Article by Voon Lee Shan - former State Assemblyman for Batu Lintang

Issues concerning the restoration of rights and restoration of partner status of Sabah and Sarawak involves complex politics, constitutional and international laws. Our leaders of North Borneo (now Sabah) and Sarawak during negotiations for the formation of the Federation of Malaysia, lost to the shrewdness of Tunku Abdul Rahman which caused nothing to be mentioned in the Federal Constitution to say that Sabah and Sarawak are equal partners in the Federation of Malaysia.

Having said that, it must be remembered that when Singapore, Sabah and Sarawak formed the Federation of Malaysia with the Federation of Malaya, these nations all sat down in equal status. Tunku Abdul Rahman represented the Federation of Malaya to negotiate the terms and conditions for the Federation of Malaysia.

The Federation of Malaysia was formed based on the Malaysia Agreement 1963 (MA63) which many legal experts viewed as a null and void ab initio agreement. Meaning that, if void ab initio, there should not have been born the Federation of Malaysia.

Now, upon the call of the federal government, the governments of Sabah and Sarawak have agreed to sit down with Dr. Mahathir and the federal cabinet to discus on the restoration of rights that had been diluted, taken away or not been implemented in accordance with MA63.

For negotiation of restoring the lost partnership status of Sabah and Sarawak, a Special Cabinet Committee ("SCC") has been formed with Dr. Mahatir as the Chairman. The task of this SCC is to "recommend to the federal government to restore the rights and autonomy status of Sabah and Sarawak, as this is in line with the provisions enshrined in the Federation Constitution, MA63 etc.." (see Borneo Post December 18, 2018).

Is Dr. Mahathir sitting as Chairman of SCC, representing the Federation of Malaya or sitting as the Prime Minister of Malaysia on the negotiation table? Dr. Mahathir should not sit in SCC or in any committee to determine matters concerning MA63. Being the Prime Minister he could exercise undue influence on members of SCC or any other committee that he sits in. He needs not speak but his presence during any such committee meetings will make attendees uncomfortable and/or difficult to express or to dicuss matters without restraint.

Now, with Dr Mahathir sitting as the Prime Minister of Malaysia, this immediately causes the respective Chief Ministers of Sabah and Sarawak to come to the negotiation table on an unequal par/status. This therefore takes away the spirit of equal partnership or equal status before even hitting the negotiation table. The teams from Sabah and Sarawak are put in an inferior position with the team from Malaya.

The Sarawak government is represented by a few honourable members of the Sarawak Legislature, with lawyers amongst them. Honourable members from DAP and PKR of Pakatan Harapan are also in the Sarawak negotiation team. In the negotiation team for Sarawak are also our learned former State Attorney General Datuk JC Fong and also our present State Attorney General Datuk Talat Abdul Mahmood Abd Rashid.

The federal government selected the federal Attorney General Tommy Thomas and Law Professor Emeritus Datuk Dr. Shad Saleem Faruqui who are both expert constitutional lawyers of international standing. Both of them shall have all the resources and experts to assist them from the federal government in doing research and helping them to come with legal arguments for and on behalf of the federal government. What the Attorney General Tommy Thomas and Law Professor Emeritus Datuk Dr. Shad Saleem Faruqui will say, will carry much weight and influence over the SCC or any other committee that they will be sitting.

With respect, Datuk JC Fong's expertise although is very handy but being also the Sarawak State Legal Advisor Datuk JC Fong, may find it too stressful to take his time to do research, read and think about the complexities of all matters surrounding the Cobbold Commission, MA63 and other related papers or documents before coming to the negotiation table because we all know Datuk JC Fong is always very occupied with the legal work he has for the state government. Likewise for Datuk Talat Mahmood Abd Rashid because being the state Attorney General, he could be bogged down with many important files concerning suits faced or taken by the state.

The DAP and PKR members of the Sarawak negotiating team may find themselves in a very difficult position to express themselves because Dr. Mahathir is a big person and their boss. They may have to listen to him or find themselves just listening to the boss or taking a cue from him before they speak.

In order to relieve the burden of Datuk JC Fong and Datuk Talat Mahmood Abd Rashid, the state government should employ "heavy weights" in the legal circles, especially Queen Counsels (QCs) of reputable standings to be in the Sarawak negotiations team. The legal and political issues in connection with Sabah and Sarawak rights are complex and the present Sarawak state cabinet and DAP and PKR honorable members ( YBs) who are in the Sarawak negotiations team shall be held responsible by the people of Sarawak if the negotiations does not show much progress or benefit for Sarawak.

What needs to be examined as a preliminary issue is whether MA63 is a valid international Treaty (MA63 Treaty)? If void or if there are fundamental breaches of the terms leading to MA63 being void, both the federal government and the state governments of Sabah and Sarawak should declare that MA63 is void accordingly before re-negotiating fresh terms and conditions.

If found to be void, the state government should take the political decision to break away from Malaysia before renegotiating new terms and conditions if Sarawak's cabinet decides to do so. Of course this must be with the mandate of the people of Sarawak to re-join Malaysia.

With the inequality of representations in the SCC and other committees set up to look into issues affecting MA63, the countries of Sabah and Sarawak are in for a losing game against the federation of Malaya.

Voon Lee Shan