Federal Court can rule on unwritten/uncodified ‘Malaysia Constitution’.
Borneo Territories not entirely governed by Federal Constitution.
OPINION . . . It’s high time that someone in Sabah or Sarawak, Orang Asal (indigenous) or otherwise, approach the High Court of Borneo and file an ex-parte Originating Summons (OS) for declarations on points of law on the unwritten/uncodified ‘Malaysia Constitution’.
The High Court of Borneo, through the Federal Court, cannot in law declare that Sabah and S’wak, the Borneo Territories, are entirely governed by the Federal Constitution. We will come to that later.
The International Court of Justice at the Hague, Netherlands, may be another Forum for a determination on the issue. Only the M’sian gov’t has locus standi to raise the issue at the ICJ either directly or via the UN Secretary-General and/or the UN Security Council.
It’s not known whether the High Court in London can hear the case based on the UK being a signatory nation on the Malaysia Agreement 1963 (MA’63). The court has to first decide whether it has jurisdiction. The people in the Borneo Territories have locus standi to approach the High Court in London directly on the matter.
One document . . .
Unwritten/uncodified means “not found in one document”. In fact, in law, no Constitution has ever been completely written and codified. There’s always something unwritten/uncodified somewhere i.e. not found in the Constitution.
Likewise, no unwritten/uncodified Constitution remains completely unwritten and uncodified. There’s always something written/codified elsewhere i.e. not part of the main body of constitutional documents.
I am quoting the University of London from a law module for the LLB Programme.
Briefly, the unwritten/uncodified ‘M’sia Constitution’ is based on the constitutional documents on M’sia including the Batu Sumpah (Oath Stone), a constitutional document in stone, in Keningau, Sabah. MA’63 remains the main document in the ‘M’sia Constitution’. Other constitutional documents include declassified colonial documents on M’sia and the Federal Constitution, the latter with or without the MA’63 incorporated.
Constitutional Court . . .
M’sia has no constitutional court. However, the Federal Court can sit as the Constitutional Court.
In retrospect, the Federal Constitution is based on the Federation of Malaya Agreement 1948, reinforced by the Federation of Malaya Independence Act 1957.
Malaya was given self-gov’t in 1955. The 1948 Federation replaced the short-lived Malayan Union in 1946.
The Straits Settlements, Federated Malay States, and Unfederated Malay States preceded the Malayan Union.
The Originating Summons arises in the wake of media reports that de facto Law Minister Wan Junaidi Tuanku Jaafar’s Bill to amend the Federal Constitution will “redefine” the meaning of “the Federation”.
It’s not exactly clear how this “redefinition” can be made possible in law. Article 160(2) of the Federal Constitution, an interpretation clause, defines “Federation” as that set up by the Federation of Malaya Agreement 1948 and reinforced by the Federation of Malaya Independence Act 1957.
The Malayan gov’t, responding to a suit by the Kelantan gov’t, assured the Supreme Court of Malaya on 11 Sept 1963 that the Federation of Malaya would continue after M’sia on 16 Sept 1963.
M’sia Equal Partnership . . .
It has been argued since 1963 that M’sia isn’t Federation but Equal Partnership of Sabah, S’wak and Malaya. The M’sia Agreement 1963 (MA’63) remains the ultimate political document on the Equal Partnership and hence has force of law.
There’s case law at the Federal Court stating that only what has been incorporated in the Federal Constitution from MA’63 is law. No one will dispute this since MA’63 isn’t law.
Having said that, the said case law didn’t mention that MA’63 has force of law. Otherwise, there’s no basis for Sabah and S’wak to be in M’sia with Malaya.
MA’63, like the Magna Carta (Grand Charter) in England, exists whether incorporated or otherwise in the Federal Constitution. The unwritten/uncodified British Constitution includes the Magna Carta, among other constitutional documents.
The Federal Constitution itself isn’t law but as the ultimate political document for the Federation, setting up the governing institutions of state, it has force of law.
Adat, being based on customary practices, likewise has force of law. Adat is the 1st law in international law. Human rights and international customary practices are the basis of international law. These are incorporated in national law by the international community.
Breaches . . .
Wan Junaidi wants to remove breaches of the MA’63 from the Federal Constitution.
Article 1(2) may be the most cited breach. On 13 July 1976, the said Article was amended to reduce the status of Sabah and S’wak in M’sia from Equal Partnership to “two of the states in M’sia” i.e. no higher, no lower, than the states in Malaya. Wan Junaidi claims that the amendment was based on a “misinterpretation”, presumably by the Federal gov’t. This doesn’t hold water. Only the Federal Court can interpret law and the Constitution.
Sabah and S’wak, unlike the Malayan states — organised and incorporated in the Federation — are unincorporated although organised.
By planning to restore Article 1(2) back to its status before 13 July 1976, the Federal gov’t is admitting that the amendment 45 years ago was a blatant breach of MA’63.
In fact, Parliament should not restore Article 1(2) back to its pre-13 July 1976 status. Instead, the Federal Court should rule on the 13 July 1976 amendment. The Federal Court cannot decline to go there.
Having said that, the court would want to know why it took 45 years to raise the issue. Hence, the restoration move appears a cover-up on the part of the Federal gov’t after the issue went viral, albeit belatedly, in the social media.
Constitutional amendment . . .
The Amendment of the Federal Constitution requires two-thirds majority and the consent of the Conference of Rulers. If all 220 MPs turn up, two-thirds would be based on that figure. There are 222 seats in Parliament. Batu Sapi in Sabah and Gerik in Perak are vacant.
Based on parliamentary procedures in M’sia and the Commonwealth, only half the MPs — i.e. 110 — are required for the quorum needed for constitutional amendments. Two-thirds would be based on that figure.
It’s not known what other breaches of MA’63 are going to be removed.
It’s also not known whether the entirety of MA’63 would be incorporated in the Federal Constitution. If so incorporated, that may be a breach of the Federation of Malaya Agreement 1948. I stand corrected.
According to media statements by Constitutional Professor Shad Faruqi, the M’sia Parliament amended 89 out of 181 Articles in the Federal Constitution and 12 out of 13 Schedules and added 37 new Articles to “accommodate” Sabah and S’wak despite the fact that MA’63 exists.
Accomodation . . .
It cannot be said that MA’63 advocates the approaches taken by Parliament on the Federal Constitution to accomodate the Borneo Territories.
In fact, the focus in MA’63 may be the M’sia Constitution, whether unwritten/uncodified or otherwise, separate from the Federal Constitution. MA’63 speaks of a “new Constitution”.
In summation, MA’63 may be an aberation and perhaps created an anamaly in law which does not tally with Article 2 in the Federal Constitution on “Admission of new territories into the Federation”.
Given the existence of Article 2, the question arises on whether MA’63 should have been drawn up by the five original signatory nations viz. North Borneo, S’wak, S’pore, Malaya and the UK. Again, it must be noted that the Borneo Territories wanted “safeguards” on their Equal Partnership with Malaya in M’sia. Hence, MA’63 was created.
In law, the M’sia Parliament can provide the Way Forward by adopting Separation Acts for North Borneo and S’wak. It can take the cue from the S’pore Separation Act 1965.
S’pore, unlike the Borneo Territories, held a Yes/No vote in 1962 on merger with Malaya.
S’pore obtain self-gov’t in 1959.
Colonies . .
North Borneo and S’wak were never given self-gov’t and independence. The British simply transferred the Administration of the Borneo Territories to the Malayan gov’t on 16 Sept 1963.
The Malaysian gov’t became the successor gov’t to the Malayan gov’t.
It’s not entirely clear whether Malaysia became the successor state to Malaya.
Alternatively, the territorial assemblies in Sabah and S’wak can Invoke VIII of MA’63 for a new form of self-determination, irrespective of whether the Agreement was valid under international law, or otherwise. The validity issue arises since the Borneo Territories, being colonies, had no “legal capacity” under international law to sign MA’63.
NOTE: Longtime Borneo watcher Joe Fernandez keeps a keen eye on M’sia as a legal scholar (jurist).
He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express.