Comments on the interview of former Sarawak Attorney General DatoSri Fong Joo Chong by Professor James Chin posted on YouTube on 14 May 2020.
The Malaysia Agreement 1963 (Ma63) was an international made by the United Kingdom and Malaya with 3 colonies Singapore, North Borneo (Sabah) and Sarawak. Since 2012 the issue of MA63 validity has been raised and created a widespread discussion on the legitimacy of Malaysia.
In the interview with Dato Sri JC Fong, he was asked if MA63 was a valid agreement and he argued that it was. However, the reasons he offered were not convincing when examined under international law rules on treaty-making.
Some major points on the process of forming Malaysia were inaccurate or not fully put in the context of the historic facts and international law. Unfortunately, although the Chagos Islands case was raised it was not dealt with in a substantive manner other than dismissing it as that the “circumstances were different”. Here are the counter-arguments to his comments.
1. The British plan to create Malaysia was agreed to by the UK and Malayan governments following secret talks in 1960/1961 before they announced it on 27 May 1961. This “plan” was sealed in the secret "Agreement to Set up the federation of Malaysia" signed on 31 July 1962, agreeing to transfer Sarawak & North Borneo and Singapore sovereignty to Malaya,. Article 3 of the Agreement stated that “In addition, the two Governments will, by an unpublished exchange of letters, agree:-
a. that, if for any reason it appeared desirable, the new Federation of Malaysia could, by agreement between the two Governments, be brought into being on a date earlier than 31st August 1963;”
The only conclusion one could draw from the Agreement is that the Borneo people affected were not consulted from the beginning at all as their destiny was arbitrarily decided beforehand by the UK and Malayan governments! The formation process and Malaysia Agreement 1963 was just a formality to legitimize Malaysia which often glossed over the fact that all this was done in gross violation of international law and human rights of the Borneo people.
2. The idea to create Malaysia was part of the British strategic plan mooted before WW2 & seriously proposed as the Malayan Union in mid-1942 to consolidate Malaya with Singapore and Brunei, North Borneo, and Sarawak as one political entity to defend its S. E. Asia colonial territories and resources especially Brunei oil. The need to do so was emphasised by the speed of the Japanese invasion and takeover of its colonies territories in 1941.
3. The Malayan Union plan was rejected by the then independent Sarawak Gov't in 1942 but the British went ahead by forming the Malayan Union in 1946 and at the same time annexed Sarawak & North Borneo a British Crown Colonies. The UK in annexing Sarawak promised that it would not be included in the Malayan Union and would restore its independence. However, the British plan to re-take their lost territories after the war came under pressure with the worldwide rise of independence struggles and the 1960 UN Declaration calling for the decolonization of colonies. The UK went about creating friendly “independent” states to defend its former colonial territories and resources as it did by relying on a pro-British Malayan government to take over the Borneo colonies instead of granting them independence.
4. The process of creating Malaysia was fatally flawed as the British twice denied (and opposed) the people a “pre-Malaysia” referendum so that they could exercise their free and genuine will on the choice of federation with Malaya or independence in compliance with UN resolutions and international law.
5. The Cobbold Commission and April 1963 local council elections in Sarawak and UN assessment were not a referendum on "Malaysia" representing the free expression of the people’s will as should have been done in a free vote under independent supervision. These events were argued as popular support legitimising Malaysia. However, it is noted that the UK held independence referendums in its other colonies before and after 1962. It even agreed to the Scottish referendum in 2019 and held its own BREXIT referendum in 2017.
6. The making of Malaysia was accomplished under emergency law conditions before and after the Brunei anti-Malaysia Uprising on 8 December 1962, in which the people were put under intense and sustained pressure to consider Malaysia as the only choice instead of independence. Such undue pressure and coercive conditions questioned the validity of MA63 since it was clear that the process was not completed in peaceful and congenial conditions where the people could freely decide their destiny according to international law.
7. Before the release of the Cobbold Commission Report on its "fact-finding mission" on 1 Aug 1962 the British and Malayan governments had already agreed and publicly declared it was “good” for the Borneo people in 1960 and they signed a secret "Agreement to Set up the Federation of Malaysia" on 31 July 1962.
8. The Malaysia Agreement 1963 signed on 9 July 1963 was invalid as it has done in breach of international law rules on treaty-making. MA63 was negotiated by the British colonial representatives in secrecy and not by elected representatives of Sarawak or North Borneo which were still colonies not sovereign states with the capacity to make treaties. An administering colonial power cannot make a binding international agreement with its colony under its full control a legal principle affirmed by the International Court of Justice (ICJ) in the Chagos Case 25 Feb 2019.
a. The circumstances of the Chagos were similar to that of MA63. In both cases, the colonies were under the full control of the UK when the respective agreements were signed. The ICJ found that Mauritius had no executive or legislative powers to make the agreement with the UK to separate the Chagos Island from its territory. The UK has sought to justify its action by claiming consent from a Mauritian delegation at a Lancaster House meeting in 1965, but this seems to have been extracted by an ultimatum (“either you give up Chagos or we will not give you independence”) and in any event that delegation- had no legal or practical mandate to surrender Mauritian territory. Thus the ICJ held the agreement made by the UK and Mauritius was not a binding international agreement.
b. In the case of MA63, Sarawak and North Borneo were not sovereign or even self-governing but were under full British colonial control when their sovereignty was signed away under MA63.
c. The agreement was made under emergency law conditions. In Sarawak, there was a climate of fear as the British whipped up the fear of the Indonesian invasion and the communist threat in the lead up to the Malaysia Agreement, 6 months after the Brunei Uprising against Malaysia. This amounted to duress, undue pressure, and coercion on the people to accept the British plan without the alternative choice of independence.
d. On top of this, the British government knowingly made an illegal agreement as it was legally advised that neither N Borneo nor Sarawak were sovereign or even self-governing and therefore could not be a party to MA63. But they decided to include the 2 colonies as parties for “presentational purposes” and also importantly they realised that if the colonies were not parties it would confirm opposition to the Malaysia Plan and MA63 on the ground that it was “a neo-colonial operation” done without the concurrence of the people.
9. THE MANILA ACCORD HAD THE EFFECT OF INVALIDATING MA63.
The MA63 was superseded by Manila Accord signed by Malaya with Indonesia and the Philippines on 31 July 1963, 22 days after MA63 was signed. The Accord stipulated 2 pre-Malaysia conditions: that the people’s wishes on federation must be independently assessed by the UN and that the Philippine's claim on Sabah must be resolved.
a. The Manila Accord challenged (overturned) the authoritativeness of MA63 & Cobbold Commission and meaning MA63 had failed to comply with the UN Resolution 1514, and preceded MA63 and invalidated it! The UN Resolution required that the people should be allowed to freely to determine their destiny without outside interference which Malayan involvement was.
b. By agreeing to implement the Accord, Malaya & UK acknowledged that MA63 did not comply with the UN decolonization requirements. If MA63 was validly done the Malayan and UK government would have rejected the Accord conditions. (The Malayan Prime Minister said he had used the Manila talks to deflect Indonesian & Philippines opposition to Malaysia. If so he was clearly doing it in bad faith).
10. THE UN ASSESSMENT WAS UNSOUND & BIASED
a. The UN assessment was flawed by collusion between the UK & UN to “handpick” the UN team to assure the outcome favoured the UK plan.
b. The UK and Malaya changed the date to declare Malaysia Day to 16 Sept 1963 before the UN assessment was completed thus assuming that they knew the outcome and treated the assessment as irrelevant.
c. The UN Sec General endorsed M'sia on 14/16 Sept 1963 even before the UN legal opinion was given on 19 Sept 1963.
d. The UN legal opinion failed to examine the validity of MA63 when it was apparent on its face that 3 colonies were party to the treaty.
11. CONCLUSION: Malaysia was not created with a legal basis under international law and is therefore no more than a de facto union imposed on the Sarawak and Sabah people. The UK government still has a moral and political responsibility to seek the proper and full decolonization of the 2 colonies with the United Nations if Malaya does not voluntarily decolonize Sarawak and Sabah.
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