KUCHING, April 18: Sabah Sarawak Rights Australia New Zealand (SSRANZ) says the six words “pursuant to the Malaysia Agreement 1963” may have killed the Amendment to Federal Constitution 1(2) Bill.
SSRANZ president Robert Pei said the Sarawak government might have intentionally or unintentionally dragged the federal government into a horrible legal nightmare after the latter’s refusal to insert the six words ‘pursuant to the Malaysia Agreement 1963’ in the proposed bill to amend Article1(2) of the Federal Constitution.
“It appears that the six words killed the bill,” said Pei in a statement.
Pei said if Malaysia was not established ‘in pursuant to the Malaysia Agreement 1963 (MA63)’, then Sarawak and Sabah are not bound by its constitution and the two countries are not part of Malaysia.
The lawyer and human rights activist in Australia said it would be more befitting to use the ‘spirit of MA63’ if the constitution recognised that the federation was constituted ‘pursuant to the Malaysia Agreement 1963’ (if not void ab initio).
The lawyer said he had also previously drawn attention to this legal oddity or omission in the Federal Constitution and that MA63, the founding international treaty, was also not cited in the original ‘Malaysia Bills’ to formally set up the 1963 federation and passed by the UK and Malayan Parliaments prior to the declaration of Malaysia on Sept 16, 1963.
The international treaty was used by the UK to justify its decolonisation of North Borneo (now Sabah), Sarawak and Singapore by integration in the Malayan Federation with its name changed to ‘Malaysia’ in 1963.
“If the federal government insists on not including the phrase, then it would leave itself open to legal challenges on many current and pressing issues relating to MA63.
“The legal status of Sarawak and Sabah would be unclear if they are not states, and they would logically revert to be colonies (with limited self-government as they have now) as they were described on being transferred by the UK to the Federation on Sept 16, 1963.”
Pei further said no amount of word wizardry could magically cure many pre-existing fundamental legal flaws or defects that riddled MA63 documentation, and there were multiple breaches of the treaty after the establishment of what Sarawak and Sabah people were led to believe was a new federation in equal partnership with Malaya.
“These legal problems have the effect of invalidating or terminating MA63.”
He suspected that the federal government’s rejection of the six words might be a conscious attempt to avert focus on the question whether Singapore’s exit terminated MA63 and whether MA63 is, on its face, void ab initio, that is invalid and not binding from the beginning.
“The incontrovertible fact is that MA63 was not made in compliance with international laws on treaty-making, in particular, the long-established rule that only sovereign states can make treaties with other states.
“This is the capacity rule that was reaffirmed by the International Court of Justice (ICJ) in the Chagos Islands case on Feb 25, 2019,” said Pei.
He said in its advisory opinion the court found that the UK government could not make a binding (international) agreement with Mauritius, which was a colony completely under British administrative control in 1965.
The Court, in reaffirming UN Resolution 1514 on self-determination, said that the disputed agreement to separate the Chagos Islands from Mauritius territory had not been lawfully completed in accordance with the exercise of the people’s right to self-determination.
Pei said the significance of this case is that for the first time on record, it appeared that an international court of law can reopen a “decolonisation” case and question the validity of a treaty made by a ruling colonial power with its colony. This has immense legal implications on the formation of Malaysia.
“When MA63 was signed on July 9, 1963, by the UK with Malaya, Singapore, North Borneo (Sabah) and Sarawak, the last two territories were described as colonies by Article 1 of MA63. Singapore was also not yet an independent state.
“The British Colonial secretary had stressed that the UK remained in control of the three colonies till Sept 16, 1963, and Sarawak and Sabah colonial legislatures had agreed to this. Therefore, the MA63 was invalid and non-binding on its face.
“It is surmised that because of this fatal flaw, the UK and then Malayan government did not cite the treaty when passing their respective Malaysia Act 1963 and the reason for the current federal government’s objection to the inclusion of the 6 words,” he said.
He noted that neither federal nor state government legal advisers had yet disputed his assertion of the MA63’s invalidity since 2014.
He said if the MA63 was valid, the federal rejection of the six words by reference to the complication of Singapore’s membership under MA63 underlies a more shattering reason that Singapore’s exit had terminated MA63.
“The termination was understood by the Kuching Municipal Council, which unanimously passed a resolution in August 1965 stating that the basis of four component countries forming the federation had been destroyed.
“The resolution called on the Sarawak state government to hold a referendum to allow the people to decide whether Sarawak should remain in the federation.
“Perhaps, the Sarawak government should re-visit the KMC resolution,” suggested Pei.
He said that even if the six words were inserted in the amendment, it would not legitimise the federation or the constitution (as it seems to be the GPS intention) as no amount of word wizardry could make it valid if MA63 was already null and void from the beginning or has been terminated by Singapore’s exit.
He added that even if Singapore’s exit did not terminate MA63, the multiple federal breaches of MA63, which included backdoor amendments of MA63 by ACT 354 (1976), Petroleum Development Act 1974 and the Territorial Sea Act 2012 and failure to implement MA63 in good faith, also amounted to a wilful discontinuance of the treaty.
“The consequence is that Sarawak and Sabah are not bound by MA63 or the Federal Constitution, and their remedy is to exit for independence, which many see as the better solution.”
He said if it was officially recognised that the federation and the constitution were made pursuant to MA63 and if the MA63 is not null and void, then it is clear that the supreme law of the land is MA63 and not the Constitution.
“Perhaps, this is another reason why the Malaya-centric federal government is unwilling to agree with the Sarawak State government.”
He concluded that whichever constitutional amendment is passed, it does not excuse the federal government from implementing MA63 in good faith or, otherwise, face continuing challenges to the legitimacy of its rule of Sarawak and Sabah.
“The Sarawak government has all this political leverage but does not show the public that it is using it for Sarawak’s benefit,” said Pei. — DayakDaily