MALAYSIA Day, Sept 16, remains real in history that has still not found closure even after over half a century.
There isn’t certainty on the vociferous minority, out of the blue, suddenly celebrating Sarawak Day on July 22.
Sabah, in keeping up with the Joneses, has Aug 31 as its own ‘Day’ in history.
Parti Bumi Kenyalang (PBK) President Voon Lee Shan said in a statement on July 21, 2021 that his party does not recognise Sarawak Day as there’s no basis in history and law.
He implied that it was pure politics building up public perceptions on the issue, for consoling the people, with an eye on the ballot box.
Human rights advocate Daniel John Jambun expressed similar sentiments on Sabah Day, during a WhatsApp call following Voon’s statement which he made viral on social media.
Daniel heads the UK-based Borneo’s Plight in Malaysia Foundation (BiPiMaFo), an ad hoc human rights NGO working across the political divide.
If it’s argued that Aug 31, 1963 and July 22, 1963 brought self-government for Sabah and Sarawak, respectively, it’s historically ‘inaccurate’.
The local legislative assemblies, reportedly convening on the said days at the urging of the departing British, may not have that much significance on anything.
The last British Governor in Sabah, Sir William Goode who was previously the last Governor in Singapore, left the territory on Sept 16, 1963.
The post of the last British Governor of Sarawak, Alexander Waddell, was abolished on Sept 15, 1963 when he left.
The British did not pass self-government and Independence Acts for the Borneo territories.
Singapore had the self-government Act in 1959, Malaya in 1955. Again, Malaya has the Federation of Malaya Independence Act 1957.
Singapore obtained independence from Malaysia in 1965 via the Separation Act. It reversed the merger of both territories, Singapore and Malaya during the run-up to Malaysia.
The Malaysia Agreement 1963 was signed in London on July 9, 1963 and amended at the end of the month.
It was realised that Malaysia was not possible on Aug 31, 1963 as the UN Secretary-General allegedly ‘dragged’ his foot on Malaysia following strong objections by Indonesia and the Philippines and reportedly suddenly took ill.
The Colonial Office in London, in a disingenuous move, simply ‘transferred’ the Administration of Sabah and Sarawak under the Malayan government on Sept 16, 1963.
Legally, anyone can transfer his or her properties. The other party might get it for free, based on ‘love and affection’, or on a ‘willing buyer, willing seller’ basis.
The Malaysian Government was the successor government and Malaysia the successor state under international law, emerging from Malaya, but perhaps not under MA63.
The ‘transfer’ may have been euphemism for colonisation by another name, and I stand corrected.
Decolonisation was decreed by the UN’s 24-nation Decolonisation Committee in the wake of World War II. Colonialism was outlawed by international law as a form of ‘criminal enterprise’.
In retrospect, Prime Minister Tan Sri Mahiaddin Yassin publicly conceded on April 2 this year in Kuching at the Gabungan Parti Sarawak (GPS) meet that Sabah and Sarawak were territories, as per the pre-July 13, 1976 Article 1(2) in the Federal Constitution, and would no longer be called states.
By law, Malaysia in the Borneo territories was considered ‘unfinished business’.
Sabah, and Sarawak may be organised territories. However, they remain unincorporated unlike the states and territories in Malaya which come under the Federation of Malaya Agreement 1948.
The Agreement was reinforced by the Federation of Malaya Independence Act 1957.
It may be argued that Sabah and Sarawak are equal partners with Malaya in Malaysia under MA63.
For example, there are two High Court in Malaysia viz. the High Court of Borneo and the High Court of Malaya. They have separate, equal and parallel jurisdiction. A case in the High Court of Borneo, for example, cannot be transferred to the High Court of Malaya and vice versa.
In jurisprudence – the theories, principles and maxims on law – law must have source to have jurisdiction, authority and power.
The judge first looks at whether his or her court has jurisdiction.
Malaysia on Sept 16, 1963 may have been one form of ‘self-determination’ for Sabah and Sarawak under the Malaysia Agreement 1963. International law on the principles on self-determination may beg to differ.
The police, before Najib declared Malaysia Day – Sept 16 – as national public holiday from 2010, would in fact arrest anyone who publicly celebrated the day.
Jeffrey Kitingan, for example, was arrested in the year before the Najib announcement. He was on his way to Tuaran to make a Malaysia Day speech.
The police wanted to know what he was going to say. They released him. He was cautioned against turning up in Tuaran for the Malaysia Day celebrations.
It’s telling that Malaya does not celebrate Malaysia Day.
Perhaps, this arises from the states in Malaya being not consulted on Malaysia.
The Kelantan government sued the Malayan Government on Malaysia.
The Malayan government assured the Supreme Court on Sept 11, 1963, five days before Malaysia, that Malaysia was not Federation.
It further assured that the Federation defined in Article 160 (2), under the Federation of Malaya Act 1948, would continue after Sept 16, 1963.
The Malaysia Day celebrations are alternated between Sabah and Sarawak in different official venues every year in Borneo. The Prime Minister presides over the celebration at the official venue.
Generally, people in Malaya are not sure what Malaysia Day was all about.
Many in Malaya think that Sabah, and Sarawak are not in Malaysia.
One reason may be that Sabah and Sarawak have special immigration powers. The people from Malaya have to run the gauntlet on this in the Borneo territories as foreigners under the law. There’s case law on this.
Don’t take my word on ‘Sabah, Sarawak, not in Malaysia’. Just ask Sabahans and Sarawakians who have gone through ‘the experience’ in Malaya.
There’s lack of leadership in Sabah and Sarawak on Borneo rights, and no political will in Putrajaya.
I rest my case. – July 21, 2021
Joe Fernandez is a longtime Borneo watcher and a regular FocusM contributor.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.