at Thammasat University in Bangkok. His book 'The Constitution of Malaysia: A Contextual Analysis (Hart Publishing, 2022)' is now in its second edition.