Sabah Sarawak Rights Australia New Zealand (SSRANZ) NGO President Robert Pei commented that the recent Pakatan Harapan (PH) Kuching announcement on 25 Sept 2017 to “re-negotiate MA63” and the Sarawak Government’s current negotiations with the Federal Government on Sarawak rights raised issues on the validity of the Malaysia Agreement 1963 (MA63).
The federation agreement was hastily drawn up by the United Kingdom and signed on 9 July 1963 by the 4 component members of the proposed federation Malaya, Singapore North Borneo and Sarawak, as well as the UK, being the colonial power in control of the last 3 named territories till 16 Sept 1963.
Mr. Pei a Sarawak born lawyer practising in Melbourne said the Malaysian Opposition’s MA63 oriented election campaign in Sarawak and Sabah emphasised the fundamental importance of the Malaysia Agreement 1963 Treaty in defining and governing the relationship between the 2 Borneo states and the Federal Government as partners of the Malaysian Federation.
He said the PH Kuching meeting and the recriminations (blaming each other) that followed with the Sarawak Government certainly had the positive impact of sharply focusing public attention on the lost rights and issues of the state’s membership in the Federation.
He said there are legal issues involved in the re-negotiation of a treaty. One that stands out is the long-established international legal principle (codified by the Vienna Convention on the Law of Treaties “VCLT”) that only sovereign countries have the capacity to make treaties with other countries.
On 9 July 1963 Sabah Sarawak and Singapore were still British colonies and not sovereign states with powers to make treaties. It was a practice of the British Empire (in accordance with the mentioned legal principle) that it had never authorised any of its colony to independently enter into treaties. At the time the British government was informed by its MA63 draftsmen that as neither North Borneo or Sarawak were sovereign (independent states) they could not be parties to the Treaty. This means that MA63 was null and void from the beginning and not binding on Sarawak or Sabah even as signatories. It leaves open the question whether the 2 colonies were ever de-colonized.
He said therefore before Pakatan Harapan or the Sarawak Government proceeds any further on MA63 they should also seriously review the implications of a void Treaty such as whether the former Federation of Malaya had legally assumed British sovereignty over Sarawak and Sabah. If not then the issues of whether de-colonization of the 2 territories has in fact taken place and if the UN should step in to properly implement de-colonization have to be explored.
It follows that for Sarawak and Sabah to now re-negotiate MA63 means that they must have international standing as sovereign states and this can only be legally done if they first become independent from the Federation like Singapore.
Mr. Pei said even if MA63 was validly made, Singapore exit from “Malaysia” on 9 August 1965 had terminated the Treaty as the basis for Sarawak and Sabah entering the Federation (as 2 of 4 component states forming Malaysia) was destroyed. This conclusion was made in the Kuching Municipal Council resolution on 24 August 1965 which called on the Sarawak Government to hold a referendum for the people to decide whether they wish for Sarawak to remain in the Federation.
Further, Singapore exit was negotiated only between Malaya and Singapore without the participation of the 2 Borneo states. They were not given any opportunity to reconsider their changed nature of their status in the Federation but were locked in by the Federal declaration of a state of emergency to stop the then Sarawak government’s attempt to pull out from the Federation.
He asked whether being coerced into being a member of a federation was legal in international law.
Taking his point on MA63 validity further, Mr. Pei said even if MA63 were valid after Singapore’s exit the Federal Government had fatally breached the treaty over 54 years of failure to make good Malaysia formation promises and guarantees to Sarawak and Sabah and respect their special rights by taking them away. Special rights were agreed as a condition for the two colonies to give up their right to independence. This “erosion of rights” has been acknowledged by the Prime Minister himself by publicly stating that “eroded” Sarawak rights should be restored.
The Opposition PH has blamed the current Prime Minister’s father for the loss and the Sarawak Government has come out to blame Dr Mahathir, President of Harapan for not defending and protecting their rights during his 22 years in power.
So between the two of them, the public now knows that the blame really lies with the entire UMNO BN government since 1963 for major breaches of fundamental MA63 terms by its failure to faithfully abide by the international agreement.
However, instead of “reviewing or implementing MA63” or even re-negotiating a treaty which was apparently legally concluded in 1963, he called on both sides especially the state governments to first ask whether the Treaty has benefited and served the interests of Sarawak (and Sabah). And if not, whether they should continue their membership in the Federation after 54 years which saw the 2 states reduced in status from formation partners to mere states and became the poorest territories in the Federation.
This relationship has been largely a one-way benefit for the peninsular which was developed at the expense Sarawak and Sabah with their petroleum wealth. This demonstrated the utter failure of Malaysia formation justifications of development and prosperity. Sabah has suffered from the shocking breach of its rights by the illegals/refugees problem created by the Federal government under Dr. Mahathir as UMNO’s vote bank to maintain federal control over Sabah and the unresolved issue of the Philippines Sabah claim pursuant to the Manila Accord 1963 which led to the Sulu invasion of January 2013.
Mr. Pei said it may be concluded that under the legal principle of repudiation of treaties as stated in Article 60 VCLT the 54 years of failure to observe MA63 amounted to a termination of the Treaty by the Federation as the signatory to it.
He said it is the legal and moral obligation of both the Sarawak and Sabah Governments to raise this matter with the Federal Government and consider the option to accept the termination as an end to MA63 other than continuing the Federal relationship.
He said both PH and the Sarawak government desperately wanted to revive what might be a dead treaty to pacify the groundswell of discontent over. The offer to re-negotiate MA63 may indicate that PH legal experts have also concluded that the treaty was invalid. Hence the PH offer might be an attempt to cover up the flaw with a “New Deal” to re-negotiate MA63 with “5 Thrusts on Sarawak rights” and the “promise to guarantee” to deliver these promises if they are elected to power. On the other hand, one wonders why the Sarawak government has been “negotiating” with the Federal government on a set of rights which were agreed to in 1963 without fully disclosing the details to the public.
Mr. Pei concluded his remarks by saying that the rights of the Sarawak and Sabah people should not be negotiable but these were bargained away by the UK and Malaya and our inexperienced leaders in 1963 without iron cast “Guarantees and Assurance of special rights” and safeguarded by the right to exit the federation if things did not work out.
Post a Comment