This paper is based on the hypothetical premise that the Malaysia Agreement 1963 (MA63) is a valid international treaty. It is acknowledged that Parti Bumi Kenyalang (PBK)'s stand is that MA63 is a null and void ab initio Treaty, arguing it is illegal and against international law.
Both the federal and state governments must clarify the validity of MA63: specifically, whether it was a constitutive treaty that created a new nation.
The claim that Malaysia was constituted as a new nation, as often asserted by those in Sabah and Sarawak, is misleading. Malaysia is not a new nation in the sense that the Borneo states have been misled to believe. The MA63 may be seen as a fraud, and many other significant legal issues arise in its making.
Calls for the "cancellation" of MA63, such as by a former Law Minister, assume its validity. However, in the context of an invalid treaty, there is nothing to cancel.
Abstract
This paper examines the constitutional and international-law implications of cancelling or annulling the Malaysia Agreement 1963 (MA63), the foundational treaty that established the Federation of Malaysia. Drawing on comparative cases—including Singapore’s separation (1965), the Czechoslovak dissolution (1993), and the collapse of the Ethiopia–Eritrea federation (1993)—the paper argues that cancelling MA63 would undermine the constitutive basis of the Malaysian federation. This action would significantly strengthen the claims of Sabah and Sarawak to self-determination, sovereignty, or renegotiated federal terms.
1. Introduction
The Malaysia Agreement 1963 (MA63) is a constitutive international treaty that brought together the Federation of Malaya, North Borneo (Sabah), Sarawak, and Singapore into the new political entity known as Malaysia. MA63 is registered as a treaty with the United Nations (United Nations Treaty Series, 1963), affording it an international legal status that supersedes ordinary domestic law.
This paper investigates the impact of a hypothetical cancellation of MA63 on Sabah and Sarawak’s constitutional and political position within Malaysia.
2. Constitutive Treaties and State Formation
2.1 The Nature of Constitutive Treaties
Constitutive treaties are international agreements that create new states or federal unions. Historical examples include the Act of Union 1707 (which created Great Britain) and the Articles of Union 1964 (Tanganyika–Zanzibar) (Heffernan, 2010). These treaties function as the legal foundation for the states they create, operating simultaneously in both domestic and international spheres (Crawford, 2006).
2.2 The Legal Effect of Annulment
Under the Vienna Convention on the Law of Treaties 1969, the termination of a treaty may cause the collapse of the institutional or federal structure it created, particularly if that structure is fundamentally dependent on the treaty (Aust, 2013).
The annulment of constitutive treaties has historically led to the dissolution of:
Senegambia (1989)
Czechoslovakia (1993)
The Ethiopia–Eritrea federation (1993)
These precedents suggest that revoking MA63 would undermine the legal basis for Malaysia’s current federal configuration.
3. Implications for Sabah and Sarawak
3.1 Reversion to Pre-1963 Status
Without MA63, Sabah and Sarawak may legally revert to their pre-federation constitutional positions under the Sabah Constitution 1963 and the Sarawak Constitution 1959, both of which established self-governing entities (Leigh, 1974). This reversion is consistent with international practice, where the annulment of a treaty typically restores original sovereign status unless a new agreement is concluded (Crawford, 2006).
3.2 Sovereignty and State Succession
Sabah and Sarawak would likely be treated as successor states, inheriting their pre-1963 boundaries under the principle of uti possidetis juris. This principle preserves colonial administrative borders during state dissolution (Shaw, 1997). The international recognition of new states such as Timor-Leste (2002) and South Sudan (2011) strengthens this argument.
3.3 Federal Jurisdiction and Constitutional Invalidity
Federal powers over key areas such as immigration, defence, and taxation were extended to Sabah and Sarawak through constitutional amendments grounded in MA63 (Harding & Chin, 2015). If MA63 is annulled, these amendments may lack constitutional validity, raising significant legal challenges to federal authority in East Malaysia.
4. Comparative Case Studies
4.1 Singapore’s Exit from Malaysia (1965)
Singapore’s separation was accomplished through:
A bilateral agreement (Malaysia–Singapore Separation Agreement 1965)
Amendments to the Federal Constitution
Mutual parliamentary assent (Lau, 1998)
This precedent illustrates that withdrawal from Malaysia is legally feasible when based on treaty mechanisms and political consent. The cancellation of MA63 would create an even stronger legal basis for Sabah and Sarawak’s withdrawal.
4.2 The Tanzania Union and Zanzibar
The union between Zanzibar and Tanganyika is a frequently cited analogy. Scholars note that if the Articles of Union 1964 were revoked, Zanzibar could reclaim its sovereignty (Bakari & Ndumbaro, 2006). This parallels Sabah and Sarawak’s treaty-based accession to Malaysia, highlighting the fragility of unions founded on international agreements.
4.3 Czechoslovakia (1993)
The “Velvet Divorce” occurred when the constitutive compact underpinning the Czechoslovak federation became politically unsustainable (Wolchik, 1991). The peaceful dissolution demonstrates that federations lacking a binding treaty foundation or enforceable constitutional mechanism may dissolve peacefully when constituent units assert autonomy.
4.4 The Ethiopia–Eritrea Federation
The UN-backed federation collapsed when Ethiopia violated the terms of the federal agreement, enabling Eritrea to claim sovereignty (Iyob, 1995). This case underscores the principle that the material alteration—or cancellation—of a federative treaty strengthens territorial claims to self-determination.
5. Political, Economic, and Strategic Implications
5.1 Independence as a Default Outcome
With MA63 void, Sabah and Sarawak could be regarded as sovereign entities. This outcome would transfer control of oil and gas resources to the East Malaysian states, as federal jurisdiction under the Petroleum Development Act 1974 relies on the constitutional structure created by MA63 (Chin, 2019).
5.2 Renegotiation of the Federation
Alternatively, annulment might lead to a renegotiation of Malaysia’s federal structure, similar to:
Canadian federal renegotiations after Quebec referendums
UK devolution for Scotland and Wales (Keating, 1998)
In this scenario, Sabah and Sarawak could demand:
Greater fiscal autonomy
Restored territorial and resource rights
Equal partner status in the federation
5.3 Malaysia’s Territorial and Maritime Consequences
Without Sabah and Sarawak, Malaysia would lose significant portions of its Exclusive Economic Zone (EEZ) under the UN Convention on the Law of the Sea (UNCLOS), which would significantly reshape the country’s maritime borders.
6. Conclusion
Cancelling the Malaysia Agreement 1963 would create a constitutional rupture that would undermine the legality of Malaysia’s current federal framework. Comparative international cases indicate that federations founded on treaties cannot survive the annulment of those treaties without renegotiation or dissolution.
For Sabah and Sarawak, cancellation strengthens claims to:
Self-determination
Sovereignty
Renegotiated autonomy
Independence (conditional upon international recognition)
The implications extend beyond domestic constitutional law into international law, geopolitics, and economic governance, demonstrating the profound significance of MA63 to Malaysia’s political integrity.
References (Harvard Style)
Aust, A. (2013). Modern Treaty Law and Practice. Cambridge University Press. Bakari, M. & Ndumbaro, L. (2006). The Union of Tanganyika and Zanzibar: An Analysis of the Constitutional Structure. Dar es Salaam University Press. Chin, J. (2019). ‘The Politics of Federalism in Malaysia: Sabah and Sarawak’, Journal of Contemporary Asia, 49(5), pp. 1–19. Crawford, J. (2006). The Creation of States in International Law. Oxford University Press. Harding, A. & Chin, J. (2015). 50 Years of Malaysia: Federalism Revisited. Marshall Cavendish. Heffernan, R. (2010). Modern British Government. Polity Press. Iyob, R. (1995). The Eritrean Struggle for Independence: Domination, Resistance, Nationalism, 1941–1993. Cambridge University Press. Keating, M. (1998). The New Regionalism in Western Europe. Edward Elgar. Lau, A. (1998). A Moment of Anguish: Singapore in Malaysia and the Politics of Separation. Times Academic Press. Leigh, M. (1974). The Rising Moon: Political Change in Sarawak. Sydney University Press. Shaw, M. (1997). International Law. Cambridge University Press. United Nations Treaty Series (1963). Malaysia Agreement, No. 10760. Wolchik, S. (1991). Czechoslovakia in Transition: Politics, Economics and Society.