MALAYSIA AGREEMENT, SUBSTRATUM OF THE FEDERATION

By : DATUK PATRICK SINDU

THE MALAYSIA Agreement is a legally binding agreement which was duly signed by the representatives of the five parties [namely, The united Kingdom of Great Britain and Northern Ireland, The Federation of Malay, North Borneo (Sabah), Sarawak and Singapore ] to the Agreement.

The sole objective of the Agreement is the formation of the Federation of Malaysia among Malaya, North Borneo (Sabah), Sarawak and Singapore as equal partners.

The inclusion of the United Kingdom as party and a signatory to the Agreement seems only to be a father figure especially in respect of the Borneo states of Sabah and Sarawak and the state of Singapore over whose sovereigntiesand jurisdictions were still vested with it.

It can also be said that the United King dom was a necessary witness to the Agreement to see that when it has finally relinquished its sovereignity and jurisdiction over Sabah, Sarawak and the state of Singapore the vital conditions, such as the ’20 Points’ safeguards for Sabah, upon which they agreed to be federated with Malaya to form the Federation of Malaysia are observed, incorporated, implemented and respected.

The Malaysia Agreement incorporated various documents (as annexed to it) including the Malaysia Bill, which would then be the Malaysia Act, 1968. These incorporated documents include the terms of participationand constitutional arrangements upon which Sabah and Sarawak were enticed to form Malaysia.

The Malaysia Agreement should also be subject to the intentions of the signatories to it made before it was legally concluded. Such intentions include the understanding that the four signatories to the Agreement, namely the Federation of Malay, Sabah, Sarawak and Singapore are forming Malaysia as equal partners.

This is by virtue of the fact hat Malaysia was regarded by all concerned as merely an association of the above partners, combining in their common interests to create a new nation but retaining their won individualities.

When Singapore was Expelled from the Federation of Malaysia in 1965 the immediate question that arises is what happened to the Malaysia Agreement which it had duly signed? The expulsion of Singapore no doubt affected the constitutional arrangements as well as the constitutional position of Sabah and Sarawak within the Federation of Malaysia.

The Malaysia Agreement should have been in validated and follows that the legal entity of Federation of Malaysia is a nullity because the expulsion of Singapore, one of the signatories of the above Agreement, affected the substratum of the Federation itself.

Neither the Malaysia Agreement nor the Federal Constitutional of Malaysia provides for the expulsion of any partners of the Federation of Malaysia. Has the Prime Minister or the Parliament of Malaysia the power to expel Singapore?

The expulsion of Singapore could not be subject to the resolution of the Malaysia Parliament for that would be entitling (which they were not) the dominant 104 Members of Parliament of the eleven (11) States of Malaya to decide it as against the minority thirty-six (36) Members of Parliament from Sabah and Sarawak.

Even if Sabah and Sarawak disapproved the expulsion (which is doubted whether they had been given the chance to) the States of Malaya would still have obtained a two-thirds majority or more to make the decision of Sabah and Sarawak to disapprove the expulsion a futility.

The respective states of Malaya should have no right to decide whether or not Singapore should be expelled from Federation of Malaysia. This is because they did not form Malaysia Agreement, individually as partners or signatories of the Agreement.

They formed Malaysia as a Federation of Malaya with Singapore, Sabah and Sarawak. And since these four signatories of the Malaysia Agreement entered into it as equal ans single independent signatories /partners it should have been only appropriate that each signatory/partner had an equal vote (e.g. one vote each) to decide whether or not to expel anyone of them from the Federation of Malaysia.

This could be in the form of representation by the leaders of the respective partners. For this purpose, the repective state of Malaya should not have the right or power to decide the fate of Singapore in the Federation of Malaysia. Their voting right or power to do so is only one vote each. This view is in accord with their equal and independent status as signatories of the Malaysia Agreement.

Accordingly, the decision to expel Singapore should have been left to the above three remaining signatories of the above Agreement, each having equal voting right or power.

The expulsion affected the vital things which Sabah and Sarawak really bargained for before they were persuaded to form Malaysia. It affected their respective representation in Parliament.

For instance, to amend any of the special privileges (mainly the subjects of the 20 points) granted to Sabah as enshrined in the Federal Constitution Parliament needs a two-birds majority in the House of Parliament. Before the expulsion of Singapore the combined states of West Malaysia (Malaya) could never obtained the two-thirds majority without support from either Sabah, Sarawak or Singapore.

However, with the expulsion of Singapore there was no need for West Malaysia to get the support from Sabah or Sarawak for then they could always obtained a two-thirds majority or even more, and, it means is easier for them to make amendments of modifications on the Federal Constitution as.

When they wish to “With Singapore’s departure the ethnic equation returned to one of peninsula Malay dominance. This episode is a clear case of the failure of Federalism and national integration” [Ref. “Reflection on the Malaysian Constitution” by Shafruddin Hashim in ALIRAN 1986]

It is for these reasons that at least there should have been a review or re-examination of Sabah and Sarawak’s terms of entry into Malaysia. Yet, Sabah was not even consulted when Singapore was unceremoniously expelled from the Federationof Malaysia. The withholding of consultation is in itself a breach of the Agreement in that in deprived Sabahto participate in making decision for Malaysia of which it is an equal partner

The need for Consultation regarding the expulsion of Singapore is more pressing for Sabah when it is remembered that it was Lee Kuan Yew “who really worked hard to establish rapport with the mostly suspicious Borneo leaders in an attempt to persuade them to form the Federation of Malaysia”.

At the Commonwealth Parliamentary Association conference in Singapore in July, 1961 the Borneo leaders (no British were present) met Lee Kuan Yew who was the greatest supporter of the Malaysia idea. Lee Kuan Yew used all his Power of Persuasion to try to convince the Borneo leaders to support Tunku’s proposal. [Ref. Interview of Datuk Ong Kee Hui by j.p Ongkili in his book ‘Nation-building in Malaysia 1946-1974]’

The Federation of Malaya and the state of Singapore wanted Malaysia more than Sabah and Sarawak wanted it. To them Malaysia is a form of political and economic survival. This is evidenced by speeches of the Tunku and Lee Kuan Yew made before the formation of Malaysia.

For instance, in the course of a luncheon speech to the Foreign Correspondents’ association of South-East Asia in Singapore on 27 May 1961, the Tunku said ‘Malaya could not stand alone in isolation44’ and suggested that sooner or later Malaya should have an understanding with Britain and the peoples of the territories of Singapore, North Borneo (Sabah), Brunei and Sarawak.

On Lee Kuan Yew, he made a statement in 1961 that merger is going to take place not just because it is the desire of the Peoples’ ActionParty or merely because it is the wish of the Federation Alliance Government. It is as inevitable as the rising and setting of the sun.

To a certain extend, the formation of Malaysia was also a need for the United Kingdom. As reported by “The Times” dated 28 July 1961, it said “British Strategic interest in the are is shared by Australia and New Zealand and some common policy will have to be evolved”.

The ‘area’ referred to is South-East Asia and the mentioned of ‘common policy is in fact, in the form of Malaysia where, perhaps, they could preserve their influence despite the rise of nasionalism among colonial states and the pressure from the United to gice independence to such colonial states.

The chairman of the COBBOLD Comission made a pertinent observation, which should be a necessary condition that, “ from the outses, Malaysia should be regarded by all concerned as an association of partners, combining in the common interest to create a new nation but retaining their own individualities.

If any idea were to take root that Malaysia would involve a ‘take over’ of the Borneo territories by the Federation of Malaya and the submersion of the individualitiesof North Borneo and Sarawak, Malaysia would not, in my judgement, be generally acceptable or successful.(Ongkili, 1985).

In actual fact, the gradual erosianof the Safeguards for the Borneo States by the Federal government seems to be an act of submersion of their respective individualities.

Therefore, if the Malaysia Agreement is invalid, then Malaysia as a nation is invalid, void and lost is legal entity. Malaysia is still in operation 48 years after the separation od Singapore.

As has been presented earlier, political developments within the period did not permit parties to the Malaysia Agreement to review or arguefor its review. Today as the prevailing political situation is changing for the worse; it calls for a review of the terms and condition of the agreement. Meaning a revalidation of the agreement is necessary.

- Sabahkini