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CALL FOR THE ANWAR IBRAHIM MADANI GOVERNMENT TO REVIEW THE MALAYSIA AGREEMENT 1963 (MA63) IN LIGHT OF THE ICJ CHAGOS ISLANDS DECISION AND UK RETURN OF CHAGOS TO MAURITIUS.
Updated 5th October 2024
WE, the undersigned organisations, call on Malaysian Prime Minister Anwar Ibrahim and the Madani government to review the Malaysia Agreement 1963 (MA63) in light of international legal developments particularly the International Court of Justice (ICJ) decision on the Chagos Islands Case (2019) and the United Kingdom government's recent announcement to return the Chagos Archipelago to Mauritius, and expedite the decolonisation of Sabah and Sarawak.
The Chagos Case sets a landmark legal precedent concerning the principles of self-determination, the legal capacity to make binding intentional agreements and the rights of non-self-governing territories under United Nations General Assembly Resolutions (UNGAR) 1514 and 1541. This case also underlines the fact that the passage of time does not cure a defective treaty like MA63 or legitimise a de facto a federation.
The NGOs said that Prime Minster Anwar Ibrahim is known for his staunch support for the right of all nations and especially for Palestine, to national independence. They call on him to recognise that both Sabah and Sarawak have the same right to self-determination as Palestine and they were unlawfully decolonised in 1963 by the United Kingdom in manner inconsistent with this right.
The Prime Minister can see that the parallels between the Chagos Islands and Sabah and Sarawak are undeniable. Like Mauritius, Sabah and Sarawak were treated as non-self-governing territories whose peoples were denied genuine self-determination in the formation of the Malaysian Federation.
The ongoing multiple Malayan violations of fundamental terms of the Malaysia Agreement 1963 (MA63, if valid) breaching the Basic Structure Doctrine and international law and the marginalisation of Sabah and Sarawak over the past 61 years mirror the injustices faced by the Chagossians under colonial rule and amount to a unilateral termination of MA63. The failure to uphold agreed terms for a secular pluralist system, autonomy, fair representation, and control over resources has left Sabah and Sarawak in a state of de facto colonialism, exploited, impoverished and backward, subject to unequal treatment within the Federation.
Legal Capacity, Consent, and Coercion
The ICJ's ruling on the Chagos Islands reaffirmed that any agreement concerning the future of non-self-governing territories must be based on legal capacity of the parties to make the agreement, with free, prior, and informed consent consistent with their right to self-determination.
In the case of MA63, Sabah and Sarawak’s entry into the Federation of Malaysia was accomplished under coercive emergency conditions with mass arrests and imprisonment of nationalists, undue pressure, and the exclusion of their peoples from meaningful consultation and without free consent. Prime Minister Tunku Abdul Rahman declared that Malaysia would be formed even while there was a state of emergency (impose by the United Kingdom following the anti-Malaysia Uprising on 8 Dec 1962) in Borneo. The NGOs echo the ICJ’s emphasis on legal capacity and consent and reiterate that any treaty or agreement like MA63 that is formed under such conditions is null and void ab initio under international law.
Violation of UNGA Resolutions 1514 & 1541
The 1960 UNGA Resolution 1514 on the granting of independence to colonial countries and peoples sets forth the international community's commitment to decolonization and self-determination. In the cases of non-self-governing territories it was required by UNGAR 1541 that there be a referendum to seek the people’s informed consent. It is clear that the formation of Malaysia violated this resolution, as Sabah and Sarawak were not afforded the genuine right to self-determination nor a referendum before being absorbed into the Federation.
The hasty and premature UK-Malayan announcement on 28 August 1963 to proclaim Malaysia on 16 September 1963 preempted the completion of the UN assessment and left unresolved disputes with neighbouring Indonesia and the Philippines under the Manila Accord 1963. This has kept the question of Malaysia's legitimacy alive, as it has been legally contested in 2018 and further highlighted by the 2013 armed invasion of Eastern Sabah by Philippine insurgents. It is long overdue for the Malaysian government to recognize these historical and legal realities.
Decolonisation of Sabah and Sarawak
The United Kingdom’s return of the Chagos Archipelago to Mauritius underscores the principle that colonial wrongs must be corrected, and sovereignty and territories unjustly held must be returned to their rightful owners and the principle self-determination be strictly observed. The United Kingdom’s decision to comply with the ICJ’s 2019 ruling is a significant victory for all colonized territories seeking independence
Sabah and Sarawak were promised autonomy and safeguards under MA63 (if valid), yet these have been systematically eroded over 61 years in Malaysia. The time has come for the decolonisation of Sabah and Sarawak, starting with a full and independent review of MA63 under international law, with particular emphasis on the issues of legal capacity, consent, and the violation of their right to self-determination.
Call to Action
If the Prime Minister can so strongly and consistently champion the cause of Palestine, then by the same principle, he should equally support the right of Sabah and Sarawak to independence.
We therefore, call on the Ibrahim Anwar Madani government to:
1. Initiate an urgent independent ICJ review of MA63 in the context of the ICJ's Chagos Islands decision and the UK's return of the Chagos Archipelago to Mauritius.
2. Recognize the legal and moral obligation to uphold the principles of self-determination and decolonisation for Sabah and Sarawak, as mandated by international law.
3. End the ongoing colonial-style exploitation of Sabah and Sarawak’s resources and restore full control over oil and gas to the rightful governments of Sabah and Sarawak.
4. Pending the ICJ review, address the systematic violations of MA63 including abuse and replacement of the secular pluralist federation system with the NEP Ketuanan Melayu race-religion based apartheid system and negotiate a clear road map for the restoration of the rights and autonomy promised to Sabah and Sarawak upon joining the Federation.
5. Act decisively to end the unequal treatment of Sabah and Sarawak, ensuring that their people are no longer marginalised within the Malaysian Federation.
The UK’s decision to return the Chagos Archipelago to Mauritius is a powerful reminder that colonial wrongs can and must be righted. Malaysia, as a nation, must not continue to turn a blind eye to the ongoing colonial injustices within its own borders. If MA63 is valid, the multiple Malayan violations amount to a unilateral termination of MA63 and the people of Sabah and Sarawak will accept this termination and consider that MA63 is no longer binding. In particular the final destruction of the secular pluralist system which will be sealed by the proposed PKR Pas race-religion based alliance is deeply disturbing. The Chagos Islands case underlines the fact that the passage of time does not cure a defective treaty like MA63 or legitimise a de facto a federation. It is time to decolonise Sabah and Sarawak and restore their full rights under international law.
Signed
Daniel John Jambun
President Borneo's Plight in Malaysia Foundation (BoPiMaFo)
Robert Pei
President, Sabah Sarawak Rights Australia New Zealand, (SSRANZ)
Peter John Jaban
Founder SAS Saya Anak Sarawak (SAS)
Mosses Paul Anap Ampang
President Republic Sabah North Borneo (RSNB)
Voon Lee Shan
President, Parti Bumi Kenyalang
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