The effect of the Federal Constitution not recognising MA63

1. According to State Legal Advisor, JC Fong, the effect of the FC not recognising MA63 would mean that MA63 was not legally binding under Malaysian law.

2. The UN legal opinion (19/09/63) referred to Malayan UN Representative Dato Ong Yoke Lin's letter to the UN (16/09/63) as stating that there was no new federation created just a name change to Malaysia. The letter did not mention that 3 new members were admitted on 16/09/63.  

It was the British legal strategy to amend the FC to admit new SSS members to the Malayan federation to avoid having to apply for a new UN membership under a new entity "Malaysia". Thus the British gov't sough the UN Legal opinion on this point. The Opinion stated that the name change was not legally forming a new international legal entity and therefore did not require a fresh application to the UN to be a new member. 

This was done to avoid international opposition to Malaysia and hence it might not be admitted as a member.  

The second leg of the strategy was to avoid scrutiny of the Decolonisation "Committee of 24" which would require legal compliance with Principle IX (9) UN Resolution 1541 to hold a real referendum for a non-independent colonial territory to join an independent federation. This avoided holding a referendum on Malaysia. (As explained in declassified docx and the UK Colonial Secretary, Duncan Sandys' UN telegram to his London office on 09/08/63). 

Following the Manila Accord (signed 31 July 1963 after MA63 was signed). The British again avoided a referendum (publicly opposed by Malayan PM & Permanent Sec. Ghazali Shafie after prompting by Sandys) but instructed the UN secretary to carry out an assessment of the people's wishes on Malaysia (similar to the Cobbold Commission), not a referendum.        

Thus, the UN Secretary without need to put the matter to a Gen Assembly vote, endorsed the change of name.

3. MA63 as an international agreement and bound by international law, was not registered till 1970, 7 years after signing. 

What is the legal effect?

UN Charter Art 102 (a) & (b) require that all UN members must register their agreement immediately on signing & ratification. Failure to do so will incur the penalty of not being able to invoke the teary (MA63) by the signatory parties on any issue relating to the treaty. 

After 7 years, arguably MA63 (if valid) would in effect have lapsed for non-compliance with the UN Charter and MA63 Art 8 which required all parties to do all things necessary to implement the agreement. 

In other words, for 7 years MA63 neither Malaya, S'pore, Sabah nor Sarawak would not have been able to invoke MA63 in any domestic or international issue or dispute. 

Arguably from this point of view, MA63 was rendered not binding because it was not concluded according to international law rules and requirements. 

4. Was MA63 a legally signed document? The Borneo High Court avoided dealing with this issue recently. According to the international legal principle stated by the ICJ in the Chago case, a colonial power cannot make a binding agreement with colonies under its control, as they did not have the power to do so.   

It has been asserted since 2013, that MA63 was void ab initio and not legally binding from the beginning, The reason given was that SSS were colonies not sovereign states with power or legal capacity to make binding international agreements. The 2019 Chagos case confirmed this conclusion. 

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