MALAYSIA AGREEMENT 1963

IS MA63 A VALID INTERNATIONAL AGREEMENT?

WAS MA63 DE-COLONIZATION OR RE-COLONIZATION?

WHAT THIS PAPER IS ABOUT

The formation of Malaysia as part of Britain's “de-colonization” plan was an extremely controversial issue

opposed both locally and internationally in the 1960s. According to the declassified secret British colonial

documents Britain had secretly planned a direct transfer (the “second cession” or annexation) of its Borneo

colonial territories to Malayan rule without even first granting independence to the territories. Its critics said

it was just exchanging the old colonial master for a new one. In other words it was a shocking denial of their

inalienable right to self-determination.

A recent comment by a historian Geoffrey Wade pinpointed the purpose of the British Malayan creation of

Malaysia was that “By ensuring that Sabah and Sarawak did not seek independence and instead became

dependent on and subordinate to Kuala Lumpur, the British Cold War strategy of creating a Western-oriented

bulwark across the middle of Southeast Asia was achieved.

This relationship of dependence and subordination of Sabah and Sarawak to Kuala Lumpur has, however,

been a cause of dissatisfaction ever since.

Originally proclaimed as equal partners in the new nation, the two Bornean states have been continually

exploited for their oil and timber resources, fiscal allocations (they are given 5% of the oil and gas revenues

they produce) and their representation in the federal parliament. This exploitation has been exacerbated by

the corruption of those, such as Taib Mahmud, who were assigned fiefdoms in the Bornean states by Kuala

Lumpur.”

http://www.lowyinterpreter.org/author/Geoffrey-Wade.aspx

Thus Despite its over 50 years of existence Malaysia has remained a smouldering and unsettled issue which

in very recent years saw it flaring up again as the poverty stricken Sabah and Sarawak people most affected

by its negative effects, are seriously questioning whether there is any benefit for their countries to remain in

Malaysia.

The main purpose of this paper is therefore to explore one aspect of this hot issue being the proposition that

the Malaysia Agreement 1963 (called “MA63” in short) was not a validly made and binding multi-party

international treaty in accordance with international law, the Universal Declaration of Human Rights (1946)

and Declaration on the Granting of Independence to Colonial Countries and Peoples (in short

“UNDD”) (1960) and UN Resolution 1514 (XV) affirmed on 14 December 1960.

The outline arguments presented here are part of a piece of work in progress.

[Author's note: The international law aspects of the Malaysia formation issue have not been adequately

dealt with by scholars and researchers - hence this subject has been very much kept under the radar by

design or omission. Not surprisingly the British boasted that “Malaysia” has been one of their most

successful “projects” allowing the same Malayan government to ride rough shod over Sabah and Sarawak

rights over 50 years.

There are other questions which have not been discussed here including the distinct pre-Malaysia historic,

political, cultural and ethnic differences between Malaya and Borneo, and the question of secession and

independence, validity of “unequal treaties” , the Cobbold Commission and the wrongful part played by the

U.N. in endorsing “Malaysia”

Further the related question is asked: Was MA63/Malaysia really the “de-colonization” of North

Borneo (Sabah) and Sarawak according to the 1960 UN Decolonisation Declaration or was it just a

vehicle for “re-colonization by a new colonial master – Malaya ” by annexation of the Borneo

territories?

This is really a question of whether Sarawak (and Sabah) had actually achieved real independence and self-

determination or just annexed as dependent vassal states or colonies in “Malaysia”?

“International law recognizes the right of self-determination for every “people.” In the decolonization

context, the right to self-determination has been interpreted as leading toward remedial secession, because

the colonized peoples were not properly represented by the governments of their mother-states (the colonial

powers).” [Prof. Milena Sterio on the Crimea independence issue: http://ilg2.org/author/milenasterio/]

This paper is based on a reading of the declassified documents, and open sources and references listed in the

Index, as well as from secondary sources.

The details of the stated international laws and background facts are made by reference to the attached

appendices which the audience may read in their spare time. It is hoped that readers can also follow up or

join in further discussions on this paper when published in the Internet after the conference.

The book Sarawak: The Real Deal by Ms. Lina Soo is an invaluable source to gain a deeper understanding

of the issues as argued by both pro and anti-Malaysia sides.

It is also recommended readers read Vidal Yudin Weil's article “Can Sabah and Sarawak Secede?”. It

asserts that MA63 was void ab initio because Britain had no right to transfer Sabah Sovereignty and territory

which was (and is) being claimed and disputed by the Philippines in the 1960s.

http://www.freemalaysiatoday.com/category/opinion/2014/04/14/can-sabah-and-swak-secede/

THREE PROPOSITIONS ON MA63

The Concept and formation of Malaysia when examined in context of the declassified British colonial

documents stands out as a pre-determined plan and a deception carried out by Britain in collusion with

Malaya on one hand to consolidate administration of its South East Asia colonies pursuant to its mid-1942

wartime plan to create the “Malayan Union”. This was to be done by denying the people of Sabah and

Sarawak (and also Brunei as originally intended) their right to self determination and the United Nations was

manipulated to endorse the formation of Malaysia in contravention of its declared principles for national

self-determination.

On the other hand the Malaysia Plan also fitted in very neatly with Malayan UMNO colonial expansionist

plans to create a Greater Malaysia or Melayu Raya based on an apartheid religious system of Malay/Muslim

supremacy. It is also this supremacist agenda coupled with the unremitting plunder of Sabah and Sarawak to

develop Malaya which has re-awakened Borneon resistance against what is now widely perceived as

Malayan colonialism under the same very corrupt regime over 50 years of Malaysia.

There are 3 propositions relating to the validity of the Malaysia Agreement 1963 (MA63):

1. The first Proposition is: That the Malaysia Agreement as an international treaty was not validly

made in compliance with principles and rules of International Law and the U.N. Decolonisation

Declaration 1960. (There are 7 overlapping Reasons or grounds for invalidity). [If the MA63 is void

from the beginning it would be unnecessary to ask the other 2 questions below but lawyers like to cover

all the possibilities. So we ask the following alternative questions:]

2. The Second Proposition is: If the MA63 was “valid”, was it not abrogated by Singapore's

separation and independence from Malaysia in 1965?

3. The Third Proposition is: Assuming that the MA63 was valid despite propositions 1 and 2 above,

Malaya has repeatedly committed fundamental breaches of MA63 and completely repudiated

MA63 by over 50 years of non-compliance and failure to implement MA63 as an international

treaty and the Malaysia experiment itself.

The discussion will refer to the United Nations Declaration of Human Rights, the UN Declaration on

Decolonization and the Vienna Convention on Law of Treaties or VCLT. The UNDD motion was affirmed

unanimously in the United Nations as Resolution 1514 (XV) on 14 December 1960 (used herein as

abbreviated form “UNDD “)

The VCLT is itself an international treaty entered into by and binding on all the signatories on its roll.

“The Vienna Convention on the Law of Treaties (VCLT) is a treaty concerning the international law on

treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The

Convention entered into force on 27 January 1980. The VCLT has been ratified by 114 states as of April

2014. Some countries that have not ratified the Convention recognize it was a restatement of customary law

and binding upon them as such.”

The VCLT was formalised after a 20 year research and study of the established international legal principles.

Although the VCLT is not “retro-active” that is, applicable to treaties made prior to this date such as MA63,

it is a useful reference to the established international laws principles and precedents for our discussion.

WHAT IS AN “INTERNATIONAL TREATY”?

A Treaty may be defined as follows:

“A treaty is an agreement in written form between nation-states (or international agencies, such as the United

Nations, that have been given treaty-making capacity by the states that created them) that is intended to

establish a relationship governed by International Law. It may be contained in a single instrument or in two

or more related instruments such as an exchange of diplomatic notes. Various terms have been used for such

an agreement, including treaty, convention, protocol, declaration, charter, Covenant, pact, act, statute,

exchange of notes, agreement, modus vivendi ("manner of living" or practical compromise), and

understanding. The particular designation does not affect the agreement's legal character.”

PROPOSITION 1

That the Malaysia Agreement 1963 purporting to be an international treaty to form the Federation of

Malaysia was null and void and not binding on the signatory parties from the beginning.

It is asserted here that MA63 was not validly made in compliance with the established principles and rules of

International Law (now codified by VCLT 1969) and the 1960 U.N. Decolonisation Declaration UNDD

R1514 (XV) for the interrelated reasons stated below.

The combination of all the seven (7) grounds or reasons below for MA63 “invalidity” stands as a damning

indictment of Britain and Malaya's external intervention and violation of the Sabah and Sarawak people's

right of self-determination. This was perpetrated by Britain's unashamed collusion with Malaya even before

the 1960s and later with the United Nations' endorsement, to deny the people their right in total disregard of

local and international opposition and in breach of established international laws making MA63 null and

void:

1. MA63 “VOID AB INITIO” - INVALID FROM THE BEGINNING

MA63 was made in breach of the established customary international law (jus cogens) that only

sovereign states can enter into valid international treaties.

2. BRITAIN BROKE 1946 TREATY TO RESTORE SARAWAK INDEPENDENCE

Britain was in breach of its 1946 Cession treaty with the then independent Sarawak Brooke

government to restore independence to Sarawak as demanded by the Sarawak United People's Party

(SUPP). Appendix A 9 Cardinal Principles, Appendix B

3. MA63 VOIDED BY BREACH OF UNDD (R1514) ARTICLE 5 BY BRITAIN IN

COLLUSION WITH MALAYA TO FORM MALAYSIA IN PLACE OF BORNEO

INDEPENDENCE

MA63 voided on the ground that Britain and Malaya's bilateral pre-determined plan to transfer

(cede, annex) sovereignty over the Borneo colonies to Malaya without independence under the

“Malaysia” concept was in contravention of the people's right to self-determination free from

foreign interference. UN De-colonization Declaration. Appendix A Clause 5, 6 & 7. Refer to also

Declassified Colonial documents. (Argument 3 & 4 overlap).

4. MA63 WAS USED TO LEGITIMISE ANNEXATION OF TERRITORIES IMPOSED WITH

COERCION BY USE OF FORCE SEEN IN THE BRITISH MALAYAN SUPPRESSION OF

BRUNEI ANTI-MALAYSIA INDEPENDENCE UPRISING & SARAWAK NATIONALISTS

ACT IN CONTRAVENTION OF “UNDD” (R1514).

MA63 was void and not binding as it was made by coercion with use of force to cede or annex the 2

territories to Malayan rule, against the background of foreign political interference British colonial

suppression of Borneo nationalists and armed intervention by Malaya which was prohibited under

the UNDD (R1514) and the principle codified in Article 52 VCTL.

The people were denied a genuine referendum and the whole formation process was wrongfully

endorsed by the United Nations in the face of strong open opposition to Malaysia and a travesty of

an justice.

Put simply, MA63 was used to legitimise Malaya's annexation of Sabah and Sarawak. APPENDIX

H. Read Case of Japanese annexation of Korea:

https://works.bepress.com/young_kim/3/

Michael Leigh Rising Moon..

5. MA63 & MALAYSIA CONCEPT WAS MADE IN “BAD FAITH” & CHANGED 3 TIMES

WITHOUT REFERENDUM OR PEOPLE'S CONSENT

“BAD FAITH OR LACK OF GOOD FAITH”: There was no intention by Britain and Malaya to

consider real independence for the Borneo colonies before considering the Malaysia concept.

“Malaysia” was a bilateral predetermined concept and decision which was made in bad faith and in

contravention of international principles of non-interference in the independence process of the

colonies under the UNDD (R1514).

As the final version of “Malaysia” was not the original Malaysia concept of federating 5 countries

which the British and Malayans had set to out to construct, the question is:

How could this be a valid concept by 1965 when Singapore gained independence from

Malaysia? Read Appendix F

6. BRITAIN COULD NOT TRANSFER DISPUTED SABAH TERRITORY & SOVEREIGNTY

It is Sabahan Vidal Yudin Weil's assertion in his article “Can Sabah and Sarawak Secede?” that

MA63 was void ab initio because Britain had no right to transfer Sabah Sovereignty which was

being disputed and claimed by the Philippines.

http://www.freemalaysiatoday.com/category/opinion/2014/04/14/can-sabah-and-swak-secede/

7. THE 1963 UNITED NATIONS “ASSESSMENT” WAS UNRELIABLE IN THAT IT WAS

NOT A FAIR & BALANCED ASSESSMENT & WAS IN CONTRAVENTION OF

RESOLUTION 1514 (XV) AND NOT A PROPER REFERENDUM ON THE PEOPLE

WISHES.

The so-called 1963 United Nations Assessment on views of the people of Sabah and Sarawak was

improper and an unacceptable as a “valid fair reliable and balanced” assessment and was in

contravention of the United Nations' 1960 Declaration on Decolconization . The U.N. endorsement

of “Malaysia” was a shameful travesty of justice. It was also done in contravention of the Manila

Accord which indicated a “plebiscite” or “referendum” was to be held in the Northern Borneo

territories.

DISCUSSION OF ABOVE 7 POINTS

1. MA63 WAS “VOID AB INITIO”- VOID FROM THE BEGINNING.

MA63 failed to comply with the established principle that international treaties can only be validly

entered into by independent sovereign states (and or with recognised organisations like the U.N.)

The Malaysia Agreement 1963 registered as an international treaty with the United Nations by the United

Kingdom in 1973 was purportedly made between 5 “sovereign states” on 9th

July 1963, being the United

Kingdom, Malayan Federation, Singapore with North Borneo and Sarawak.

Firstly a 6th signatory Brunei had refused to sign the agreement. Brunei was also part of the scheme.

However the differences between the Malayan and Brunei sides were too far apart.

“The (Vienna) Convention codifies several bedrocks of contemporary international law. It defines a treaty as

"an international agreement concluded between states in written form and governed by international

law," as well as affirming that "every state possesses the capacity to conclude treaties." Most nations,

whether they are party to it or not, recognize it as the pre-eminent "Treaty of Treaties";[citation needed] it is

widely recognized as the authoritative guide vis-à-vis the formation and effects of treaties.”

See comment on this link on VCLT:

http://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties

The 1969 Vienna Convention states that treaties are to be interpreted "in good faith" according to the

"ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose."

On its very face, the MA63 document displayed a fatal and fundamental flaw which was clearly in

breach of the established principle of international law that only sovereign states can enter into valid

agreements with other states.

At international law there are four recognised attributes of independent statehood:

territory (even if borders are unsettled)

population

government (effective – it governs the territory)

capacity to enter into relations with other states

At the time of the Malaysia Agreement on 9 July 1962, neither Sabah and Sarawak had attained “statehood”

as Britain had not granted nor intended to grant independence to them according to the declassified colonial

documents. Neither colonies had elected government which were in effective control of their territories. The

secret agreement with Malaya was to transfer the territories to Malayan rule without independence.

The Malaysia Agreement was actually entered into between only 2 independent sovereign States the United

Kingdom and Malaya and allegedly with a semi-colonial State Singapore (Singapore was still under British

Control prior to its UDI on 31 August 1963) and the 2 colonies of North Borneo (Sabah) and Sarawak which

did not have any capacity to make international treaties.

Quote from the:

Preamble to the Malaysia Agreement 1963 stated that:

AGREEMENT RELATING TO MALAYSIA

The United Kingdom of Great Britain and Northern Ireland, the Federation of Malaya, North Borneo,

Sarawak and Singapore;

Desiring to conclude an agreement relating to Malaysia;

Agree as follows:

Article I

The Colonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existing

States of the Federation of Malaya as the States of Sabah, Sarawak and Singapore in accordance with the

constitutional instruments annexed to this Agreement and the Federation shall thereafter be called "

Malaysia".

The same description was used in the “Proclamation of Malaysia” by Malayan P.M. Tunku Abdul Rahman

and the Sarawak Proclamation of Malaysia by Sarawak Chief Minister Stephen K Ningkan on 16 September

2014

This is a definition of what is a “colony” from Wikipedia

[https://en.wikipedia.org/wiki/Colony]

“In politics and history, a colony is a territory under the immediate political control of a state, distinct from

the home territory of the sovereign. For colonies in antiquity, city-states would often found their own

colonies. Some colonies were historically countries, while others were territories without definite statehood

from their inception. The metropolitan state is the state that owns the colony. In Ancient Greece, the city that

founded a colony was called the metropolis. Mother country is a reference to the metropolitan state from the

point of view of citizens who live in its colony. There is a United Nations list of Non-Self-Governing

Territories.

Unlike a puppet state or satellite state, a colony has no independent international representation, and its

top-level administration is under direct control of the metropolitan state.”

See further on definition of “colonies” in Appendix G & Appendix I, List of colonial territories

My Comments:

Singapore gained “internal government” in 1955 but it was still controlled by Britain until 1963 so it could

not be considered an “independent sovereign state” capable of entering into international treaties. This view

is supported by the fact that Singapore found it necessary to declare unilateral independence (UDI) on 31

August 1963 after MA63 was signed but Britain did not recognise the UDI.

The focus is on the capacity of North Borneo (Sabah) and Sarawak to make international treaties when both

were definitely “colonies” (as defined) not “independent states” at the date of MA63 on 9th

July 1963 as

described in the MA63 itself.

Sabah and Sarawak were not “independent sovereign states” with independent international representation

capable of making treaties but colonies controlled by Britain before 16 September 1963. Singapore came

under British colonial suzerainty from 1819 and North Borneo (administered by the North Borneo

Company) and Sarawak (ruled as an independent country by the Brooke Raj Government 1841-1941) were

both ceded to British colonial rule in 1946.

As if to reinforce this fact, both the “Proclamation of Malaysia” and the Sarawak “Proclamation of

Independence” on 16 September 1963 described Sabah and Sarawak as “colonies” not “independent states”.

See Appendix K & L

The effect is that Britain and Malaya were the only 2 sovereign states which made an Agreement with at

best, a semi-colony Singapore and Britain's own 2 colonies North Borneo and Sarawak. British colonial

officials signed MA63 on behalf of Sabah and Sarawak. It was not signed with the free independent and

voluntary will, wishes or consent of the people in Sabah and Sarawak and who were also denied a

referendum on the Malaysia issue which the Philippines and Indonesian governments and independence

movement had repeatedly called for.

This monumental legal absurdity and defect exposes the embarrassing haste in which the British took to “de-

colonize” by handing over Sabah and Sarawak to Malaya and the colonial assumption of the time that the

colonial master had a free hand to play with the future of nations.

However, it reflected the colonial determination to implement the original 1963 (Checkers) secret pact

between Britain and Malaya to form Malaysia as a cover to transfer sovereignty over the Borneo colonies

directly to Malayan rule. This was an open secret, as the nationalist leaders and ordinary people in all 3

territories very vehemently voiced their concern and opposition to this “transfer” plan.

That neither North Borneo and Sarawak were independent sovereign states on 9th July 1963 is confirmed by

the fact that Sarawak was only ostensibly granted “self-rule” on 22 July 1963 and Sabah was similarly

granted “self-rule” but was called “independence” on 31 August 1963.

The respective “new Sabah and Sarawak governments” purportedly ratified MA63 on their first session.

However the breach of an established principle of law and what is a fundamental defect or flaw cannot be

retrospectively ratified or perfected. MA63 was also made without a proper referendum to determine the

wishes of the people in Sabah or Sarawak on the future of their respective countries.

MA63 was invalid from the beginning.

Sabah and Sarawak (and Singapore) were just not “independent sovereign states” capable of making the

MA63.

They were not listed as “independent states” in 1963 but as only having a “change of status” (which sounds

quite meaningless!) in the UN list of Non-Self-Governing Territories. There was no effective treaty made by

them in 1963. See APPENDIX J

This fatal flaw must have been staring at both the British and Malayan creators and kept them in a state of

nightmares for 50 years. It seems that all the while when people debated on MA63 issues very few people

have critically looked at this point.

Second argument

2. Britain was in flagrant breach of its 1946 treaty with the Sarawak Brooke government to restore

independence to Sarawak (and avoiding a referendum so that the people could freely decide on the

Malaysia issue) as demanded by the Sarawak United People's Party (SUPP). Nine Cardinal Principles

Appendix B, UNDD (R1514) Article 5.

It is an international law principle that all treaties or agreements must be made, kept and honoured in good

faith. https://en.wikipedia.org/wiki/Pacta_sunt_servanda

“A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith. The

concept known by the Latin formula pacta sunt servanda (“agreements must be kept”) is arguably the oldest

principle of international law. Without such a rule, no international agreement would be binding”

(Definition from Encyclopaedia Britannica:

http://www.britannica.com/EBchecked/topic/930509/pacta-sunt-servanda)

Sarawak was an independent state for 100 years from 1841 to 1941 and recognised by the United

States in 1850 and Britain in 1863 when most South East Asian countries including Malaya were

colonies.

Britain had reportedly coerced the Sarawak Brooke government in 1946 to cede independent Sarawak to its

colonial rule. But this strongly opposed by the Sarawak people who demanded that Sarawak remained an

independent country. In opposing cession the “Tuan Muda” Anthony Brooke had asked why Sarawak a

sovereign and independent country should be reduced the status of a “Crown colony”. Cession was finally

agreed by the Brooke Government to on the understanding that Sarawak was not to be included in the

“Malayan Union” and on condition that Sarawak independence was to be restored.

It must now be seen that it had also falsely promised to restore Sarawak independence in 1963.

The so-called grant of “self-government” on 22 July 1963 was not the independence Sarawak had for 100

years. If it was “true independence” there would be no need to be in “Malaysia”. The declassified colonial

documents reveal that Britain and Malaya had already decided it would be a straight transfer of sovereignty

over the Borneo territories including Brunei to Malaya control and rule.

Britain had committed a deliberate shameful breach of the trust placed in them by the former Sarawak

Government by failing to honour their agreement to restore Sarawak independence and as reiterated and

demanded by Sarawak nationalists in 1963. It was a pre-condition which Britain had failed to comply before

pushing Sarawak into the Malaysia Agreement.

Britain cannot legally resort to arguing that there was any change by “intervening circumstances” (which

they deliberately instigated and manipulated to suit their justifications for forming “Malaysia” with

arguments of protecting Sabah and Sarawak from Indonesia's “Konfronstasi” and cold war theory of an

“communist takeover”) to so blatantly deny the Sarawak people from freely exercising their right to self-

determination.

It was Britain's legal duty to ensure that this right was exercised by allowing all parties to do so instead of

suppression with mass arrests of the nationalists. This act can only be described in the most undiplomatic

language that the British Government in the most underhanded fashion cheated the Sarawak people out of

their independence.

This point has been explained very well in the landmark book “Sarawak -The Real Deal” by Lina Soo

published in September 2013. Reader can follow up on all the important information reproduced in this

book on how the British went about suppressing the Sarawak nationalist anti-Malaysia movement before and

after the Brunei Uprising from Chapter 5 in the book onwards. The Preface to Ms. Soo's book also rounds

up the arguments against the formation of Malaysia in Appendix C.

Thus the incorporation of Sarawak into Malaysia was a fundamental breach of trust and terms of the

Cession treaty which must nullified the MA63 as Britain had deliberately refused to fulfil a prior treaty, the

pre-condition to restore Sarawak independence so their people can then freely decide on the Malaysia issue

if they chose to. Sarawak was transferred and remained as a colony in status up to and after 16 September

1963.

3rd

Argument

3. MA63 VOIDED BY BRITISH MALAYAN COLLUSION TO FORM MALAYSIA TO DEFEAT

SARAWAK SABAH INDEPENDENCE IN BREACH OF UNDD ARTICLE 5

UNDD Article 5

“5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories

which have not yet attained independence, to transfer all powers to the peoples of those territories, without

any conditions or reservations, in accordance with their freely expressed will and desire, without any

distinction as to race, creed or colour, in order to enable them to enjoy complete independence and

freedom.”

The proposal to form Malaysia was on its face an interference with the people's right to self-

determination according to Article 5.

The declassified British colonial documents give details of how Britain and Malaya had bilaterally colluded

and pre-determined the formation of Malaysia by entering into a secret pact to (cede or annex) transfer

sovereignty over the Borneo colonies directly to Malaya without independence. Both countries had acted in

contravention of the people's right to self-determination free from foreign interference. UN De-colonization

Declaration Appendix A Clause 6 & 7. Refer to Declassified Colonial documents.

https://www.facebook.com/media/set/?set=a.555523671156385.1073741839.335090303199724&type=1

See appendix M.

Clause 7 of the UN Decolonization Declaration clearly states that:

“All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the

Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-

interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their

territorial integrity.”

However, in discussions between Britain and Malaya between 1960 and 1963, the 2 parties had secretly

agreed to transfer sovereignty of the Borneo territories to Malaya with first giving independence.

In order to cover up their illegal act Britain proposed to set up the Cobbold Commission to carry on an

“inquiry” on Malaysia and the wishes of the people on the issue. The Commission was drenched in illegality

as it was intended to avoid holding a referendum as demanded by the nationalists and was not an

independent body but had a huge conflict of interest as it comprising of only British and Malayan nominees.

Further there is clear evidence from the facts that Britain and Malaya jointly used force to coerce the

Borneo countries into Malaysia under cover of suppressing the Brunei Uprising and the guerrilla

independence war. This is prohibited in the UNDD and established legal principles now codified in the

VCLT

“VCLT Article 52

Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the

principles of international law embodied in the Charter of the United Nations.”

MA63 was signed following suppression of the anti-British anti-Malaysia Tentera Nasional Kalimantan

Utara (TNKU) freedom fighters and sweeping “clampdown” with mass arrests of anti-Malaysia pro-

independence Sarawak nationalists under the Internal Security Act (ISA)1960.

This argument overlaps that in Point 4 and in this context we read the next point-

4. MA63 WAS VOID AS IT WAS MADE TO FACILITATE ANNEXATION OF TERRITORIES

WITH COERCION BY USE OF FORCE SEEN IN THE BRITISH MALAYAN SUPPRESSION OF

BRUNEI ANTI-MALAYSIA INDEPENDENCE UPRISING & SARAWAK NATIONALISTS IN

CONTRAVENTION OF “UNDD” (R1514).

This proposition raises 2 points of international law:

(a) The established law as codified in the VCLT Article 52

“Coercion of a State by the threat or use of force”

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the

principles of international law embodied in the Charter of the United Nations.

(b) Invasion and annexation of other countries are now illegal acts according to international law.

Case of Japanese annexation of Korea

https://works.bepress.com/young_kim/3/

“Direct annexation, the acquisition of territory by way of force, was historically recognised as a lawful

method for acquiring sovereignty over newly acquired territory before the mid-1700s. By the end of the

Napoleonic period however, invasion and annexation ceased to be recognized by international law and were

no longer accepted as a means of territorial acquisition. The Convention respecting the Laws and Customs

of War on Land (Hague IV, 1907) contained explicit provisions concerning the protection of civilians and

their property in occupied territories. The United Nations Charter also has related provisions.”

https://en.wikipedia.org/wiki/Acquisition_of_sovereignty

FIRSTLY- “Malaysia” was formed against the background of foreign political interference and British

colonial suppression of Borneo nationalists and with armed intervention by Malaya. This contravened Clause

4 to 7 of the UNDD (R1514). Appendix A.

Britain as the colonial power had the duty to de-colonise by allowing all the Borneo people to freely decide

their future without any conditions or reservations, according to the UNDD Article 5 cited above not to

mention that the 1946 Cession treaty was entered into on the understanding that Britain must restore

Sarawak independence. However Britain openly interfered with and restricted the right of the people by

imposing the Malaysia concept on them in place of giving them independence first as they had demanded.

Malaya as a foreign power had no legal right, mandate, authority or standing to interfere in Borneo affairs

by coveting and annexing the Borneo territories. It had colluded and pre-determined with Britain to interfere

and form “Malaysia” to deprive the people's right of self-determination in the Borneo colonies.

President Sukarno had correctly denounced this as a mere “transfer of the colonial office from London

to Kuala Lumpur”.

MA63 was therefore no more than a sham to legitimise the armed invasion and annexation by Malaya of the

2 territories under cover of forming Malaysia. Malayan armed intervention occurred when Malayan

armed forces entered Borneo to assist with the British suppression the anti-Malaysia TNKU forces

following the Brunei Uprising and later the guerrilla independence war in Sarawak was in reality an

invasion of Sarawak Territory. The country's legitimate resistance had to be “pacified” from 1962 to

1990.

The Brunei Uprising for national independence and to oppose Malaysia broke out on December 8, 1962

primarily after the British had illegally blocked the Brunei People's Party from forming government after its

landslide generation election win in the first and last Brunei General elections on 1962. The British ignored

nationalists' demands for independence and continued to harass and hinder the nationalists in their

independence campaign in Brunei, Sarawak Sarawak and North Borneo (Sabah). (Note: the Uprising

touched all three territories).

The Universal Declaration of Human Rights 1948 tacitly supports or condones the use of armed

insurrection or resistance by people to free themselves from the tyranny and oppression of colonial

rule.

“THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the

human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the

conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and

belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against

tyranny and oppression, that human rights should be protected by the rule of law, “

The Anti-Malaysia Brunei Independence Uprising was downplayed by Britain to avoid compliance with

the UN Decolonization Declaration and the inference of coercion in forming Malaysia.

The Brunei Uprising had broken out when the independence movement failed in its peaceful attempts to get

independence from Britain by negotiations in 1957 and then in 1962 when the Brunei Partai Raykat (Brunei

People's Party) won a landslide election on its anti-Malaysia platform. On both occasions Britain refused to

listen to or accept the legitimate demands of the independence movement for independence which it

proposed as a federation of the 3 Borneo t

Britain was in flagrant breach by not ceasing its armed aggression against the TNKU anti-Malaysia Brunei

independence Uprising and allow the parties to participate in the independence process but proceeded to

form Malaysia. See Appendix A Clauses 4, 5, 6 & 7.

MA63 was thus arguably nullified by Britain's coercion by use of force and deceit to enforce the Malaysia

concept on Sabah and Sarawak and foreign interference in the independence process. Read Appendix D & A.

SECONDLY, the conquest or forcible annexation of territory is illegal under the Convention respecting the

Laws and Customs of War on Land (Hague IV, 1907) containing explicit provisions in relation to the

protection of civilians and their property in occupied territories. The United Nations Charter also has related

provisions.

As stated above, MA63 was really part of the exercise to legitimise Malaya's annexation of the Sabah and

Sarawak territories as both the Malayan and British Governments had predetermined by the beginning of

1960. The Malayan army had entered Borneo territory as part of the Commonwealth force to suppress the

Brunei independence uprising and this was really an invasion to enforce Malaya's annexation.

Only Brunei successfully resisted both politically and with their armed uprising against the British Malayan

plan and opposed their violation of the international law principle that foreign states are prohibited from

interfering in the local independence process.

The British portrayed the Brunei Uprising as an “illegal revolt” against the Sultanate so it appeared to the

world that it was not about fighting for national independence.

However many people were fooled even till today by this propaganda line as they were unaware of the

background of the uprising and believed it was illegal.

If people are still unable to see this point they must realise that the British did indeed embark on a cruel and

vicious campaign against the nationalists under the pretext of an anti-communist campaign and made

sweeping arrests and detention without trial of over 10,000 people in Sarawak between 1961 and 1963.

The Sarawak arrests represented almost 1 in 75 persons in this country (Sarawak population approx 750,000

in the 1960 Census) many of whom were detained for long periods from 10 to 25+ years without trial well

into the late 1970s.

Before the Brunei Uprising, the British were already arresting and harassing nationalists in Brunei and also

Sarawak under the Restrictive Residence Regulations 1961 and the Internal Security Act.

The British repression and suppression of nationalists was not just a violation of the UNDD but it was a

major violation of human rights under the Universal Declaration of Human Rights 1948. The recent

successful UK court claim by the Mau Mau Independence fighters claim against Britain illustrates the

illegality of Britain' s anti-independence actions around the world.

Britain's failure to comply with the customary international law had nullified MA63 by its coercion by use of

force and deceit to enforce the Malaysia concept on Sabah and Sarawak and foreign interference in the

independence process. Read Appendix D & A.

A most important fact adding weight to voiding MA63 is it was made without a prior referendum to

seek consent of the Sabah and Sarawak people in breach of the principles in the UN De-colonisation

Declaration (UNDD) which confirmed the right to self-determination as an established customary

international law. See APPENDIX C The Joint Northern Borneo UN Memorandum.

The Sarawak United People's Party (SUPP) had made repeated demands for independence first before the

people should consider the Malaysia question. When it became clear Britain was stubbornly determined to

push ahead with Malaysia they demanded a plebiscite/referendum.

It meant that Sarawak should have been given full independence and the new government should consider

whether to enter into negotiations on the Malaysia proposal. This was Brunei's position and it was able to

negotiate and refused to sign MA63 at the last minute.

Thus it can be immediately seen that because Britain debased and reneged on an existing treaty the MA63

was null and void from the beginning without any legally binding effect as an international treaty. It cannot

be claimed that MA63 superseded the Cession Treaty which was debated in the British Parliament 1946 and

it was officially confirmed by the British government member that Sarawak independence was to be

honoured and restored.

The position of the nationalist movement is best summed up in the Joint Memorandum to the United Nations

by the Brunei People's Party, the SUPP and the United National Pasuk Memonggon Party of Sabah (PMP) in

Appendix B. The SUPP petition against Malaysia formation and demand for independence with over

110,000 signatures and the Joint UN Memorandum were ignored by the British and UN. The conclusion in

the Memorandum reiterated the Borneo nationalist case for independence and is reproduced below:

THE JOINT NORTHERN BORNEO MEMORANDUM

APPEAL TO UNITED NATIONS 1962

“18. The signatories to this memorandum appeal to the UN and urged that:

1. the UN should, in pursuance to its declaration and resolutions, intervene in the proposed

transfer of sovereignty in Sarawak and Sabah on the ground that such a transfer is a denial to

the peoples in these territories of their right to self determination and of their right to complete

independence.

2. Alternatively that a plebiscite organized and conducted by UN be held before such transfer of

sovereignty.

3. In accordance with the peoples’ freely expressed will and desire and our belief, a federation of

Union of the three Borneo territories viz Sarawak, Sabah and Brunei be brought about with

his Highness the Sultan of Brunei as the Constitutional Head of such Federation or Union.

Dated this 9th

September 1962.

The United National Pasok Momogun Party

(G.S. Sundang)

The Partai Rakyat of Brunei

(A.M. Azahari Mahmud)

The Sarawak United Peoples’ Party

(Ong Kee Hui) “

THE MANILA ACCORD: Under severe international criticisms and opposition especially by Indonesia

and the Philippines, Malaya tried to undermine the 2 countries' opposition by convening the Manila talks in

late July 1963. The first 2 named countries demanded that a plebiscite or referendum be carried out in the

Borneo territories to determine the people's wishes on Malaysia formation.

The Manila Accord signed on 31 July 1963 agreed to a referendum but it was made by Malaya in bad faith

(and negotiated without the Borneo people's consent and authority) as this turned out to be a deliberate fraud

by Malaya which did not proceed with a referendum on the Malaysia issue and to hasten formation of

Malaysia.

Britain and Malaya even amended the MA63 anticipating the formation Malaysia by 16 September 1963

before any “referendum” had been concluded! Malaysia was already pre-determined. See Page 106

Sarawak The Real Deal.

This pre-determination is further confirmed by U.N. Secretary U Thant who said the UN Assessment had to

be completed (under 2 weeks by a 9 man team in Sabah and Sarawak) to comply with the dateline for

formation of Malaysia on 16 September 1963!

5. MA63 & MALAYSIA CONCEPT WAS MADE IN “BAD FAITH” & CHANGED 3 TIMES

WITHOUT REFERENDUM OR PEOPLE'S CONSENT

On this point readers are refer to the longer comments in APPENDIX F.

The MA63 was manifestly Britain and Malaya's arbitrary intentions made in “bad faith” to transfer

the Borneo colonies to Malaya rule directly without giving independence. (Revealed in the declassified

British colonial documents).

The people in the colonies were illegally prevented from getting independence and having a referendum on

the “Malaysia question” and from re-examination and proper re-negotiation of terms and conditions for

forming Malaysia Concept which was changed 3 times between 1961 and 1965.

Any vigorous challenge or debate was suppressed following the Brunei Uprising and under the several State

of Emergencies declared in 1964 (Konfrontasi) and 1966 affecting Sarawak. The 1966 State of Emergency

was actually designed to suppressed any such discussion following Singapore's secession in late August

1965. They were further denied a “review” in 1973.

The Malaysia concept as originally proposed was to form Malaysia with 5 countries including Brunei.

However, Brunei freely chose not to be in the union and the concept was changed to 4 countries. When

Singapore freely seceded and gained independence from Malaysia, the concept changed again to 3 countries

in Malaysia.

This totally changed the original proposed structure of the federation. The consequences are still being

debated by politicians today especially in relation to the unfair distribution of Parliamentary seats and loss of

Sabah Sarawak parliamentary power and oil and gas rights and many other rights. Dr. Jeffrey Kitingan listed

“8 Losses” in Proposition 3 below.

That the Malaysia concept was conceived in bad faith purely to annex these territories to Malaya is seen in

how over 50 years Malaya has virtually repudiated the entire MA63 ( that is if it were at all “valid and

binding”). After 1965 Sabah and Sarawak were reduced to mere vassal “states of Malaya” or colonies as

many Sabahans and Sarawakians are seeing it now.

On the above rational it could also be asserted MA63 was void because both Britain and Malaya did not

enter into the MA63 in good faith and Malaya failed to comply with the Agreement.

The original Malaysia concept actually ceased to exist when Brunei rejected and withdrew

participation in the Malaysia formation negotiations.

Discussions here on "good faith"- "Pacta sunt servanda"- suggested readings:

http://www.britannica.com/EBchecked/topic/238692/good-faith

https://en.wikipedia.org/wiki/Pacta_sunt_servanda

Paper on principle of “Good Faith”:

http://anthonydamato.law.northwestern.edu/encyclopedia/good-faith.pdf

6. BRITAIN COULD NOT TRANSFER DISPUTED SABAH TERRITORY & SOVEREIGNTY

Sabahan Vidal Yudin Weil asserted in his article “Can Sabah and Sarawak Secede?” that MA63 was void

ab initio because Britain had no right to transfer Sabah territory and sovereignty which was being disputed

and claimed by the Philippines.

EXCERPTS FROM VIDAL Y WEIL'S COMMENTS “CAN SABAH & SARAWAK

SECEDE?”

“Official deceit which is one part of Machiavellian politics has always been the religion of

colonizers and one classic lie that has never fail to be used is “you need us to protect you from

yourself” has been said to the naive and brainwashed colonized population throughout the ages

until today.

We do not need to look far, actually; the present political drama unfolding in Malaysia that is

shaking right-thinking citizens reveals the unprecedented thievery and pretence perpetrated by

mendacious opportunists from both sides of the political divide is ample indications itself......

…...Before we proceed, it is necessary to recapitulate that the Malaysia Agreement is absolutely

void from the very beginning because Britain at all material times never had sovereignty over

the whole of Sabah to give away and the government of Malaysia like its predecessor the British

government is still paying annual rentals to the Sulu Sultanate in the Philippines until today.

The Latin maxim “nemo dat quod non habet” is a legal principle that says you cannot confer

property you do not own on another person except with the authority of the true owner or

simply put – you cannot give what you do not have.

For further reading, go to the Manila Accord which was signed on July 31, 1963 between Abdul

Rahman Putra, Soekarno, and Diosdado Macapagal; it is clearly and unambiguously

understood that the formation of Malaysia is subject to the claim of the Philippines on Sabah

being adjudicated in the International Court of Justice which Putrajaya is scared of going there

for fear of losing.

And worst, the more than 1.1 million people of Sabah and Sarawak at that point of time were

never consulted in a referendum whether they wanted Malaysia – only about 4,000 were

reportedly interviewed by the Cobbold Commission.

Backward society

We cannot really blame Sabahans and Sarawakians who suffer from collective issues of

ignorance because like the rest of Malaya today, for more than 50 long years, they have been

indoctrinated with falsified historical facts and fed with substandard education that taught them

“what to think” instead of “how to think” and living their entire lives on assumptions peddled

by cheats and liars.

Do readers know why are things becoming so complicated and bad here in Sabah now?

Because the people of Sabah are so gullible to the extent that they cannot even be trusted to

honourably do the right thing on their own volition during elections for their own good and that

of their descendants.

Suffice to say, the Sabah of today has remained a feudal and backward society since the British

left.

The fine example of Brunei not becoming a colony of Malaya, look at how they can do what

they want with their oil and gas wealth – poverty practically does not exists there; the success

story of tiny and resource-less Singapore who left Malaysia in 1965 being transformed into a

First World nation today profoundly confirms that both Sabah and Sarawak are incurable

failures of epic proportions.

Now, we go to the circus to showcase our clown of the day.”

SEE FULL ARTICLE IN APPENDIX I or on this Internet link:

http://www.freemalaysiatoday.com/category/opinion/2014/04/14/can-sabah-and-swak-secede/

[Owing to the time constraint the following short comments are made below. It is proposed that a fuller

discussion on the last 2 proposition below will be published at a later date.]

2. THE SECOND PROPOSITION IS: If the MA63 was valid, was it not abrogated by Singapore's

separation and independence from Malaysia in 1965?

An international treaty cannot be changed without the agreement and consent of all the parties. The bilateral

Singapore Separation agreement between Singapore and Malaya in 1965 was made without active

involvement of the other 3 signatory parties. The issue was secretly discussed with Britain which subtly

coerced the 2 countries to refrain from “secession” and impacted on the relation with Sabah and Sarawak

and Malaya for over 50 years.

The Singapore Separation Agreement basically changed the concept of Malaysia which should have been re-

negotiated. It effectively invalidated and abrogated MA63.

The Malaysia concept had effectively ceased to exist in 1965.

3. THE THIRD PROPOSITION IS: Assuming that the MA63 was valid despite propositions 1 and 2

above, there has been repeated fundamental breaches of MA63 by Malaya. Malaya in completely

repudiated MA63 by its 50 years of repeated non-compliance with and implementation of MA63 as an

international treaty.

The most basic principle of international law is that an international treaty must be made and kept in good

faith.

The current complaints by Sabahans and Sarawakians (based on the assumption that MA63 continue to be

valid) have not been faithfully complied with by Malaya which has assumed the alter ego of the Federation.

In international law if one party to the Agreement breaks this whether by deliberate act(s) of breach

or omission in its performance this constitutes a repudiation of the whole Agreement.

Dr. Jeffrey Kitingan has a good summary of Malaya's failure to keep good faith in complying with the

Malaysia Agreement 1963 in his Power Point KUCHING presentation (27 April 2014)

He listed 8 “losses” for Sabah and Sarawak in Malaysia:

1. Loss of Political Autonomy

2. Loss of State Franchise to patai

3. Loss of Oil Resources

4. Loss of Legitimate Role in Federation

5. Loss of Job Opportunities

6. Loss of Religious Freedom

7. Loss of Dignity

8. Loss of Independence

He said that since Malaysia was an absolute failure there are 3 options to resolve this problem:

1. DO NOTHING – ACCEPT AND SURRENDER

2. GIVE UP AND LEAVE MALAYSIA

3. DEMAND FOR SOLUTIONS AND REVIEW AND RE-NEGOTIATE MA63

The last 50 years have seen Malaya totally reneging on the terms and conditions of the MA63 under

circumstances which Dr. Kitingan describes as the colonies of Sabah and Sarawak having gone round in full

circle and became colonies again.

This reflects that Malaya had really made the MA63 in bad faith and had no intentions to abide by the

agreement. Malaya had repeatedly made material breaches and thus repudiated all the fundamental terms and

conditions of MA63

VCLT ARTICLE 60 formalising established legal principles says that

“3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.”

If MA63 has been repudiated, the obvious question is why would Sabahans and Sarawakians want to

reinstate Malaysia which is illegitimate and as the last 50 years have demonstrated beyond doubt that

Malaysia is fact as its name implies is pure “BAD FAITH”.

“MALAYSIA” was Britain's “grand design” in collusion with Malaya to preserve its strategic and economic

interests which fitted in with UMNO's supremacist Melayu Raya expansionist plans or “Greater Malaysia”.

50 years have been more than enough time to prove that reinstatement of Malaysia is not an option. The real

option is for Sabahans and Sarawak to accept Malaya's repudiation and take their countries out of Malaysia.

CONCLUSION

The conclusion is, if the Malaysia Agreement is “void” and “illegal”, the people of Sabah and Sarawak

are not bound to remain in a unequal and unfair relationship with Malaya which many see as no more

than a colonial master-and-slave relationship with their country being plundered and their people

marginalised into greater poverty than before 1963.

If MA63 is illegal, Malaysia only exists as a de facto state whereby Malaya is controlling Sabah and

Sarawak without any legal right. The issues of decolonization and independence become relevant.

Many Sabahans and Sarawakians are asking, was “Malaysia” really a “decolonization plan or a re-

colonization plan”?

They have seen how the structure of colonization has been built up now with virtual direct federal (read

“Malayan”) control of Sabah and Sarawak, “Malayanization” in place of “Borneonization” and

imposition of the UMNO's race and religion supremacist agendas on Sabah and Sarawak and the blatant

plunder of their resources at the expense of their people.

They see they have not benefited from the promised “security and prosperity” for the formation of Malaysia

but are the victims of what many are calling a “fraudulent independence scam” for over 50 years.

Countries like East Timor, South Sudan and Crimea have chosen independence from what was as an unequal

and submissive colonial relationship. Scotland will for similar reasons be voting in its independence

referendum on September 2014.

So it is not surprising that in the past year we have seen a growing movement of mostly young people coming

out to assert their rights in the slogans “Sarawak for Sarawakians!” and “Sabah for Sabahans”!

I thank the organisers of this forum for enabling this paper to be presented and I thank all Sarawakians

nationalists and other friends here today for their patience in listening to the propositions that the Malaysia

Agreement was not validly made.

Thank you very much.

Robert Pei -

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of the opinions expressed therein.

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