KUCHING: Going by a written record, there would not be any Malaysia today without the Malaysia Agreement 1963 (MA63).
But the pertinent question is whether MA63 had the validity to base the creation of Malaysia on.
On this very issue, former Batu Lintang assemblyman and current legal advisor of Parti Bumi Kenyalang (PBK), Voon Lee Shan, talked about a record showing that the actual text of the Malaysia Agreement signed by the Federation of Malaya, the United Kingdom, Singapore, British North Borneo and Sarawak on July 9, 1963 were contained in four pages, plus 11 annexes.
According to Voon, many legal minds argued that MA63 was not valid and a reason for that was the Cobbold Commission Report was fraudulent and/or misleading.
“The many fundamental breaches of MA63 should also lead to the voidance of the treaty and it should also be considered repudiated after Singapore left Malaysia in 1965.
“If MA63 was ‘void ab initio’ or void, then, Malaysia should not have been born or should have disintegrated,” he said.
Voon stressed that before the MA63 was signed, there were worries among the British administrators as to who could sign it.
An archived record expressed that “… considerable concern had been expressed by British administrators as to who would sign the Malaysia Agreement which, strictly speaking, was a bilateral agreement between the UK and the Federation of Malaya.
“The Sarawak attorney-general wrote that Sarawak and North Borneo are not parties to the formal agreement and the undertakings, etc., would be given to Britain rather than Sarawak and North Borneo. Logically and legally, therefore, it would be right to exclude them from the formal agreement, but from a presentational point of view I think it is important ….”
Sarawak’s colonial attorney-general at that time was P. E. H. Pike, and from his written comment, one could believe that although MA63 led to the formation of Malaysia, Sabah and Sarawak were not part of the agreement.
“Therefore, many legal experts believe that MA63 was in fact an agreement between the UK and the Federation of Malaya only and that Sabah and Sarawak were not part of it and, therefore, could not be binding on them,” said Voon, adding that it seemed the federal government was aware that the formation of Malaysia was flawed and tried to correct it by amending Article 1(2) of the federal constitution with the hope of breathing life into it.
Therefore, if the formation of Malaysia was void, then the status of Sabah and Sarawak could not be made right by amending Article 1(2) of the Federal Constitution.
“Even if MA63 was not void, the sincerity of the federal government to restore the status of Sabah and Sarawak to their original positions as countries is in doubt,” he pointed out.
Voon said that he attended a talk given by DAP heavyweight lawyers and lawmakers last Sunday night at Hui Sing Garden, where it was argued that the PH government, of which DAP is a part, was sincere in putting Sabah and Sarawak back into their original positions at the time Malaysia was formed.
“They put the blame on our Sarawak government for not lending support to the amendment when the state government insisted that the words, “Pursuant to the Malaysia Agreement 1963” be included in the amendment.
The inclusion of these words was not acceptable to the federal government, but no reason was given for it, he said.
Voon mentioned that during the talk that night, members of public who were present expressed their doubts because if the PH government was sincere, there would not have been a proposed re-amendment made before the Bill was debated.
“And the Bill was re-amended because many lawmakers objected to the original wordings. The Bill should have been carefully drawn, but it was not,” he said.
He remembered that as shown on a big screen during the talk, although the re-amended version in English were the exact same words that appeared in the 1963 Federal Constitution, it could not convince many of the attendees.
By observing what went on during the talk, he thought it was obvious that the Bill was rushed and the members of parliament could not find time to seek advice from the top legal minds before debating the re-amended Bill.
He also recalled that during the talk at Hui Sing Garden, the Malay version of the Bill was not shown to the public.
A lawyer who was present told him his concern as to why there was no explanation by DAP concerning the Malay version.
The said lawyer knew of a Malay version of the amendment to Article 1(2) using the words, “Negri-Negri Borneo, iaitu…”
This, according to the lawyer, was not consistent with the English version, but DAP lawyers and lawmakers did not explain the inconsistency to the public.
“Such inconsistency can have very far-reaching political effects as it would classify Sabah and Sarawak as states equivalent to any state in Malaya as originally intended in the pre-amended proposed Bill,” said Voon.
He said that he also checked Article 160B of the Federal Constitution which states that “… if there is any conflict or discrepancy between such national language text and the English language text of this Constitution, the national language text shall prevail over the English language text”.
“There is no reason for the use of the words, “Negri-Negri” instead of “Negara-Negara” in the Malay version. So, this raises the question, is the PH government sincere about the amendment?
“The people that I met in past weeks said the proposed amendment to Article 1(2) was meaningless because the amendment did not mean that Sabah and Sarawak would get back their lost territories, and oil and gas that were taken by the Federal Government,” he said.
