KOTA KINABALU: The recent comment by Parti Warisan’s Legal Bureau criticising Foreign Minister Datuk Seri Anifah Aman and the Barisan Nasional’s pledge to realise by consensus the rights of Sabah and Sarawak under the Malaysia Agreement 1963 (MA63) is based purely on political rhetoric and not the law.
“I am surprised that a body describing itself as a ‘legal bureau’ would misstate the issues regarding the implementation of MA63 in such a perverse way,” said Tengku Fuad Ahmad who is the legal advisor to MySabah.
He pointed out that the Malaysia Agreement 1963 was concluded on the basis that each of the states of Sabah, Sarawak, Singapore and Malaya would work together in the spirit of cooperation and consensus building in order to achieve an ever stronger Federation.
“Article VIII of the Malaysia Agreement 1963 clearly requires consensus and cooperation between the Federal government and the Borneon States in order to realise the provisions contained in Chapter 3 of and Annexes A and B to, the Inter-Governmental Committee Report 1963,” he said.
This is because under the Ninth Schedule to the Federal Constitution, the power to make laws is divided between the Federal and State governments. Therefore, in order to realise and implement MA63, both the Federal and State governments have to sit down and agree on how they will coordinate the exercise of their respective powers in order to achieve the objectives contained in MA63.
“In this regard, I think Pakatan Harapan is on the same page with Barisan Nasional, as they too have pledged to form a Ministerial Committee on MA63 at the federal level.
“It is therefore alarming that Parti Warisan’s legal bureau would say or imply that Sabah can ‘unilaterally’ act in order to implement MA63 if two-thirds of the DUN agree to such action. That position is clearly wrong since Article 4(3) of the Federal Constitution would invalidate such laws. Article 4(3) empowers the Federal Court to strike down (invalidate) any law passed by the Sabah DUN in excess of its powers under the Ninth Schedule. That such a law was passed by a two-thirds majority of the State Assembly would be irrelevant,” he stressed.
Therefore, it is clear that Article VIII of MA63 both contemplates and requires that the Borneon States and the Federal government reach a consensus on the implementation of the agreement, he said.
Thus, it is only correct for the National Steering Committee on the Devolution of Rights to Sabah and Sarawak to have been set up for the purpose of reaching such consensus.
This is an extraordinary step forward for the people of Sabah and Sarawak who, for at least 22 years under a previous Prime Minister, had their special rights repressed and, in many cases, totally ignored, he pointed out.
“Another issue which I think has been misstated is whether the United Kingdom still has a role in the implementation of MA63. The answer to this is a clear and simple: no. Article VIII of MA63 does not require the UK’s involvement in realising MA63 and moreover, the Malaysia Act 1963 (United Kingdom) which was passed by the United Kingdom Parliament clearly and effectively severs all ties between the UK, Sabah and Sarawak for the purposes of forming Malaysia,” said Tengku Fuad.
According to him, in saying that Malaysia must subject itself to the UK is an insult to Malaysia’s sovereignty.
“Further, Parti Warisan’s ‘threat’ to take the Federal government to ‘London for arbitration’ is, again, made without legal basis. Put it another way, it’s empty threat. I doubt that Pakatan Harapan, which is Warisan’s partner, agree to submitting this country’s sovereignty to the UK.
“If there is a dispute between Sabah and the Federal Government, then it is for our courts to resolve and determine that dispute. Is Warisan saying that they have no respect for or faith in our Federal Court? This insult to Malaysia’s judiciary is in addition to the fact that it is highly unlikely that any international judicial or arbitral body would accept jurisdiction since Sabah is a state within Malaysia. International judicial bodies only decide matters between independent Nation States. Sabah is not an independent nation state.
“In summary, I am appalled at Parti Warisan’s misinterpretation of the spirit, purpose and intent of MA63. The 1963 Agreement was created to bring us together based on the principles of cooperation and consensus. Warisan is now trying to use MA63 to tear Malaysia apart. This is wrong,” said Tengku Fuad.