Protecting the rights of Borneo states

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Zainnal signs a book. (Right) Zainnal holds his book ‘The Queen’s Obligation’ in his right hand and the IGCR and MA63 in his left hand.

Zainnal signs a book. (Right) Zainnal holds his book ‘The Queen’s Obligation’ in his right hand and the IGCR and MA63 in his left hand.

IT was signed by the United Kingdom, the Federation of Malaya, North Borneo (Sabah), Sarawak and Singapore in London on July 9, 1963.

Called the Malaysia Agreement 1963 (MA63), it was a result of what started as the recommendations in the Cobbold Commission Report, the work of plenary sessions and working group in the Inter-Governmental Committee.

Malaysia Agreement 1963, therefore, is one of the most important documents in the history of the Federation of Malaysia.

Unlike the Federal Constitution, which can be amended by the Malaysian Parliament, the Malaysia Agreement and Inter-Governmental Committee Report (IGCR) can never be amended by anyone unless the territories that originally signed it deciding once more to return to the negotiating table and renegotiate a new future, according to Zainnal Ajamain, a passionate activist, promoting the Formation of Malaysia and MA63.

Zainnal, who launched his book — The Queens Obligation — in Kuching recently said MA63 could not be amended because it was an international document, not just any agreement that the central government (Putrajaya) can ignore.

The MA63, which he deliberated very clearly in the book, was registered at the United Nations on Sept 21, 1970 by the United Kingdom of Great Britain and Northern Ireland bearing the registration number 10760. Without the MA63 and IGCR, the Federation of Malaya, Sabah, Sarawak and Singapore would never have formed the Federation of Malaysia.

Zainnal pointed out that for all intents and purposes, the MA63 was responsible for the birth of a new nation — Malaysia.

“However, Malaysia was not a ready-made country. The MA63 was, therefore, a framework for ‘Nation Building’ and continues to be a work in progress.

“The Federation of Malaya was not a full fledged self-governing and independent country. It just achieved its independence from the British just five years earlier. By comparison to human lifespan, the Federation of Malaya was only a toddler — a toddler expected to raise newborn twin babies,” he wrote.

On the other hand, the MA63 is also a well-crafted document that protects the Borneo states in at least two levels — the IGCR and the MA63.

According to Zainnal, the Federation of Malaysia may amend the Federal Constitution hundreds of times to suit their needs and the Federation of Malaysia may even evoke a state of emergency to circumvent the caveats and safeguards provided for in the IGCR and MA63.

However, he pointed out, the Federation of Malaysia cannot change whatever has been written in the IGCR or the MA63 without the concurrence of all the parties who signed it, excluding those who left it.

The Federation of Malaysia has actually done this — amending the Constitution as well as declaring a state of emergency. The IGCR and the MA63 remain unchanged.

The Queen’s Obligation authored by Zainnal.

The Queen’s Obligation authored by Zainnal.

Not a unilateral decision

To understand the gravity of the situation, Zainnal said all Malaysians must understand the MA63 was not a unilateral decision made by the Federation of Malaya alone.

He said Malaysia was formed because the British had to decide on how best to position their two colonies — Sabah and Sarawak — in Southeast Asia without jeopardising their sphere of influence in this part of the world.

As a result of protecting the Borneo states from the ravages of time itself, he noted, the British prepared two very important documents — the IGCR and MA63 — which act as a ‘constant’ to the changes bound to happen in the process of nation-building.

The IGCR was a result of heavy and intense negotiation between the British, the Federation of Malaya, Sabah and Sarawak. The MA63 was the constitutional arrangements made on the basis of whatever had been agreed to in the IGCR.

Zainnal said both documents are ‘conditional’ mutatis mutandis the enactment of Annex A in the MA63.

Mutatis mutandis is (literally) Latin for “with those things having been changed which need to be changed. However, it is more often translated or understood to mean ‘the necessary changes having been made’. It essentially indicates that new terms have been substituted or that the reader should note any differences from the original and take them into consideration.” — Source: Translegal.

He wrote that the IGCR and the MA63 were created purposely to be beyond the reach of the Federation of Malaysia or its Parliament.

“The only document they can change is the Federal Constitution but they cannot modify the IGCR or the MA63. To date, the Malaysian Parliament may have changed the Federal Constitution more than 600 times but the parliament cannot overrule the IGCR and the MA63.”

The MA63 was amended only once on Aug 8, 1963 when they knew the UN was sending a mission to ascertain the views of the Borneo people about the formation of the Federation of Malaysia. The amendments substituted August 31, 1963 to September 16, 1963. These amendments, however, required the signatures of the representatives of the UK, the Federation of Malay, North Borneo, Sarawak and Singapore.

Zainnal said Annex A of the MA63 listed out the amendments to the Federal Constitution, adding that any future amendments or changes made into the Federal Constitution cannot subordinate the Borneo states without first amending the IGCR or the MA63.

He stressed in deference to this safeguard, any amendments to the Federal Constitution would create a circular problem where the Federation of Malaysia would have no solution.

A very good example were changes made to Article (1)(2) of the Federal Constitution in 1976 without changing the Definition ‘the Federation’ in Article 160,

he noted.

He said the federal government may argue what they did in 1976 was promoting uniformity of law in Malaysia from which power is provided to them to do it in Article 76 of the Federation Constitution.

“Article 76, however, limits itself to uniformity of enacted laws, does not have the power to change the Constitution in order to subordinate the Borneo states.”

Moreover, Zainnal pointed out, the IGCR under paragraph 21 sub-paragraph 5 states: “Article 76 (4) which empowers the Federal Parliament to legislate on certain matters for purpose of ensuring uniformity of Law and Policy, should not apply to the Borneo states.”

The original version of Article (1)(2) of the Federal Constitution is still in the MA63 — it remains unchanged.

No ordinary agreement

Zainnal said the fact that the present Federal Constitution was changed meant it breached the MA63, adding that any changes could not be done without the consent of the state government.

“Even when the consent of the state government is given, it merely says such consent is only given until the state government wants to reverse it,” he wrote.

He stressed the MA63 was no ordinary agreement and the IGCR and MA63 would remain constant and could not be changed nor repealed.

Zainnal argued that to say these two documents are invalid and have no force of law in Malaysia, is to say Malaysia does not exist.

He noted the two documents are important to Malaysia but they cannot be amended by the highest law-making body of the nation — the Malaysian Parliament.

“It cannot be changed by the supreme law of the land — the Federal Constitution.”

He argued that the MA63 was purposely made to allow the formation of Malaysia, at the same time protecting the Borneo states not just from the manipulations of the central government but also from the Borneo people themselves.

He said those who advocated the Federation of Malaysia understood Malaya was a state within a nation, but those who did not would try to subordinate the component parts of the Federation of Malaysia.

The leaders of Malaya, he pointed out, might do with impunity to the 11 states but they cannot touch the Borneo states — no matter how hard they try to change the Federal Constitution, they cannot change the IGCR or the MA63.

Zainnal wrote that MA63 “allocates powers and apportions responsibilities, acknowledges majority interest and safeguards minority rights, enshrines public service and reduces opportunities for corruptions and arbitrary rule.”

“This means, it is not that simple for Kuala Lumpur to coerce and impose its will against the wishes of the people in Borneo states. To do so is to go against the spirit and letters of the IGCR and the MA63.

Zainnal said the leaders of the Federation of Malaya during the time may have argued, compromised and finally agreed with the terms, caveats and safeguards, put down their signatures on the IGCR and the MA63 and had approved the amendments to the Federal Constitution in accordance to Annex A of the MA63. Yet, he pointed out, for more than five decades, they reneged on the IGCR and MA63.

He argued that the central government, controlling the education system in the country, might have purposely not included the history of the formation of Malaysia in the national curriculum so that this missing chapter of Malaysian history may eventually be forgotten.

A slide shows the objectives of the book.

A slide shows the objectives of the book.

Lack of assertiveness

He pointed out that the problem with the people in the Borneo states was that they were not assertive in making their demand for their rights as provided for in the IGCR as well as the MA63.

“Their unassertiveness was because they are ignorant of their rights. The reason they are ignorant is that they are clueless as to their rights provided for in the IGCR, MA63 and the Federal Constitution.

“Apart from the Federal Constitution, the IGCR and the MA63 are not found in any of the national constitution. Perhaps, it was an oversight but after more than five decades, it was more likely done on purpose,” he wrote.

He stressed that the Federation of Malaysia was an alliance between the Borneo states and the Federation of Malaya, and it was never the intention of the British to create the Federation of Malaysia by making the Borneo states part of or ‘subordinate’ to the Federation of Malaya.

“The Malaysia Act 1963 Chapter 35 ensures this protection as the Act states clearly ‘to vest in the manner agreed’ which can also mean ‘to hold in trust’ based on the ‘trust deed’ agreed by all parties. The ‘Trust Deed’ are the IGCR as well as the MA63,” he explained.

Zainal is an economist by profession, graduating with a master’s degree from the University of East Anglia.

He has held several high-ranking positions in government and government think-tanks and worked as a university lecturer, senior researcher, stockbroker and economist, and published several papers in international media journals.

He was the co-founder of the United Borneo Front and a passionate activist promoting the Formation of Malaysia and Malaysia Agreement 1963, Sabah Rights in the Federation, Sabah Oil & Gas rights, development of BIMP EAGA and abolishing the long-standing Cabotage Policy.