Sabah The Twenty Points

SABAH THE TWENTY POINTS Point 1:

Religion

While there was no objection to Islam being the national religion of Malaysia, there should be no State religion in North Borneo, and the provisions relating to Islam in the present Constitution of Malaya should not apply in North Borneo. Comments In the IGC Report, this point was taken up in the form of the provision that "Islam is the religion of the Federation" which essentially reaffirmed Article 3(1) of the Federal Constitution. A contravention of this point occurred when the former Chief Minister of Sabah, Tun Mustapha enabled the passage of a constitutional amendment in the State Constitution thereby making Islam the State religion in 1973. It is well-known that Tun Mustapha actively discriminated against of other religions by expelling their missionaries. By this act, religious freedom which was intended by this point was abrogated in favor f Islam. His successor, Datuk Harris Salleh, also actively engaged in proselytisation by using Islam as an instrument to grant favors to new converts. It was widely perceived by the general public that the actions of both Tun Mustapha and Datuk Harris were motivated by their need to strengthen their own political position vis-a-vis Kuala Lumpur. In the case of the present Government, it tries to restore religious freedom by dealing with all religions equally but this is perceived as being anti-Islam. This is despite the fact that the State Legislative Assembly in 1986 inserted a new Article 5B "to confer" on the Yang Di-Pertuan Agong the position of the Head of Islam in Sabah". Today, the same status of Islam as the State religion has made it an instrument of political bigotry and provides a justification for religious polarization and discrimination. One may, of course, argue that the deviation that has occurred with respect to this particular point was caused by the State and not by the Federal authorities. This is too simplistic a view. As will be shown in Section V of the Memo, an examination of the Federal Government's dealings with the State during the reign of the previous Chief Ministers shows numerous subtle interferences in Sabah's political and administrative affairs by Kuala Lumpur, some of which are manifested in the forms of Promises of Malaysia for Sarawak and Sabah: The Way forward (Kuching 18 Oct 2009) 1/14

administrative measures and decisions making by Federal agencies. As a consequence, many constitutional amendments made at the State level which led to the dilution and surrender of several safeguards, were initiated and influenced by the Federal Government. (eg Federalization of Labuan) Point 2:

Language

(a) Malay should be the national language of the Federation. (b) English should continue to be used for a period of ten years after Malaysia Day. (c) English should be the official language of North Borneo for all purposes, State or Federal without limitation of time. Comments Tun Mustapha's administration changed the status of English by passing a bill, introducing a new clause ilA into the State Constitution, making Bahasa Malaysia the official language of the State Cabinet and State Legislative Assembly. At the same time, the National language (Application) Enactment 1973 was passed purporting to approve the extension of an Act of Parliament terminating or restricting the, use of English language for other official purposes in Sabah. This is putting the cart before the horse, because the National Language Act 1963/67 was only amended in 1983 to allow it to be extended to Sabah by a State Enactment. But, no such State Enactment has been passed. Therefore, the National Language Act 1963/67 is still not in force in Sabah. Nevertheless, the above amendments have brought about the following consequences (a) Many civil servants who were schooled in English are now employed as temporary or contract officers because of their inability to pass the Bahasa Malaysia examination. (b) The change in the medium of instruction in schools affected the standard of teaching due to lack of qualified Bahasa Malaysia teachers. (c)

The teaching of other native languages has been relegated to the background.

Many Sabahans believe that the Constitutional Bill passed in 1973 to erode this safeguard was probably made on the advise and influence of Syed Kechik, who was regarded as the KL's man in Sabali. (see Rose Larson{198o}). Point 3

Constitution

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Whilst accepting that the present Constitution of the Federation of Malaya shouldform the basis of the Constitution of Malaysia, the Constitution of Malaysia should be a completely new document drafted and agreed in the light of free association of States and should not be a series of amendments to a Constitution drafted and agreed by different States in totally different circumstances. A new Constitution for North Borneo was, of course, essential. Comments It is obvious that the Sabah and Sarawak negotiating teams were of the opinion that they were joining in the Federation of Malaysia as equal partners, namely, Malaya, Singapore, Sabah and Sarawak. However, the request for a completely new Constitution was not granted thereby deviating from the basic agreement. The reasons offered were (a) Due to time constraint. The drafting of a completely new Constitution would take a long time to complete (b) The Sabah negotiating team recognizes that amount of time and energy required to draft a new Constitution From the foregoing, it is clear that during the negotiations, the State leaders had shown complete trust and confidence in the capabilities of the Malayan leadership in honoring the assurances and promises given them. As a result, minimum fuss was made of the necessity of casting those promises and assurances in enforceable terms to be duly incorporated into official documents, complete with legal and constitutional recourse in the event of breaches. Furthermore, the readiness with which the State leaders consented to the use of Federal Constitution of Malaya as a basis on which new amendments were to be incorporated also amply illustrates the trusting nature of the State leaders then. However, the speed with which the formation of the Federation of Malaysia was hurriedly implemented, at a time when the people of Sabab were still constitutionally backward, leaves many present-day better educated Sabahans to question the extend of participation of the Sabahan leaders in the entire negotiation process. For such an important undertaking which affects the future of thepeople of Sabah, certainly more time should have been given. An important agreement reached by the InterGovernmental Committee was that in certain aspects, the requirements of Sabah and Sarawak could appropriately be met by undertakings or assurances to be given by the Government of the Federation of Malaya rather than by constitution provision. Still, this was a clear deviation from what was required in the Twenty Points. Point 4:

Head of the Federation

The Head of State in North Borneo should not be eligible for election as Head of the Federation.

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Comments Since only a Ruler is eligible to be elected as the Head of the Federation in the Malayan Constitution, there was no necessity to make specific provision for the exclusion of the Head of State of Sabah from election as Head of the Federation.

Point 5:

Name of Federation

"Malaysia" but not "Melayu Raya" Comments The point was incorporated into the IGC Report and subsequently into the Federal Constitution. Point 6:

Immigration

Control over immigration into any part of Malaysia from outside should rest with the Federa Government but entry into North Borneo should also require approval of the State Government. The Federal Government should not be able to veto the entry of persons into North Borneo for State Government purposes except on striŠtly security grounds. North Borneo should have unfettered control over the movement of reasons, other than those in Federal Government employ,from other parts of Malaysia into North Borneo. Comments While it was agreed in the ICC Report that the Immigration department should be a Federal Department, the State should have absolute control of immigration to Sabah from within Malaysia. Point 7:

Right of Secession

There should be no right to secede from the Federation. Comments There was absolutely no reason or need for this point to be listed since it is not a safeguard for the State but for the Federal Government. Nevertheless, the amazing readiness of the five political parties to include this as one of the Twenty Points reflected their firm belief that the `marriage' would be a permanent one. Their decision to concede the right to secession was no doubt motivated by the promise of improved economic well-being that the new Federation would bring and the respect Promises of Malaysia for Sarawak and Sabah: The Way forward (Kuching 18 Oct 2009) 4/14

with which the Federal Government would place on agreed safeguards and assurances. Point 8:

Borneonisation

Borneonisation (Sabahanisation) of the public services should proceed as quickly as possible.

Comments As a consequence of Federal's control on pensions (Article 112 of the Federal Constitution and Para 24 of the IGC Report) all promotions in the Federal Government and creation of new posts in the State require Federal approval due to the `pension factor'. An examination of existing records show that the number of federalized departments or agencies in Sabah has increased 4 times since independence. By 1985 there were some 62 Federal departments and agencies in Sabab, of which more than 90 per cent is currently headed by Semenanjung officers. According to the employment record, there are more than 21,000 Semenanjung officers working in Government offices in Sabah. This is a clear deviation of the Twenty Points and IGC safeguards. The usual justification used by the Federal Government to engage officers from Semenanjung to fill the federalized government positions is the lack of qualified Sabahans. However, it is found that even officers in the C and D categories are still being imported. into the State from Kuala Lumpur. Furthermore, there has been no conscious plan to train prospective Sabahans and promote deserving Sabahans to take over senior posts from these Semenanjung officers. At a time when some 800 graduates and thousands of school leavers in Sabah are unemployed, the existence of a large number of civil servants from Semenanjung serving in Government departments five many Sabahans the feeling that they have been deprived of employment opportunities which in the context of the Twenty Points, are rightfully theirs. Point 9:

British Officers

Every effort should be made to encourage British officers to remain in the public services until their places can be taken by suitably qualified people from North Borneo.

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Comments This point was taken up and discussed extensively in the IGC Report. Point 10 :

Citizenship

The recommendations in paragraph 148 (K) of the Report of the Cobbold commission should govern the citizenship rights of persons in the Federation of North Borneo subject to the following amendments. (a) subparagraph (i) should not contain the provision as to five years residence (b) in order to tie up with our law, subparagraph (i a) should read `seven out of ten years' instead of `eight out of twelve years'. (c) subparagraph (III) should not contain any restriction tied to the citizenship of parents a person born in North Borneo after Malaysia must be a Federal Citizen Comments It is public knowledge that there is a significant number of Sabahans who were born before Malaysia Day are still having problems acquiring citizenship. Furthermore, many natives in the interior regions of the State are still holders of red LC. because of the problems of verifying their birth. It is also common knowledge that certain categories of refugees and illegal immigrants in Sabah have been issued with blue LC. thus conferring them citizenship status and enabling them to vote in elections. This occurred particularly during the tenure of the previous State Governments. A reliable source indicates that some 198,000 of these refugees have been issued with blue I.C. According to a newspaper report, which was subsequently confirmed, police forces acting on public complaint raided Peting Bin Ali's house in Sandakan on 16th November 1979 and discovered that he was in possession of facilities to issue blue ICs. It is believed that the operators were collaborating with certain registration personnel in Kuala Lumpur. Most surprisingly the culprit was not prosecuted for committing such a grave crime against all the citizens of the country. The process by which these illegals are registered by the Federal agencies for subsequent issuance of blue ICs, without due reference to the State, is considered by Sabahans as usurpation of the State's immigration authority. This is a clear deviation from the safeguard on immigration and control of its franchise rights. Furthermore, the use of Labuan as an entry point to Sabah without immigration check, effectively removes immigration control from the State Government.

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Point 11:

Tariff and Finance

North Borneo should have control of its own finance, development funds and tariffs. Comment This illustrates the true feeling of the Sabah leaders concerning Malaysia. They saw Sabah as an equal partner in Malaysia. With its vast natural resources not yet fully tapped and the promise of rich oil discoveries, the Sabah leaders foresaw that the State would have adequate financial resources to cater for its socio-economic development. Today, all proceeds of revenue other than those listed in Part III of the Tenth Schedule are accrued to the Federal Government. These include personal income tax, corporate income tax, export and import duties, petroleum royalty, etc. The State Government derives its incomes primarily from timber exploitation, copper mining and since 1974, from the 5.0% petroleum royalty accorded to it. A study conducted by the Institute for Development Studies (Sabah) concludes that since 1976 there was a net transfer of financial resources out of Sabah in favor of the Federal Government. It should also be borne in mind that much of the Federal Government's financial flow to Sabah has actually been in the form of operating expenditures to service the large numbers of federalized agencies in Sabah. Although, during the First and Second Malaysia Plan period the Federal Government had spent more in Sabah than collected from it, however, since 1976 there has been a net outflow of funds from Sabah to the Federal Government amounting to RM2,633.18 million in the Third Malaysia Plan period and RM4,817.46 million during the Fourth Malaysia Plan period. During the First, Second, Third and Fourth Malaysia Plan period, some 80.5%, 72.1%, 66.8% and 68.3% of the financial allocation to Sabah were for operating expenditures of Federal departments and agencies as shown below

Table 1 Share between Supply and Development Expenditures of Federal Departments and Agencies in Sabah RM million Year

Operating Expenditure

Development Expenditures

1966-70

507.4 (80.5%)

122.9 (19.5%)

1971-75

873.4 (72.1%)

338.8 (27.9%)

1976-80

1,372.0 (66.8%)

682.1 (33.2%)

1981-80

2,829.1 (68.5%)

1,312.7 (31.7%)

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Source: The Institute for Development Studies (IDS)

The substantial net outflow of funds from Sabah to Kuala Lumpur is perceived by Sabahans as siphoning off of Sabah's development funds which is tantamount to financial exploitations of the State. The understanding of the leaders in joining Malaysia was to achieve an accelerated pace of economic development. However, it appears that the bulk of the Federal funds currently spent in Sabah are for operating expenditures rather than for development purposes.

Table 2 Comparison between Federal Revenue Derived from Sabah and Federal Expenditures in Sabah Year

Federal Revenue

Federal Expenditure

Net Transfer of Funds

1966 - 70

655.3

781.2

-125.8

1071 - 75

1151.8

1381

-299.2

1976 - 80

4921.7

2288.5

2633.1

1981 - 85

9415.3

4543.8

4871.4

Note: Figures in red indicated net inflow. Source: IDS

The overall level of financial allocation to Sabah by the Federal Government can be considered as minimal relative to its socioeconomic development needs. These allocations are indeed meager when compared with the amount of financial resources derived by the Federal Government from the State as shown by the table above. It is further felt that the State's share of its oil revenue (5%) is too small. The sequence of events which led Sabah to sign away its oil rights to the Federal Government has continued to puzzle the minds of the Sabahans. Previous Chief Ministers, Tun Mustapha and Tun Stephens had consistently refused to sign the Petroleum Sharing Agreement indicating their unwillingness to give the State's oil Promises of Malaysia for Sarawak and Sabah: The Way forward (Kuching 18 Oct 2009) 8/14

rights. It is interesting to note, however, that in the ensuing political crisis following immediately after the June 6th 1976 plane crash resulting in the death of most of the key BERJAYA Leaders, Datuk Harris Salleh 90dramatically reversed the position of the State government by signing away the State's oil rights. To many Sababans the signing away of Sabah's oil rights is equivalent to a Constitutional amendment. Many believe that unless approved by the State Assembly with a two-thirds majority, the Chief Minister's signature alone does not constitute approval of the people of Sabah. Point 12:

Special Position of Indigenous Races

In principle, the indigenous races of North Borneo should enjoy special rights analogous to those enjoyed by Malays in Malaya, but the present Malaya formula is this regard is not necessarily applicable in North Borneo. Comments While in principle the special privileges of Sabahap natives are recognized legally, the implementation of the policy has been somewhat dubious. For instance, when job vacancies in Sernenanjung are advertised in national newspapers to the effect that `preference shall be given to Bumiputera' what it in effect implies is Bumiputeras of Malay origin and, inevitably the Malay in Semenanjung. This legacy was exported to Sabah during the reign of the Governments of Tun Mustapha and Datuk Harris. It is well-known that during those periods, the treatment accorded to Indigenous people in the State depended on their religious faith. This gave rise to two categories of indigenous people Ä Muslim indigenous and non-Muslim indigenous. These actions were often done in the name of integration, it is the aim of presenting Kuala Lumpur the impression that the Muslim population in the State has grown rapidly. There were numerous cases during the reign of the previous governments where non-Muslim Bumiputeras especially the Kadazans and Muruts, were bypassed for promotion or recruitment into the civil service unless they became Muslims. Point 13 :

State Government

(a) The Chi ef Minister should be elected by unofficial members of Legislative Council (b)

There should be a proper Ministerial system in North Borneo

Comments Promises of Malaysia for Sarawak and Sabah: The Way forward (Kuching 18 Oct 2009) 9/14

The incorporation of this point in the IGC Report and Federal Constitution was consistent with the original intentions of the Sabah leaders. Point 14

Transitional Period

This should be seven years and during such period legislative powers must be left with the State of North Borneo by the Constitution and not merely delegated to the State Government by the Federal Government. Comments This point was not addressed in the Malaysia Agreement nor dealt within the Federal Constitution even though the Cobbold Commission studied the point and recommended that the transitional period should be five years, or alternatively, minimum three years and maximum seven years. The "Transitional Period" is actually discussed in Para 34 of the IGC Report and partly in Annex A to the Report. It was clear that the purpose of introducing the transitional period was to provide the much needed time for the growth of political consciousness among the people of Sabah so that they would be able to understand their roles and responsibilities as political leaders. Both Malaya and Singapore had experienced a period of self rule before Independence. Since neither Sabah nor Sarawak had any form of political relationship with Malaya and Singapore before the formation of Malaysia, a trial period would have significantly improved the Federal-State relationship right from the beginning. Had the transitional period been effected, it is generally believed that the erosion of constitutional safeguards may not have occurred so easily and rapidly. Point 15 :

Education

The existing educational system of North Borneo should be maintained and for this reason it should be under State Control. Comments The existing educational system referred to primary and secondary schools and teachers training colleges, but' not university and other post graduate education. The Sabah delegation wanted to teach English at all levels of schools in the State as the medium of instruction. Malay and other vernacular languages, such as Kadazan and Chinese, were also to be taught and used as the media of instruction in lower level primary schools in some voluntary agency schools. It was the intention that the education policy and its development will be subject to constant adaptation and would move towards a national concept but it should not merely be an extension of Promises of Malaysia for Sarawak and Sabah: The Way forward (Kuching 18 Oct 2009) 10/14

existing Federal policy. In the IGC Report education was a federal subject although specific conditions were spelt out for its administration. The IGC Report also specified important conditions pertaining to education development rn general including the use of `English and implementation of indigenous education. In 1965, the Sabah Education Ordinance No 9 of 1961, was declared a federal law. During Tun Mustapha's reign, the State Constitution `was amended to make way for the use of Malay as the sole official language by 1973. When the Peninsular introduced Malay as the medium of instruction in Primary One in 1970, Tun Mustapha's Administration adopted the same policy in Sabah. Since the Education Act 1961 was extended to Sabah only in 1976, the introduction of the national Educational Policy in Sabah in late 6os and early 70s with the tacit consent of the then State Government under Tun Mustapha was carried out without the proper legal authorities. However, this has since been rectified by the extension of the Education Act 1961. It is also important to note that the IGC Report made specific references to the responsibilities of the Federal government in developing educational infrastructure in Malaysia, "the requirement of the Borneo States should be given special consideration and the desirability of locating some of the institutions in the Borneo States should be borne in mind". By and large, the Federal government has done little for Sabah in the development of higher education facilities, aside from the setting up of a YS-ITM campus and a makeshift UKM branch campus. Even a donation by the State government of 364 hectares of land in 1980 to be developed into a permanent campus of the UKM together with a $5.0 million contribution from Yayasan Sabah failed to elicit the 4special consideration' responsibility of the Federal government on the development of education infrastructure in Sabah as contained in the IGC Report. Yet in Kedah, the University Utara Malaysia which was only established in 1984, enjoys the full financing and other support of the Federal government as compared to the Sabah branch of UKM which was established in 1974, or ten years earlier. Such a phenomenon does not only violate the `special consideration' clause supposedly accorded to Sabab but it also speaks of the inequity in the distribution of funds for educational purposes among component parts of the Federation of Malaysia. Point 16:

Constitution Safeguards

No amendment, mod jflcation or withdrawal of any special safeguards granted to North Borneo should be made by the Central government without the positive concurrence of the Promises of Malaysia for Sarawak and Sabah: The Way forward (Kuching 18 Oct 2009) 11/14

Government of the State of North Borneo. The power of amending the Constitution of the State of North Borneo should belong exclusively to the people of the State. Comments Most of the safeguards contained in the IGC Report were incorporated into the Malaysia Agreement and subsequently into the Federal Constitution, although a number of these have since been repealed. In addition to the provisions in the Constitution, Article VIII of the Malaysia Agreement provides that the governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as many be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the IGC signed on 27th February 1963 in so far as they are not implemented by expressed provision of the Constitution of Malaysia. An additional important agreement reached by the IGC was that certain aspects of the requirements of Sabah could appropriately be met by undertakings or assurances to be given by the Government of the Federation of Malaya rather than by Constitutional provision. The committee further agreed that these undertakings and assurances could be included in formal agreement or could be dealt with in exchanges of letters between Governments concerned. In the minds of the people of Sabah (and Sarawak), the inclusion of the safeguards on the Constitution was reassuring in that they were as good as guaranteed by the British Government. There is, however, an oversight by those responsible for drafting the Constitution to ensure that these safeguards are to be really effective. An amendment to the Federal Constitution must be passed by a two-third majority by the Parliament (which in today's composition of Parliament is a non-issue) and, where State rights are involved, It must have the consent of the State Government concerned (ie the Executive). It does not have to be approve4 by the State Assembly (the representatives of the people of the State) by also two-third majority. Under the present constitutional arrangements, the, safe guards are therefore as good only as the strength or personality of the State government of the day. In essence, most of the safeguards can be abrogated by the mere `consent' of the State government of the day, even for the sake of wanting to `please' the Federal Government. There is a generous belief that this had been the case for previous governments in Sabah. Para. 30 of the IGC Report and Article i6iE of the Federal Constitution provide the constitutional safeguards on some specific matters. While, Article i6iE is not exhaustive, there are safeguards found in other constitutional provisions. Amendment to Article 3 (3) (making Yang Di-Pertuan Agong the Head of Islamic religion in Sabah) and Article 161D (relating to freedom of religion in the State) if made without the concurrence of the Yang Di-Pertuan Negeri contravenes Article i6iE. Promises of Malaysia for Sarawak and Sabah: The Way forward (Kuching 18 Oct 2009) 12/14

It should be pointed out that there are also cases where the Federal Government failed to seek the concurrence of the State government in making amendments relating to matters under State control. As regards Fisheries Act 1985, Marine and estuarine fishing and fisheries are in the Concurrent List whereas riverine and inland fishing and fisheries and turtles are in the State List. Therefore, both the State and Federal Legislatures can pass law on the latter (except for the purpose of uniformity; but in such cases the law shall only come into force in the State if adopted by the State Legislature). In the event of conflict between State and Federa1 laws, the Federal law will prevail. However, Sabah had its own Fishing Ordinance, 1963 , but this was repealed by PUA 274/72 under section 74 of the Malaysia Act, 1963 apparently without the consent of the Head of State (Yang Di-Pertua Negeri). Similarly, when the Federal government put fishery matters as supplement to the Concurrent List taken away from the State in 1976, concurrence was not sought from the State government. And when the Federal government repealed the Fishery Ordinance in 1978, again the State government was ignored. The Fisheries Department in Sabah is now in danger of being sued by the public because it is enforcing a law upon which it has no power to act. Point 17

Representation in Federal Parliament

This should take account not only of the population of North Borneo but also of its size and potentialities and in any case should not be less than that of Singapore. Comments This point was taken up with the IGC Report and Malaysia Agreement. However, it is important to stress the fact that when considering representation in the Federal Parliament, the potentialities of Sabah should be taken into account, and that the mention of the size of Singapore's representation was only the minimum requirement. There are now 20 members from Sabah in the lower house of the Parliament. This particular point therefore remains `unbroken' but since the signatories to the Malaysia Agreement consisted of the four governments of Malaya, Singapore, Sarawak and Sabah, there is a strong case for arguing that the matter should have been reviewed when Singapore pulled out from the Federation of Malaysia. In deed, in view of Singapore's departure from the Federation this safeguard must be reviewed along with other assurances in order to give the Malaysia Agreement validity. This review should be made immediately if Malaysia, as a federation, is to continue to be valid.

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Point 18 :

Name of Head of State

Yang Dipertua Negara Comments The name of the Head of State is Yang Dipertua Negeri, as opposed to Yang Dipertua Negara as contained in both the Twenty Points and IGC Report. The use of the word `Negara' by the Sabah leaders seems to convey the point that in their minds, independence was to bring with it a certain level of political autonomy for Sabah. It may therefore be argued that Sabah upon joining the Federation was a `negara' or a nation. This clause was amended in 1976 in the Federal Constitution. Hence, the fact that this provision is not followed, is a clear deviation. Point 19:

Name of State Sabah

Comments This point was taken up in both the IGC Report and Malaysia Agreement. Point 20 :

Land, Forests, Local Government, etc

The provisions in the Constitution of the Federation in respect of the power of the National Land Council should not apply in North Borneo. Likewise, the National Council for Local Government should not apply in North Borneo. Comments While the State continues to exercise control over land, agriculture and forestry, the Federal government has established a National Land Council whose intention is yet to be determined. Should the National Land Council extend its jurisdiction over Sabah then it will contravene with particular provision.

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