 |
| Robert Pei |
The date 22 July 1963 was declared as “Sarawak Independence Day” and gazetted as a public holiday on 20th May 2016 to the credit of the late CM Adenan Satem.
In doing so he was appeasing and acknowledging Sarawakians’ deep aspirations for freedom and independence from foreign rule and control, by saying that Sarawak did not become free from British colonial control to be controlled by another country. We all know which is that other country.
It is a unique day because it legally recognises and celebrates Sarawak independence when we are yet to achieve this. It could be interpreted as Sarawak’s UNILATERAL DECLARATION OF INDEPENDENCE. It serves to fuel the ongoing debate and demands for real Sarawak Independence.
722 connects with what happened 77 years ago when Sarawakians bravely rose up in the anti-Cession struggle (1946 to 1950) to resist the British annexation of our country and turn Sarawak from an independent state into a crown colony. In the anti-Cession struggle, 4 Sarawakians were martyred and many more in the 1960s struggled for Sarawak independence.
They all left their footprints in our history book and they will always be remembered for their selfless contribution and personal sacrifices.
722 however was not real self-government or independence day for Sarawak. It was the day when the newly elected Sarawak Colonial Cabinet with Stephen Kalong Ningkan as Chief Minister, was nominated and sworn into office in the colonial legislature, by the British Governor 13 days after the Malaysia Agreement (MA63) was signed on 9 July 1963.
Self-government was not nominally declared by the foreign UK masters until the new Sarawak constitution came into operation on 31 August 1963. Even then it was agreed by the colonial governors that Sarawak and Sabah remained under the full control of the UK till Malaysia Day on 16 September 1963 when they were into the Malayan Federation.
The then Malayan government strongly opposed the grant of self-government as it was secretly agreed with the British government that Sarawak and Sabah were to be transferred to the Malayan Federation without independence under the "Agreement to Set up the Federation of Malaysia" signed on 31 July 1962.
The Malayan government mistook the "self-government" as a grant of independence to Sarawak and Sabah on that date.
But as the British colonial secretary Duncan Sandys explained on 31 August 1963, the grant of independence for any British territory must be done by an Act of Parliament in London. This Act was never passed for Sabah and Sarawak nor for Singapore. PM Lee Kuan Yew's unilateral declaration of Singapore's independence on 31 August 1963 was rejected by the British government as illegal.
But on 16 September 1963, Sarawak did not achieve “independence in Malaysia” as proclaimed by CM Ningkan. The British simply handed Sarawak and Sabah over to the Malayan Federation renamed Malaysia. It is legally absurd that any country could be independent under the jurisdiction of another country. So Sarawak never gained any independence.
722 is therefore just another detour on our long road to real independence. It serves as a yearly reminder that we must continue to work very hard to achieve this long-awaited day when we shall be truly free from foreign control and be an independent state again. It marks the incomplete decolonization of Sarawak. Full decolonization should have delivered an independent “stand-alone state” as from 1841 to 1941.
In response to the ongoing public debate and demands for self-determination in Sarawak, Prime Minister Mahathir was reported on 5 July 2019 as saying that police action “will only be taken under the Sedition Act against those who call for Sarawak’s secession from Malaysia if they jeopardised public order and security”. He said this position was taken in line with the new government’s policy of freedom of speech.
Prior to the Prime Minister’s statement, SSRANZ was singled out for mention at Parliamentary Question and Answer session at the beginning of July 2019. A member rose to make the allegation that SSRANZ was challenging the legitimacy of the government and “giving Malaysia a bad name”.
The questioner had asked what the government would do about this and the deputy Foreign minister said that action would be taken against the NGO’s members on basis of police reports lodged against them on their return. So we must ask how has our exercise of freedom of speech threatened the peace and security of the country? It has been very peaceful and quiet in Sarawak.
We note to our knowledge that in fact, Sarawakians have held all 722 activities and other events in the most peaceful and law-abiding manner since 2013 without any untoward incidents. And Sarawak Independence Day is a legal public holiday which we are entitled to celebrate openly with rallies and marches and other activities.
SAPA was banned on allegations of conducting activities which might threaten the peace. However, SAPA’s challenge to the legality of the ban was vindicated by the Court of Appeal that the ban was unconstitutional for breach of natural justice and SAPA was entitled to freedom of speech. SAPA registration was reinstated and the Minister of Home Affairs was subsequently charged with criminal offences.
What SSRANZ has been challenging is that Sarawak and Sabah were not properly decolonised in accordance with international law in 1963 and their incorporation into the Malayan Federation did not lawfully comply with the people’s right to self-determination. In other words the legitimacy of Malaysia is questionable.
SARAWAK INDEPENDENCE FROM MALAYSIA IS A RIGHT TO BE DECOLONISED AND NOT ABOUT "SECESSION"
Secession implies that we freely partnered with Malaya, Singapore and North Borneo to form Malaysia pursuant to MA63. However it is not a call for secession from Malaysia like Singapore which was able chose to “merge” with Malaya. It is a call for Sarawak independence because we believe our country Sarawak was unlawfully integrated into the Malaya federation without allowing the people to freely exercise their right to self-determination in accordance with UN resolutions and international law.
However, international law does not prohibit secession. To do so would be contrary to the right of self-determination. Thus Lord Lansdowne the IGC chairman himself stated in 1963 that any state voluntarily entering into a federation has the intrinsic right to secede at will. The former Prime Minister Mahathir acknowledged that we are entitled to ask for independence.
It was on this issue, that SSRANZ President has publicly called on PM Mahathir to show magnanimity by convening a meeting of the Sarawak Government, all community and NGO leaders in Sarawak to discuss the question of setting Sarawak free for independence.
We wish to emphasize that Malaysia was apparently formed pursuant to the Malaysia Agreement 1963 (MA63) and the UK registered this as a treaty with the United Nations and therefore it is comes within the jurisdiction of the UN International Court (ICJ) to adjudicate on any legal issues affecting Sarawak’s position in Malaysia.
It is our considered conclusion based on legal research that the validity of MA63 is challenge-able as it was tainted by a great number of illegalities and voided by breaches of international law:
MA63 was void ab initio or null and void from the beginning and not a binding legal agreement as it was made in violation of the established international legal principle that colonies are not independent sovereign states with capacity or competence to make international binding agreements or treaties. This violation was this done by the UK, with prior knowledge and warning that Sarawak and Sabah were not sovereign and should not be signatories to MA63. This principle was affirmed by the ICJ in the Chagos Islands case in February 2019.
The Malaysia Plan was preceded by a secret Anglo-Malayan “Agreement to Set Up the Federation of Malaysia” signed on 31 July 1962 containing a clause to allow the UK to declare Malaysia in the event it was necessary to do so before the agreed date and this was stated in Article 2 of the UK Malaysia Act. This means Malaysia was pre-determined bilaterally and unlawfully excluded the Sarawak Sabah people’s right to exercise real self-determination.
Further MA63 was voided by the UK’s failure to comply with UN Resolution 1541 before MA63 was signed, to hold a referendum to lawfully allow the people to freely and voluntarily exercise their right to self-determination- Chagos case. It set up the so-called Cobbold Commission to”inquire” on the people’s wishes on Malaysia.
The UK failed to complete its 1946 undertaking publicly given in the annexation of Sarawak that it would not include Sarawak in the Malayan Union and to abide by our 1941 (Centenary) Constitution and the 9 Cardinal Principles to devolve power to the people. This meant that as Sarawak was an independent state up to 30 June 1946, the devolution of power should be done together with restoring Sarawak independence. Such an undertaking is binding under international law and irrevocable.
The UK failed to comply with the Manila Accord conditions (signed on 31 July by Malaya with Indonesia and the Philippines) that the people’s wishes in Malaysia be properly assessed by way of a plebiscite which was negotiated in the Manila Talks (insisted on by Indonesia) and resolution of the Philippines’ Sabah claim.
The United Nations assessment was a sham since the conclusions were decided beforehand as revealed in a document in which UN officials assured the UK that the UN assessment team would be hand-picked to deliver a result favourable to the UK position.
If MA63 was not void ab initio, Singapore exit “destroyed” the basis of 4 component countries forming the federation. The merger of Singapore with Malaya was the central objective of the UK’s strategic plan to consolidate its South East Asian territories. According to Lord Cobbold if Singapore were left out from the federation, there was no relevance for Sabah and Sarawak to be in it.
If MA63 was not avoid ab initio, MA63 has been terminated by the Federal government’s multiple wilful breaches of MA63 terms and conditions guaranteeing “autonomy rights and powers”, especially the UK and Malayan declared main objective of the development or Sarawak and Sabah.
MA63 is not recognised by the Federal Constitution and the Federal government confirmed this by refusing to amend the Constitution to include the 6 words that Malaysia was formed “pursuant to the Malaysia Agreement 1963” as required by the Sarawak state government, and the fact that Sarawak and Sabah are not included by definition of the federation which the Constitution states is the 1957 Federation.
For an international treaty to become part of binding international law it is required to be promptly registered with the UN. The registration of MA63 with the UN in 1970, 7 years after it was concluded breached Article 102 of the UN Charter which required the prompt registration of all international treaties. MA63 was not in force as an international treaty for 7 years- so how could it be binding and validly authorise the establishment of Malaysia? Further, the failure to do so will incur the penalty that it could not be invoked at a dispute before a UN tribunal. If MA63 was not registered for 7 years it raises the question whether it was concluded effectively according to international and whether it was nullified by this failure to register promptly?
By a letter dated 10 Jun 2020 we raise with the UK Government the MA63 legal issues outlined above as it was responsible for making the treaty and to call on it to resolve the many problems created by the treaty. http://www.ssranz.com/.../ssranz-criticises-british-prime...
The UK Foreign Minister Jeremy Hunt acknowledged that the UK would honour its treaties. He was reported on 02/07/2019, as saying The UK signed an internationally binding legal agreement in 1984 that enshrines the 'one country, two systems rule', enshrines the basic freedoms of the people of Hong Kong and we stand four square behind that agreement, four square behind the people of Hong Kong,"
"There will be serious consequences if that internationally binding legal agreement were not to be honoured."
This statement was made in context of the Hong Kong mass demonstrations opposing the proposed bill to empower the Hong Kong Government to authorise extradition of suspects wanted for crimes committed overseas.
The same admission of the UK’s treaty obligations was expressed in relation to MA63 by his predecessor the Colonial Secretary Duncan Sandys who had advised Sir Geofroy Tory (British High Commissioner to Malaysia 1963) in a telegram on the Malaysia Agreement 1963 (MA63, which transferred sovereignty over Sarawak and North Borneo (Sabah) to Malaya) in Sept. 1963 (quote):
“Having transferred sovereignty to Malaysia, subject to the conditions contained in the London Agreement, any breach of those conditions would constitute a breach of an agreement concluded with the British Government, who would have a continuing interest in this matter”.
We must therefore hold the UK responsible for the big mistake it created!
722 is to be seen as part of the process by which the UK had in stages integrated Sarawak with the Malayan Federation renamed “Malaysia”. The false promotion of 722 by many academics and politicians was used to fool Sarawakians into believing that they achieved independence and freely participated in the formation of Malaysia. Perhaps those educated people were unwittingly fooled themselves and did not know any better.
The fact that 722 is not real “independence day” is however useful to confirm and highlight that MA63 was void ab initio or null and void from the beginning and not binding.
Under international law only sovereign independent have the legal capacity to enter into international agreement. Colonies are not sovereign states but under foreign rule. If 722 was truly Sarawak independence day, then Sarawak was still a colony and not independent when it purportedly signed MA63 on 9 July1963!
IF MA63 was not binding nor recognised by the Malaysian Constitution and Federal Government, Sarawak as well as Sabah have no reason to be in the federation. If the decolonization of Sarawak has not been finally completed, then we also expect that this be done as soon as possible as ruled by the ICJ in the Chagos Case.
As a Sarawak State Minister said recently “Malaysia” was only a political arrangement and by implication “secession” was always an option.
Our patriots are all here today to show that the British Malayan trickery and wrongful acts cannot stop us from continuing to peacefully demand our independence whether before or after 1963.
BERSATU SARAWAK UNTUK KEMERDEKAAN!
With warmest regards
Robert Pei,
President Sabah Sarawak Rights Australia New Zealand (SSRANZ) Australia
Post a Comment