BREAKING NEWS! . . . M’sia’s Breach On MA’63 Bigger Issue Than Sulu Heirs’ Claim . . .

Perfection in writing for perfection in law . . .

M’sia’s Breach On MA’63 Bigger Issue Than Sulu Heirs’ Claim . . .

Putrajaya should uphold rule of law lest it be dragged to court worldwide for acting with impunity on MA’63 Breach!

Commentary and Analysis . . . In political science, it’s said that a government can on paper probably do whatever it wants, unless restrained by the court or by the people — read Sri Lanka for example — taking to the streets.

In political science, all politics are about restructuring the distribution of power and restructuring the distribution of revenue and resources lest internal colonisation prevails. Deja Vu!

The jury may no longer be out on whether the Malaysian government pays lip service to the rule of law, the basis of the Constitution, and acts with impunity.

The court in Malaysia, not to be left out on making common cause with government, allegedly belabours in the delusion — for want of a better term — that the letter of the law, by itself, is law. It isn’t law.

The court allegedly puts on blinkers and Rules, not based on ratio decidendi related to Submission, but on Obiter Dictum — i.e. the opinions of a judge before Ruling — and even going off at a tangent from what the parties in dispute on issues in conflict argued. Obiter Dictum isn’t binding on a later judge or even on the opinionated bench that Rules. We may have a better picture on the system when the Federal Court hears arguments from Jonathan Laidlaw, former Prime Minister Najib Abdul Razak’s QC, from England, on the RM42m SRC International case.

If the court adopts a wide latitude in interpretation based on the rule of law — wide latitude doesn’t happen in Malaysia — it can declare novel developments as law. First things first. There’s the little matter of lawyers looking for the law and pointing it out in contributing to novel developments. The court finds the law and declares it. Here, the court falls apart. The input from lawyers, the first step, may be missing on novel developments.

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Familiar story . . .

The following link tells a familiar story in the civil court. See here . . . https://www.freemalaysiatoday.com/category/nation/2022/07/12/civil-courts-have-no-jurisdiction-to-hear-renunciation-cases-says-judge/

That’s only half the story in the link and a recurrent one in court.

It’s true that the civil court has no jurisdiction in this case but that’s only because syariah, not being sourced, isn’t law. Syariah is based on a person’s willingness to accept it. There’s lacuna (gap in law) in Malaysia on syariah. The court can fall back on case law from the Supreme Court of India which rejected a Petition to ban syariah. The court found that it had no jurisdiction since syariah was not law. It cautioned that it would be unconstitutional to impose syariah on anyone. The Constitution, the supreme law of the land, was based on the rule of law. Again, it reiterated that syariah was based on a person’s willingness to accept it.

Also, the court of law can’t get into theology. It’s not the court’s jurisdiction to remove Islam, for example, from the MyKad and substitute it with another religion. The civil court has jurisdiction on directing the National Registration Dept (NRD), a government agency, to remove religion from the MyKad after the Applicant exhausts remedies. The court, based on media reports, appears to have not advised the litigant on remedies which does not involve going to the syariah court. It’s another case of passing off the letter of the law, by itself, as law.

Correction Form . . .

The judge should have advised the Applicant, in Chambers, to file a correction form at NRD, and request that the space for religion be left blank or filled in as information unavailable. It didn’t happen because the court put on blinkers and Ruled. If the court, under our adversarial system of justice, isn’t supposed to advise litigants, it’s an outdated view if there are special circumstances.

If the NRD rejects the correction form, the Applicant can Apply for Leave for Judicial Review and file, at the same time, the Application for Judicial Review. The Constitution enshrines freedom of conscience. There can be no law stating that a citizen must have religion. The Constitution cannot impose religion on citizens.

There may be many other examples before us on the rule of law and the court putting on blinkers.

Let’s move on!

Child’s play . . .

We can be forgiven for thinking that no matter how Azerbaijan turns out for Petronas, it would be child’s play compared with the Malaysia Agreement 1963 (MA’63). More on Azerbaijan and the Sulu heirs later! See here . . .
https://www.freemalaysiatoday.com/category/nation/2022/07/12/seizure-of-assets-baseless-says-petronas/

The Bigger Story, when push comes to shove, would be the Federal government’s alleged non-compliance on the Malaysia Agreement 1963 (MA’63). MA’63 is the basis for North Borneo, Sarawak and Malaya to be in Equal Partnership in Malaysia. Malaya is Federation in Article 160(2), Malaysia remains Equal Partnership from 16 Sept 1963. That’s a big difference that’s often forgotten i.e. Federation on this side of the South China Sea and Equal Partnership that covers both sides.

When general elections beckon every five years, the Federal government would probably suggest any number of New Deals with Sabah and Sarawak, perhaps a New Malaysia Agreement or even a supplementary agreement to MA’63. In constitutional law, it can’t wish away MA’63. Also, non-compliance exists.

MA’63 exists like the Magna Carta, part of the unwritten/uncodified British Constitution, unless the Malaysian Parliament gives Independence to the Borneo Territories just as it passed the Singapore Separation Act in 1965.

MA’63 is a constitutional document on Malaysia. It has been cited by the High Court of Borneo and the superior courts.

In jurisprudence and constitutional law, a Constitution follows an extraordinary event viz. War, Independence, civil war, separation, secession, partition, loss of territory, invasion and conquest etc

There’s no extraordinary event behind the proposed New Deal. See here . . . https://www.freemalaysiatoday.com/category/nation/2022/07/10/ongkili-suggests-new-deal-instead-of-new-malaysia-agreement/

The prognosis isn’t good if the Federal government continues to be non-compliant on MA’63. In moving forward, anything can happen, if push comes to shove. The social media tells the story. Just like the Sulu heirs, netizens in the Borneo Territories speak of attaching Petronas and Malaysian government assets abroad, and filing a People’s Petition with the UN Security Council on non-compliance on MA’63.

There may also be other Options for Sabah and Sarawak in Malaysia. Let’s not go there.

Petronas in Azerbaijan . . .

Back to the woes of Petronas in Azerbaijan, Attorney General Tommy Thomas should have just paid the arrears due to the Sulu heirs from 2013 after the Lahad Datu Intrusion. See here . . .

Instead, after GE14 on Wed 9 May 2018, Thomas wrote that long letter to the lawyer representing the Sulu heirs. Malaysia may not have turned up for Arbitration but the Thomas letter appears to have been sufficient material for the Sulu heirs on compensation. The rest is history. See here . . .

https://www.newmalaysiaherald.com/2022/03/15/najibs-outrage-on-tommy-thomas-letter-to-sulu-heirs-must-be-viewed-seriously/

The sultan in Malaya get annual purses until today in compensation for ending toll collection along the main waterways. The British turned rivermouth dwelling toll collection centres, i.e. riverine kingdoms, into territorial states under the sultan. Unlike the western concept, riverine kingdoms in the Archipelago were not territorial.

In 1939, the High Court of Borneo in Sandakan Ruled that the nine Sulu heirs of the defunct Sulu sultanate were eligible for RM5K — it became RM5, 300 some years ago — annual compensation from the British North Borneo Chartered Company (BNBCC) in lieu of collecting toll along the main waterways in certain areas known as Sabah in eastern North Borneo.

The BNBCC ruled North Borneo by Charter on behalf of the British Crown. The 1939 court did not consider the sovereignty claims of the heirs to Territory. Sovereignty, the court Declared, resides with the people. See here . . .
https://www.newmalaysiaherald.com/2022/03/14/no-rush-to-judgment-on-rm63b-sabah-award-for-sulu-heirs-part-2/

Read further here . . .

https://www.dailyexpress.com.my/read/4695/historical-discoveries-of-the-agreement-of-cessation/

SPECIAL NOTE TO READER . . .

Dear Reader, if you like this Article, please consider sponsoring our Blog. That will help underwrite the cost of running it. We help keep the Issues alive.

Even RM5 every four months will be a big help.

Banking details are as follows:

Bank: MayBank in Malaysia
Account No: 160148889580
Account Type: Savings
Corporate Name: Rosaline Kotter

Thank you

Don’t forget to Like the Article and Follow the Blog. Share the Article with at least two Friends. Tks

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.

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