Sarawak,
Sabah have solid case to seek self-determination, says SSRANZ editor
KUCHING,
April 1:
Citing
the Chagos Archipelago Case, Sabah Sarawak Rights-Australia New Zealand
(SSRANZ) opined that the Malaysia Agreement 1963 (MA63) is actually void and
that Sarawak and Sabah should be seeking self-determination.
SSRANZ president Robert Pei said de-facto
Law Minister Datuk Liew Vui Keong may not have carefully considered the full
implications of what he said on March 25 that the government would not agree to
any suggestion and issue raised in relation to the dissolution of MA63 and
self-determination when replying to the oral question raised by Datuk Dr
Jeffrey Kitingan who is Parti Solidariti Tanah Airku Rakyat Sabah leader and
Keningau MP.
“The minister may not have been aware that
the International Court of Justice had made a decision on Feb 25, 2019, which
in re-affirming the right of peoples to self-determination (UN Resolution
1514XV), re-stated the international law rule on treaty making that only
sovereign states can make treaties, and colonies (non-self-governing
territories) are not sovereign independent states with power to make such
treaties with independent states.
“The case related to issues on the
decolonisation of Mauritius in 1968, which challenged the validity of the 1965
Mauritius ‘agreement’ with the United Kingdom to ‘detach’ the Chagos Islands
from Mauritius territory to form a new colony in 1965. It was referred to the
ICJ, which hears legal submissions over international boundary disputes, after
an overwhelming vote in 2017 in the UN assembly in the face of fierce
opposition from a largely isolated UK.
“For the first time on record, it appears
that an eminent court of law has reopened a `decolonisation’ case and
questioned the validity of a treaty made by a ruling colonial power with its
colony and whether decolonisation had been lawfully completed in accordance
with the right of peoples to self-determination,” said Pei in a statement
today.
He said for the same reason, the MA63 was void
ab initio (invalid from the beginning) and there is nothing to be “dissolved”
contrary to what Liew was saying.
“MA63 was made in violation of the said
legal principle when North Borneo (Sabah) and Sarawak were still colonies. The
formation of Malaysia under MA63 was intended by the UK as part of its
decolonisation of Sabah and Sarawak by ‘integration with an independent state’
(Malaya under UN Resolution 1541XV).
“If MA63 was invalid and not binding, there
is no ‘Federation of Malaysia’ to speak of and Sabah and Sarawak should indeed
be talking about self-determination.”
Pei, a Sarawak-born Australian lawyer and
activist, pointed out that the recent International Court of Justice’s (ICJ)
decision on the Chagos Archipelago Case (Mauritius, delivered Feb 25, 2019) has
confirmed his assertion since 2014 that MA63 was void ab initio.
He said the ICJ decision, therefore, has an
immediate impact on the validity of MA63, and he queried whether the current
inter-state/federal government MA63 talks have any legitimacy.
“The ICJ findings on the cited case was that
Mauritius as a colony under the authority of the United Kingdom, its
administering Power in 1965, could not make a binding international agreement
with the UK as this was not a free and genuine expression of the will of the
people.
“Para 172 of the ICJ decision stated that:
‘The Court observes that when the Council of Ministers agreed in principle to
the detachment from Mauritius of the Chagos Archipelago, Mauritius was, as a
colony, under the authority of the United Kingdom. As noted at the time by the
Committee of Twenty-Four: ‘the present Constitution of Mauritius . . . do[es]
not allow the representatives of the people to exercise – 41 – real legislative
or executive powers, and that authority is nearly all concentrated in the hands
of the United Kingdom Government and its representatives’ (UN doc. A/5800/Rev.1
(1964-1965), p. 352, para. 154).
“In the court’s view, it is not possible to
talk of an international agreement when one of the parties to it, Mauritius,
which is said to have ceded the territory to the United Kingdom, was under the
authority of the latter.”
Pei said there were many similarities in the
making of the UK-Mauritius Agreement of 1965 and the Malaysia Agreement 1963.
From
July 9, 1963, to Sept 16, 1963, both Sarawak and Sabah were still colonies (as
stated by Article 1 of MA63 and the Malaysia Act 1963) administered by the UK
when they purportedly signed an international agreement with the UK, Malaya and
Singapore agreeing to transfer British sovereignty over the Borneo territories
and Singapore to the Federation of Malaya without independence first or consent
and mandate freely given in a referendum on the Malaysia question.
The UK had claimed that this was one way to
decolonise Sabah and Sarawak by integration in the Malayan Federation in
accordance with the UN General Assembly Resolution 1541XV.
Pei said that on the date MA63 was signed,
neither North Borneo nor Sarawak had self-rule. Nominal self-rule was only
‘granted’ to Sarawak for 55 days from July 22, 1963, and Sabah was granted 14
days of self-rule on August 31 before they were incorporated in the Malayan
Federation renamed ‘Malaysia’ on Sept 16, 1963. This did not even in any way
complied with requirements of UN Resolution 1541XV, which included the gaining
of governing experience and political maturity to consider the federation
proposal.
On August 31, 1963, the British Colonial
Secretary Duncan Sandys (in rejecting Singapore Unilateral Declaration of
Independence UDI) stated that Singapore, North Borneo and Sarawak were at all
times territories under the authority and full control of the UK till Sept 16,
1963, the Malaysia formation date.
In view of this confirmation of Sabah
Sarawak pre-MA63 status and applying the Chagos ruling on MA63, neither North
Borneo, Sarawak nor Singapore could make a binding international agreement with
the UK when it still had direct control over them on July 9, 1963.
Pei said the decision of ICJ, therefore,
affirmed his assertion that MA63 was void ab initio (invalid from the
beginning) for this reason.
“This means that the British decolonisation
of Sabah and Sarawak had not been lawfully complied with in accordance with the
people’s right to self-determination, especially the failure to obtain a
mandate or consent freely given in a referendum on the Malaysia Question.”
He said as far as Minister Liew’s statement
goes, there was no MA63 to be dissolved. He said this immediately raises the
question of whether the Federation has been illegally controlling Sabah and
Sarawak sovereignty since MA63, and is Malaysia just a de facto state that
expanded its territories by absorbing the Borneo countries?
Further, according to the announced
amendment to Article 1(2) of the Federal Constitution, the removal of Sabah and
Sarawak status as ‘states’ means that they would revert to their pre-Malaysia
status as ‘colonies’ as stated in Article 1 MA63 and in the Malaysia Act 1963
ratifying MA63.
“Therefore, the Minister was wrong to state
that the Federal government would not consider dissolving MA63 or
‘self-determination’ for Sabah and Sarawak. In fact, if MA63 does not exist,
the Federation is under a duty placed on it by the UN Charter and Resolution
1514 to immediately decolonise the 2 colonies.”
In conclusion, he called on the Sarawak and
Sabah governments to seriously look at the Chagos Islands decision and review
their respective states’ position in the Federation. They have a number of
options, but the first thing to do is to assert and claim their people’s right
to self-determination. — DayakDaily
My comments: It is indeed embarrassing and disappointing to the Malayan government to know the fact that they have no right to sign the international agreement with a child or teenager.
