Tuesday, 23 December 2014

M'sia a permanent marriage, workshop told

KOTA KINABALU: The formation of Malaysia is a "marriage" forever, so the question of secession from the federation does not arise.

That was how the organisers of the Workshop on the Historical Truth Behind the Formation of Malaysia and the Way Forward summed up the discussion at the end of the day.

Another way of putting it is that legally speaking, Sabah cannot secede from Malaysia as the Federal Constitution does not allow it. It is unconstitutional as reiterated by constitutional law experts in the country.

The workshop was organised as an academic exercise by the Centre for Society Empowerment & Democratic Studies (Seeds), chaired by Datuk Badil Zaman Fazul Rahman.

Several guest speakers at the workshop concluded that "No Secession" was the wish of the founding fathers of Malaysia.

Prof. Emeritus Dr D.S. Ranjit Singh of Universiti Utara Malaysia (UUM) pointed out that even Point 7 (Right of Secession) of the 20-Point Memorandum itself clearly indicates no secession from Malaysia.

"There shall be no right to secede from the Federation of Malaysia," he said.

Senior practising lawyer S. Vanugopal stressed that the 20-Point Memorandum has always been referred to as the basis of the pre-conditions for participation of Sabah and Sarawak (18-Point Memorandum) in Malaysia.

"So if the 20-Point Agreement is to be honoured as part of the constitutional documents on the formation of Malaysia, particular attention must be accorded to the wishes of the founding fathers to be in Malaysia forever. Secession is not possible," he said.

A Daily Express check with the State Attorney-General's Office did not find anything to this effect.

A revisit of the 20-Point Memorandum and Malaysia Agreement 1963 made it clear that the 20-Point is not legally binding (contrary to what certain leaders have told the rakyat) because it is not part of the Malaysia Agreement. These were constitutional safeguards for Sabah in Malaysia.

One contention is that the country as a whole cannot operate by referring to the 20-Point Memorandum. No country can operate that way as it has to function on the Constitution. CEO of Seeds, Dr Arnold Puyok, could not agree more.

"Definitely not on the Malaysia Agreement and neither on the 20-Point Memorandum but on the terms agreed upon (pertaining to Sabah and Sarawak joining Malaya and Singapore to form the Federation of Malaysia).

"And these are enshrined in the Federal Constitution. It's already incorporated into the Federal Constitution," he said.

In his presentation on Formation of Malaysia: Revisiting the IGC Report, the 20-Points and the Malaysia Agreement 1963, Prof. Emeritus Dr Ranjit Singh said five political parties of Sabah submitted a memorandum on the 20-Points to the Inter-Governmental Committee (IGC).

"These parties were Unko, Usno, U.P, D.P and Pasok Momogun," he said.

According to the historian, one of the reasons for the formation of Malaysia was the do-colonisation theory.

"It was mooted as a solution to problems of British decolonisation. Apart from Tunku Abdul Rahman's willingness to help the British solve those problems, it was his desire for territorial expansion, and this led to the historic announcement on May 27, 1961," he said.

Prof. Dr Ranjit defended his action of revisiting the Malaysia Agreement 1963 when a participant felt that we should focus on "The Way Forward".

"Why can't we revisit for clarification? If you don't, there is no basis also to fall back on.

What is important is actually to present the correct, factual information to the people of Sabah.

"All we want to do is give the correct perspective. My job as a historian is to see that this is done. So, if there is some misinterpretation somewhere, we have to go back to see what was the right thing based on historical documents," he asserted.

At the academic exercise (also regarded by the organisers as an intellectual discourse), several other related questions and doubts were raised for clarification.

For instance, participants posed the question as to whether the last Governor of British North Borneo (now Sabah), Sir William Goode, left on Aug 31, 1963 after the declaration of Sabah's independence from the British. Or did he leave only on Sept 16, 1963? Some insisted that he left Sabah on Aug 31 while others disagreed.

The argument was: If Goode left on Sept 16, then what was Sabah's status during the period from Aug 31 to Sept 16? Was Sabah truly independent or was it still under the control of the British or did we have self-government?

A Daily Express check with the State Archives found that Goode left at midnight on Sept 15, 1963 after the lowering of the Union Jack for the last time. The event was published in the Kinabalu Sabah Times. It is also illustrated on Page 154 in the history book entitled Sejarah Sabah Dalam Gambar.

Did Sabah become independent on July 31, 1963 or Aug 31, 1963 and remain independent till Sept 16, 1963? The answer is "No" from senior practising lawyer S. Vanugopal.

Going by historical records, the Malaysia Agreement 1963 was signed in London on July 9, 1963 by the Governments of United Kingdom, Federation of Malaya, North Borneo, Sarawak and Singapore to form Malaysia.

l By Article II of the Malaysia Agreement, Malaysia was to be brought into effect on Aug 31, 1963 (Malaysia Day) by an Act, that is, Malaysia Act 1963.

l What transpired in the British Parliament to give effect to the Malaysia Agreement 1963 was: The Malaysia Act 1963 was passed in the British Parliament on July 31, 1963 to relinquish sovereignty and jurisdiction over Sabah, Sarawak and Singapore and to vest jurisdiction in the Government of Malaysia on Malaysia Day.

l Malaysia Act 1963 was passed in the Malayan Parliament on Aug 20, 1063 to bring Malaysia into being on Aug 31, 1963.

l However, what many (including History teachers, young historians and young lawyers for that matter) may not know is this – Owing to unavoidable circumstances resulting in the Manila Accord 1963, the Malaysia Agreement was amended on Aug 28, 1963 to change Malaysia Day from Aug 31, 1963 to Sept 16, 1963.

l Orders-in-Council were made by Her Majesty on Aug 29, 1963 to give force to State Constitutions to take effect immediately before Malaysia Day.

l Proclamation of Malaysia on Sept 16, 1963.

All this was revealed by Prof. Dr Ranjit and Vanugopal in his paper on "Legal Aspects of the Formation of Malaysia and Constitutional Issues in Federal-State Relations".

"In the signing of the Malaysia Agreement 1963 in London, Sabah was represented by Tun Fuad Stephens, Tun Datu Mustapha Datu Harun, WKH Jones, Datuk Khoo Siak Chiew, Colonial State Secretary Stephen Holley and Datuk G.S. Sundang," Prof. Dr Ranjit said.

"The Malaysia Agreement 1963 has 11 articles. The consequential amendment is that the effective date of Malaysia Act shall be on Sept 16, 1963.

"Therefore constitutionally, Sabah was never independent on Aug 31, 1963. To argue otherwise is to ignore the constitutional documents," said Vanugopal, adding that the 20-Point Memorandum and Malaysia Agreement 1963 are only two of the many constitutional documents relating to the formation of Malaysia.

As a matter of intellectual discourse, one oft-repeated question was raised at the workshop. Have the constitutional powers of Sabah and Sarawak eroded?

"Yes," said Vanugopal. "You cannot deny that."

How did the dilution of some constitutional powers come about?

He attributed it to the voluntary surrender by the State Government of Sabah that gave away the rights enshrined and protected in the Constitution (for example, the State religion and use of English).

His book entitled "The Constitutional Rights of Sabah and Sarawak", touched on, among other things, two major amendments made to the State Constitution in 1973.

These were to make Islam the State religion and to make Malay an official language in the State Cabinet and Assembly (First Bill). The Second Bill (National Language (Application) Enactment, which was also passed, extended the National Language Act 1963/67 to Sabah, and this had the effect of terminating the use of English.

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