LAWYER SAYS MA63 INTERNATIONAL TREATY IS NULL AND VOID ACCORDING TO 2019 INTERNATIONAL COURT OF JUSTICE RULING ON THE CHAGOS ISLANDS CASE
（SSRANZ - April 11, 2019）
SSRANZ President Robert Pei said the Minister in the Prime Minister’s Department Liew Vui Keong may not have carefully considered the full implications of what he said as reported on 25 March 2019, quote:
“Besides that, the government will not agree to any suggestion and issue raised in relation to the dissolution of MA63 and self-determination,” he said in reply to an oral question by Jeffrey Kitingan (Star-Keningau).
He said the Minister may not have been aware that the International Court of Justice had made a decision on 29 Feb 2019 which in re-affirming the right of peoples to self-determination (UN Resolution 1514XV), re-stated the international law rule on treaty making that only sovereign states can make treaties and colonies (non-self-governing territories) are not sovereign independent states with the power to make such treaties with independent states.
The case related to issues on the decolonization of Mauritius in 1968 which challenged the validity of 1965 Mauritius "agreement" with the United Kingdom to "detach" the Chagos Islands from Mauritius territory to form a new colony in 1965. It was referred to the ICJ, which hears legal submissions over international boundary disputes, after an overwhelming vote in 2017 in the UN assembly in the face of fierce opposition from a largely isolated UK.
For the first time on record, it appears that an eminent court of law has reopened a "decolonization” case and questioned the validity of a treaty made by a ruling colonial power with its colony and whether decolonization had been lawfully completed in accordance with the right of peoples to self-determination.
and there is nothing to be “dissolved” contrary to what the Minister was saying. MA63 was made in violation of the said legal principle when North Borneo (Sabah) and Sarawak were still colonies. The formation of Malaysia under MA63 was intended by the UK as part of its decolonization of Sabah and Sarawak by “integration with an independent state” (Malaya under UN Resolution 1541XV). If MA63 was invalid and not binding, there is no “Federation of Malaysia” to speak of and Sabah and Sarawak should indeed be talking about self-determination.
Robert a Sarawak born Australian lawyer and activist pointed out that the recent International Court of Justice’s (ICJ) decision on the Chagos Archipelago Case (Mauritius, delivered 29 Feb 2019) has confirmed his assertion since 2014 that MA63 was void ab initio. He first raised this issue in his paper “Is MA63 a valid international Agreement?” in a Kota Kinabalu forum on MA63 in 2014.
He said the ICJ decision, therefore, has an immediate impact on the validity of MA63 and he queried whether the current inter-state/federal government MA63 talks have any legitimacy.
He said the ICJ findings on the cited case was that Mauritius as a colony under the authority of the United Kingdom, its administering Power in 1965, could not make a binding an international agreement with the UK as this was not free and genuine expression of the will of the people.
Para 172 of the ICJ decision stated that: “The Court observes that when the Council of Ministers agreed in principle to the detachment from Mauritius of the Chagos Archipelago, Mauritius was, as a colony, under the authority of the United Kingdom. As noted at the time by the Committee of Twenty-Four: “the present Constitution of Mauritius . . . do[es] not allow the representatives of the people to exercise - 41 - real legislative or executive powers, and that authority is nearly all concentrated in the hands of the United Kingdom Government and its representatives” (UN doc. A/ 5800/Rev.1 (1964-1965), p. 352, para. 154). In the Court’s view, it is not possible to talk of an international agreement, when one of the parties to it, Mauritius, which is said to have ceded the territory to the United Kingdom, was under the authority of the latter.”
Robert said there are many similarities in the making of the UK-Mauritius Agreement of 1965 and the Malaysia Agreement of 1963.
From 9 July 1963 to 16 Sept. 1963, both Sarawak and Sabah were still colonies (as stated by Article 1 of MA63 and the Malaysia Act 1963) administered by the UK when they purportedly signed an international agreement with the UK, Malaya, and Singapore agreeing to transfer British sovereignty over the Borneo territories and Singapore to the Federation of Malaya, without independence first or consent and mandate freely given in a referendum on the Malaysia question. The UK had claimed that this was one way to decolonize Sabah and Sarawak by integration in the Malayan Federation in accordance with the UN General Assembly Resolution 1541XV.
Robert pointed out that on the date MA63 was signed neither North Borneo nor Sarawak had self-rule. Nominal self-rule was only “granted” to Sarawak for 55 days from 22 July 1963 and Sabah was granted 14 days of self-rule on 31 August before they were incorporated in the Malayan Federation renamed “Malaysia” on 16 Sept 1963. This did not even in any way complied with requirements of UN Resolution 1541XV which included the gaining of governing experience and political maturity to consider the federation proposal.
On 31 August 1963, the British Colonial Secretary Duncan Sandys (in rejecting S’pore Unilateral Declaration of Independence UDI) stated that Singapore, North Borneo and Sarawak were at all times territories under the authority and full control of the UK till 16 September 1963, the Malaysia formation date.
In view of this confirmation of Sabah Sarawak pre-MA63 status and applying the Chagos ruling on MA63, neither North Borneo, Sarawak nor Singapore could make a binding international agreement with the UK when it still had direct control over them on 9 July 1963.
The ICJ ruling, therefore, affirms Robert’s assertion that MA63 was void ab initio (invalid from the beginning) for this reason. This means that the British decolonization of Sabah and Sarawak had not been lawfully complied with in accordance with the people’s right to self-determination, especially the failure to obtain a mandate or consent freely given in a referendum on the Malaysia Question.
He said as far as Minister Liew’s statement goes, there was no MA63 to be dissolved. He said this immediately raises the question “Has the Federation been illegally controlling Sabah and Sarawak sovereignty since MA63 and is Malaysia just a de facto state which expanded its territories by absorbing the Borneo countries?”.
Further, according to the announced amendment to Article 1(2) of the Federal Constitution, the removal of Sabah and Sarawak status as “states” means that they would revert to their pre-Malaysia status as “colonies” as stated in Article 1 MA63 and in the Malaysia Act 1963 ratifying MA63.
Therefore the Minister was wrong to state that the Federal government would not consider dissolving MA63 or “self-determination” for Sabah and Sarawak.
In fact, if MA63 does not exist, the Federation is under a duty placed on it by the UN Charter and Resolution 1514 to immediately decolonize the 2 colonies.
In conclusion, he called on the Sarawak and Sabah governments to seriously look at the Chagos Islands decision and review their respective states’ position in the Federation. They have a number of options but the first thing to do is to assert and claim their people’s right to self-determination.
End of comments.