SSRANZ President Robert Pei said
the Minister in the Prime Minister’s Department Liew Vui Keong may not have
carefully considered the full implications of what he said as reported on 25
March 2019, quote: “Besides that, the government will not agree to any
suggestion and issue raised in relation to the dissolution of MA63 and
self-determination,” he said in reply to an oral question by Jeffrey Kitingan
(Star-Keningau).
He said the Minister may not have
been aware that the International Court of Justice had made a decision on 29
Feb 2019 which in re-affirming the right of peoples to self-determination (UN Resolution
1514XV), re-stated the international law rule on treaty making that only
sovereign states can make treaties and colonies (non-self-governing
territories) are not sovereign independent states with the power to make such
treaties with independent states.
The case related to issues on the
decolonization of Mauritius in 1968 which challenged the validity of 1965
Mauritius "agreement" with the United Kingdom to "detach"
the Chagos Islands from Mauritius territory to form a new colony in 1965. It
was referred to the ICJ, which hears legal submissions over international
boundary disputes, after an overwhelming vote in 2017 in the UN assembly in the face of fierce opposition from a largely isolated UK.
For the first time on record, it
appears that an eminent court of law has reopened a "decolonization” case
and questioned the validity of a treaty made by a ruling colonial power with
its colony and whether decolonization had been lawfully completed in accordance
with the right of peoples to self-determination.
He said for the same reason, the
Malaysia Agreement 1963 (MA63) was void ab initio (invalid from the beginning)
and there is nothing to be “dissolved” contrary to what the Minister was
saying. MA63 was made in violation of the said legal principle when North
Borneo (Sabah) and Sarawak were still colonies. The formation of Malaysia under
MA63 was intended by the UK as part of its decolonization of Sabah and Sarawak
by “integration with an independent state” (Malaya under UN Resolution 1541XV).
If MA63 was invalid and not binding, there is no “Federation of Malaysia” to speak
of and Sabah and Sarawak should indeed be talking about self-determination.
Robert a Sarawak born Australian
lawyer and activist pointed out that the recent International Court of
Justice’s (ICJ) decision on the Chagos Archipelago Case (Mauritius, delivered
29 Feb 2019) has confirmed his assertion since 2014 that MA63 was void ab
initio. He first raised this issue in his paper “Is MA63 a valid international
Agreement?” in a Kota Kinabalu forum on MA63 in 2014.
He said the ICJ decision, therefore, has an immediate impact
on the validity of MA63 and he queried whether the current inter-state/federal
government MA63 talks have any legitimacy.
He said the ICJ findings on the
cited case was that Mauritius as a colony under the authority of the United
Kingdom, its administering Power in 1965, could not make a binding an international agreement with the UK as this was not free and genuine
expression of the will of the people.
Para 172 of the ICJ decision
stated that: “The Court observes that when the Council of Ministers agreed in
principle to the detachment from Mauritius of the Chagos Archipelago, Mauritius
was, as a colony, under the authority of the United Kingdom. As noted at the
time by the Committee of Twenty-Four: “the present Constitution of Mauritius .
. . do[es] not allow the representatives of the people to exercise - 41 - real
legislative or executive powers, and that authority is nearly all concentrated
in the hands of the United Kingdom Government and its representatives” (UN doc.
A/ 5800/Rev.1 (1964-1965), p. 352, para. 154). In the Court’s view, it is not
possible to talk of an international agreement, when one of the parties to it,
Mauritius, which is said to have ceded the territory to the United Kingdom, was
under the authority of the latter.”
Robert said there are many
similarities in the making of the UK-Mauritius Agreement of 1965 and the
Malaysia Agreement of 1963.
From 9 July 1963 to 16 Sept.
1963, both Sarawak and Sabah were still colonies (as stated by Article 1 of
MA63 and the Malaysia Act 1963) administered by the UK when they purportedly
signed an international agreement with the UK, Malaya, and Singapore agreeing to
transfer British sovereignty over the Borneo territories and Singapore to the
Federation of Malaya, without independence first or consent and mandate freely
given in a referendum on the Malaysia question. The UK had claimed that this
was one way to decolonize Sabah and Sarawak by integration in the Malayan
Federation in accordance with the UN General Assembly Resolution 1541XV.
Robert pointed out that on the
date MA63 was signed neither North Borneo nor Sarawak had self-rule. Nominal
self-rule was only “granted” to Sarawak for 55 days from 22 July 1963 and Sabah
was granted 14 days of self-rule on 31 August before they were incorporated in
the Malayan Federation renamed “Malaysia” on 16 Sept 1963. This did not even in
any way complied with requirements of UN Resolution 1541XV which included the
gaining of governing experience and political maturity to consider the federation
proposal.
On 31 August 1963, the British
Colonial Secretary Duncan Sandys (in rejecting S’pore Unilateral Declaration of
Independence UDI) stated that Singapore, North Borneo and Sarawak were at all times
territories under the authority and full control of the UK till 16 September
1963, the Malaysia formation date.
In view of this confirmation of
Sabah Sarawak pre-MA63 status and applying the Chagos ruling on MA63, neither
North Borneo, Sarawak nor Singapore could make a binding international agreement
with the UK when it still had direct control over them on 9 July 1963.
The ICJ ruling, therefore,
affirms Robert’s assertion that MA63 was void ab initio (invalid from the beginning)
for this reason. This means that the British decolonization of Sabah and
Sarawak had not been lawfully complied with in accordance with the people’s
right to self-determination, especially the failure to obtain a mandate or
consent freely given in a referendum on the Malaysia Question.
He said as far as Minister Liew’s
statement goes, there was no MA63 to be dissolved. He said this immediately
raises the question “Has the Federation been illegally controlling Sabah and
Sarawak sovereignty since MA63 and is Malaysia just a de facto state which
expanded its territories by absorbing the Borneo countries?”.
Further, according to the
announced amendment to Article 1(2) of the Federal Constitution, the removal of
Sabah and Sarawak status as “states” means that they would revert to their
pre-Malaysia status as “colonies” as stated in Article 1 MA63 and in the
Malaysia Act 1963 ratifying MA63.
Therefore the Minister was wrong
to state that the Federal government would not consider dissolving MA63 or
“self-determination” for Sabah and Sarawak.
In fact, if MA63 does not exist,
the Federation is under a duty placed on it by the UN Charter and Resolution
1514 to immediately decolonize the 2 colonies.
In conclusion, he called on the
Sarawak and Sabah governments to seriously look at the Chagos Islands decision
and review their respective states’ position in the Federation. They have a
number of options but the first thing to do is to assert and claim their
people’s right to self-determination.
End of comments.
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