Sabah and Sarawak can exit Malaysia with or without Independence Act, claim two activists
JOINT STATEMENT By Sabah Sarawak NGOs Borneo Plight in Malaysia Foundation (BoPiMaFo) and Sabah Sarawak Rights Australia New Zealand (SSRANZ) BoPiMaFo & SSRANZ Presidents Mssrs Daniel John Jambun and Robert Pei on the right to seek independence.
BOPIMAFO & SSRANZ Presidents referring to a press statement by Bukit Semuja assemblyman and GPS Youth Chief Miro Simuh (reported on 03/01/2024), pointed out that contrary to his claim, the Federal Constitution does not prohibit the right for Sarawak or Sabah to exit the federation nor is it constitutional for any law such as the Sedition Act 1948, to prohibit this right. If so, this would only confirm that Malaysia was not a free and voluntary association of four countries created in 1963.
(see https://www.theborneopost.com/2024/01/03/miro-calls-voons-dubai-move-claim-of-pms-post-promise-for-gps-a-publicity-stunt/ )
They said it was unfair to criticise Mr Voon Lee Shan President of the Bumi Kenyalang Party (PBK), who was just performing his duty as a loyal Sarawakian to fight for Sarawak rights, especially the inalienable legal right to independence under international law recognised by the United Nations’ Resolution 1514. In fact, other than the PBK, no Sarawak or Sabah party has consistently called for independence from Malaysia owing to 60 years failure of the federation. There should be no limitation on this discourse in an association claimed by federalists to be a freely formed democratic federation.
They noted that the PBK President had also assisted 12 Plaintiffs to file a writ in the High Court of Borneo, seeking declarations on the validity of MA63 in 2021 and right to exit for independence.
The fact that the former British colonies of Sarawak and Sabah were incorporated by the United Kingdom and Malayan governments as new members of the Federation of Malaysia in 1963 does not extinguish this right for several reasons.
The Federation of Malaysia was created by an international treaty the Malaysia Agreement 1963 (MA63) registered with the United Nations in 1970 and therefore governed by international law. International law does no prohibit secession from a federation. It is the intrinsic right of any member in a free association to unconditionally and freely exit at any time.
This issue was raised in the Inter-Governmental Committee (IGC) discussions before MA63 was signed on 9 July 1963 when both the Sarawak and Sabah sides demanded the right to exit be included in the constitution. Lord Lansdowne, the IGC Chairman who described Malaysia as a “buttress of freedom in Asia”, dissuaded them by stating that “any state voluntarily entering a federation had the intrinsic right to secede at will and therefore it was unnecessary to include it in the constitution”.
This was again clarified by the then Malayan Prime Minister Tunku Abdul Rahman 9 days after the Malaysia Agreement 1963 (MA63) was signed, who was reported on 18 July 1963, as saying that “the regions that join Malaysia have freedom to exit the federation if the new nation will not bring any benefit to them”.
However, this was not the original position of the then Malayan Government which insisted that “there be no right to secede” from the federation. This was at odds with the fact that the Malayans went through the motion of consulting Sarawak and Sabah to demonstrate that the union was the free and voluntary wish of the people but in reality, it was just to entrap them in their proposed union.
Typically Malaysia federalists assert that “Point 7 of the Sabah 20 Points” agreement” prohibited secession. The NGO presidents pointed out that the “20 Points” was only a memorandum of terms and conditions provided to the IGC, not a legally binding agreement signed by the MA63 signatories nor incorporated as the law in MA63 or the federal constitution.
In 1962, the British colonial secretary revealed their entrapment strategy by stressing to the Malayan government the political advantages which might accrue both to “H.M.G. and to the Government of the Federation of Malaya if Malaysia was seen as voluntary merger rather than transfer, merger rather than absorption”. (Para 142 Stockwell “The Making of Malaysia).
Thus the world and Borneo people were led to believe that the admission of new members to the federation was a free and voluntary act.
The NGO presidents said those opposing Sabah and Sarawak independence also erroneously claim that the Sedition Act 1948 was amended to prohibit “secession”. However, they pointed out that there is no such prohibition in the ACT 1485 amendment of the Sedition Act in 2015 or any other Acts.
They pointed out that the failure to resolve MA63 issues of State Autonomy, seat allocation, loss of control of the civil service and education, resources and revenue from oil and gas, lack of development and infrastructures and poverty, Sabah’s 40% revenue entitlement, Ketuanan Melayu race and religion concept replacing MA63 concept of secularism, pluralism and multiculturalism, and illegal migrants have led to the widespread sentiment for independence. The recent call to amend the Constitution for a Malay/Muslim government and a Malay PM only, has aroused more calls for independence.
The NGO Presidents considered that MA63 was void ab initio and not legally binding from the date it was signed as Sarawak and Sabah were still colonies and not sovereign states with the legal capacity to make binding international treaties. This meant that Malaysia was not legitimately constituted and decolonisation was in fact replaced by Malayan recolonisation. The MA63 negotiations since 2016 cannot have any legally binding effect since MA63 was null and void from the beginning.
However, even if MA63 was valid, the multiple breaches of fundamental and foundational terms of the agreement since 1965 would have terminated the treaty and legally entitle Sarawak and Sabah to exit as free independent nations.
They called on both the Sarawak and Sabah government to seek a proper resolution of the question of MA63 validity especially in view of the International Court of Justice’s decision in the Chagos Case 2019 that colonies have no legal capacity to make binding international agreements and hold a referendum to let the people freely decide on the value or benefit for the 2 states to continue as members of the federation. A referendum should only be held after a period of at least two years to allow all parties to inform the people of the pros and cons of exit and independence.
Signed by
Daniel John Jambun President BoPiMaFo
Robert Pei President SSRANZ.
