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