KUCHING, Oct 3: Sabah Sarawak Rights – Australia New Zealand (SSRANZ) president Robert Pei says the Sarawak government should conduct a referendum by seeking a mandate in the coming state election, where Malayan parties must be excluded because they cannot interfere in deciding the state’s future.
Pei opined if the federal government does not agree to a referendum, then for example, the Sarawak government could conduct one by seeking a mandate in the coming state elections where it could include in the ballot slip a separate question for the people to vote on whether they want to renegotiate a new federation agreement/treaty or choose independence.
“The referendum must necessarily exclude Malayan parties as they cannot interfere in deciding the state’s future.”
If a newly elected government has a mandate to seek independence it must then proceed to explore how to achieve this, whether by negotiating with the federal government — bearing in mind the Malaysia Agreement 1963 (MA63) may not be binding any more — or failing this, to consider getting the State Legislative Assembly (DUN) to pass a motion for Unilateral Declaration of Independence.
Pei said a referendum for a re-negotiated federation or independence would be based on legal reasons that the legitimacy of the MA63 and Malaysia can no longer be legally sustained.
He said MA63 (if valid) is an international treaty governed by international law, and treaties have to comply with the established rules for making and complying with a treaty.
According to him, there are three main reasons why the legitimacy of MA63 and the federation is in question.
Firstly, he said MA63 was void ab initio (null and void from the beginning) because Sabah and Sarawak were still colonies with no capacity like sovereign independent states to make treaties, when MA63 was signed on July 9, 1963.
He said from his reading of international law on treaty making, it is an established principle that only sovereign independent states have the capacity to make treaties with each other.
“Colonies were not sovereign states as they were controlled by a colonial power. For this reason MA63 could not be a binding treaty from the beginning,” said Pei in a statement today.
He noted that MA63 was actually superseded by the Manila Accord signed on July 31 1963 which made Malaysia’s formation conditional on an assessment of the people’s wishes on the federation question.
“The Accord questioned the authoritativeness of MA63 as it was not made in compliance with UN resolutions 1514 and 1541 on decolonization.
“However at the time a proper referendum was not conducted and the credibility of the United Nations assessment was in doubt as the United Kingdom and Malayan governments pre-empted completion of the UN assessment report by amending MA63 to change the Malaysia Day declaration to Sept 16, 1963. This had rendered the assessment meaningless,” Pei opined.
He said alternatively, if MA63 was valid, Singapore’s 1965 exit had terminated the treaty as the fundamental basis of four countries forming the federation was destroyed.
“Under international law, a treaty would be terminated by any alteration or revision after it was signed unless all signatory parties consented to the amendment.
“The Independence of Singapore Agreement 1965 and subsequent Malaysian Constitution and Malaysia (Singapore Amendment) Act 1965 (CMSA65) to ratify the Agreement, changed the membership structure of four countries under MA63.
“It also altered the boundaries of Malaysia fixed under MA63. Singapore’s exit and alteration of MA63 was done without Sabah and Sarawak’s consent and against their strongest objections made at the time.”
He said assuming that MA63 was not terminated then, then it is undeniable that it has been terminated by “wilful discontinuance” of the treaty over five decades.
“The term ‘wilful discontinuance’ covers the situation where (i) a Treaty is amended, altered or revised after it was signed or by (ii) consensual termination (a) lapsing of the treaty through disuse; (b) consensual implied termination and (c) renunciation of rights.
“The treaty alteration laws mentioned in (c)(i) are the CMSA65, Continental Shelf Act 1966, Petroleum Development Act 1976, ACT 354 amending Article 1(2) of the Federal Constitution and Territorial Seas Act 2012 (replacing the CSA66).
“These laws altered the territorial boundaries of Sabah and Sarawak fixed under MA63 and the Federal Constitution allowimg the federation to seize Sarawak and Sabah territorial seas resources and in effect altered MA63.”
Pei opined that to continue Sarawak and Sabah’s membership in Malaysia would be to continue the great injustice to their people as there is no evidence that they will be able to advance in all aspects and prosper without control of their resources and affairs.
He claimed that it would not be an issue for Sarawak and Sabah to stand up as independent states as they have after all been providing up to 60 per cent of federal revenue and in fact they are propping up the federation financially.
“Both states also now have many able professionals and experienced managers who are in the best position to take direct control and administer their respective countries.” — DayakDaily
