The necessary amendments of breaches of FC and Federal Acts by Alex Ling
FOR the last 45 years, the spirit and five tiers of entrenched constitutional provisions of MA1963 have been deliberately breached by “design or otherwise.”
But there was no laches, acquiescence nor estoppel applicable under the royalty system. The PDA1974, EEZ Act 1974, TSA 2012 and Act 354 were never approved by the Council Negeri expressly or impliedly.
The 7FCs are Articles 2, 4(1), 80(3), 95D, 76(4), 162 and Items 2(a), (c) and (d) of the State List Ninth Schedule. On the municipal level, the seven protective municipal laws of Sarawak (7PMs) are Sections 3A, 4, 15 to 18, 34 of the Oil Mining Ordinance (Amendment) Ordinance 2018 (OMAO2018), updated under Article 162(2), Order in Council 1954 (OIC 1954), Sections 32(1)(g), 36(2) and 209(1) on all leases and 112 of the Sarawak Land Code (SLC) 1958 for registration of all leases to be valid and enforceable, Supplementary Deed 1956 (SD 1956), Section 3 of Sarawak Interpretation Ordinance 2005 (SIO 2005) and Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS 1982), ratified by Malaysia and Assurances under Article VIII of MA 1963, a multi-lateral treaty and constitutional agreement for “Assurance, undertaking …… insofar as they are not implemented by express provision of the constitution of Malaysia.”
In the FC, the federation should be Malaysia not Malaya. Is that correct?
Right. Article 160 of FC (Federal Constitution) on the interpretation of “The Federation” shall be amended to read “The Federation of Malaysia” under Malaysia Agreement 1963 instead of the “Federation of Malaya Agreement 1957” which does not reflect the constitutional status and reality of Malaysia.
The preamble of Malaysia Bill (MB) attached as Annex A to MA63, states “Federation of Malaysia,” repeated in its Article 4(1) as well as in the original Article I(1) of the FC.
Necessary amendments of some other parts of the federal legislations and constitution
Firstly, the unconstitutional, void and illegal parliamentary enactment Act 354 of 1976 must be repealed. So the present Article I of the FC must be repealed by reinstating the original Article 1 of the FC or Article 4 of Malaysia Bill except deleting Singapore as well to conform to Article 161E(3) of the FC.
Secondly, under Article 2 of the FC, the breath of the territorial sea of Sabah and Sarawak shall be defined clearly up “to a limit not exceeding 12 nautical miles, measured from baseline determined in accordance with Article 3 Part II of Article 3 of the United Nations Convention on the Law of the Sea (UNCLOS) 1982.”
Thirdly, for PDA1974, a new Article 1(2) should be inserted to read “This act shall not be applicable to the coastal states of Sabah and Sarawak” which should be equally applicable to TSA2012, the void Articles 4 and 5 on O&G and other natural resources, in the Exclusive Economic Zone Act 1984 and the Fisheries Act 1985.
The natural resources of the coastal states of Sarawak and Sabah, including fisheries under Item 9(d) of the Federal List Ninth Schedule, should be repealed under Sections 55, 56(1) and 57 of the Part V Exclusive Economic Zone, UNCLOS 1982.
The map of EEZ should be correctly re-labelled as “of Sarawak” not “off Sarawak” accordingly under UNCLOS 1982.
No Two-Third rule in parliament for States of Malaya and Federal Territories must be implemented according to the FCs. Is that correct?
Correct. The void Article 46 of the FC must be re-amended to maintain the no Two-Third Rule proportionately for the States of Malaya and the Federal Territories in accordance to Article 9 of the Malaysia Bill (MB) as the second tier of constitutional entrenched provision — namely now to issue 32 new parliamentary seats which must be allocated to Sarawak and Sabah in the ratio of 31:25 for the constitutional government with parliamentary democracy and under the Rule of Law. Why?
(1)Without the Two-Third rule, Singapore under Premier Lee KY, would never have joined Malaysia and had advised the Sarawak and Sabah leaders as a critically important and the fundamental provision to safeguard rubber stamping of parliamentary legislations under Article 46. The States of Malaya later included the Federal Territories should not have more than 65.4 per cent as stipulated in the original Article 46 of the FC and Article 9 of MB — namely 104 out of 159 parliamentary seats. That 65.4 per cent constitutional proviso must be honoured and enforced under the Rule of Law, constitutional parliamentary democracy and MA63 as a multi-lateral treaty under international law too.
(2) Article 9 of MB is the second tier constitutional proviso safeguarding the Borneo Territories on the mandatory no Two-Third Rule which must be amended first before any amendment of Article 46, without the federal domination but must be agreed by the Borneo Territories as equal partners which will always insist for that 65.4 per cent to be honoured and safeguarded.
The Separation Agreement of Singapore on 9th August 1965 was executed deliberately with the express and implied conditions that the Separation Agreement would be only disclosed after its execution while keeping the Borneo Territories in the dark was in gross breach of Article 9 of MB and the three fundamental assurances of Tun Razak as equal partners. Premier Lee KY did feel remorseful later that the Borneo Territories were deliberately left out for that Separation Agreement.
Do you believe that Malaysia still subsists under international law?
Yes. The better international legal view would be that Malaysia still subsists constitutionally and legally as Singapore and the UK have no obligations, financial or otherwise, to the Borneo Territories. It would be quite different if the States of Malaya were to exit Malaysia. The three remaining equal partners can amend MB first and then the FC accordingly.
Multi-lateral treaties would tend to preserve, then destroy their original intentions to subsist and make them work. Termination and withdrawal suppose the agreement of all parties is no longer good law, Lord Mcnair on the Law of Treaties, p 494-7 and since the famous Declaration of London 1871.
The rights and obligations of the three remaining parties are intact and not prejudiced but preserved under MA1963 with the rights and obligations also subject under international law independently of the multi-lateral treaty.
Can Sarawak-exit be legal and constitutional as in the case of Brexit and the almost secession in Canada?
Under international law, “any state voluntarily entering a federation had an intrinsic right to secede at will,” explained Lord Lansdowne, IGC Chairman on MA1963.
Our present PM has qualified as “autonomy” not “independence” to save Malaysia intended by the founders in the Borneo Territories now with the Rule of Law despite the echoes of more royalty, independence and Sarawak-exit from the towns to the valleys of the heart of Borneo.
Is there a fear of emergency declared under Article 150 of the FC? The Federal Cabinet will follow the Rule of Law, MA1963 as Constitutional Agreement, International Treaty and the public, international and customary international laws.
Lastly, there is no withdrawal nor termination clause in MA1963. Therefore Article 56(1)(a) of Vienna Convention on The Law of Treaties (VCLT) can interpret to imply a right to withdraw or a withdrawal does not automatically result in its termination, in addition to severance principle with the blue pencil test that did not destroy MA63 due to the exit of Singapore.
On this Article 46, the original Article I of the FC and Articles 4 and 9 of MB, Lord McNair and Jennings of Cambridge University were of the same view on the practical approach on the subsistence of the constitutional entrenched safeguards for the Borneo Territories, even Singapore had exited Malaysia.
The no Two-Third Rule is to prevent the States of Malaya and the federal territories, later clearly stipulated under MA1963 in Article 9 of MB which must be amended first before amending Article 46 of the FC as an entrenched constitutional precondition and protection.
Why and how Syariah Court must be amended with a proviso?
Article 121(1A) of the FC must be amended “subject to the approvals of the legislative councils of Sarawak and Sabah”
on the creation of parallel court jurisdiction of Syariah court due to non-compliance to Articles 4(1), 162(1) and the Ninth Schedule State List II and absence of Article 5A amended only in Sabah but not in Sarawak accepting Islam formerly declared as the religion of Sabah.
This “juridical imbroglio of civil and religion courts and turf war,” was not due to “lack of moral courage of judges.” One country two legal systems will always clash however good and fair are the judges.
In Sarawak, to maintain the highest religious and racial unity index, such federal legislation is the greatest threat to disrupt that cultural heritage of Sarawak and Sabah too, when enforced too vigorously, involving a dead body being snatched right after one religious ceremony for another Muslim burial in Miri.
The cases of Anthony (2005) Kamaria (2004), Shamala (2005) and Lina Joy (2006) have left unhealable scars and grievous pains for families after divorces between Muslims and non-Muslims.
Putting a child of five years old suddenly in an orphanage as suggested by a federal authority due to the mother having the custody from the Syariah court while the father with the custody from the civil court, would be inhuman, unfair and un-Malaysian to the innocent child. There are further comments below in Chapter IV below.
Why residual Powers must be amended with consents of the Borneo Territories?
For completeness, the Residual Powers under Article 77 of the FC, eg silent in many subjects, eg such as Stem Cell Research in future shall be amended, if thought fit, as follows : “The Legislature of a State shall have power to make laws with respect to any matter not enumerated in any of the Lists set out in the Ninth Schedule, and any matter in respect of which Parliament has power to make laws shall not be passed without the consents of Sabah and Sarawak expressed by a law made by their respective legislature.”
This is to prevent misunderstanding as seen in the unfortunate case of tourism tax; and to prevent new item such as Stem Cell Research to be unilaterally designated under Federal List I by the federal government without the consents of the legislative councils of the Borneo Territories as in the case of tourism.
Why diplomatic notes on foreign marine structure in Sarawak’s continental shelf
must be implemented?
This diplomatic note, better an agreement registered in the UN under international convention, must be done officially and properly to prevent future claim of “acquisition of territories” on O&G, seaweeds, minerals and fisheries by the foreign country decades or centuries later under international laws. It is akin to squatter title in England. Even a lighthouse can make all the difference.
Numerous federal directives, Borneonization and devolution of autonomy in steps and others would need to be expeditiously amended and implemented.
What do you hope the present federal government will do?
We trust the wise premier will accept the 20 per cent royalty of O&G and allocations of 32 new MPs seats under Article 9 of the Malaysia Bill by re-amending constitutionally under the Rule or Law on Article 46 of the FC with 254 seats from his strong heart to do what is right, just and best that will touch the hearts and souls in the heart of Borneo where the people will find a new voice, a new trust and a new faith at last with the implementation of the Rule of Law, the dreams and promises made to the founders and pioneers of the Borneo Territories will be restored under MA63.
Let our premier and his successors increase more royalty while reforming MA1963 before our O&G ran dry while carrying out the national rescue packages to plug the big financial hole, not as a transactional but a structural reformation of Malaysia.
Wouldn’t that be a magnificent legacy of a politico-socio-economic-cultural heritage of Borneo and Malaysia!
