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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 which was opposed both locally and internationally in the 1960s.
Britain had planned a direct transfer of its Borneo colonial territories to Malayan rule
without even first granting independence to the territories. It was seen by its critics as
just exchanging the old colonial master for a new one.
Despite its 50 years of existence Malaysia has remained a smouldering issue which in
very recent years saw it flaring up again as the Sabah and Sarawak people most
affected by its negative effects have begun to question the value of their countries'
relationship with Malaya in Malaysia.
1.

This main purpose of this paper is to explore the proposition that the Malaysia

Agreement 1963 (called MA63 in short) was not a validly made multi-party
international treaty according to international law, the Universal Declaration of
Human Rights (1946) and Decolonization Declarations (UNDD) (1960).
The outline arguments are presented here today as part of a piece of work in
progress.
It is noted in passing that the international law aspects of the Malaysia formation issue
has not been widely or deeply 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 boast 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 touched on here in relation to the distinct
pre-Malaysia historic political and cultural differences between Malaya and Borneo, and
the question of secession.

2.

Further the 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 ?
This is really a question of whether Sarawak (and Sabah) had actually achieved real
independence and self-determination.
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). [Milena Sterio on the
Crimea independence issue: http://ilg2.org/author/milenasterio/]
This paper is based on a reading of the documents and references listed in the Index
below as well as other sources such as comments by writers on the subject, Internet
discussions etc.
To take advantage of the 30 minutes allowed for this paper let us go straight into the
main points.
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 hope that readers can also follow up or join in further discussions on this
paper when published in the Internet after the conference.
It is also suggested that the audience and readers should also read the article by Vidal
Yudin Weil's article Can Sabah and Sarawak Secede which argues that MA63 was
void ab initio for the reason that Britain had no right to transfer Sabah Sovereignty
which was claimed and disputed by the Philippines.
http://www.freemalaysiatoday.com/category/opinion/2014/04/14/can-sabah-andswak-secede/

3 PROPOSITIONS ON MA63
The Concept of 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.
On the other hand the Malaysia Plan also fitted in 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 which has re-awakened
Borneon resistance against what is widely perceived as Malayan colonialism.
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.
If the MA63 is void from the beginning it would be unnecessary to ask the other
questions 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 completely repudiated MA63 by 50 years


of non-compliance and failure to implement MA63 as an international treaty and
the Malaysia experiment itself.
(Time may not allow discussion of Propositions 2 and 3)
__________________________________________________

The discussion will refer to the United Nations Declaration of Human Rights, the
UN Decolonization Declaration and the Vienna Convention on Law of Treaties or
VCLT.
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 as a restatement of
customary law and binding upon them as such.
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 A 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 from the beginning.
It is asserted here that MA63 was not validly made in compliance with the
established principles and rules of International Law and the 1960 U.N.
Decolonisation Declaration for the interrelated reasons stated below.
The combination of all the grounds for invalidity below stand as a damning
indictment of Britain and Malaya's external intervention and violation of the
Sabah and Sarawak peoples right of self-determination. This was perpetrated by
Britain's blatant collusion with Malaya to deny the people their right in total
disregard of local and international opposition 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 by proposing
to incorporate Sarawak into Malaysia and denying the people a referendum i.e.
the freedom to decide on the Malaysia issue, as demanded by the Sarawak
United People's Party (SUPP). Appendix A 9 Cardinal Principles, Appendix B

3.

MA63 VOIDED BY BREACH OF UNDD ARTICLE 5 BY BRITISH MALAYAN


COLLUSION TO FORM MALAYSIA IN PLACE OF BORNEO INDEPENDENCE
Britain and Malaya's bilateral pre-determined plan to form Malaysia by
transferring sovereignty over the Borneo colonies to Malaya without
independence was a 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.

4.

MA63 VOIDED BY BRITISH MALAYAN COERCION BY PRIOR USE OF FORCE


IN SUPPRESSION OF BRUNEI ANTI-MALAYSIA INDEPENDENCE UPRISING &
SARAWAK NATIONALISTS IN CONTRAVENTION OF UNDD
Malaysia was formed against the background of foreign political interference
British colonial suppression of Borneo nationalists and armed intervention by
Malaya which was prohibited under the UNDD and the principle in Article 52
VCTL

APPENDIX

H.

Case

of

Japanese

annexation

of

Korea

https://works.bepress.com/young_kim/3/
5.

MALAYSIA CONCEPT WAS CHANGED 3 TIMES WITHOUT REFERENDUM


The fact that the Malaysia Concept was changed 3 times between 1961 and
1965 should have aroused vigorous debates and demands for a proper renegotiation of terms and conditions for forming Malaysia. But challenges and
debate were 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.
As the final version of Malaysia was not the original Malaysia concept 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

DISCUSSION OF ABOVE 5 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 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

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--vis the
formation and effects of treaties.
Wikipedia comment:
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 international law that only sovereign
states can enter into valid agreements with other states.
The Malaysia Agreement was actually entered into between only 2 independent
sovereign States the United Kingdom and Malaya, 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.
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".

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, citystates 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
Comments:
Singapore gained internal government in 1955 but it was still controlled by Britain
so it is doubtful that it could 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 declared 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) at the date of
MA63 on 9th July 1963 as described in the MA63 itself.
The effect is that Britain and Malaya which were sovereign states had made an
Agreement with a semi-colony Singapore and its own 2 colonies North Borneo and
Sarawak. British colonial officials signed MA63 on behalf of Sabah and Sarawak.

They were all not independent sovereign states capable of making treaties but
colonies controlled by Britain pursuant the 1946 cession of North Borneo (by the
North Borneo Company) and Sarawak (by the Brooke Government) to British colonial
rule.
This is a really absurd situation which the British overlooked in their haste to hand
over Sabah and Sarawak to Malaya.
However, it reflects the original secret pact between Britain and Malaya to form
Malaysia as a cover to transfer sovereign over the Borneo colonies direct to Malayan
rule. This became 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. The MA63 is absolutely silent on North Borneo or Sarawak independence.
That neither North Borneo and Sarawak were independent sovereign states on 9 th
July 1963 was confirmed by the fact that Sarawak was only ostensibly granted selfrule 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 invalid from
the beginning.
Sabah and Sarawak were just not 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 I
This flaw must have kept both the British and Malayan creators a state of constant
nightmare 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 breach of its 1946 treaty with the Sarawak Brooke government
to restore independence to Sarawak and denial to allow a referendum so that the
people to freely decide on the Malaysia issue as demanded by the Sarawak United
People's Party (SUPP). Nine Cardinal Principles Appendix B, UNDD 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)
Britain had reportedly coerced the Sarawak government in 1946 to cede Sarawak to
its colonial rule. 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 independence.
It committed a deliberate shameful breach of the trust placed in them by the former
Sarawak Government to honour their agreement to restore Sarawak independence
and as demanded by Sarawak nationalists in 1963. It is 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 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
This breach nullified the MA63 as Britain had deliberately refused to fulfil a prior
treaty pre-condition to restore Sarawak independence so their people can then
freely decide on the Malaysia issue if they chose to.

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.

Britain and Malaya had bilaterally colluded and pre-determined to impose the
formation of Malaysia by entering into a secret pact to transfer sovereignty over the
Borneo colonies to Malaya without independence was a 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.
The declassified British colonial documents give details of how Britain and Malaya had
bilaterally colluded and pre-determined to impose the formation of Malaysia by
entering into a secret pact to annex by transferring sovereignty over the Borneo
colonies to Malaya without independence was a 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
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.
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 Brunei independence TNKU army and
sweeping clamp down with mass arrests of Sarawak nationalists and alleged
nationalists
In this context we read the next point-

4. MA 63 WAS IMPOSED WITH COERCION BY USE OF FORCE IN THE BRITISH


MALAYAN SUPPRESSION OF BRUNEI ANTI-MALAYSIA INDEPENDENCE UPRISING
& SARAWAK NATIONALISTS ACT IN CONTRAVENTION OF UNDD.
This proposition raises 2 points of international law:
(a) 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. 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 stipulated Britain must restore Sarawak independence.

Malaya as a foreign power had no legal right, mandate, authority or standing to


interfere in Borneo affairs by coveting Borneo territory. It had colluded and predetermined with Britain to form Malaysia to deprive the people's right of selfdetermination 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 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 forced entered Borneo to assist with
the British suppression the TNKU forces following the Brunei Uprising and later
the guerrilla independence war in Sarawak was in reality an invasion of Sarawak
Territory.
The Anti-Malaysia Brunei Independence Uprising broke out 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 both in Brunei and
Sarawak.
The Universal Declaration of Human Rights 1948 tacitly support or condone 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 the UN Decolonization Declaration and inference of coercion in forming
Malaysia.
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 proceed 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)
contained explicit provisions concerning the protection of civilians and their property
in occupied territories. The United Nations Charter also has related provisions.
Only Brunei successfully resisted both politically and with an armed uprising against
the British Malayan plan and and rejected this affront to international law 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 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
embarked on a cruel and vicious campaign against the nationalists under the pretext
of an anti-communist campaign and made sweeping arrests of over 10,000 people in
Sarawak between 1961 and 1963.
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 antiindependence actions around the world.
The Sarawak arrests represented almost 1 in 70 persons in this country (Sarawak
population approx 745,000 in the 1960 Census) many of whom were detained for long
periods without trial well into the late 1970s. Before the Brunei Uprising, the British
were already arresting and harassing nationalists in Sarawak under the Restrictive
Residence Regulations later replaced by the Internal Security Act.
The failure to comply with the customary international law nullified MA63 by Britain's
use of force deceit and coercion 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 seeking 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
Joint UN Memorandum.
The SUPP made repeated demands for independence first before the people should
consider the Malaysia question. When it became clear Britain was determined to push
ahead with Malaysia they demanded a referendum.
It meant that the MA63 should have been renegotiated by the newly independent
states (Sabah and Sarawak) after a proper referendum was held especially in view of
the fact that the Malaysia concept had gone through one major change by 1963 when
Brunei refused to sign it at the last minute.

Thus it can be immediately seen that the MA63 had no validity as it was null and void
from the beginning without any legally binding effect as an international treaty.
Further it can 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. https://en.wikipedia.org/wiki/Pacta_sunt_servanda
The intention of Britain and Malaya was to transfer the Borneo colonies to
Malaya rule directly without giving independence. (Revealed in the declassified
British colonial documents). The Malaysia concept was conceived in bad faith to annex
these territories to Malaya. This bad faith is seen in how over 50 years Malaya has
virtually repudiated the entire MA63.

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:
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 by 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 had already merely amended the MA63 to form Malaysia on 16
September 1963. Malaysia was already pre-determined.

5. MALAYSIA CONCEPT WAS CHANGED 3 TIMES WITHOUT REFERENDUM


On this last point readers are refer to the longer comments in APPENDIX F.
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. When Singapore freely gained independence from Malaysia, the
concept changed again to 3 countries in Malaysia.
This totally changed the intended 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 oil and gas rights and many othe
rights.
After 1965 Sabah and Sarawak were reduced to mere states of Malaya or colonies as
many are seeing it now.
The Malaysia concept ceased to exist.

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.
3. The Third Proposition is: Assuming that the MA63 was valid despite propositions 1
and 2 above, Malaya has completely repudiated MA63 by its 50 years of 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 complains 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 agreement breaks this whether by a deliberate act/s of
breaches or omissions in performance the fundamental terms and conditions this constitutes
a repudiation of the whole agreement.
VCLT ARTICLE 60
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.

CONCLUSIONS
The conclusion is if the Malaysia Agreement is illegal, the people of Sabah and
Sarawak are not bound to remain in an manifestly 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 people marginalised into greater poverty than before
1963.
If MA63 is illegal, Malaysia only exists as a de facto state where Malaya is controlling
Sabah and Sarawak without any legal right.
Many Sabahans and Sarawakians are asking was Malaysia a decolonization plan or a recolonization plan
They have seen how the structure of colonization has been built up with virtual direct
federal control of Sabah and Sarawak, Malayanization in place of Borneonization
and imposition of the UMNO's race and religion supremacist government 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 27 APRIL 2014