The view of Malaysia formation analysts has been generally based on the uncritical acceptance that the governments of 5 countries came together to legally negotiate and set up Malaysia in 1962-1963.
This uncritical narration of the events rests on the assumption that Malaysia was a legitimate creation. In doing so, this approach fails to examine whether the whole process of "Malaysia formation" was legitimate.
All international treaties or agreements are governed by international law and must be made in compliance with its principles and rules.
It is an established principle of international law that only sovereign independent states have the capacity or power to make treaties. This rule is codified by Articles 1 and 6 pf the Vienna Conventions on the Law of Treaties 1969 (VCLT) and most recently affirmed by the ICJ in the Chagos Islands case on 25 Feb 2019.
Of the 5 governments only two, the UK and Malaya represented independent sovereign states while Singapore, North Borneo (Sabah) and Sarawak were still British colonies and fully under British control up to 16 Sept 1963 when Malaysia was set up. In fact, it was the colonial governments of Sabah and Sarawak that “negotiated” and signed MA63 on their behalf.
It was not about genuine decolonization but merely the British hand over of Sabah and Sarawak to Malaya as succinctly put by the late Malayan Prime Minister Tunku Abdul Rahman (“the Tunku”) frankly described the denial of independence: “Yes and they [the British] gave us Sarawak, Sabah, and Singapore and so many other things in 1963 [with the formation of Malaysia]. The British could have given Singapore, Sabah and Sarawak independence, but they did not. Instead, they handed them to us”. (Extract from Abdullah Ahmad’s book published in 2016, Conversations with Tunku Abdul Rahman.)
Former Malaysian Prime Minister Mahathir said publicly that (quote): “Historically, the agreement to form Malaysia was sealed by the British, as colonial masters of Sabah and Sarawak and involved a few leaders from both provinces who were handpicked by the British themselves.” Reported by Free Malaysia Today internet paper, on 29 September 2018
WAS MALAYSIA LEGITIMATELY ESTABLISHED ACCORDING TO INTERNATIONAL LAW?
CHAGOS CASE AFFIRMED PRINCIPLE THAT ONLY SOVEREIGN STATES HAVE CAPACITY TO MAKE TREATIES
The answer was provided by the International Court of Justice (ICJ) in its advisory opinion on the Chagos Islands case on 25 Feb 2019. In this case, the ICJ for the first time on record, re-opened a de-colonization case in relation to the issue of the UK separation of the Chagos Islands from Mauritius territory.
In reaffirming the international law rule of capacity on treaty-making, the court found that an agreement made the UK with its colony Mauritius in 1965 was not a binding international agreement because at all times the UK was the administrative power in full control of Mauritius. Mauritius did not have legislative or executive powers to enter into the agreement and thus was not competent and free to make its own decisions.
In other words, a colony was not a sovereign state and could not be a party to the treaty. Only independent states have the capacity or competence to make treaties.
This ICJ decision vindicated the assertion made in 2013 by the Sarawak born lawyer R Pei that MA63 was void from the beginning because it failed to comply with established international law on the treaty-making rule that only sovereign independent states can make treaties.
MA63 was therefore never a binding international agreement although this was registered with the UN. In fact, it was a fraud that the UN had helped to perpetrate on the world and Borneo people. Malaysia, however, is no more than a de facto entity recognized by the UN but illegal in nature. Malaya is occupying SS illegally!
MALAYSIA WAS A FRAUD
The fact that the making of MA63 was a fraud was that the British Government had proceeded to include North Borneo and Sarawak as signatories for "presentational reasons" when it was legally advised that North Borneo and Sarawak could not be parties to MA63 as they were not sovereign.
This fraud was magnified by a string of false promises as proven by Malaya did not intend to keep in the first place as evidenced by 56 years of illegally taking away SS autonomy status and powers and rights and resources (not agreed to in MA63) and failure to protect native interests, enforced apartheid on SS people - all of which breach international law and UN conventions.
Both the British and Malayan governments had induced the Borneo colonies to give up their right to independence to accept Malaysia by convincing them that the principal objective was for their development and security.
These facts show that Malaya had made MA63 in bad faith. Bad faith and Fraud both invalidate MA63 according to international law.
MALAYSIA WAS SET UP UNDER EMERGENCY CONDITIONS IN WHICH NORTH BORNEO & SARAWAK WERE PREVAILED ON & PRESSURED TO ACCEPT MA63 WITHOUT A REFERENDUM
Further MA63 was made under emergency conditions which amounted to prevailing on SS to make MA63 and akin to coercion in making a treaty in the wake of the Brunei Uprising and mass arrests and suppression of freedom of speech. Both the British and Malayan governments had subjected the people to sustained pressure by exploiting these events as propaganda to support their plan. This is again another ground of invalidity under international law.
HERE ARE THE FACTS:
1. No referendum was ever held to allow the people to freely express their wishes on the Malaysia proposal in the exercise of their right to self-determination. Only Singapore held one and on this occasion, both the British and Malayan governments did not fully support the idea.
2. In fact, the UK twice denied the people this referendum. The first occasion when this process was sidelined despite nationalist's demands was using the Cobbold Commission to enquire into the people’s wishes.
The second time was allowing the UN assessment of the people’s wishes.
3. The UK & Malayan governments had pre-determined Malaysia formation by making a secret agreement called “Agreement to Set Up Malaysia” signed on 31 July 1962.
4. The Cobbold Commission no more than a charade. The Commission commenced its enquiry on the people's wishes from January to April 1962. The Commission Report was completed in June 1962 but this was not released till 1 Aug 1962 because of Malayan disagreement over its frankness on opposition to the Plan. The report was watered down to stating that there was overwhelming support. This was exposed as a lie by the fact of the anti-Malaysia Brunei Uprising and the suppression of people who peacefully opposing the plan.
5. On 31 Aug 1962, the Brunei People’s Party won the Brunei district council elections on its anti-Malaysia platform but the British advised the Sultan not to convene the Legislative Assembly and thus denied the party the chance to form the elected government.
6. MA63 negotiations involving British nominated North Borneo & Sarawak leaders were only started after the Uprising & Cobbold report was released.
7. In Sept 1962 a joint Memorandum was submitted to the UN by Brunei, North Borneo and Sarawak parties opposing Malaysia and it was planned to send a tri-party delegation from the UN to call for independence.
8. On 8 Dec 1962 National Army of North Kalimantan (TNKU) launched the Brunei Uprising in opposition to Malaysia and to unite Brunei with North Borneo and Sarawak into an independent state. The Borneo parties UN mission was aborted.
9. The British colonial government had immediately imposed virtual martial law and launched counter-attacks which successfully contained the TNKU with an armed force of around 50,000 men against a TNKU force of some 2000 poorly armed and trained men.
10. Mass arrests were carried out in Sarawak forcing large numbers of activists to flee into Indonesian Kalimantan where they launched a guerilla resistance war for independence from Malaysia, which lasted till 1990.
11. A virtual state of war existed from 1962 to 1965 between the British & Malaya against Indonesian which arose from opposition to Malaysia.
12. On 9 July 1963, the Malaysia Agreement was signed by the UK and Malaya with Singapore, North Borneo & Sarawak despite the fact that the last 3 countries were not sovereign states but still colonies under British control and not competent to make an international agreement.
13. On 31 July 1963, the signing of the Manila accord by Malaya Philippines & Indonesia effectively vacated the Date for the proclamation of Malaysia on 31 Aug 1963 owing to opposition by the Philippines and Indonesia.
It was agreed by Malaya that the formation of Malaysia was made conditional on compliance with the people’s right to self-determination under UN Resolution 1514 by the process of a UN assessment of the people’s wishes on Malaysia as required under Resolution 1541.
The British and Malaya governments’ agreement to have the assessment done was an acknowledgment that MA63 had not been concluded in compliance with UN resolutions on decolonization.
14. However, the UN assessment was defective in that it was not a referendum and it was compromised by a declared UN bias for the UK position before the assessment started and over-reliance on the unverified and unreliable Cobbold Report.
15. It must, therefore, be concluded that Malaysia was not lawfully created but done under sustained pressure imposed on the Borneo people without their consent being lawfully obtained in compliance with their right to self-determination.
For those born well after 1963, it is essential to read up on the background to grasp the significance of what happened.
The events of 56 years of re-colonization by denial of "autonomy", the plunder of resources and oppression of the people by Malaya or under its jurisdiction, watch and consent as the new protector, constitute a breach of the spirit of MA63 (given that it is void).
The Federal government talks about the "spirit of MA63" because it is only a spirit and does not exist. That's why it simply refused to amend the Federal Constitution by including the phrase that Malaysia was set up "pursuant to the Malaysia Agreement 1963".
So the Fed Gov't has proved to us MA63 does not legally exist.
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