Litigated cases, commentaries, textbooks, articles, essays and opinions from some self-styled constitutional law experts, and from all concerned Malaysians have fused into one gigantic maze of confusion concerning MA63.
What was obviously contemplated and agreed upon by the willing progenitors of MA63 is now subject to self-inflicted corruption of devious intent, loose language and biased interpretation of its various provisions, especially Article VIII of MA63 which will be explored in detail.
There is a phalanx of experts who say international law is persuasive and not binding unless invasion and annexation happens. Its bloody footprints are all over the pages of the annals of recorded history. The dichotomy of MA63 as an international treaty that comes within the purview and jurisdiction of international law while enmeshed within the contours and context of the Malaysian Federal Constitution (FC) is being demonised and not humanised. The UK, as a component party, has chosen to remain silent over today’s contentious issues facing MA63.
The crafters, drafters and creators of constitutional amendments to the Federal Constitution saw fit to subtly disregard and deliberately ignore the findings and provisions of the Cobbold Commission, the Inter-Governmental Committee Report and MA63 per se in the larger context of the Federation of Malaysia which saw three territories being invited – Singapore, Sabah and Sarawak – into the proposed Federation.
Singapore left the Federation leaving Sabah and Sarawak not as equal co-partners of the Federation, but as two of the thirteen Malaysian states with unconscionable amendments to art.1(2) Federal Constitution. That is an affront to decency and dignity from a moral perspective and a downright illegal ploy from a law point of view. The pliant judiciary recklessly disregards the rule of law that has virtually abandoned the true intent of MA63. Is Malaya continuing to punish Sabah and Sarawak for the manner in which it untethered Singapore?
MA63 has been skewered and roasted into a disproportionate treaty with Malaya having the upper hand in the Federation of Malaysia. It is now wholly apparent that gaining an advantage at the expense of its two co-equal partners was certainly the foremost agenda of Malaya. The issue of oil and gas revenue is still thorny, as are immigration, customary land rights, among others, making the Eighth Schedule of the Federal Constitution inapplicable to Sabah and Sarawak since they are not “states’ in the context of the original eleven states of Malaya.
Some Peninsular Malaysian courts have decided and declared that supporting documents to MA63 were not incorporated into MA63 and the Federal Constitution, and therefore they have no supportive value. This is conduct unbecoming of an independent judiciary claiming there is a separation of powers between itself, the executive and the legislature. This is patent naivete at its zenith where the inherent and inalienable rights of Sabah and Sarawak hit the nadir with a thunderous gravitational thud.
A genuine court of law premised upon the principles of equity would always employ this phrase as a closing caveat given the vagaries of common law edicts: The findings and subsequent decision of this court shall be final to the extent that future factual circumstances offering probative evidence may render it subject to distinguishing, overruling or vacating in the prevailing interests of justice.
This phrase can be effortlessly included into the Courts of Judicature Act 1964 (Act 91) as an indispensable clause because courts are not totally infallible when it comes to executive-inspired decisions. Grave errors of law and fact have been periodically occasioned in Malaysian courts. The record is dismal if one remembers the Adorna Properties case.
Let’s start with the issue of potential secession or separation from the Federation as reportedly discussed in certain quarters of the Borneo Territories. There is a school of thought that the 20-Point Agreement with Sabah made no provision for secession. Is this Agreement part of MA63 like the Cobbold Commission’s findings and the IGCR of 1962? What about Sarawak’s 18-Point Agreement? Did these two Agreements so much as stipulate that they will remain in the Federation ad infinitum? Can one government at one point in time make an international treaty for all times thus handcuffing the future to the past?
It is suspiciously strange that section 26(4) of the ICGR was deemed not enforceable since it did not get incorporated into the Federal Constitution. Some political entity blinked, or is it a deliberate attempt at deception? This was the unjust finding in Keruntum v Director of Forests (2018); and TR Sandah Ak Tabau (2019). Section 26(4) required a judge with Borneo experience to sit in the adjudication of disputes or controversies affecting the Borneo Territories. The judiciary unceremoniously ignored its worth and value in the context of territorial expansion of the Federation with the ever-present executive watching and waiting to be placated.
But judicial precedent plays a lesser part when interpreting the Federal Constitution said the Federal Court in Dato’ Menteri Othman b. Baginda &V Anor. V. Dato Ombi Syed Alwi b. Syed Idris [1981]. But the Keruntum and TR Sandah courts seemed to enjoy judicial amnesia as if Art. 125(3A) Federal Constitution (when a judge has committed a breach of the judicial code of ethics) is of no consequence.
To offer some comfort and solace to the Borneo Territories’ Natives, and to the unconstitutional conduct of the judiciary, judges with no Borneo experience have supervised cases like Supt. of Land v Madelli Salleh (2007) and Bisi Jinggut v Supt (2013) where, fortunately, the court declared that ‘life’ includes ‘livelihood’ and for the Natives, land is part of their life. A customary law practised for thousands of years requires a man-made common law edict as an affirmation? The clash between de facto and de jure jurisdictions is real, alive and enduringly relevant. Borneo Territories must exploit this most obvious jurisdictional imperative to the fullest extent available and possible. Jurisdictional error includes a decision that it is perverse and devoid of plausible verification that no reasonable body of persons could have reached it, said the apex court in Malayan Banking Bhd v. Association of Bank Officers Peninsular Malaysia & Industrial Court (1988), 1 CLJ (rep.) 183 (F.C.)
One prime minister, reportedly, gave the greenlight to naturalise millions of illegal aliens in Sabah in direct and deliberate violation of Articles 9(2), 161B, 161E(4) FC, and Part VII Immigration Act, Act 15. The control of immigration by the Borneo Territories is still lost in the wilderness of politically-motivated constitutional brambles and thickets. Wanton executive intrusion into constitutional matters without necessary amendments is illegal and unlawful. This issue must be litigated to the fullest extent possible by the constitutionally disadvantaged People of the Borneo Territories.
The Borneo Territories should immediately begin issuing Territorial Passports to their People since they are mandated to control immigration. The essence of Article VIII MA63 must be appreciated and put to practical use time and time again to prevent and discourage federal intercession. What could Putrajaya do to discourage this treaty provision? Declare an emergency despite Art.150(6A) Federal Constitution where native law or customs in Sabah and Sarawak are immune from the proclamation of an emergency imposed by Parliament?
The power and potency of Article VIII of MA63 makes clear reference to the IGC in 1962, where it states that “the government of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other actions as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the Inter-Governmental Committee signed on 27th February 1963, in so far as they are not implemented by express provision of the constitution of Malaysia.”
Article VIII is badly drafted and awkwardly promulgated although its true import and meaning can be carefully gleaned from relevant supporting documents. The syntax is uncomfortable. It is firmly tethered to a rare genre of interpretations to enable a novel form of judicial fascism. The Malaysian judiciary can play pucks with hermeneutics. The Malaysian executive seems unstoppable in diminishing the rights of its Borneo’s co-equal sovereigns.
Take, for example, the phrase “ . . . in so far as they are not implemented by express provision of the constitution of Malaysia.” These sixteen words seem to say a few different things to mean a few different prerogatives for the three component parties.
At that material time, the Federation of Malaya had its own federal constitution as promulgated in 1957, and its eleven state constitutions. North Borneo and Sarawak had their own constitutions. So, the three component parties were required by Article VIII MA63 to take necessary action to implement (read: enforce by law) the pith and substance of the Inter-Governmental Report that was signed by all component parties on February 27 1963. There was thus a written contract. There are dire consequences to sign a document and subsequently violate it with impunity.
But, according to the sixteen words mentioned above, if the Report to the Inter-Governmental Report is pre-empted by the provisions of the Federal Constitution that are seen to circumvent or circumscribe the sole meaning of Article VIII, then Article VIII is supposed to be relegated as impotent and of no legal, social, economic, cultural, territorial or political effect? That is constitutional terrorism which is not the intent, content and extent of MA63 from start to finish.
Article VIII is written as if the sword of Damocles hangs over the Borneo Territories despite their supposed territorial and political independence as co-equal sovereigns. Those sixteen words sound like the Borneo Territories are on thin ice, and therefore must necessarily skate fast and swift. If you don’t take such necessary action to implement the Report of the IGC, the Federal Constitution shall take it upon themselves to tweak and constitutionally discard the Report of the IGC into constitutional amendments. That they have done with reckless abandon.
Datuk Hj Muhammad Tufail Mahmud v Dato’ Ting Cheuk Sii [2009] witnessed the effect of Art.161B Federal Constitution restricting law practice in Sabah and Sarawak by non-residents while giving the legislatures of the Borneo territories to amend the law to allow non-residents to practise in their courts if they so desired. This too is subject to judicial hermeneutics.
In essence, the provisions of Article VII MA63 seem to be carefully manipulated as if granting the Borneo Territories the right to self-determination and self-government despite being component parties of the Federation of Malaysia. The police and armed forces protecting the Borneo Territories are from Peninsular Malaysia. Article VIII MA63 clearly and unequivocally grant territorial security protection solely to the Boneo Territories. Why did Peninsular Malaysia decide this unconstitutional advantage?
Rajah Brooke’s Cardinal Principles are set out in the First Schedule to the Sarawak (Constitution) Order in Council, 1956. They originally formed part of the Preamble to Order No. C-21 (Constitution), 1941, enacted by the Rajah of Sarawak. These Principles are part and parcel of ‘existing law’ as prescribed and described by Art. 160 (Interpretation) Federal Constitution.
MA63 must be seen solely through this true and tested lens which granted:
1.That Sarawak is the heritage of Our Subjects and is held in trust by Ourselves for them.
2.That social and education services shall be developed and improved and the standard of living of the people of Sarawak shall steadily be raised.
3.That never shall any person or persons be granted rights inconsistent with those of the people of this country or be in any way permitted to exploit our Subjects or those who have sought our protection and care.
4.That justice shall be freely obtainable and that the Rajah and every public servant shall be easily accessible to the public.
5.That freedom of expression both in speech and in writing shall be permitted and encouraged and that everyone shall be entitled to worship as he pleases.
6.That public servants shall ever remember that they are but the servants of the people on whose goodwill and co-operation they are entirely dependent.
7.That so far as may be our Subjects of whatever race or creed shall be freely and impartially admitted to offices in our Service, the duties of which they may be qualified by their education, ability and integrity duly to discharge.
8.That the goal of self-government shall always be kept in mind, that the people of Sarawak shall be entrusted in due course with the governance of themselves, and that continuous efforts shall be made to hasten the reaching of this goal by educating them in the obligations, the responsibilities, and the privileges of citizenship. (Emphasis is mine)
9.That the general policy of our predecessors and ourselves whereby the various races of the State have been enabled to live in happiness and harmony together shall be adhered to by our successors and our servants and all who may follow them hereafter.
These Nine Cardinal Principles are carved in concrete that do not condone constitutional amendments or legislative legerdemain wrought by territorial politicians with hidden agendas, motives and intentions. These Principles may very well be the ultimate saviour of the rights of the People of an independent and sovereign Sarawak. Sabah too must adhere to its customary laws under its Native Courts prescriptions.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
