Photo shows the Kuching Court Complex. — Photo by Chimon Upon
KUCHING (Dec 2): The Kuching High Court yesterday fixed March 31 next year for the decision on a suit filed by 12 people to nullify the Malaysia Agreement 1963 (MA63).
Judicial Commissioner Alexander Siew How Wai will deliver his decision on whether to strike out the action filed out by the plaintiffs led by Doris Katam Juman that the MA63 was null, void, and invalid, and that Sabah and Sarawak are entitled to exit from the Federation of Malaysia “for independence”.
The plaintiffs, through their counsel Voon Lee Shan, submitted that the MA63, an international treaty, was entered into by North Borneo (Sabah) and Sarawak, through fraud and misrepresentation by the United Kingdom and Malayan governments, without according the people of the two colonies freedom to choose whether they wanted to join Malaysia through a referendum.
The defendants named by the plaintiffs are the Malaysian government, the United Kingdom government, and the state government.
State legal counsel Dato Sri JC Fong submitted the action should be struck out because the High Court has no jurisdiction to enforce or nullify an international treaty like MA63.
Secondly, he said Sabah which was a signatory to MA63 is not a defendant, even though Sabah would be affected by the declaration sought.
Thirdly, he said the United Kingdom government, which has sovereign immunity, has not submitted to the jurisdiction of the Malaysian Court.
Fourthly, he said the declaration to nullify an international agreement cannot be granted where some of the parties to the agreement are not before the court.
Lastly, Fong submitted there is no provision in the Federal Constitution for any state to exit from the federation.
He pointed out that when Singapore left, an Act of Parliament had to be passed and the judiciary was not involved at all as it was a political process and decision.
Senior federal counsel Shamsul Bolhassan agreed with the position taken by the state government, and that the issue of whether Sabah and Sarawak should remain in the federation is a matter “ill suited” for determination by the courts.
He added that the plaintiffs’ suit was unsustainable and should be struck out.
Voon then clarified that they were not asking for independence for Sarawak from Malaysia and that the plaintiffs only wanted a right to “self-determination”.
He sought to amend the claim of the plaintiffs to that of a declaration that the people of Sabah and Sarawak are entitled to “self-determination”, but his amendment was dismissed.