We have never been an independent state since 1946 after Sarawak and Sabah were annexed and made Crown Colonies by the United Kingdom along with Singapore.
Many experts and activists opined that Sabah and Sarawak have been colonized by Malaya with a stroke of a pen by way of making their leaders signed the Malaysia Agreement 1963 ( MA63).
However, it is asserted that MA63 was said fraudulent and a non-binding international agreement because Sabah and Sarawak being British colonies had no legal capacity or power to enter the agreement. “Crown colonies” of the British empire were and are colonies directly ruled by the British Crown through its appointed governors. The legislative members of Sarawak at that time were not directly elected but were appointed by the Governor and assented to by the Crown. They were representatives of the Crown, not the people. Therefore, their voice was the voice of the Crown, not the people! This was the same case for the crown colony of Singapore. Even though the United Kingdom had empowered its crown colony of Singapore to make international agreements, such agreements were not binding unless the Crown assented to them. Thus for the Crown to assent to Singapore signing is a legal absurdity as the agreement would in effect made and signed on behalf of the Crown.(The 22019 International Court of Justice (ICJ) decision in the Chagos Islands case was also clear on this point of law that colonies are not able to enter any agreements with parent countries.)
Even if MA63 was properly constituted at the time it was signed, which is disputed, the many fundamental breaches of the foundational terms and conditions of MA63 would have nullified MA63 under international law and should therefore be no longer binding for Sabah and Sarawak to remain in the federation. Such breaches were also a violation of the Basic Structure Doctrine recongnised by Malaysia, as to have altered and destroyed the foundational terms and conditions entrenched in the Federal Constitution.
The fact that the Sarawak state government has called the restoration and or the implementation of the terms and conditions in the MA63 shows the government realized and admitted that the MA63 was invalid or should be invalidated.
From the foregoing observations, it is difficult for anyone including the Federal and Sabah and Sarawak governments to deny the fact that Sabah and Sarawak are not colonies of Malaya.
First, the current federal Constitution was the federal Constitution of Malaya, which was authorized by MA63 and then adopted, modified or amended to absorb Singapore, Sabah and Sarawak as part of Malaya. After Singapore, Sabah and Sarawak were absorbed or acquired as territories of Malaya, ostensibly by way of MA63, Malaya then informed the United Nations through its representative, Dato Ong Yoke Lin, that Malaya change its name to Malaysia effective on 16 September, 1963 after Singapore, Sabah and Sarawak became part of its territories. The United Nations legal opinion (19 September, 1963) confirmed there was no need to register Malaysia as a new United Nations member nation as it was only a change of name to “Malaysia” with the admission of three new members an enlargement of Malaya Federation. Therefore, Malaysia is Malaya and Malaya is Malaysia.
Second, the Federation of Malaya flag is the current federation of Malaysia flag with no change in design and colour, except with additional spikes to the star and stripes of the flag to represent the 13 states in Malaysia. Last time, these were 14 when Singapore was still in Malaysia.
Third, the national anthem “Negara Ku” of Malaya is the “Negara Ku” of Malaysia. Nothing changed.
Fourth, the governors of Sabah and Sarawak have to be appointed by the King and the King was and will always be from Malaya. The federal Constitution does not allow any Sabahan or Sarawakian to be the King of Malaysia. This points to argument or belief that Sabah and Sarawak had indeed been colonized and are colonies of Malaya. They resemble, “crown colonies” of Malaya as explained above.
The colonial Sarawak Attorney General PEH Pike did say Sarawak could not be parties to MA63. He opined that the fact that the local representatives of Sarawak are to sign the MA63 will be for “presentational” purposes only. Experts also are of opinion that MA63 was only an agreement between United Kingdom and Malaya. Mr. PEH Pike also signed MA63 on behalf of Sarawak. In other words, Mr. PEH Pike and the nominated Sarawak signatories are British Crown representations who signed for the United Kingdom, not Sarawak.
The recent Chagos Islands case delivered by the International Court of Justice (ICJ) in February, 2019 was also clear on this point of law that colonies are not able to enter any agreements with parent countries.
Come 722, we in Sarawak will again be fooling ourselves to say we are independent and had been granted independence, but by whom?
We have never been granted independence by the British nor by Malaysia. If we say we had been granted independence why should we in SARAWAK still in Malaysia and not an independent Sarawak outside?
In a colonial situation or that similar to the Singapore separation independence under British law, independence normally could only be granted by an Act of Parliament.
When Prime Minister Lee Kuan Yew unilaterally declared Singapore independence on 31 August 1963, the British government said the declaration of independence was invalid because the independence of British territories could only be done by an Act of Parliament passed by the United Kingdom Parliament. 31 August, 1963 was supposed the day Malaysia was formed and 31 August was the day to celebrate Malaya Independence Day or Merdeka Day but it was deferred to 16 September, 1963.
It is noted that the Adenan government had declared and gazetted “Sarawak Independence” in 2016. It is arguable that this was ineffective under the Singapore precedent as the Malaysia Parliament has to pass an Act to recognize Sarawak independence.
However, as MA63 was null and void or voided by multiple violations of founding terms and conditions, the independence declaration by the Adenan government would legally be effective as Malaysia is presumed to have the only de facto control of Sarawak sovereignty!
To declare so outside parliament or Legislature is for political purposes only. It is either a way by political leaders to gain support from people to get them stay in power or to mislead the people for their own ends.
Conclusion should focus on 722, that the state government of Sarawak is conscious about the people’s unfulfilled aspiration for genuine independence. The gazetting of 22 July 1963 as Sarawak independence day was just to appease the widespread discontent with the unequal East-West relationship.
Another issue that makes Sabahans and Sarawakians not easy is about federal Cabinet and Parliament are controlled by Malaya. Political parties from Malaya taking away seats allocated for Sabah and Sarawak, which only have 56 seats to these states of Sabah and Sarawak while Malaya has 166 out of 222 seats in Parliament.
How can Sabah and Sarawak have any voice when Malaya is in control and how could the federal government would be able to justify that Sabah and Sarawak are not colonies of Malaya? How could the Sarawak government justify that Sarawak had gained independence from the British when all things were done between the British and Malaya were not by wishes of all the people of Sabah and Sarawak by way of a referendum but by closed door maneuvering and decisions of a few persons only? In all circumstances, experts opined that the formation of Malaysia had not been in accordance with in international law and wishes of the people of Sabah and Sarawak. It is hoped that the federal government, Sabah and Sarawak governments do come and get the relevant international court to determine the legality of the formation of Malaysia so that this “ghost” will not keep haunting Sabahans and Sarawakians.
Voon Lee Shan
Parti Bumi Kenyalang
20 July 2023.