Subtle strains of statehood

Te whetu Orongo

A State is not a fact in the sense that a chair is a fact … it is a legal status attaching to a state of affairs by virtue of certain rules.

– Professor James R Crawford, Whewell (Cambridge) Professor of International Law

In 1880 William E Hall, an English lawyer, published International Law, laying the foundation for the Montevideo Convention of 1933 with the four attributes and qualifications that defined a State: a permanent population, s defined territory, a government, and a capacity to enter relations with other States (governments whether elected or not).

The Badinter Commission Opinion No. 2, January 11 1992, 3 EJIL; 92 ILR 167 considered that individuals had a right to choose their nationality when it convened to consider the creation of statehood by Croatia, Macedonia and Slovenia from the fractured Yugoslavia.

The magic phrase is “self-determination” that was endorsed and recognised by world governments when Taiwan, Zimbabwe, the Democratic Republic of Congo, Bangladesh, Timor-Leste, Namibia, the Turkish Republic of Northern Cyprus, Biafra and Somaliland emerged as sovereign independent nation states bereft of external control.

Malaysia was a rare example of a new nation carved out of a suspicious arrangement without revolution or bloodshed as is the wont of its people in the Borneo territories and Malaya. The silent partner, of course, remains the United Kingdom not willing, wishing, waiting, or wanting to be nudged.

I say “suspicious arrangement” because the word “States” in reference to Sabah and Sarawak must have become confused with the term used for an independent sovereign government as envisaged in Article One of the Montevideo Convention of 1933. Subsequent amendments to Article 1 of the Federal Constitution (FC), a parliamentary sleight of hand, proves the point.

Political subterfuges and intrigues in deal-making with dubious shades of quid pro quo, allow the enticement to Sabah and Sarawak to be patient as they become “equal partners” to Malaya in the actual terms and conditions of the original contract — MA63.

There is also confusion with the word “federation” as the existing 11 States of Malaya were somewhat nonplussed that they were not consulted. Kelantan led the charge 10 days before the MA63 could be implemented.

The real question is whether Sabah and Sarawak truly benefitted from the Malaysia experiment, exposure and experience when federal expenditure for these two Borneo territories is couched in ambiguous constitutional language that gets blurred during statutory construction in a court of law.

Ask the middle-class citizen, or denizen owning communal land rights in these two territories to gauge and assess the real import and impact of Malaysia in their lives. Ask that girl who climbed a tree in Sabah to increase her Internet connectivity.

The unshakable and unmistaken fact is that the Cobbold commissioners failed to take pains to explain the merger’s aims, objectives, goals, purposes and consequences. There is a great deal of doubt whether those who agreed to Malaysia clearly understood the meaning of the new federation, equal partner status, or statehood.

For example, was the Cobbold Commission, the IGCR and the MA63 translated into all the languages spoken by the various native clans and communities articulated in Article 161A (6)(a)(b) and 7 FC? Were the Cobbold commissioners fluent in any native language? Did any Cobbold commissioner actually live with any native communities for an extended period of time to understand their way of life to some degree? Did any Cobbold commissioner ever read the Adat Iban, for example, as a Code for Native Law and Customs as recognised under international law?

Statehood is a serious matter beyond nationalism and patriotism as it involves security and safety of tangible territorial and intangible political borders. Anything less diminishes the legal, lawful and legitimate expectations of the communities concerned in the particular territory under applicable law.

Some cute words and phrases have crept into the jargon of statehood: “juridical state” refers to central governments that have lost control of important areas of their jurisdiction due to political rivalries. “Quasi-states” and “inchoate democracies” apply to governments that really do not reflect the popular will of its people.

Sabah and Sarawak must come to terms with the concept of an unadulterated sovereignty operational and functional as a totally transparent elected government in a concerted effort to enjoy supremacy, suzerainty, immunity and autonomy without external control (contamination).

The ultimate question is whether there is any need for western political thought to cater to our Asian state of affairs carved by civilisations with several thousand years of traction.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.