In a joint NGO statement, Daniel Jambun President of the Borneo’s Plight in Malaysia Foundation (BoPiMaFo) and Robert Pei, President of Sabah Sarawak Rights Australia New Zealand (SSRANZ), have praised Armizan Ali, the Sabah and Sarawak Affairs Minister for his statement on the belated implementation of MA63 reported by Free Malaysia Today on 11 April 2023.
They said “We salute him for his brave and noble idea in wanting the civil servants, policymakers and all the people of the Borneo Territory to understand the context of MA63, unlike the previous government that want MA63 to be placed under the Official Secrets Act.
“It is outrageous that on the 60 anniversary of MA63, its terms are still not faithfully implemented after the British and Malayan governments induced Sabah and Sarawak to give up real independence for promises of a brilliant future in the Malayan Federation renamed Malaysia!”
In welcoming the Minister's timely statement they said they agreed generally that all relevant MA63 treaty issues should be dealt with publicly and transparently and not in secret like a private matter between the elite interest parties. They said the so-called MA63 “negotiations” in the last 4 years were like the original MA63 negotiations which were largely done in secret by the British and the then Malayan Governments in 1963 without any real public participation although it was about the people’s future.
MA63 should not be politicised as a vote-catching exercise which it has become, but treated as a very serious political issue that was suppressed for 60 years and affecting the lives of all the Sabah and Sarawak people for better or worse. The NGOs therefore urged the Minister who is a Sabahan, to “walk his talk” if he truly wants the MA63 depoliticised.
BoPiMaFo and SSRANZ would like to assist the new Unity Govt to ensure the MA63 issue will come to a closure so that the more important agenda of development and the people's welfare as a prime MA63 foundational undertaking by Malaya, will continue smoothly and quickly as much time has been wasted on endless political rhetoric.
BORNEO HIGH COURT DECISION ON MA63 VALIDITY & OTHER LEGAL ISSUES
The NGOs however believe that before proceeding further, the federal and state governments are legally bound to wait for the Borneo High Court decision expected on 28 April 2023 on the foremost legal issue which is whether MA63 was a validly made international treaty.
According to media reports the suit seeks a number of declarations on MA63 validity. One of these claims asserts and seeks to declare MA63 void as it was made with the crown colonies of Singapore, North Borneo and Sarawak which were not sovereign states with the capacity to enter into binding international agreements or treaties. The 3 colonies remained under British control till the proclamation of Malaysia on 16 September 1963. This assertion has been vindicated by the International Court of Justice (ICJ) decision in the 2016 Chagos Islands Case, where it was found that the UK had failed to make a binding international agreement with its colony Mauritius which was under its full control at the time the agreement was signed.
The legal implication is that if MA63 was invalid then Malaysia would not have been lawfully constituted. The NGO leaders opined that the anticipated High Court decision may not solve the litigants’ claims but may lead to other legal battles.
The NGO leaders also questioned if the parties could legally invoke MA63 as it was not registered until 1970 which was 7 years after it was signed on 9 July 1963. They opined that it may have been voided by the British Government’s failure to promptly register the Treaty, as required of all UN members by the United Nations Charter Article 102 (a) and b). Article 102 (b) states that if a treaty made by member states is not promptly registered, then they could not invoke the treaty in any disputes on the treaty before a UN body. The implication is that MA63 had not been concluded in compliance with international law requirements and was rendered void for failure to promptly register it.
Subject to a court finding on MA63 validity, they said the fact that the federal and state parties have not been able to solve the issues shows that there have been irreversible violations of the treaty since 1963, rendering it impossible to be implemented. They noted that the "negotiations" to implement MA63 only began in 2018 on terms already agreed upon 60 years ago, which was an acknowledgement by all current treaty parties of the fundamental breaches.
The 2 NGO leaders said there have been a host of violations of the 1963 treaty’s federation foundational terms and irreversible breaches of the Basic Structure doctrine of the federal constitution (to which Malaysia subscribes), amounting to termination or nullification of the treaty (if validly made).
They said there was a failure to faithfully, fairly and promptly implement "Borneonisation" which was the MA63 specified autonomy (self-rule) by immediate transfer of state powers to the Borneo territories as equal partners and the illegal removal of the seat allocation provision entrenched in Article 161E of the federal constitution to safeguard Sabah Sarawak special rights.
The completion of the Borneo Highway project promised before Malaysia’s inauguration and started in 1966, remains unfinished and a few contractors have become billionaires and millionaires. The poor condition of the highway remains the butt of coffee-shop jokes amongst all Borneo people, especially on rainy days.
There were multiple breaches of international law principles and the federal constitution by the -
(a) illegal alterations of Sabah Sarawak territorial seas boundaries (infringing the u t i possidetis rule) with the Continental Shelf Act 1966 (CSA66), Territorial Seas Act (TSA) 2012 & Petroleum Development Act 1974 (PDA74) and related legislation, to unlawfully seize Sabah Sarawak oil and gas assets,
(b) control of education and preference for English as a second official language,
(c) infringement of the "no state religion rule" (with Islamisation)
(d) failure to implement the underlying foundational MA63 term to develop and advance Sabah and Sarawak.
(e) Failure to honour Sabah’s MA63/constitutional entitlement to receive 40% of revenue expropriated annually from the state and remained unpaid since 1963, not to mention the interest lost.
The 2 former British colonies have however been made the poorest regions of the federation while their oil and gas wealth is appropriated to develop Malaya and not to mention, the enrichment of the privileged elites’ family GLCs and their east and west-side cronies as seen in fresh emerging facts on corruption. Since the new Unity Government was formed, there have been more disclosures of how the money was misused by the previous governments to bribe and maintain their political support and control.
It is specially noted that in respect of Sabah and Sarawak, it was agreed by all sides that Islam will not be made a State religion in the 2 states.
In both states, Islam was made a State religion which is against the spirit of the MA63 and Batu Sumpah. The amendment made to the Sabah Constitution by the then USNO government should not have happened if the the Malaya-dominated Federal Government had advised the Sabah CM then. It was no secret in the early days of Malaysia that UMNO and USNO were like "blood brothers".
So their breach of the MA63 foundational term was in fact a gross violation of the dominant Malayan's undertaking and moral responsibilities to protect the non-Muslim natives in Sabah. This also applies to the Sarawak Constitutional amendment in Article 4A which officially made Islam an official matter, breaching the “no state religion” rule.
The Minister and the Unity Government must therefore advise the Sabah to amend the Sabah Constitution by repealing the ultra vires Article 5A and the Sarawak government to repeal Article
4A of the state constitution, as the first "back to basic" approach otherwise the MA63 will continue to be made a political issue amongst the Muslims and non-muslims.
CALL FOR A REFERENDUM ON SABAH SARAWAK’S STATUS IN MALAYSIA
The NGO leaders further called on the governments to hold an independently supervised referendum on Sabah and Sarawak’s controversial status in Malaysia by enacting the appropriate laws to authorise and recognise the referendum results as binding. The law should enable a referendum to be held only after a 3-year period for all political parties and groups to freely campaign and educate people on the issues.
They said this is to resolve widespread sentiments for independence and the breach of MA63 by the federal government's failure to review MA63 in 1973. No referendum was ever held by the British and Malayan governments which had openly rejected a referendum in 1963 despite the people’s demands for one. They proposed Malaysia and then colluded to deny a referendum for the people to freely make a choice on federation or independence, by using the Cobbold Commission and then the UN assessment to endorse their plan.
Neither of these processes was a proper referendum held to precisely gauge the people's wishes with the options for Malaysia or to choose independence. It is noted that the Indonesian and Philippine governments did not at first oppose Malaysia but always maintained that Malaysia did not have a legal basis without obtaining the people's consent by a properly held UN-supervised referendum on the people's wishes on the federation.
This position became one of 2 pre-Malaysia conditions of the Manila Accord signed on 31 July 1963 by Malaya with its 2 neighbours. This stance was reiterated in the 1966 Indonesia-Malaysia Peace Treaty ending Konfrontasi with a single term and condition that a vote be held to confirm that the Sabah Sarawak people agreed with their country being incorporated into Malaysia. It was also a condition insisted on by the Philippines Government which wanted to resolve its claim on Sabah. But as was the pattern of not faithfully abiding by any international agreement, nothing was done for 60 years by the Malaysian government which chose to override the Manila Accord and MA63.
The NGO leaders said that the UN Assessment Report was based on reliance on the questionable and unsound Cobbold Commission Report. This was prepared by the Commission which was not an independent and unbiased body as it had a major conflict of interest. It was composed only of people appointed by the 2 governments which proposed to transfer Sabah and Sarawak to the Malayan Federation.
The Cobbold Commission Report claimed by some to be a “referendum”, was no more than an unverified opinion poll of 4000 people in Sabah and Sarawak and could not claim to be representative of a total population of 1.5 million people. The Sarawak United Peoples’ (SUPP) petition with 112,000 signatures against the Malaysia plan and demand for independence was simply ignored by the Commission. The 5 men Commission had completed its 2-month-long enquiry by June 1962 but its Report was withheld for 2 months on the Malayan government's objections and demands to amend to read as positive support for the proposed federation.
Whether it was an independent body or not, the fact is that it should have been a referendum under Principles 6 and 9 of UN Resolution 1541 and also Resolution 1514 principles on decolonization and self-determination.
They said the UN Assessment not was a referendum and nor was it legally completed. It was used by the British government to justify its claim that North Borneo and Sarawak were being “decolonised” according to UN Resolution 1541. However, any legality was compromised from the beginning as the UN Secretary-General's office had assured the United States and the United Kingdom that the UN Assessment team would be "handpicked" to ensure a result favourable to the UK-Malaya federation plan. (see attached telegram from the British colonial Secretary Duncan Sandys).
The British and Malayan governments armed with such an assurance proceeded to confidently announce a new Malaysia inauguration date after amending the MA63 Malaysia Day proclamation on 31 August to 16 September 1963 before the UN assessment was completed.
The UN’s complicity was seen in how it did not abandon the assessment as being comprised or jeopardised by the announcement but went on to endorse Malaysia. The UN ignored the Indonesian and Philippine governments’ protests against the breach of the Manila Accord conditions. The 2 governments suspended diplomatic relations with Malaya and refused to recognise Malaysia for 3 years. This also provoked the Indonesians to escalate their opposition to Malaysia with Konfrontasi and open warfare.
The NGO leaders added that a referendum with the options on whether (a) Sabah and Sarawak remain in Malaysia or (b) join the Philippines or (c) exit for independence, would also legally resolve the Philippines' claim on Sabah (a claim now extended to Sarawak by Nur Misuari leader of the Moro National Liberation Front). This is because the people freely chose the options they wanted and their wishes should be respected.
They said that the unresolved Philippines’ claim on the eastern part of Sabah remains a legal issue of whether the British government had sovereignty over that part of Sabah to transfer to Malaya in 1963. At the same time it raises the question as to whether Malaysia was lawfully concluded under MA63.
The NGO presidents strongly urged that the Unity Govt must have the political will and sincerity to resolve the grievances of the people of Sabah and Sarawak relating to the MA63 in its original form. Last but not least, the people of the Borneo Territory states ought to calmly ponder what Sabah and Sarawak leaders said about Malaysia.
“Anang baka tebu, manis ba pun tang tabar ba ujung. (Don’t be like the sugar cane sweet at the beginning tasteless at the end) - Tun Temenggong Jugah Barieng. Notipuan om noduung tokou do suminpuu do Malaysia. (We were cheated and fooled into joining Malaysia) - Tun Fuad Stephen.
They concluded that under international law fundamental breaches of a valid treaty such as failure to faithfully implement the treaty plus numerous backdoor alterations of foundational terms amounted to a termination of the treaty. This would give the Borneo signatories the legal right to seek an exit for real self-determination.
Signed on 13 April 2023 by
BoPiMaFo President Daniel Jambun
SSRANZ President Robert Pei
ENDORSEMENTS BY SABAH NGOS AND INDIVIDUALS.
1. Kanul Gindol Chairman Gindol Initiative for Civil Society Borneo, Sabah
2. Clefts Spine Mojingol President Pertubuhan kebajikan Rumpun Dayak Sabah (PKRDS)
3. Ricky Ganang
Persatuan Kebudayaan Lundayeh Sabah
4. Wainin Setimin
President Pertubuhan Prihatin Mualaf Sabah (PPMS)
5. Jovilis Majami
Persatuan Pembangunan Sosial komunity Sabah (BANGUN)
ENDORSEMENT BY SARAWAK NGOS AND INDIVIDUALS:
1. President Voon Lee Shan - Parti Bumi Kenyalang
2. President Dominique Ng - Sarawak Association of Peoples’ Aspirations (SAPA)