‘No two thirds rule (seats) for the States of Malaya under FC’

 

‘No two thirds rule (seats) for the States of Malaya under FC’

·         The Borneo Post    26 Jun 2022

·         By Alex Ling Lee Soon MA LLB (Cambridge University)

PM Lee Kuan Yew had confirmed that he would have never joined in the formation of Malaysia if that “No Two-Third Rule (Seats)” was not entrenched in the Article 46 of FC and Section 9 of the Malaysia Bill 1963, Annex A to MA 1963, stipulating in its preamble to be inserted as the mother of the FC.

“A thing antecedent to a government, and a government is only like creature of the Constitution. The Constitution is not the act of its government but of the people constituting a government” : Thomas Paine

It seems that there is some confusion on the one third representation in the House of Representatives in the Federal Parliament.

IA Firstly, as a preliminary point:

(i) it does not mean that Sarawak should have one third parliamentary seats. Sabah should do the same, then the States of Malaya will be left with one third also. That is incorrect according to the original Section 46 Federal Constitution (“FC”), was adopted from the identical Section 9 of the Malaysia Bill (1963), Annex A, to Malaysian Agreement 1963 (“MA63”), the mother of the Federal Constitution,

(ii) It also does not mean that Sarawak and Sabah should have only one- third of the 222 parliamentary seats. Then that would be useless and incorrect too.

If that were the case, the States of Malaya and the Federal Government could still rubber stamp all the legislations and amendments of the FC without consultation with or agreements by Sarawak and Sabah.

PM Lee Kuan Yew had confirmed that he would have never joined in the formation of Malaysia if that “No TwoThird Rule (Seats)” was not entrenched in the Article 46 of FC and Section 9 of the Malaysia Bill 1963, Annex A to MA 1963, stipulating in its preamble to be inserted as the mother of the FC.

That exactly happened in 1965 when the 15 seats of Singapore were not given to Sarawak and Sabah to maintain that more than one-third of the seats i.e 34.6% (not 33.3%) against 65.4% of the States of Malaya as agreed and stipulated under Section 9 of the Malaysia Bill 1963, and adopted in the original Article 46 of the Federal Constitution.

That above mentioned Section 9 and the original Article 46 of the FC state as follows:“(1)

The House of Representatives shall consist of one hundred and fifty nine [159] elected members.

(i) There shall be one hundred and four (104) member[s], fifty-seven (57) from the States of Malaya [104 out of 159 is 65.4%. That is called the “No Two-Third Rule”. If the Federal States of Malaya were to have two-third, they would have 66.6%]

(b) Sixteen members [16] from Sabah

(c) Twenty-four [24] members from Sarawak

(d) Fifteen [15] members from Singapore

In brief

(1) No two-third rule for the States of Malaya (only 65.4%) therefore not having two third (66.6%).

(2) Sarawak, Sabah and Singapore had more than one-third approximately that was 34.6%,( not 33.3%) before Singapore left Malaysia on 9th August 1965.

(3) When Singapore left Malaysia the 15 seats must be allocated to Sarawak and Sabah in the ratio of 24:15 to maintain that 34.6%.

(4) But KL leaders deliberately concealed from Sarawak’s and Sabah’s leaders until the Singapore Separation Agreement was executed.

Secondly, after Singapore left, through a series of amendments [AM Act A537] [AM AC5 A94J, A109J, A1198, A1260], [Subs ACT A1198; AM Act A1260], Sabah and Sarawak suffered that loss of percentage in the “No two-third rule (“NTTR”) which should have been enforced.

In fact all the Singapore seats should have been allocated to Sarawak and Sabah in the ration of 24:16. That would mean Sarawak should get 24+9 seats = 33 seats and Sabah should get 15+6 = 21 seats. Then they would retain the 34.6% to prevent rubber stamping by the States of Malaya in the federal government.

Now, the fair constitutional solution or remedy will be to allocate 32 new seats in the ratio of 31 to Sarawak : 25 to Sabah totalling 254 in the parliament in consideration to rectify and ratify the void and illegal 13 seats of the Federal Territories.

Thirdly, the above amendments were in breach of the assurances given by PM Tunku, DPM Tun Razak and PM Lee Kuan Yew who had assured the Sarawak and Sabah’s leaders of the “NTTR” before these territories joined in the formation of Malaysia under Articles VIII of MA1963 for “assurance in so far as they are not implemented by express provision of The Constitution of Malaysia”.

As explained, PM Lee Kuan Yew would have never joined Malaysia if the “NTTR” was not there, else the States of the Malaya in the Parliament would be able to rubber-stamp all the federal legislations and amendments of the Federal Constitution.

Sarawak and Sabah would fight for their entrenched safeguards which Singapore would help to enforce them. Tunku and Tun Razak knew that. That fear came to pass at last!

Sarawak and Sabah leaders were not consulted nor even knew the execution of the Separation Agreement 1965 of Singapore until that was disclosed in the media.

There was an oral undertaking by PM Lee not to disclose the Separation Agreement to the leaders of Sarawak and Sabah who only knew that Separation Agreement 1965 after it was executed and disclosed over the media.

Worst still, PM Lee Kuan Yew did regret in later years that in all fairness as “equal partners”, Sarawak and Sabah should have been consulted and be parties to the Separation Agreement with their agreed terms in the Separation Agreement.

Sabah and Sarawak would definitely asked for the 15 Singapore parliament seats namely: 9 (Sarawak): 6 Sabah in order to maintain the “NTTR” and assured under Article VIII of MA1963.

Tun Razak wanted to avoid that at all costs. Understandably PM Lee Kuan yew would not bother, after Singapore was getting out of Malaysia. Self interest and survival were paramount. A good relationship was still critically important for Singapore’s business, water supply and security.

Borneo Territories’ interest would still then be secondary to Singapore which had no financial or other obligation to them under the FC.

So the unconstitutional and void number of House of Representatives were amended under 46 (1) by the above mentioned series of amendments without amending Section 9 of Malaysia Bill 1963, Annex A to MA1963 first in the Tripartite Supplementary Agreement (“TSMA”) to be executed by the States of Malaya, Sabah and Sarawak.

The present Article 46 reads as follows:(1) The House of Representatives shall consist of two hundred and twenty-two elected [222] members.

(2) Two hundred and nine [209] members from the states in Malaysia as follows:

(i) twenty-six members from Johore;

(ii) fifteen members from Kedah;

(iii) fourteen members from Kelantan;

(iv) six members from Malacca;

(v) eight members from Negri Sembilan;

(vi) fourteen members from Pahang;

(vii) thirteen members from Penang;

(viii) twenty-four members from Perak;

(ix) three members from Perlis;

(x) twenty-five members from Sabah;

(xi) thirty-one members from Sarawak;

(xii) twenty-two members from Selangor; and

(xiii) eight members from Terengganu; and

(3) Thirteen members from the Federal Territories of Kuala Lumpur, Labuan and Putrajaya as follows:

(i) eleven members from the Federal Territory of Kuala Lumpur;

(ii) one member from the Federal Territory of Labuan;

(iii) one member from the Federal Territory of Putrajaya.

Comment

(1) However Section 9 of the Malaysia Bill 1963, Annex A, MA1963, is still unamended, valid and enforceable. Therefore all amendments on Articles I, 45, 46 were unconstitutional, void and illegal, therefore invalid and unenforceable because that was the fundamental body and soul of MA1963 in the Federal Constitution which stated in the Preamble that the Malaysia Bill 1963, as “the mother of the FC”, was inserted as the agreed provisions in the Federal Constitution.

(2) The deletion of Singapore in the 1963 Malaysia Bill, Annex

A to MA1963, was per se also unconstitutional without TSMA to be executed first by the States of Malaya, Sabah and Sarawak as the remaining rightful parties.

There was no mandatory TSMA executed with agreed terms by the three remaining parties, namely the States of Malaya, Sarawak and Sabah before Singapore left Malaysia in 1965 for amending MA1963, as a Constitutional Agreement and a multilateral treaty.

(3) The addition of the 13 Federal Territories (“FTS”) under 46(b) were unconstitutional, void and illegal and unenforceable because FTS

(a) are not states under the definition in Articles 160 nor original Articles I and 2, nor ever existed in the States of Malaya.

(b) do not qualify as States and so they cannot be admitted to the Federation of Malaysia under Articles I and 2(a) of the Federal Constitution.

(c) were even not stipulated in the FC, therefore in breach of the “NTTR” or over 65.4%. Section 4 of the Malaysia Bill 1963, Annex A to MA63 and the original Article I of the Federal Constitution have not been properly amended with the TSMA under the requirements of constitutional law and international law on treaty.

Fourthly

(i) None of the Borneo States has amended Sections 4, 8, 9 and 66 (3) and Article 2 under the TSAM under the Malaysia Bill 1963, as “Annex ”to MA 1963, before amending Articles 45, 46, 1 (2) & (3) and 1 (4) on the unconstitutional and void increase of the seats of MPs for the States of Malaya on or after the 9th August 1965, when Singapore exited Malaysia. Therefore, retrospective amendments to restore the original Articles 1 (2) (b) and agreed amendments of 46 are mandatory including the 4 void Senate members of FTs under Article 45.

(ii) The Borneo States’ leaders who were deliberately kept in the dark until that Separation Agreement was executed, had lost that only opportunity to get the Prime Minister Lee Kuan Yew, our PM and Deputy PM of Malaysia, to reconfirm faceto-face the verbal assurance given to the Borneo State leaders on NTTR by Tun Razak before the formation of Malaysia, before the execution on the formal “Exit” and necessary amendments for the 15 seats of Singapore to be all assigned irrevocably to Sarawak and Sabah proportionately in the ratio of 24 to 16 to maintain that 65.4% or NTTR for the States of Malaya.

(iii) With the breaches of NTTR, the 13 void FTs were created subsequently as a constitutional gloss and limbo in breach of Sections 4 and (9) of MAct 1963, the original Articles I,

2 (a), Articles 46 and 45 to increase the parliamentary seats in case of unfortunate leaping frogs!

(iv) Similarly, without amending the 4 fundamental agreements/documents, first under the first TSMA, the void and illegal amendments of Articles 1(2), 1(3), 46 and 45 on the void “FTs” under Article 1(4) (Subs. Act A1095) have breached the NTTR or 65.4% by reducing the Borneo States’ entrenched seats from 77 to 56, and by allocating 75% or 166 seats out of the void increase to 122, totalling 222 seats by the Constitution (Amendment) Acts 1983 and 84.

(v) Indeed, these serious constitutional violations and the ultra vires “admission” FTs, (4 Article 45) and 9 of MA1963 and purported Articles I (4) and 46 of the FC and Article 2(a) have paved also for the void increase of seats to 166 for the States of Malaya, including the 13 parliamentary seats for the FTs against the spirit and letter of the Constitutional Agreement and International Treaty of MA 1963.

(vi) But the quid pro quo for the necessary amendments to restore MA63 will be the fundamental reasonable preconditions by Borneo States to demand the restoration of that NTTR (65.4%) for the States of Malaya and 13 FTs by increasing 32 new seats for the Borneo Territories totalling 254 seats for legalizing constitutionally the 13 FTs on which they must accept as the fair trade-off for necessary rectifications and ratifications of the constitutional gloss and limbo of the 13 FTs under Articles 1(4), 2(a), 1(2), 45, 46 and the fundamental breaches of the proviso of Article 2 (b) and corresponding Sections of MAct 1963, apart from the 7 FCs and 7 PMs.

Equitable Solution with amendments.

In brief

(i). For the preconditions for amending Sections 4 and 9 of MAct63 first, then Article 46, 1(2), 1(4), 2(a) with new Articles 2A and 46A proposed to rectify and ratify the unconstitutional 13 seats of the FTs in the parliament and 4 seats in the Senate, 32 new seats must be legislated to be added to the total House of Representatives from 222 to 254, with the 32 new seats to be allocated to Sarawak and Sabah in the ratio of 31(18) to 25 (14), henceforth always to maintain that NTTR or 65.4% for the States of Malaya and the FTs, as the States of Malaya had only 104 out of 159 parliamentary seats originally, and the Federal Territories had never existed before.

(ii). Parliament would have to pass the 3 following contents of amendments under Article 46 A, namely by:

a) Stipulating that from the date of the amendment, the States of Malaya or equivalent and FTs shall henceforth abide NTTR or 65.4% of the total seats of the MPs under the amended Article 46 and Section 9 of MA 1963 to rectify and ratify the illegal and void status of their 13 MPs and 4 Senators of the FTs, apart from reimbursements of their decades of financial perks.

b) Stipulating that 32 new seats in the House of Representatives shall be increased to maintain the NTTR for the States of Malaya and the 13 FTs at all times henceforth from 222 seats to 254 seats now to be allocated at the ratio of 31 to 25 for the States of Sarawak (18) and Sabah (14) respectively, including any increase of seats in the future.

No more increase beyond 13 FTS and no alterations of the 4 boundaries from 12 nautical miles of Territories waters to 350 nautical miles of the continental shelf of Sabah shall be allowed.

c) Stipulating that the amendments of Articles 1(2), 1(4) and 46 must be made only after the amendments of Sections 4 and 9 of the MAct63 and Articles 2 (a) and (c) with new Articles 2A and 46A under that TSAM to be executed before the 13 FTs under Articles I, 1(4) 45 and 46 can be constitutionally amended.

Only with these holistic amendments of the “No Two-Third Rule (Seats)” can ’Territories or Wilayah restore their original rights enshrined in the constitution that were whittled away by the Federal winds and waves over the last few decades.

Restoration on paper rights are important, but more importantly will be the ’s’s, legally and equitably overdue for over four decades, apart from grants overdue for review to increase by 5 times, as already approved for Sabah.

Oil is presently around us US$100 per barrel. It should be around USD75 per barrel in the near future due to geopolitical factors and OPEC. The profit margin is huge as production cost at site is only around USD8.00 to USD10.00 per barrel.

Hope that Putrajaya would consider the shortchanges of royalty/cash payment to be paid with big discounts over 20 years, and most importantly to restore the “NTTR” as equal partners.

The holistic amendments mentioned above of the various Articles especially the NTTR would be the assured gateway for the meaningful restorations of Sarawak’s rights under Article VIII of MA 1963 targeted ultimately in the “Economic Constitution” to redress an overdue, balanced and equitable and equitable sharing of Sarawak’s oil and gas to finance the development of our State, the Nation and the King.

Article Name:‘No two thirds rule (seats) for the States of Malaya under FC’

Publication:The Borneo Post

Author:By Alex Ling Lee Soon MA LLB (Cambridge University)