Sabah Sarawak Rights Australia New Zealand (SSRANZ) an international NGO based in Australia, has asked whether PM Anwar Ibrahim’s directive for the immediate “implementation” of the Malaysia Agreement 1963 (MA63) was just a political stunt as it is impossible to immediately reinstate or implement many MA63 foundational terms and rights especially devolution of administrative powers and autonomy status, which have been removed since 1965. The Sarawak GPS and Sabah GRS governments have already pointed out this problem to the Prime Minister.
The SSRANZ President Robert Pei said a number of legal matters must be resolved before implementation. Firstly, the federal and state governments should withhold action till March 2023, pending the Borneo High Court’s decision on the Writ on MA63 validity. Secondly if MA63 is valid, there is the need to reinstate the treaty to its 1963 position by repealing all laws especially ACT 354, that had illegally taken away Sabah and Sarawak’s entrenched constitutional rights and powers and the Petroleum Development Act 1974 (PDA74). This would most importantly, restore their control of oil and gas resources, essential for the development of the former British colonies.
He asked if the sudden haste to “implement MA63” was to “head off” the current Borneo High Court case in which 11 litigants are challenging MA63 validity and seeking compensation for loss and sufferings arising from treaty breaches.
According to news reports, the Writ was filed in Dec 2022 against the governments of the United Kingdom, Malaysia and Sarawak, seeking declarations that that MA63 was invalid and not legally binding as it was tainted by many illegalities and defects in violation of international law. The Writ also alternatively seeks declarations that if MA63 was a valid treaty, it was rendered null and void or terminated by multiple fundamental breaches of foundational terms.
The ongoing “MA63 negotiations” and the Prime Minister’s recent reported remarks that the implementation of the MA63 treaty was “long over due” are an irrefutable admission that the objectives of forming Malaysia declared by PM Tunku Abdul Rahman was for the Borneo people’s benefit and to free them from colonial rule, had failed. The treaty (if valid) could be treated as having lapsed and no longer binding as it was never faithfully implemented or that the treaty has been so altered that it no longer reflects the original objectives and impossible to implement.
The so-called “decolonisation” of the 2 former British colonies by inducing them to give up independence for “self-rule” through federation with Malaya and Singapore, was to prioritise the immediate devolution or transfer of administrative power (called “Borneonisation”) to the people. For Sarawakians “self-rule” in an already independent Sarawak was a prime objective set down by the 1941 Sarawak Constitution. Ironically the late CM Stephen Kalong Ningkan was dismissed from office for opposing “Malayanisation” which sought to replace Borneanisation. He had condemned this as an attempt to re-colonise Sarawak.
Robert Pei said the difficulty in seeking agreement on 4 major areas of MA63 indicates that the treaty has been so altered and damaged that it may be impossible to rectify or reinstate the abrogated rights and powers and implement. This alteration covers a number of agreed MA63 foundational terms such as the concept of a secular and multicultural Malaysia and religious freedom, entrenched parliamentary seat allocation (affected by a change in the structure of 4 component members to 3 with S'pore exit in 1965), autonomous status, Borneanisation of the civil service and education system, federal undertakings to “develop” Sabah and Sarawak, state territorial integrity, rights and control of resources including petroleum, Sabah’s 40% revenue.
The SSRANZ President said even if MA63 had been validly made, it was never legally binding as it was not recognised by the Federal Constitution from 1963 till the 2021 amendment to acknowledge that Malaysia was set up pursuant to the treaty. This legal defect and the fact that MA63 and Malaysia were concluded under coercive emergency conditions, question whether Malaysia was legitimately constituted as a federation in 1963. He said Malaysia would be no more than a de facto federation in status.
Pei also pointed out a legal issue which has gone unnoticed, is that MA63 was also rendered void by the UK’s failure to register the treaty with the United Nations from 1963 to 1970. Under Article 102(2) of the UN Charter, all UN members must promptly register a treaty after ratification and if not done, the treaty could not be invoked. If the treaty could not be invoked for 6 years, then all the actions done during that time in the name of Malaysia would be illegitimate and impact on the legal status and acts of Malaysia.
He said that all these issues may explain why the Prime Minister and many politicians have called for the speedy implementation of MA63, apparently in the hope of validating the treaty as they are surely aware that MA63 is invalid or would have been terminated by multiple violations.
This view is supported by a Malayan University professor who in alluding to the MA63 validity issue, said that the Borneo state governments had surprisingly endorsed the 2021 constitutional amendment and some additional news terms and that the parties had therefore agreed to be legally bound by MA63.
The SSRANZ president said that neither the constitutional amendments nor any speedy implementation would legally validate what was in reality an invalid international treaty. MA63 was on its face void ab initio in breach of international law and if valid it was made void by the non-registration and multiple breaches.
On 9 July 1963, the UK and Malayan governments had purportedly made an agreement with 3 British crown colonies when they were not independent sovereign states with legal capacity to make treaties.
Declassified colonial documents have revealed that the United Kingdom (UK) and Malayan governments had proceeded to make the international agreement ignoring legal advice that Sabah, Sarawak (and Singapore) which were still British Crown colonies could not be parties to the agreement as they were not sovereign states with power or legal capacity to make treaties. However, the colonies were included as parties to the treaty for “presentational purpose” to avert international criticism that MA63 did not have legal basis. To create the impression of legitimacy, the British colonial attorney generals also signed on behalf for Sabah and Sarawak respectively with their local handpicked signatories.
The assertion of MA63 invalidity first made by the SSRANZ president in 2013 has been vindicated by the United Nation’s court the International Court of Justice (ICJ) decision confirming the capacity rule in the 2019 Chagos Case. After a thorough examination of the facts, the ICJ concluded that the British government could not make a binding international agreement with Mauritius in 1965 as it was then a crown colony under full British administrative control and the legislature did not have executive or even legislative powers. For the same reason, MA63 made earlier in 1963 with the British controlled Borneo colonies was null and void from the beginning.
The SSRANZ president concluded by repeating his previous call on the Prime Minister and the Borneo state governments to firstly review the legal status of Sabah and Sarawak in the federation and many legal issues affecting Malaysia’s legitimacy, which they have a duty to resolved before further action on MA63. The Sarawak State government should also be transparent and hold public hearings on MA63 and disclose its London Legal Team’s findings on MA63.
He reminded the Prime Minster of his recent public statement that his government would continue to support the Palestinian right to self-determination and its quest for a Free Palestine. He said the Prime Minister could show his sincere adherence to the universal legal principle of self-determination by reviewing the status of Sabah and Sarawak in the Malaysia.