NGOs: Right to exit federation is unimpeded by Federal Constitution

KUCHING (Jan 11): Two non-governmental organisations (NGOs) have called out Gabungan Parti Sarawak (GPS) Youth chief Miro Simuh for his unfair criticism of the Parti Bumi Kenyalang (PBK) president Voon Lee Shan’s persistent call for Sarawak independence.

Borneo Plight in Malaysia Foundation (BoPiMaFo) president Daniel John Jambun and Sabah Sarawak Rights Australia New Zealand (SSRANZ) president Robert Pei, in a joint statement, said Voon was merely performing his duty as a loyal Sarawakian in fighting for Sarawak rights, especially the inalienable legal right to independence under international law recognised by the United Nations’ Resolution 1514.

“In fact, other than the PBK, no Sarawak or Sabah party has consistently called for independence from Malaysia owing to the 60-year failure of the federation.

“This discourse should not be limited to an association that federalists claim as a freely-formed democratic federation,” they said.

In response to Miro’s recent statement that Sarawak and other member states in the Federation of Malaysia have no right to leave the federation under the Federal Constitution, they added that it is also unconstitutional for any law, such as the Sedition Act 1948, to prohibit this right.

“If so, this would only confirm that Malaysia was not a free and voluntary association of four countries created in 1963,” they said.

The NGO presidents said that this right is still in place despite the former British colonies of Sarawak and Sabah being incorporated as new members of the Federation of Malaysia in 1963 by the United Kingdom and Malayan governments. There are several reasons for this.

“The Federation of Malaysia was created by an international treaty, the Malaysia Agreement 1963 (MA63), registered with the United Nations in 1970 and is therefore governed by international law.

“International law does not prohibit secession from a federation. Any member of a free association has the intrinsic right to exit at any time, without conditions.”

They said this issue was raised in the Inter-Governmental Committee (IGC) discussions before MA63 was signed on July 9, 1963, when both the Sarawak and Sabah sides demanded the right to exit be included in the constitution.

“Lord Lansdowne, the IGC chairman who described Malaysia as a ‘buttress of freedom in Asia’, dissuaded them by stating that ‘any state voluntarily entering a federation had the intrinsic right to secede at will, and therefore it was unnecessary to include it in the constitution’.

“On July 18, 1963, this was again clarified by the then Malayan Prime Minister Tunku Abdul Rahman nine days after MA63 was signed, saying that ‘the regions that join Malaysia have freedom to exit the federation if the new nation will not bring any benefit to them’.

“However, this was not the original position of the then Malayan government, which insisted that ‘there be no right to secede’ from the federation. This was at odds with the fact that the Malayans went through the motion of consulting Sarawak and Sabah to demonstrate that the union was the free and voluntary wish of the people, but in reality, it was just to entrap them in their proposed union.”

They opined that typically Malaysia federalists assert that ‘Point 7 of the Sabah 20 Points’ agreement prohibited secession.

The NGO presidents pointed out that the ‘20 Points’ was only a memorandum of terms and conditions provided to the IGC, not a legally binding agreement signed by the MA63 signatories nor incorporated as the law in MA63 or the Federal Constitution.

They cited in 1962, the British colonial secretary revealed their entrapment strategy by stressing to the Malayan government ‘the political advantages which might accrue both to H.M.G. and to the Government of the Federation of Malaya if Malaysia was seen as voluntary merger rather than transfer, merger rather than absorption’”. (Para 142 Stockwell ‘The Making of Malaysia’).

“Thus, the world and Borneo people were led to believe that the admission of new members to the federation was a free and voluntary act,” they said.

They also said that those opposing Sabah and Sarawak independence also erroneously claim that the Sedition Act 1948 was amended to prohibit ‘secession’.

“However, there is no such prohibition in the Act 1485 amendment of the Sedition Act in 2015 or any other Acts.”

The NGO presidents believed that the failure to resolve MA63 issues of state autonomy, seat allocation, loss of control of the civil service and education, resources and revenue from oil and gas, lack of development and infrastructures and poverty, Sabah’s 40 per cent revenue entitlement, ‘Ketuanan Melayu’ race and religion concept replacing MA63 concept of secularism, pluralism and multiculturalism, and illegal migrants have led to the widespread sentiment for independence.

“The recent call to amend the Constitution for a Malay/Muslim government and a Malay prime minister has only aroused more calls for independence.”

They considered that MA63 was void from the beginning and not legally binding from the date it was signed, as Sarawak and Sabah were still colonies and not sovereign states with the legal capacity to make binding international treaties.

“This meant that Malaysia was not legitimately constituted, and decolonisation was in fact replaced by Malayan re-colonisation. The MA63 negotiations since 2016 cannot have any legally binding effect since MA63 was null and void from the beginning.

“However, even if MA63 was valid, the multiple breaches of fundamental and foundational terms of the agreement since 1965 would have terminated the treaty and legally entitle Sarawak and Sabah to exit as free independent nations.”

They called on both the Sarawak and Sabah government to seek a proper resolution of the question of MA63 validity especially in view of the International Court of Justice’s decision in the Chagos Case 2019 that colonies have no legal capacity to make binding international agreements.

“Hold a referendum to allow the people to freely decide the value or benefit of allowing the two states to continue as members of the federation.

“A referendum should only be held after a period of at least two years to allow all parties to inform the people of the pros and cons of exit and independence,” they said.