I am not a politician but, being legally trained, I felt that Sarawakians should not be allowed to be confused by politicians concerning Sarawak independence and issues surrounding Malaysia Agreement 1963 (MA63) and I need to clear some air because they involved some important legal issues.
I am responding to what Lina Soo President of ASPIRASI said in the press, in which, Lina Soo said she disagreed with what President Voon Lee Shan of Parti Bumi Kenyalang said, in which, Mr. Voon Lee Shan said unilateral declaration of independence is legally recognized under international law – see 20 September, 2021 The Borneo Post
As appeared in the said paper, it was mentioned that, “Soo also disagreed with PBK president Voon Lee Shan’s recent statement that a unilateral declaration of independence (UDI) is legally recognized under international law.” Lina Soo made special reference to the advisory opinion in Kosovo’s case delivered by the International Court of Justice.
From my humble reading of Kosovo’s case, the International Court of Justice on 22 July 2010 opined that the unilateral declaration of independence (UDI) by Kosovo from Serbia was not against international law. If it was not against international law, then this means, that the UDI by Kosovo was legal and Lina Soo had therefore misled the public to say that the UDI was illegal or could not be recognized under international law. Lina Soo has to show which law book, lawyer or law professor said UDI is illegal or could not be recognized under international law and should not simply say UDI is not part of international law.
The fifteen international jurists who sat on the Bench in Kosovo’s case were world’s best known legal lions. Lina Soo being not a lawyer, should not have the cheek to say that these international jurists were wrong to say that a UDI was not legally recognized under international law.
All advisory opinions of the ICJ have a force of law, which is recognized under international law. Being recognized under international law, all advisory opinions of ICJ are enforceable by the United Nations Security Council. Lina Soo needs to understand that both ICJ and United Nations Security Council are important arms of the United Nations to settle and to regulate disputes between member nations of the United Nations.
Lina Soo needs to be advised that, the advisory opinions of ICJ being having force of law had led Malaysia losing Pedra Branca/Pulau Batu Puteh to Singapore on 24 July 2003 when the dispute went to ICJ.
To both Lina Soo and Fong Pau Teck, who kept on attacking Mr. Voon Lee Shan and Parti Bumi Kenyalang on their stand on Malaysia Agreement 1963 (MA63), I wish to inform them that there is no lawyer yet, trying to dispute the fact that, based on the advisory opinion of the Chagos Islands case delivered by ICJ on 25 February 2019 dare to say that an international agreement made between colonies and parent countries is valid.
In Chagos Islands case, not less than fifty world’s best known lawyers and jurists been involved in the case and no legal brain until today dared to dispute the advisory opinion delivered by the ICJ in the case.
In this Chagos Islands case, ICJ opined that colonies have no legal capacity to make treaties or to enter any international agreement with parent countries. Based on this Chagos Island case, Malaysia Agreement 1963 (MA63) could be declared null and void or invalid because at the time the agreement with the United Kingdom was entered on 9 July 1963 Singapore, Sabah and Sarawak, were still colonies of United Kingdom.
The fact that the federal government had tried to rectify or restore the breaches in MA63 shows that the federal government had recognized, admitted or was aware that MA63 was not a valid international agreement. Without a valid international agreement Malaysia could not be formed in the first place. Malaysia is only a de facto nation.
Lina Soo gravely erred concerning the quest of independence of countries like Scotland and Catolonia. Scotland is not allowed to seek independence by UDI because the law of United Kingdom could not allow independence by UDI but could only do this if a Section 30 Order of the Scotland Act 1988 is approved by the British government. This section 30 Order is to allow a referendum to be held for Scottish to decide whether Scotland wish to become an independent country or to stay as part of the United Kingdom.
Likewise, Catalonia could not declare independence by way of UDI because the written declaration of independence by Catalonian President Puigdemont was legally void, as it was not voted upon and was signed outside a parliamentary session. The law upon which the UDI was made was suspended by the Spanish Constitutional Court.
At the moment, there is no provision in the Malaysian federal constitution to prevent Dewan Undangan Negri (DUN) Sarawak to declare independence. There is also no Malaysian Act of Parliament equivalent to the Scotland Act 1988 to prevent independence by DUN in Sarawak but to determine independence by way of a referendum. Unlike in Spain, there is also no law in Malaysia to allow intervention by court to suspend DUN or for a UDI be voted in DUN Sarawak.