Legal Sophistry to Support Argument That Sabah is Part of Malaysia

In 1963, Sabah was bundled with Sarawak into a strategic arrangement between Britain and Malaya to consolidate Britain's colonial territories and economic interests and replace British colonial rule in this region with Malayan rule in the newly created Malaysia.

When the Malaysia proposal was announced in 1961 by Tunku Abdul Rahman, this immediately touched off local and regional controversy and opposition to "Malaysia" as a neo-colonial scheme to prolong colonial rule- especially by Indonesia and the Philippines. This led to Indonesia's Konfrontasi against Malaysia and the Philippines claim on Sabah.

On the 50th year of Malaysia's formation the Sulu claim and invasion have re-opened the debate over Sabah's unenviable status and other controversies surrounding the Malaysia issue.

The article by Raymond Tombung “How to Argue Against the Sabah Claim” (original article published in the Taib government controlled Borneo Post) summaries the legal political history of Sabah and Malaysia. Unfortunately, on closer examination it turns out to be a piece of sophistry constructed solely to legitimise Sabah's inclusion into the Malaysia federation in 1963 and Malayan rule.

The writer used the findings of the Cobbold Commission of Enquiry on Malaysia to make his point that the formation of Malaysia had popular local support.

This is inaccurate, mischievous and continues the official misrepresentations of historical facts used to legitimise the formation of Malaysia. It is similar to those recent arguments made by P.M. Najib and others that an affirmative referendum was held on the Malaysia issue in Borneo. There never was one ever held. At least the Tombung article frankly admits this.

COBBOLD COMMISSIONS FINDINGS NOT A REFERENDUM- JUST A POLL

In Paragraph 15 of the article, the writer mentioned that the Report of the Cobbold Commission of Enquiry on Malaysia in North Borneo and Sarawak (Report finalised in August 1962) had found that 2/3 of people (this referred to 4,000 people in Sabah and Sarawak interviewed by the Commission) supported formation of Malaysia.

This is a distortion of the figures given. The Report said the Commission found that of the 4,000 peopled polled, only 1/3 had expressed unconditional support for the idea, 1/3 were unsure and only supported the idea if conditions were attached and 1/3 were definitely against the Malaysia proposal and wanted real independence without Malaysia. The results were juggled to make it looked like 2/3 of those polled supported Malaysia.

The 4000 people interviewed represented on (roughly) only 4% of the total population in Sabah and Sarawak at the time. Even if the findings were correct, how could this be claimed as democratic representation of the opinion of 2/3 of the whole population? It was not a referendum in the first place.

The Cobbold Commission comprised only British ex-officials and Malayans who were hardly were “impartial or independent authorities”. They were the interested parties dead set on forcing “Malaysia” on the Borneo people. It was a clear conflict of interest for Britain to appoint the Cobbold Commission to sideline the independent authority of the UN by not organising the referendum.

As it turned out, the Report was so transparently slanted in favour of “formation” as it clearly supported the British Malayan plan and was made with racist and cold war anti-communist political arguments which an independent body should not have expressed.

Further, the British and Malayans had deliberately avoided holding a proper independent UN supervised referendum on the Malaysia formation issue on the reason that they did not have time to conduct a referendum! It was the people's future they were playing with! So the Borneo people were never given a chance to say “Yes” or “No” to Malaysia in a free and fair vote.

THE MANILA ACCORD

The findings of the Cobbold Commission were rejected by Indonesia and Philippines. To neutralise their opposition talks were initiated with Indonesia and Philippines on the Malaysia question in July 1963. The talks were recorded as the Manila Accord signed on 31 July 1963 which nevertheless reflected the British failure to hold a referendum.

Article 10 of the Accord stated that Malaysia would only be acceptable “provided that” the Borneo people's support was ascertained by “an impartial and independent authority”. But this was never held. The British might have been worried they would get a “No” vote as seen in the Brunei Legislative council elections of August 1962 where the Brunei people overwhelmingly voted for the anti-Malaysia Brunei People's Party.

The Manila Accord did not resolved the Philippines' Sabah claim but it effectively put it on hold. With this live claim, Sabah would not have legally been included Malaysia. It follows that the whole Malaysia formation was illegal and void from the beginning.

What is interesting that Malaya was negotiating Sabah's future even before it had any legal authority to do so. And the people most affected the North Borneo people were not even consulted or asked to join in as an interested party. This reflected the intention and eagerness of Malayan leaders to annex Sabah. This was reinforced by the fact that when a the review on Malaysia was due in 1973 it was flatly denied by P.M. Razak.

That meeting left Sabah's status in limbo but Malaysia was hastily formed by 16 September 1963. They must have been thinking “possession is 9/10th of the Law” (!).

The writer's conclusion is thus faulty and highly misleading. Readers should see through this opinion as piece of sophistry to support the argument that Sabah was legally constituted as part of Malaysia.

This leaves the issue that matters most of all unresolved - that of the Sabah people's right to self-determination which has been kicked around as political football for 50 years.

What is arguable is the question whether Sabah has real self-determination within Malaysia or what the people have increasingly demanded- self-determination outside Malaysia as “independent Sabah”!

Sabah belongs to the Sabah people and they alone should be the final party to determine their destiny and until they do, no foreign powers should arbitrarily steal their rights.