MPs Of GPS are actually doing the right and proper thing to protect Sarawak, - Shankar Ram, Lawyer

Dear friends,

I am sure you would want to know the connection between Malaysia Agreement 1963 [MA63] and the Malaysia Federal Constitution. I will make this as simple as possible for you to understand. You must know that it was the Malaysia Agreement that brought about the Malaysia Federal Constitution.

It is important to understand the above point to appreciate what exactly is GPS trying to do in relation to the recent Proposed Amendments to Article 1(2) of the Federal Constitution to restore the rights of Sabah and Sarawak.

A bit of history of the formation of Malaysia - On the 9th July 1963, the Governments of the Federation of Malaya, United Kingdom, North Borneo, Sarawak and Singapore signed the Malaysia Agreement whereby Singapore, Sarawak and North Borneo would federate with the existing States of the Federation of Malaya and the Federation would be called "Malaysia". This Malaysia Agreement was signed with the Federation of Malaya as one of the party under which the other States of Malaya came.

The MA63 was not signed with Kelantan, Johor nor with any other Malayan States but with the Federation of Malaya as a party representing the other Malayan States.

The Federal Parliament then passed the Malaysia Act 1963 based on the Malaysia Bill form, with various Annexures A, B, C, D to J attached to the Malaysia Agreement, and to amend the Federation of Malaya Constitution, 1957, Article 1(1) and (2) to provide, inter alia, for the admission of the three new States and for the alteration of the name of the Federation to that of "Malaysia". The Act received the Royal Assent on August, 26 1963 and came into operation on the 16th September 1963.

So what became the Malaysia Federal Constitution, with the coming into effect of Malaysia Act 1963, is the Malaysia Agreement 1963 [MA63] that brought about such.

It is only sensible and proper to have an Agreement beforehand, which is the Malaysia Agreement 1963 [MA63] with all the conditions and assurances required by Sabah and Sarawak to be stated clearly therein and in the earlier concluded Inter Governmental Committee Report 1962 [IGC Report] specifically mentioned in Article VIII of MA63, before you form a Nation, Malaysia.

A case that explains quite properly the above inter-connection between MA63 and the Federal Constitution is the case of The Government of The State of Kelantan v The Government of the Federation of Malaya and Tuanku Abdul Rahman (1963) 29 MLJ 355 (decision of the late Chief Justice Thomson).

The sanctity of the IGC Report (signed on 27th February 1963) mentioned in Article VIII of MA63 and the Malaysia Agreement 1963 has been upheld by at least two decisions of the apex court (Federal Court) in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72 and Datuk Hj Mohammad Tufail bin Mahmud & Ors v Dato Ting Check Sii [2009] 4 MLJ 165.

A simple reading of this very important Article VIII contained in the Malaysia Agreement 1963, quoted below, shows the importance of the IGC Report mentioned therein that protects the rights of Sabah and Sarawak guaranteed.

Article VIII of the Malaysia Agreement 1963 reads as follows: "The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to, the Report of the Inter-Governmental Committee signed on 27th February, 1963, in so far as they are not implemented by express provision of the Constitution of Malaysia."

The Malaysia Bill attached to the Malaysia Agreement 1963, which is under Annex A, its Article 4 reads as follows:

PART II

THE STATES OF THE FEDERATION

4. (1) The Federation shall be known, in Malay and in English, by the name Malaysia.

(2) The States of the Federation shall be - 

(a) the State of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Trengganu ; and

(b) the Borneo States, namely, Sabah and Sarawak; and

(c) the State of Singapore.

(3) The territories of each of the States mentioned in Clause (2) are the territories comprised therein immediately before Malaysia Day.

Therefore, MPs of GPS are actually doing the right and proper thing to protect Sarawak by insisting firmly that the Proposed Amendments states clearly and specifically the Malaysia Agreement 1963 because the Malaysia Agreement 1963 mentioned specifically the IGC Report (signed on 27th February 1963) that guaranteed the rights (the assurances and undertakings given for Borneo States) of Sabah and Sarawak.

For your better understanding of the Proposed Amendments, GPS insist on the following amendments to Article 1(2):

"The States in the Federation pursuant to the Malaysia Agreement 1963 shall be-

(a) the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negri Sembilan, Pahang, Penang, Perak, Perlis, Selangor and Terengganu; and

(b) the Borneo States, namely, Sabah and Sarawak."

We must go back to the roots to be able to make an honest and sensible restoration of Sarawak Rights. After all, the word "restore" means to return something or someone to an earlier good condition or position.

This is the same position when it comes to the definition of "the Federation" under Article 160(2) of the Federal Constitution that reads ""the Federation" means the Federation established under the Federation of Malaya Agreement 1957".

It is obvious that "Federation" now has a different meaning and Article 160(2) must be amended to reflect MA63.

The Malayan States formed their Federation of Malaya in 1957.

Sabah and Sarawak later in 1963 formed Malaysia together with the Federation of Malaya.

For those people who may think that Sarawak Dewan Undangan Negeri is below or lower to Parliament and the Dewan Undangan Negeri or Sarawak has no right, with great respect, such is a wrong line of thinking because Malaysia is a nation that subscribes to Constitutional Supremacy. Parliament and State Legislative Assemblies have different powers under the Constitution and are not in any sense "servient".

The Constitution provides a framework for them to work together. Please see Article 161E of the Federal Constitution.  

The Malaysia Agreement 1963 is readily available on the internet.

That is all for now.

Shankar Ram Asnani

Of The Middle Temple, Barrister,

Advocate of the High Court in Sabah and Sarawak

Advocate of the High Court of Malaya

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