*The starting point of understanding MA63, in my view is knowing the crucial characteristics of a “Parliamentary Democratic Government”, namely, fully functional and independent Executive (Cabinet), Legislature (Parliament/Legislative Assembly (DUN) and Judiciary (Court). Should any of these three branches of government be not fully functional or independent but still under the purview of the colonial power, that particular government or nation has not yet gained FULL independence, which was the case of Sabah and Sarawak* – Jack Situn Esq.
Sarawak Legislature, called Council Negri was a body appointed by the Rajah. The function of the Council Negri was to advise the Rajah. When Sarawak was a colony, this function of the Council Negri continued.
However, the British began to allow elections to the Council Negri in end of 1956.
During April 1963 Sarawak Elections to elect members to the Council Negri (Legislature) Sarawak was still a colony of the British. At that time the British had already pushed for Greater Malaya by strategizing Singapore, North Borneo (Sabah) and Sarawak to merge with Malaya. The plan for Greater Malaya started soon after the Second World War II because caused by the War, the British could no more maintain their colonies.
Although Sarawak had a Legislature to decide whether or not to be part of Malaysia, the elected Legislature could not function fully and independently without the interference of the British on this important matter. The Council Negri was not independent. As said above, the function of the Council Negri at that time was to advise the British governor. Like the Rajah, the British governor retained prerogative powers over the Council Negri.
Therefore, the way how Sarawak merged with Malaya was not the decision of an independent Council Negri, but, also by the British.
Therefore, this decision for Sarawak to merge with Malaya had no legal basis because it was *NOT CONSENTED BY A FULLY INDEPENDENT LEGISLATURE*. This was therefore against the United Nations General Assembly Resolution 1514 on right to self-determination. The same also goes to Sabah.
For Sabah, there was no Sabah Legislature yet because Sabah Legislature was only formed on 25.09.1963 and all decisions including the merger with Malaya were not done by a Legislature, but by the British for Sabah.
There was also no independent judiciary in Sarawak at that time because the Chief Justice was a British and the Attorney-General was also a British when the Malaysia Agreement 1963 (MA63) was signed on 9 July 1963.
At the time of signing of the MA63, Sabah and Sarawak were still colonies of the United Kingdom. As opined by legal experts, this was against international law as affirmed by the Chagos Islands case delivered by the United Nations International Court of Justice in February 2019. Being colonies, Sabah and Sarawak had no legal capacity to sign the Malaysia Agreement 1963.
Until Malaysia was formed, the Supreme Council (Cabinet) was headed by the British governor and the governor exercised full control over the Cabinet whom he appointed. Therefore, there was no independent Cabinet not under the control of the British governor although Dato Stephen Kalong Ningkan was Chief Minister from 22 July, 1963 until Malaysia was formed on 16 September, 1963.
The Malaysia Agreement 1963 was already signed before Dato Stephen Kalong Ningkan and his Cabinet was appointed by Sir Alexander Waddell.
Therefore, legal experts also opined that MA63 could be invalidated on the grounds that there was no consent for Malaysia by the Sarawak and Sabah Legislature. Further, there was no independent judiciary system and Cabinet without the interference or influence of the British at the time the Malaysia Agreement 1963 was entered.
6.8.2023
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