Independence referendum: ‘Finalise a plebiscite first’, says NGO

Datuk John Lau Pang Heng

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KUCHING, Nov 14: Sarawak Patriots Association (SPA) holds the view that a referendum can be held with full compliance with federal and Sarawak Constitution.

Its chairman Datuk John Lau said “referendum” is defined as a general vote by the electorate on a single political question, which has been referred to them for a direct decision.

It is primarily a political question, while “plebiscite” is defined as the direct vote of all the members of an electorate on an important public question such as a change in the constitution. This becomes essentially a legal question, he added.

“In full obedience to the law, Sarawak’s electorate needs to finalise a plebiscite first by petitioning the Council Negeri (Sarawak Legislative Assembly) to amend the Constitution of Sarawak – see Article 74(2) of the Federal Constitution to facilitate and make way for a long overdue referendum.

“This will be viewed as a timely legal move with a proper constitutional manoeuvre which the federal government cannot disagree, dispute or challenge.

“We do this by the book – the supreme law of the land – in keeping step with Article 76A, Article 95B, Article 145(3), Article 150(6A) and List II, 9th Schedule of the Federal Constitution. We must obey the law,” said Lau in a statement yesterday.

Article 74 (2) of the Federal Constitution states that the legislature of a state may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

Following that, he said a group of plaintiffs from all 12 divisions in Sarawak (five from each division would be ideal) must bring suit in a Native Court with a petition as to whether or not a plebiscite and a referendum falls within the purview and jurisdiction of Native law, custom and usage (adat).

“Article 150(6A) prevents the federal government from declaring a state of emergency when Native law, custom and usage are invoked. Thankfully, Article 145(3) prohibits the federal Attorney General from discontinuing proceedings in a Native Court.

“Important to note that plaintiffs from all 12 divisions will prove and evidence the fact that everyone matters in Sarawak, not just the urban people,” said Lau.

He said the terms and conditions of plebiscite and the referendum must be arranged to reaffirm and confirm the “special position” right under Article 153 of the Federal Constitution for Sarawak’s Natives to get their fair, just and equitable payments from Sarawak’s oil and gas revenues and other resources as agreed upon by the foundational documents prior to the Malaysia Agreement 1963 (MA63).

To him, a broken promise needs to be fixed, a mischief needs to be undone, and justice must be seen to be done.

“Plain and simple under the supreme law of the land. No power can challenge an act of obedience to the supreme law of the land. Sarawak cannot be victimised in its right to property as encapsulated and mandate din Article 13 of the Federal Constitution.

“Sarawak should also invoke its rights to equality under Article 8 of the Federal Constitution which plainly says that nobody is above the law but equal under the law. Equal justice under the law is debatable at this juncture,” said Lau.

He said once the Native Court issues a judgment, the case may be taken to the United Nations World Court because Sarawak was a signatory to MA63, and declare Sarawak a SEGAR (Self-Governing Autonomous Region) under Article 73 of the UN Carter which grants former colonies the right to self-determination and self-government upon decolonisation.

“Sarawak was not granted this political right under customary international law. We must right this wrong. It is never too late. Sarawak did not slumber on its rights. Politics offered a recurring nightmare.

“Simultaneously, we take the decision of Sarawak’s Native Court to the International Court of Justice for Human Rights, Strasbourg, France, and engage the UK as a defendant who must answer as to why Sarawak lost its territorial independence and autonomy to Article 1(2) of the Malaysian Constitution in that no safeguards were provided for Sarawak to prevent such constitutional amendment pursuant to the original understanding of the IGCR 1962, the Cobbold Commission, and MA63.

“Customary international law got the squint, and a wink. Everyone concerned feigned a Nelson’s eye to the raw facts and real issues.”

He believed that one key question to ask the overseas tribunals is whether the United Nations and and the United Kingdom were duly informed when in 1976 Article 1(2) was amended to reduce Sarawak, and Sabah, to the status of “states” like the other 11 states of Malaya?

“Sarawak must do this before Brexit is finalised and concluded,” Lau said. — DayakDaily