By Daniel John Jambun
I REFER to recent statements by Prime Minister Tan Sri Muhyiddin Yassin and Chief Minister Datuk Abang Johari Openg, and others, on the status of Sabah and Sarawak in Malaysia.
As far as I am concerned, this is a matter best left to the High Court of Borneo, with reference to the Federal Court.
Henceforth, probably no party or coalition in Malaysia will get the two thirds majority in Parliament to amend the Federal Constitution.
In any case, a two thirds majority would not be necessary if Parliament can work on Sabah and Sarawak on a bipartisan basis.
But in my view, Putrajaya appears to have no “political will” to comply with the Malaysia Agreement 1963 (MA63).
It was Muhyiddin who placed the Pakatan Harapan (PH) Government’s deliberations on MA63 under the Official Secrets Act (OSA). He was Home Minister then and was party to the deliberations on MA63.
Then, after a hue and cry, he announced a committee to study MA63. Nothing has been heard so far from it.
Under the Basic Features Doctrine, implied or otherwise, Article 1(2) in the Federal Constitution should not have been amended on July 13, 1976 to reduce Sabah and Sarawak from being equal partners with Malaya in Malaysia, to states in the Federation.
The Federal court can declare on a point of law that the amendment was “unconstitutional”, being a violation of the Federation of Malaya Agreement 1948 and MA63.
MA63 has the force of law
Again, under the Basic Features Doctrine, implied or otherwise, the Definition of Federation in the Federal Constitution in Article 160(2) cannot be changed. It will only cease to exist by civil war, war between nations, revolution or the Federation ceasing to exist.
The Federation of Malaya Agreement 1948 and the Federation of Malaya Independence Act 1957 exist, with or without MA63.
MA63 may not be law, but it is the ultimate political document for the British transfer of administration of Sabah and Sarawak to the Malayan Government on Sept 16, 1963.
It is also the basis for Sabah and Sarawak to be in a relationship with Malaya and for equal partnership of the three territories in Malaysia.
Hence, MA63 has force of law, and goes on to be the supreme law of the land in Sabah and Sarawak, read together with the other constitutional documents on Malaysia and the Federal Constitution.
“Constitutional documents on Malaysia” should be defined in the Federal Constitution under Article 160 (2).
In a nutshell, MA63 exists whether incorporated in the Federal Constitution or otherwise.
There’s recent case law at the Federal Court which reads that “only what has been incorporated in the Federal Constitution from MA63 is law”.
The issue is not law but force of law. No court in the world will say that MA63 has no force of law.
If MA63 has no force of law, then there is no basis for Sabah and Sarawak to be in Malaysia. – April 6, 2021.
Daniel John Jambun is the president of Borneo’s Plight in Malaysia Foundation.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
Photo credit: Malaysiakini