Thursday, February 09, 2023

No more 'Federation of Malaya' - a hurdle to 're-negotiation' or enforcement of rights under MA63? Better a negotiation involving all States - nay, all Malaysians when in concerns Parliamentary Seats?

As the discussions happening now with regard to MA63, may lead to Sabah and Sarawak getting more Parliamentary Seats - maybe one third of all Parliamentary seats, it is a matter of concern for ALL all States. {The rationale then could have been to prevent the amendment of the Constitution to the detriment of Sabah and Sarawak, but then a solution to protect such rights could be a requirement of more than two-third majority, say 80% when the amendment risk existing rights of Sabah/Sarawak...)

This discussion or move must involve all Malaysians - ALL STATES in Malaysia, Anwar Ibrahim or the current Malaysian government cannot decide on their own > because also this does not concern PM Anwar and the current government.

MA63 - What exactly is that? Well, that was an agreement between the then British Colonial government(the 'United Kingdom of Great Britain and Northern Ireland'), Sabah(North Borneo), Sarawak and the 'Federation of Malaya'...and Singapore. 

Mind you, it was not an agreement where the current Malaysian government was a party - but the now non-existent 'Federation of Malaya'.

PM Anwar Ibrahim and the current Malaysian Government, I believe have no right to represent the Federation of Malaya in the discussion/negotiations with Sabah and Sarawak. Did the Federation of Malaya States give PM Anwar Ibrahim and the Malaysian government the power to negotiate and agree on behalf the States in Peninsular Malaysia?

The Federation of Malaya can, in my opinion, only be represented by the various state governments and Rulers of the States in Peninsular Malaysia. PM Anwar and the current Federal Government should just sit in as 'Observers' only, as they represent the whole of Malaysia including Sabah and Sarawak.

Parliamentary seats - well, this has been an issue for some time. It is absurd that some Parliamentary Constituencies have about 300,000 constituents, and others only about 30,000. This means Malaysians have suffered inequality, in the right to be represented in Parliament. Reasonably, all Parliamentary seats ought to have about the same number of constituents. Area covered by an MP may be a factor to be considered. 

the biggest parliamentary seat, Bangi has about 300,000 voters, the smallest seat Igan in Sarawak has about 28,000 voters.

We have been Malaysia since 1963, and people from various states have moved, even today registered as voters in different constituencies where they vote for their MPs. So, too have been the case of people from Sabah and Sarawak - where many today are registered voters in Peninsular Malaysia states, and may have even elected to remain in other States, not the States they were born in or their parents(or fore parents) come from. Hence, the idea of individual State entitlement to the a particular number of Parliamentary seats may be no longer relevant.

In Malaysia, sadly since formation, development have favoured certain States. In Peninsular Malaysia, the West Coast States benefited so much more compared to the East Coast States of Peninsular Malaysia. Whilst the we are talking about double-tracking and high speed trains, and LRTs - the East Coast states of Peninsular Malaysia still only have them old slow trains, with relatively poorer services. It is not only transport services, but also other matters that even sports facilities. Most towns do not have public swimming pools, and government sports facilities - even in Pahang, which have had 3 Malaysian Prime Ministers. More importantly are the welfare facilities, health, education, etc...

There are thus many issues that warrant a State-Federal discussion to ensure a more equitable distribution of wealth and resources, as such it may be BEST for a full scale Federal-State government discussion, rather than just one involving Sabah and Sarawak.

Whilst Federal Territories benefited from federal funds, many a State relied on limited State resources, noting some States simply have lesser resources than others. 

There may also be a need to review the State and Federal list - which determines responsibility. Should the issue of environment matters including forest preservation/management now come under the jurisdiction of the Federal government - noting that what happens in any State impacts on all Malaysians anywhere. Climate change and its impact is serious. Should not the Federal government compensate States for the preservation of their forest? 

It is true that Sabah and Sarawak may have largest number of poor - this needs attention from all other States and the Federal Government. Maybe, the responsibility of dealing with ending poverty must be made a Federal responsibility - as the Federal Government may have much more funds and resources to deal with such problems..

MA63: One-third parliamentary seat composition for Sabah, S'wak still in discussion stage - Fadillah [NSTTV]

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KUALA LUMPUR: Returning the one-third seat composition in the Dewan Rakyat for Sabah and Sarawak as stipulated in the Malaysia Agreement 1963 (MA63) is still in the discussion stage, said Deputy Prime Minister Datuk Seri Fadillah Yusof.

However, he said the matter will take two to three years to complete as it needed to go through many stages including three main committees, namely the MA63 Steering Committee; MA63 Technical Committee and MA63 Implementation Action Council, as well as involve various parties.

Fadillah said the MA63 Technical Committee chaired by him would discuss issues related to MA63 based on topic and give priority to those that did not involve complicated legal or technical matters.

"Once it is decided at the technical level, it will then be taken to the Implementation Action Council for final approval before being presented to the Cabinet to make amendments to all related laws.

"So the process is still long. We also have to get Cabinet approval, before tabling it in Parliament which requires a two-thirds majority support," he told reporters after appearing as a guest on RTM's 'Naratif Khas Bersama Timbalan Perdana Menteri' programme

Earlier in the programme, Fadillah who is also Plantations and Commodities Minister said that the one-third parliamentary seat allocation for Sabah and Sarawak was important as it would not allow the peninsula to amend the Constitution that may eliminate the rights of the two states as enshrined in MA63.

In addition to the parliamentary seat allocation, he said the return of autonomy of education and health to Sabah and Sarawak was also currently in the discussion stage.

On the 'Sarawak First' slogan, Fadillah said it was created to restore the spirit of the people of Sarawak to together build and develop Malaysia.

He said although there were calls for Sarawak to leave Malaysia, the Gabungan Parti Sarawak (GPS) leadership has expressed its commitment that the state will remain as part of Malaysia.

– BERNAMA - NST, 1/2/2023




5 Facts You Didn't Know About The Malaysia Agreement 1963

over 5 years ago fadzel





This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

[Note: This article was originally written in July 2017]

Shortly after the Federal Government's announcement of tourism tax that's slated to take effect in July, the Sarawak state government made a surprise move by withdrawing its state representative from the Malaysian Tourism Board with immediate effect.

This move is believed to be a result of Sarawak's request for the July implementation to be postponed to a later date, which was denied. But what's interesting is that Sarawak State Minister of Tourism Datuk Abdul Karim Rahman Hamzah said that tourism was a matter to be discussed as part of the Malaysia Agreement 1963:

“If they do not want to defer it in Semenanjung, that is up to them. But at least defer it in Sabah and Sarawak ... You have to respect the Malaysia Agreement 1963. And another thing ― the state government must have some say in the matter; maybe the state government wants part of the tax collected to be returned." - Datuk Abdul Karim Rahman Hamzah, as quoted by The Maiay Mail Online.

In even more recent news, current Sarawak Chief Minister Abang Johari Openg announced he was sending a team of lawyers to London to study details of the Malaysia Agreement:

"This agreement is not simply an agreement; we want to get the facts right because if we want to make a claim, we must do our homework, otherwise we are just shooting at the target without hitting it." - Abang Johari Openg, as quoted by Malaysiakini.

So.... what's the Malaysia Agreement all about?

As a quick refresher on what you read about in school textbooks, the Malaysia as we know it today was initially formed as the Federation of Malaya on 31st August 1957 in accordance with the Federation of Malaya Agreement:

Article 3, Federation of Malaya Independence Agreement (in part):

"As from the thirty-first day of August, nineteen hundred and fifty-seven, the Malay States and the Settlements shall be formed into a new Federation of States by the name of ... the Federation of Malaya..."

However, this did not include Sabah and Sarawak. This inclusion actually came about later, when another agreement was signed which led to the merger between Sabah, Sarawak and, briefly, Singapore and the Federation of Malaya to form the present day Federation of Malaysia.

That agreement is the Malaysia Agreement 1963 (MA63), which set out the terms and conditions in which the three states agreed to merge the Federation of Malaya to form Malaysia:

Article 1, Malaysia Agreement 1963

"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."

Aside from being the crux of the debate for greater autonomy for East Malaysia and (now) the tourism tax issue, the MA63 is a pretty fascinating document. For instance, did you know...


1. MA63 is an INTERNATIONAL agreement

Signatories of the Malaysia Agreement arriving in London on July 12, 1963. Image from The Borneo Post.

MA63 is an international agreement, registered in the United Nations on 21 September 1970, bearing the registration number 10760. Being an international agreement, this means the Malaysia Parliament has no authority to amend the terms of MA63.

What the Parliament can do is pass new law to give legal effect to an international treaty. For example, the Parliament passed the Malaysia Act 1963 to give legal effect to MA63. Certain parts of the Federal Constitution have also been amended to incorporate the terms of agreement made between Sabah, Sawak and Malaya during the formation of Malaysia.

The Federal Constitution is said to have been amended over 700 times since 1957, but the terms contained within MA63 have remained unchanged since the day it was signed in 1963, as it is beyond the Parliament's jurisdiction to amend it.


2. Unlike Malaysian laws, MA63 cannot be changed in the Malaysian Parliament

The only way the terms within MA63 can be amended is for all the signatory parties to sit down together as peers and amend it.

This is due to the fact that MA63 is an international treaty, not a piece of law that the Parliament has legislated.As mentioned in the previous point, the Parliament has no legal right to amend an international treaty.

In practice this would mean Sabah, Sarawak, the federal government and the United Kingdom would have to sit together and renegotiate the terms in order to change it.

Unlike the Federal Constitution which can be amended by the Malaysian Parliament, MA63 and IGC Report can never be amended by anyone, unless the territories that originally signed it decided once more to return to the negotiation table and re-negotiate a new future- Zainal Ajamain, Sabahan rights activist & author, as quoted by The Malay Mail Online


3. Sabah and Sarawak have the authority to enforce MA63 on their own

Tan Sri Adenan Satem. Image by Norman Goh from Malaysiakini.

Article 8 of MA63 says that Sabah and Sarawak can take their own measures to enforce and implement MA63, without having to amend the Federal Constitution.

Article 8, Malaysia Agreement 1963 (in part):

The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings, recommendations….in so far as they are not implemented by express provision of the Constitution of Malaysia

In November 2016, then-Chief Minister Datuk Patinggi Tan Sri Adenan Satem initially proposed a motion to reclaim Sarawak's rights under MA63 in the state assembly, but this was withheld at the last moment.

If the motion went ahead, it could be seen to be as the Sarawak state government using its right under Article 8 of MA63. Instead the state government opted on a diplomatic approach with the federal government on resolving the issue of unfulfilled rights under MA63.


4. Sabah and Sarawak has extra autonomy to make decisions because of MA63

Sabah and Sarawak joined Malaya in forming Malaysia with the understanding that there will be guarantees within the Federal Constitution to protect their rights and privileges.

These guarantees and safeguards have since been inserted into the Constitution and relevant laws. Some of these privileges include:

Non-Sabah and Sarawak lawyers do not have the right to practise in Sabah and Sarawak courts (Article 161B).

As a result of Article 161B, lawyers from Peninsular Malaysia are not allowed to practise in Sabah and Sarawak without applying for a licence from the High Court of Sabah and Sarawak. Even if they have the obtained the licence, they would still have to apply for a work permit from the state Immigration Department.

Sabah and Sarawak still have the right to use English in its state assembly and court proceedings (Article 161(1) and (2)).

Article 161(1) forbids any law that restricting Sabah and Sarawak's right to use English for official purposes until after ten years from 16th September 1963.

As of today the National Language Act 1963/1967 has not yet come into force in Sarawak. This means that it is still not mandatory for the state to use Bahasa Malaysia in government departments and state ministries.

Section 1(2), National Language Act:

This Act shall come into force in the States of Sabah and Sarawak on such dates as the respective State Authorities may by enactments of the Legislatures of the respective States appoint and different dates may be appointed for the coming into force of different provisions of this Act in those States.


5. Sarawak and Sabah has its own immigration law

Immigration counter in Kota Kinabalu, Sabah. Image from FamousChris.

Sarawak and Sabah has the power to regulate immigration to their states. In fact, Malaysians from the Peninsula require a permit if they want to work or study in Sarawak or Sabah. Those who are on a short visit to Sarawak and Sabah will have to fill an immigration form for a 90-day visit pass.

This restriction is laid in in Section 66 of the Immigration Act 1959/1963, and was included because of MA63.

Section 66(1), Immigration Act 1959/1963 (in part):

"... a citizen shall not be entitled to enter an East Malaysian State without having obtained a Permit or Pass in that behalf unless—

(a) he belongs to the East Malaysian State..."

These restrictions are apparently implemented to limit entry to those who can positively contribute to (either) state, while keeping their borders off-limits anyone who may pose a threat to order and security...


15 issues on MA63 still unresolved, says Ongkili

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Maximus Ongkili says the call for Sabah and Sarawak’s representation in the Dewan Rakyat to be increased is up to the Election Commission to determine. (Bernama pic)

KOTA SAMARAHAN: Sabah and Sarawak affairs minister Maximus Ongkili has highlighted 15 issues being monitored by the special council on the Malaysia Agreement 1963 (MA63) which have not been resolved.

He said these include the state’s authority over health issues, the remaining legislative authority on the environment, the labour force in Sabah and Sarawak, and the release of land given ownership rights to the federation in Sabah and Sarawak.“Most have already been passed to the (special council) committee. There are ongoing matters still under discussion. For example, the issue of grants under Act 112 (1) of the Federal Constitution (Increase of Posts) with Sarawak.

“Discussions have started but there has been no decision yet on how much there is to be reviewed regarding the refund (for oil royalties and petroleum cash refunds).

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“The additional Sabah and Sarawak parliamentary seats are also still under discussion,” he said after attending the “1963 Malaysia Agreement Awareness Forum – MA63: From the Perspective of the Millennial Generation” at Universiti Malaysia Sarawak (Unimas) here.

Among other issues that have not been fully resolved is the review of special grants (Article 112D of the Federal Constitution) for Sarawak, as well as the gas and electricity regulatory authority for Sabah.

Asked whether the ratio for the distribution of 35% of the parliamentary seats in Sabah and Sarawak should be maintained instead of basing it on the state’s population, Ongkili said it was up to the Election Commission (EC).

He said the more important thing is that the goal for the two states to regain the percentage of seats as stated in the MA63 is achieved.

“The main objective is to return the 30% to 35% rights. The ratio used by the EC focuses on population and urbanisation. However, the important thing is that aspirations and terms as stated in MA63 are restored,” he said.

He hoped that more programmes explaining the formation of Malaysia and the goals of MA63 can be held at institutes of higher education, whether in the peninsula or Sabah and Sarawak. - FMT, 19/9/2022


Pursue decentralisation, not over-representation for Sarawak and Sabah

The news that Sarawak government’s claim for one-third of the seats in the House of Representatives is still at the discussion stage and that it would take two to three years for a resolution comes as no surprise to the Rise of Social Efforts (Rose).

After all changes in the composition of the House of Representatives in the federal legislature would mean a constitutional amendment to Article 46 of the Federal Constitution, and other states would certainly want to have a say on the number of members of Parliament as well.

Fadillah Yusof is of the view that the “one-third parliamentary seat allocation for Sabah and Sarawak was important as it would not allow the peninsula to amend the Constitution that may eliminate the rights of the two states as enshrined in MA63 [Malaysia Agreement 1963].”

We therefore surmise that for Fadillah and Gabungan Parti Sarawak, the endgame of increasing Sabah and Sarawak’s parliamentary seat allocations is for constitutional safeguards for both states.

Some uncomfortable assumptions underpin this demand, namely:

  • that the more MPs Sarawak has in Parliament, the better our interests will be protected
  • that all Sabah and Sarawak MPs (in government and in opposition) will vote the same way on all parliamentary bills
  • that all MPs from all Malayan states will vote the same way when it comes to making amendments in the Constitution affecting Sabah and Sarawak rights

These assumptions somehow have not been addressed by GPS in their demands for more seats. They fail to inform that constitutional safeguards were built into the founding documents of Malaysia starting from the Inter-Governmental Committee Report, the Malaysia Agreement 1963 and later in Part XIIA and in particular Article 161E, which contain the provisions of “Safeguards for constitutional position of states of Sabah and Sarawak”.

In other words, does having more MPs mean better policies made and basic needs met for the people of Sabah and Sarawak? What would make Sarawakian voices or interests heard and addressed would be MPs who truly play their role as lawmakers whether they are in the front bench (ministers in the ‘unity government’) or as members of the opposition. We hope to see policies that are effective and also sensitive to the needs of all who reside in Sarawak.

We are of the view that this demand for one-third of the seats has no historical or legal basis or support. There is nothing in MA63 that guarantees Borneo states one-third of representation. The 1962 IGC Report that led to MA63 did guarantee 25% of the seatss for Sarawak and Sabah in relation to the total seats in House of Representative but only for seven years after the formation of Malaysia. And that period expired in 1970! There were no further provisions for the subsequent years, and we will have to fall back to general provisions based on the population of the electorates.

Furthermore, in terms of representation in Parliament, Sabah and Sarawak with 25% of the seats are currently over-represented as our total electorate is only one-sixth (16-17%) of the total Malaysian electorate. This means that we are already not following the principle of one person, one vote, one value.

As an example, the biggest parliamentary seat, Bangi has about 300,000 voters, the smallest seat Igan in Sarawak has about 28,000 voters. Each are represented by one member of Parliament. If Sabah and Sarawak seats are increased to 35%, the over-representation would become greater. It would not augur well for the upholding of the democratic principle of equality.

For the above reasons, we support the recommendation for the Senate or Upper House of Parliament to be reformed to include elected members so that they will have real veto powers. That way Sabah and Sarawak rights and interests can be protected by these senators when there is a need to exercise veto powers.

Sarawak state is due for a constituency boundary redrawing exercise under the requirements of the Constitution, as the last one was carried out eight years ago in 2015. Groups of voters of any affected constituencies are empowered under the 13th Schedule to make objections to the recommendations proposed by the Election Commission on the boundaries of their constituency. The redrawing of boundaries was preceded by an increase in the number of state assembly members in the state legislature in the last exercise.

Needless to say it is therefore more worrying that Fadillah also revealed a request by Sarawak for administrative autonomy over health and education is also at the discussion stage. However he did not elaborate further on the reasons why. Many local Sarawakian leaders and politicians had been calling for such health and education autonomy prior to the state elections. – Rose

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.= ALIRAN

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