The Malaysian Agreement / MA63 7/5/23
Podcast No. 5: Dato Sri JC Fong
Their points of view and my understanding
James:
So today I am really pleased to welcome this podcast with Dato Sri JC Fong , the former Attorney-General of Sarawak. He has written a few books dealing with the Federal-State relations. The most recent one is published by Law Publisher concerning Federal-State in Sarawak.
Thank you very much for your presence on my podcast.
As I mentioned to you, I have talked to as many experts as possible about the issues relating to the MA63. As you know it has caused a fair bit of controversy especially in Sabah and Sarawak. And many and many groups blamed that because of unhappiness over MA63. Perhaps, they should seek legal remedies under international laws.
Can I have your opinions on these issues?
JCFong:
What sort of remedies are we thinking about?
What remedies are available in international laws in terms of trying to enforce a treaty like MA63, which, no doubt, is registered as a treaty of the United Nations?
Which international tribunal is able to grant any remedies that can be enforced?
These are the problems we have in terms of seeking remedies what some people say to be a breach of MA63 as an international treaty?
Another point is:
Who has the Locus Standi to go to seek these remedies and whom are we going to name as respondents of such proceedings?
I don’t think the UK government wants to be the party to it anymore as far as they are concerned they had granted the independence and passed the Malaysia Act in the UK parliament to vest sovereignity as agreed in MA63. They also vested all the rights to property existed in Sarawak during the colonial administration in Sarawak to the new State of Sarawak as a State within the Federation. They had given us back everything they previously had.
That is the issue that we have now.
James:
As I mentioned earlier, under international law, remedies as you mentioned are usually quite difficult. Another to note is that if you want to go to ICJ, it will only take cases of sovereign nations.
A lot of people got very excited last year (2019), because they claimed that there is a precedent now. That was an advisory opinion issued from ICJ in relation to the Chagos Case.
JC Fong:
The circumstances are different in Sarawak. Before you can go to the ICJ, the party must submit to its jurisdiction. Otherwise, we will end up in the dispute like the one between China and the Philippines. Though the Philippines got the judgement to its favour, the Chinese government does not recognise it.
JCFong:
Now in so far the situation in Sarawak and for the matter Sabah as well. The process of getting the people of SS/SabahSarawak to agree to join the Federation of Malaysia was undertaken before MA63 was signed.
Whatever maybe the defects / shortcomings of fact-finding issues including the ones by the United Nations just before the Malaysia Day.
The findings do show the majority of the population of the two Borneo States agreed to be part of the Federation of Malaysia.
In June, 1963m there was a local election conducted under 3-tier system:
Municipal Level
Divisional Level
Council Negri Level
The outcome of the election showed also that the majority of the people/representatives were in favour of Malaysia.
Then British in accordance to the normal practice granted us self-government on 22nd July, 1963 with our own chief Minister and our Cabinet sworn in on the said date.
So effectively, what happened was the self-government which had the executive authority to a large extent to over the state took the decision to pass a motion in the Council Negri which effectively agreed to the formation of Malaysia and recified the MA63 which was signed by its representatives in London.
So with all these, it is difficult to argue that we are in the same position as the Chagos Case.
I think if we take all these factors into consideration, it is difficult to unwind what has been decided already by our forefathers.
Maybe it is imperfect but in this world nothing is perfect.
It is up to us now how to make it work and to make sure for whatever has been agreed in MA63 is duely honoured by the Federal Government of today.
James Chin:
Obviously this unhappiness in SS people over federal-State relationship, there must be some basis to it , SS people feel that they are being bullied by the Federal Government. They feel that they have not kept the issue of autonomies for SS.
If international group is not available, are there any legal remedies available in the domestic court?
JCF:
In the Malaysian Court, there are opportunities:
What was agreed in MA63 and what was agreed to be the Special safeguards for the special interests of SS to be duely honoured.
Many of the proposed cases of Sabah like the case of Robert Linggi (Sabah police)and what David Wong (judge) said Malaysians who are in some way agreed by the way MA63 is implemented may take the matter to court. Of course, on an appeal, the court decided that Robert Linggi had no Locus Standi.
So one must take comfort for that judgement. For somebody who has the Locus Standi can go to the court to seek remedy for any breach of MA63.
There are some other cases as well like the case Datuk Ting Check Sii & Dato Tun Tofail Mahmud over the rights of audience by way of Malaysian lawyers before the court of SS including the case originating from SS to be heard in Putrajaya.
And they denied Tan Sri Tommy Thomas the right to appear in that case even though it was to be heard in Kuala Lumpur.
There is Sugumar Balakrisnan over the immigration matter where the autonomy of SS over immigration being used forcefully to bar the entry of Sugumar Balakrisnan to Sarawak.
So I think overall, when the case is properly made up to the court to safeguard the special interest of SS, the court would not fail your order.
There are cases of unhappiness, of course, occur as time goes by, with the new breed of politicians coming, new administrators, make them forget about the special rights, safeguards and privileges accord to the Borneo States. It is true to some extent, there is an erosion of the rights of SS.
For instance, tourism, was on state legislative list before 16/9/1963. When they made an amendment in 1994, they took it from the Residue List to be put in Federal List instead of Concurrence List. So they deprived Sabah which has vast interests in tourism whereas Sarawak was about to establish its tourism industry.
Such a big setback, there are things like that. There are provisions in the constitution for some executive authority to be transfered to the States of SS and for federal to fund the performance of the executive duties or responsibilities on behalf of the federal government.
If money given is not enough to do so, it would be brought before a tribunal appointed by Chief Justice of Malaysia. All these structures are in place.
James:
But there have never been used.
JCFong:
Well, we have been asking for it since the time of Tan Sri Adenan because we felt that the education system was not good enough and the schools were lagged in dilapidated states and we had no money to rehabitate them. The health service left much to be desired.
The current Covid-19 pandemic exposes many of these shortcomings. So there has to be some degree of decentralisation.
James:
When you talk about decentralisation, I am assuming you are talking about the federal government’s responsibilities and unhappiness which started from Najib’s premiership who set up the committee dealing with the issues of MA63. Then under the PH government, they also had the tandem level of committee to deal with the issue.
I am assuming that if you think that it is a good way handling the issue or it is another way to cabal the legal issue over the political issue.
What is your thinking on this federal committee?
When you look at the sort of issues that have been discussed, more than half of the issues are not part of MA63 but rather administrative issues of decentralisation like what you have mentioned.
JCF:
No. 1 The two administrations want to look into how to deal with he grievances of SS to reclaim some of the lost rights or autonomies. Both administration, publicly said that would want to see good resolutions to achieve
I have always been a sceptic. I don’t see much or be quite frank as I have been involved in it for many years. There must be a political will to implement what has been agreed in MA63 to dissolve these grievances, somehow rather it falls into the same sort of malaise or the problems we see in Malaysia.
As I always say that there are a lot of taskforce but they have tasks but no force. They can say whatever they want. But when it comes to implementation, there is no political will on the part of the federal government when we brought up the issues of SS to resolve.
Under the Malaysia Act, any land reserved on Malaysia Day taken by the Federal government, if no longer used for the federal purpose must be returned to SS. On the contrary, the federal government uses an agency to privatise the land.
James:
Why doesn’t Sarawak government challenge this in court?
(JCF was not able to answer it for the Sarawak Government. )
JCF:
We are not ruling out anything. We have taken them to court, for example, Petronas on the sales tax issue in 2018. They had tried to prevent us from using our State law to regulate the oil and gas industry. We had resisted that and they failed. We would see what develops next.
I take instructions and I cannot do anything which I am not instructed to.
James:
I am inviting you here to talk on your personal capacity, not on behalf of the Sarawak government.
There are many activists claiming PDA74 to be illegal as CM of Sarawak had no legal right to sign the agreement without the consent of Sarawak Dun.
James:
Can I have your legal view?
JCFong:
The legality and constitutionality of PDA74 has been a contentious issue for many decades. There are arguments on both sides. Some take the view from the State that PDA74 which seeks to base their rights over mineral and land within the boundary of Sarawak in Petronas is in the way for exploratory law which is under A32 of the Federal Constitution which requires an adequate compensation for such measure to be constitutionally valid.
Nobody can say that the 5% cash payment is adequate compensation. It is never represented as such in any of the documents that was signed in 1975.
Secondly, the PDA74 affected natural resources on land which is the property of the State before Malaysia Day or within the boundary of the State. That measure is unconstitutional because the Federal parliament simply got this power
The counter-argument is that there is a vesting order signed by then the CM. Whether that the vesting order has the effect on absolute vesting on all the rights of petroleum in Petronas is itself a contentious issue.
Among the points of contention: Can Petronas just exercise those rights without complying to the State laws? The State law under the Oil Mining Ordinance/ OMO or pre-Malaysia law which continues to be re-enforced after Malaysia Day because of Section 73 of Malaysia Act.
Nobody can mine oil in Sarawak and its continental shelf without the mining list, so Petronas has never had in its PDA provision exemption not to co ❤️mply to the State Laws.
The only exemption given to Petronas is that it does not have to comply to petroleum mining act 1966 of the federation of Malaysia. That act can apply to Sarawak.
These points of contention need to be resolved.
I myself have proposed to two federal AG Tan Sri Affandi Ali and Tan Sri Tommy Thomas to clear out these issues. One of the two ways: one way is to go to the court. It is for the federal court to exercise its original jurisdiction to decide this dispute between the Federation and State under the A1281 (B) of the Federal Constitution or if you want a more friendly type of litigation, go and seek the advisory opinion of the Federal Court under A130.
These suggestions of mine were brushed off because they were not willing to submit this issue for a judicial interpretation or ruling that would have settled the matter once and for all.
When the judicial decision is reached, then the political leadership can decide what to do in the course of time.
James:
What don’t the Sarawak government seek the judicial answer to this question on its own?
Why do we need to consult the federal AG?
JCFong:
Well, No. 1 we need to get leave of the Federal Court in order to launch it unilaterally.
We can’t have it because we are the government
We can do that on our own but I am not the one to make decision as I have told you before I only act on instructions.
Remedy is available. Do we want to pursue?
On the personal level, I would think it is time to put this issue to rest.
By getting a definitive ruling from the higher court of the country, whichever way the decision goes doesn’t matter. At least, there is clarity and there is opportunity for the political leadership at Federal and State levels to see how the matters to be dealt with after the Federal Court has given its opinions. That would be the best way to resolve this dispute. Otherwise, there are a lot of opinions and statements expressed outside. Some of them I found are hilarious.
James:
Can I ask whether these positions you suggest to go to the Federal Court to get a definite answer, is it the same position taken by legal people in Sabah or is this primarily a Sarawak thing?
JCFong:
Well, when I proposed this when Sabah people were around, they neither objected nor supported it. Usually, Sabah let Sarawak do all the work first in the case of SSD issue.
James:
They underline the assumption that what applies to Sarawak will apply to Sabah as well.
Can I ask you one final question?
Given all these legal remedies that have not been taken for the last 50 years, there is hardly any political will at Federal level. What is the best way forwards in terms of Federal-State relationship since we know the last ten years, the number of activists have grown substantially because of the rise of social media, more and more are angry over this issue.
Well, I don’t have the answer to that.
I want to stay out of political controversy. I can only point out the way forwards whether my advice is taken up or not is different matter and up to them.
My final question related to highly controversial thing that happened last year in April, the Federal parliament under PH administration wanted to amend symbolically putting the wordings back to 1963 wordings. It is obvious to many laws by putting the words back that are purely symbolic.
Do you think under the new Federal government of Muhyddin, Sabah and Sarawak people are still concerned about the wordings? Or on Sarawak side, they are still concerned to add the words in pursuit of MA63?
Speaking as a legal person, what is your opinion?
JCFong:
Well, on myself on amendments to A1(2) makes no difference because our rights, our special safeguards and our autonomies will not be addressed by just symbolically changing the Article 1(2).
Our State Assembly has put up a proposed bill for the amendment of the Federal Constitution. We have passed this over to the former minister of Law Datuk VK Liu of Sabah.
Unfortunately, although he said that matters would be brought up in April this year (2020), it would not be materialised because of the change of government.
Basically, we want more changes than the Article 1(2) or pursuing MA63 or whatever it is. We want to incorporate there among other things to put Tourism in the Concurrence List together with the environment. We want some reinforcement into the provision of the return of the land to the State, certain native land issue and so on and so forth.
It is on record in State Assembly’s answers on what the content of the bill ought to be.
I am not sure if the present government will want to entertain it.
Whatever it is, it might be difficult now as the present government does not have a clear cut of the majority to pass a constitutional amendment bill.
The present government is more concerned about the next election than the issue dealing with SS.
Was this amendment or slab of amendment brought up in the Cabinet level of committee set up by PH only dealt with the administrative or decentralisation issues
JCFong:
No, we put it officially, at that time, the steering committee, a level below the Cabinet Committee. It was a joint committee chaired by then Attorney-General and Datuk VK Liu. Subsequently, we got the information that they wanted to table the bill to incorporate some or all the bills we had proposed into the constitutional amendment bill in April. But they were not materialised.
James:
Everything was not done according to plan
Sabah, Sarawak and Federal government were supposed to meet 10 years after the signing of the agreement in 1963.VWhy was the Sarawak government never asked for the meeting?
JCFong:
The only thing the constitution requires to do is 5 yearly review of the special grants and revenue sources given to the two States but it stopped in 1970s.
During my tenure in 1997, we brought the matter up when Datuk Sri Anwar Ibrahim was the Finance Minister. He said that the meeting he wanted was the Secretary-General to deal with the matter and we heard nothing.
On the onset of the current negotiation during Tan Sri Adenan Satem’s time, it was one of the top issue he brought up for review. They said it was a bill they wanted to review it like the stamp duty on land transaction and so on.
They had drafted the procedural rules for such a review to take place and Sabah also agreed to it . But then the Federal Finance Ministry, under Mr Ling Guan Eng did not agree. The Finance Minister in its last budget suddenly said it topped up the sum of certain amount of special grants without calling for a meeting, so there was no proper review.
