Dr M’s statement on restoring Sabah, Sarawak’s equal status a ‘token gesture’ — lawyer

Robert Pei

KUCHING, Sept 20: Sabah Sarawak Rights Australia New Zealand (SSRANZ) believes that Prime Minister Tun Dr Mahathir Mohamad’s admission of fundamental breaches of the Malaysia Agreement 1963 (MA63) amounts to voiding treaty.

SSRANZ president Robert Pei, a Sarawak-born Australian lawyer, said it was the latest “token gesture” by Dr Mahathir on Malaysia Day to restore Sabah and Sarawak as equal partners under the MA63 and lost special rights under the buzz slogan of “New Malaysia” or “Malaysia Baru”.

He said Dr Mahathir’s Malaysia Day statement amounted to an admission that the federal government’s unfair treatment and deprivation of Sabah and Sarawak’s status and special rights were material breaches of fundamental terms of the international treaty that created Malaysia.

“MA63 is governed by international law on treaties, and the breach may be treated as a termination of MA63, according to established international law principles, and the treaty would be null and void and no longer binding on the Borneo states,” he opined in a statement.

He held the view that the fundamental MA63 terms were used to induce Sabah and Sarawak to give up their demands for national independence in 1963 and to form a union with Malaya.

“The UK and Malayan governments had assured the Borneo people that they would not be ‘re-colonized’ and impressed on the Borneo leaders that this was the only way they could achieve ‘security and prosperity’, backed up by guarantees of ‘equal partners’ status with regional autonomy and special rights.

“However, over five decades, the treaty was torn up by the federal government as ‘equal status’ and autonomy rights were taken away. If the founding reason or rationale for the federation has ceased to exist, then the MA63 is just a dead treaty and no longer binding on Sabah and Sarawak. That opens up several options for the two states to consider,” said Pei.

He added that the situation puts the Sabah and Sarawak governments in a very strong position to disregard any further “negotiations” on restoring their stolen state rights and demand immediate action to restore those rights.

“If the MA63 is null and void, they are also in a position to consider re-negotiating a new federal treaty arrangement for a “Malaysia Baru” (if they have the people’s mandate) or even look at the option to become independent states, which is supported by widespread sentiment in the two states,” he said.

E11 Platform Complex, Baronia oilfield in Miri. — file pic

He said the full restoration of Sabah and Sarawak’s MA63 rights means reinstating Sabah and Sarawak to their 1963 positions by the repeal of a series of federal laws that were passed since 1965.

“This would also involve the repeal of the Petroleum Development Act 1974 or alternatively to exclude its application to Sabah and Sarawak. In addition, the issue of distribution of one-third parliamentary seats to each of the two states since Singapore’s 1965 exit must be resolved,” said Pei.

He said the series of federal laws that had the effect of voiding MA63 include the Constitution and Malaysia (Singapore Amendment) Act, 1965, (CMAA65), Continental Shelf Act 1966 (CSA66 lapsed in 2011), PDA74, Act 354 1976 (amending Article 1 of the Federal Constitution) and the Territorial Seas Act 2012 (TSA2012), which took away Sabah and Sarawak’s special rights.

“This was also a violation of international law principles: a treaty cannot be amended without the consent of all the signatory parties,” said Pei.

Pei explained that the Constitution and Malaysia (Singapore Amendment) Act, 1965 was an Act passed by the Malaysian Parliament to allow Singapore to exit from the federation in August 1965.

“It had the effect of altering the agreed international boundaries of Malaysia and destroying the basis of four countries for forming the federation. Singapore’s exit was done without Sabah and Sarawak’s consent and participation and also prompted their attempts to secede from the federation.”

He said the CSA66, PDA74, ACT354 and TSA2012 had altered and reduced the agreed pre-1963 territorial boundaries of Sabah and Sarawak to enable the federal government’s seizure of their territorial water resources, in breach of MA63.

Pei pointed out that Article 1(3) of the Federal Constitution (which was authorised by MA63 and read subject to the treaty as the supreme document establishing the federation), specifically recognised Sabah and Sarawak’s territorial boundaries as fixed by the former British colonial government in 1956 and reinforced by the Oil Mining Ordinance 1958, which applies to both states. (Art. 1(3) states that “Subject to Clause (4), the territories of each of the States mentioned in Clause (2) are the territories comprised therein immediately before Malaysia Day”.)

He believed it was quite impossible for the new federal government to make more than just a nominal restoration of the states’ “equal partner status”, which, on its face, is a straightforward parliamentary voting exercise.

“But to be seen as genuinely wanting to be fair and just, the Pakatan Harapan government must move a motion to declare as unconstitutional and repeal the PDA74, ACT354 and TSA2012 and all legislation that had violated MA63.

“The Sabah and Sarawak governments should be more than happy to oblige by instructing their Members of Parliament (MPs) to support the PH government, which would (presumably) then have the two-thirds majority to constitutionally repeal these laws as stated by the prime minister.

“He may have been referring to ACT 354, as a two-thirds majority is only necessary to amend ACT 354, which was a constitutional amendment. But it seems unnecessary to have a two-thirds majority to repeal the other acts as done with the repeal of CSA66 and the Internal Security Act 1960. These were not Acts specifically intended to amend the Federation Constitution,” said Pei.

He also pointed out that it was not just a matter of restoring the two states’ “regional autonomy” status but also repairing the deleterious social-economic impact on their people after five decades of federal neglect and federal pillage of their petroleum wealth.

“The PDA74 forced this wealth to be unfairly and unjustly shared out to 11 Malayan states for their development while Sabah and Sarawak were reduced to the two most poverty-stricken, backward and dependent vassal states,” he said and questioned how the federal government could compensate the people of Sarawak and Sabah. — DayakDaily