‘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)
