BREAKING NEWS! . . . Britain responsible for plight of Sabah, S’wak, in M’sia . . .

Court challenges loom on Sabah, S’wak, ‘plight’ in Malaysia.

If Malaysia Parliament pass laws on Borneo Territories, the court should ‘declare’ them.

OPINION . . . We learn from media statements that there was no consensus in the Malaysian Cabinet — it seems that two Ministers expressed “reservations” — on Article 1(2) and the Definition of Federation in Article 160(2), an interpretive Clause, in the Federal Constitution. The Articles were “cleared” for amendments by the Federal gov’t’s Special Council on the Malaysia Agreement 1963 (MA’63).

Attorney General Idrus Azhar, who succeeded Tommy Thomas in early 2020, reportedly gave the go-ahead in recent days on the proposed Amendments when de facto Law Minister Wan Junaidi Tuanku Jaafar from Sarawak consulted him.

It’s a contradiction in terms as Attorney General Tommy Thomas cautioned then de facto Law Minister V. K. Liew (now deceased) against mentioning MA’63 in Article 1(2). The Agreement wasn’t mentioned in the said Article before and after it was amended on 13 July 1976.

Complications . . .

Liew, in a media briefing, implied that the AG feared “complications (presumably legal and political)” if MA’63 was mentioned in Article 1(2).

The Article had been planned for amendment — before Mahathir Mohamad stepped down as Prime Minister on Mon 24 Feb 2020 — to restore the earlier version on 13 July 1976, but with an addition proposed by the S’wak gov’t i.e. “pursuant to the Malaysia Agreement 1963”.

The additional words were not included in the proposed amendment, based on AG Tommy Thomas’ advice, and it fell through in Parliament. The S’wak MPs rejected the Amendment.

In retrospect, Parliament amended Article 1(2) on 13 July 1976 after the Territorial Assembly in Kota Kinabalu, allegedly beholden to a clearly “proxy gov’t” in Sabah, “reduced” the status of the Sabah Governor from Yang di Pertua Negara (Head of Nation-State) to Yang di Pertua Negeri (head of state as not in nation-state). I believe that it has always been Negeri in S’wak. I stand corrected.

Status reduced . . .

Article 1(2), by being amended on 13 July 1976, clearly reduced the status of Sabah and S’wak from being Equal Partners in Malaysia with Malaya to the same lower level as the sultanates and states in the Federation (Malaya) established by the Federation of Malaya Agreement 1948 and reinforced by the Federation of Malaya Independence Act 1957.

There’s a case here against restoring Article 1(2) to the pre-13 July 1976 version with or without MA’63 mention. The Federal gov’ts since 1976 failed to explain the said Amendment. It can’t be said that the Federal gov’t acted with a clear conscience on the matter.

The right and proper Forum for Article 1(2) as amended on 13 July 1976 would be the Federal Court, sitting as the Constitutional Court, and not Parliament. There’s no Constitutional Court in Malaysia.

Malaysia is governed by Constitutional supremacy, not by Parliamentary sovereignity.

The proposed amendment on Article 1(2), in a contradiction in terms, would state that Sabah and S’wak were Territories i.e. unincorporated although organised politically. States, including sultanates, make up the Malayan Federation under the 1948 Agreement.

Digression . . .

We can digress a little here on the Definition of Federation in Article 160(2). The Article dates the Agreement as 1957. Clearly, this is a typographical error which hasn’t so far been mentioned by anyone. The Act was in 1957, the Agreement in 1948. Google on this!

The proposed amendment on the Definition of Federation in Article 160(2) does not mention the Proclamation of Malaysia on 16 Sept 1963.

Intention . . .

Parliament, jurisprudence and constitutional law holds, pass laws.

However, only the court can declare them. The court declares laws by interpreting intention, in this case of Parliament, the framers of the Constitution, the framers of MA’63, the Founding Fathers on MA’63, the people in the Borneo Territories on 16 Sept 1963 i.e. Malaysia Day and the British.

Indonesia’s konfrontasi (confrontation) and Ganyang Malaysia (Hang Malaysia) campaigns and objections by the Philippines on Malaysia may be revisited to keep the issues in perspective.

There were also leaders detained in the Borneo Territories without trial, under the draconian Internal Security Act (ISA), for raising the Federal gov’t’s non-compliance on MA’63.

Human rights advocate Daniel John Jambun, who heads the UK-based Borneo’s Plight in Malaysia Foundation (BoPiMaFo), wrote two letters to Queen Elizabeth on the plight of North Borneo, and S’wak, in Malaysia but to no avail.

Then Foreign Secretary Jack Straw replied the 2nd letter. Daniel, taking the cue from the UK gov’t’s Public Inquiry on Hong Kong, suggested a similar public forum on the Borneo Territories.

The Public Inquiry was on whether China had complied with its obligations to Hong Kong after the British withdrawal from the crown colony.

The Queen’s secretary replied the 1st letter.

Daniel wanted the Queen to go into the circumstances on the British withdrawal from the Borneo Territories on 16 Sept 1963.

The Federal Constitution on MA’63 and Borneo rights on the one hand, and the Malaysia Constitution, remain separate matters in court on substantive issues.

It’s highly unlikely that any step by Parliament on MA’63 and Borneo rights, via the Federal Constitution, would go unchallenged at the High Court of Borneo (Sabah and Sarawak). The High Court would refer to the Federal Court for Declarations on points of law on the Federal Constitution and the Malaysia Constitution, albeit unwritten/uncodified, mentioned in the Malaysia Agreement 1963.

Democratic . . .

It’s for no reason that Sabah has been described as “the most democratic in Malaysia”. There’s nothing that “excites” the people more than discovering that there’s a Way Forward on Malaysia. They await someone who can cut the Gordian Knot on Malaysia.

Already, Article VIII in MA’63 provides for a new form of self-determination viz. away from Malaysia. There’s international law, based on principles, on self-determination.

The question also arises on who will bell the cat on Borneo rights and Malaysia.

Any citizen, or group of citizens, in Sabah or S’wak has locus standi to file an Originating Summons (OS) in the High Court, as the court of 1st Instance, for Declarations on points of law on MA’63 and Borneo rights.

The road not travelled can be taken on several substantive issues.

We can visit some of them based purely on the raging Debate in the social media on MA’63 and Borneo rights. The legal fraternity in the Borneo Territories has been speaking up and speaking out as well on the plight of Sabah and Sarawak in Malaysia.

Complications . . .

The issues on Borneo rights, which probably may be a bundle of contradictions, disorientation, confusion and complications in law, include queries in the social media on the validity of the Malaysia Agreement 1963 — signed by Sabah, S’wak, S’pore, Malaya and the UK on 9 July 1963 — in international law.

The Federal Court can probably rule on this, followed if necessary by Appeals. Other right and proper Forums would be the High Court in London as the court of 1st Instance since it was the British who created “the mother of all problems” in the Borneo Territories by defying the 24-nation UN Decolonisation Committee, UN Secretary General’s Office and the International Court of Justice (ICJ) at the Hague, Netherlands.

The ICJ ruled some years ago on Pulau Sipadan and Pulau Ligitan in Sabah and Pulau Batu Puteh or Pedro Branca in the waters between S’pore and Johor.

The ICJ can rule as well on MA’63.

North Borneo and S’wak, it has been argued did not have “legal capacity” when they signed the Agreement on 9 July 1963 in London.

Colonies . . .

The Borneo Territories were still colonies as conceded in the Proclamation on Malaysia on 16 Sept 1963. Unlike for S’pore and Malaya, the British Parliament did not pass self-gov’t and independence Acts for the two Borneo Territories. S’pore obtained independence from Malaysia vide the S’pore Separation Act 1965.

There was a Yes/No vote in S’pore in 1962 on merger with Malaya, none in the Borneo Territories, except a UN Survey of 4K people which found that only a third favoured Malaysia.

Instead, MA’63 or no MA’63, the British simply transferred the Administration of the Borneo Territories to the Malayan gov’t on 16 Sept 1963. British troops marched out and the Royal Malay Regiment (RMR) marched in.

The Federal gov’t in Kuala Lumpur disbanded the S’wak Rangers and the Sabah Border Scouts. The constabulary in Sabah and S’wak became the Malaysian Police.

If MA’63 remains valid in international law, it may probably stem from the passage of time, and both Borneo Territories having gone through many elections and changes of gov’t since 16 Sept 1963. Still, I can’t imagine how the right and proper Forums can find the spirit of the law on an illegality ceasing to exist.

Magna Carta . . .

If MA’63 exists, it continues to exist like the Magna Carta in England, whether incorporated in the Federal Constitution or otherwise.

The jury remains still out on whether MA’63 should be incorporated in the Federal Constitution, and hence signifying the Federal gov’t’s compliance with it. There’s no proof that MA’63 has been fully incorporated in the Federal Constitution. In fact, there’s case law by the Federal Court on MA’63. The court held, not so long ago on the Agreement, that only that incorporated in the Federal Constitution from MA’63 was law.

That’s true based on the Definition of law in jurisprudence and constitutional law.

MA’63, like the Federal Constitution, Adat (customary practices of the indigenous people), administrative law, syariah and Tribunals, isn’t law.

However, as the ultimate political document on the Equal Partnership of Sabah, S’wak and Malaya in Malaysia, MA’63 has force of law. The Federal Court, in declaring case law on MA’63, didn’t mention force of law. I stand corrected.

Malaysia Constitution . . .

In any case, MA’63 speaks of the Malaysia Constitution, and not about incorporating the Agreement in the Federal Constitution. The Federal Court can be asked to Declare on a point of law on the Malaysia Constitution being separate from the Federal Constitution.

If the Borneo Territories aren’t governed entirely by the Federal Constitution, MA’63 not being fully incorporated, the Malaysia Constitution enters the picture as an unwritten/uncodified document i.e. not in one place like the Federal Constitution.

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.

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

3 thoughts on “BREAKING NEWS! . . . Britain responsible for plight of Sabah, S’wak, in M’sia . . .”

  1. Thank you for the enlightenment on the plight of the Borneo states in Malaysia.
    What we need now is to make this knowledge viral in order to stir public emotion and debates and await the emergence of a hero to lead the revolution.


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