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KOTA KINABALU: In a joint statement issued recently, the Sabah Sarawak Rights Australia New Zealand (SSRANZ) international NGO and the Borneo's Plight in Malaysia Foundation (Bopimafo) NGO, along with other political parties, NGOs and individuals, commended Tan Sri Wan Junaidi for his speech at the Sabah Colloquium on 4 July 2023, where he asserted that the Sabah people’s right to self-determination in relation to the Sulu sovereignty claim on Sabah. The NGOs also raised questions about the validity of the Malaysia Agreement 1963 (MA63) and the process through which Sabah and Sarawak joined the federation of Malaysia.
They however disagreed with the notion relied on by the former law minster that the Cobbold Commission of Enquiry's findings, indicating two-thirds of the people supported integration into Malaysia, constituted a valid exercise of self-determination.
https://www.thevibes.com/articles/news/95750/sabahans-self-determination-trumps-any-treaty-wan-junaidi
SSRANZ President Robert Pei and Bopimafo President Daniel John Jambun said that self-determination is an inalienable legal right recognized by the United Nations General Assembly Resolution (UNGAR) 1514, which allows colonies to determine their destiny and political independence without foreign interference. This principle of international law was reaffirmed by the International Court of Justice (ICJ) in the Chagos Islands Case in 2019.
On the 60th anniversary of the signing of the Malaysia Agreement (MA63) and establishment of Malaysia, the NGO leaders raised concerns about whether the people of Sabah and Sarawak have truly achieved self-determination and the promised development progress and prosperity.
The NGO Presidents said they differed with the former law minister’s elated opinion that the North Borneo (Sabah) people had effectively and freely exercised self-determination and this had defeated the Sulu/Philippine’s Claim by virtue of the 1962 Cobbold Commission of Enquiry findings that two-third of the people supported integration of Sabah and Sarawak into the Malayan Federation (renamed Malaysia) and making of MA63. This unverified and erroneous assumption has been frequently used to justify the British government’s hasty implementation of the Malaysia federation plan in 1963.
The NGO leaders pointed out that the 1962 Cobbold Commission's findings were based on a selective survey of opinions rather than a referendum under UNGAR 1541. They stressed that the commission's report was misleading and not legally binding and did not fulfil the requirements for a free choice or self-determination by the people in accordance with UNGAR 1541. The commission was merely an inquiry and not a proper referendum, which was necessary for the people to express their wishes on the federation question.
Therefore, it must be made clear that there was no act of free choice or self-determination by the people voting on the Malaysia Question, in compliance with UNGAR 1541 in 1963 nor was MA63 a validly made international agreement. (See attached Appendix on MA63 validity issues).
The Cobbold Commission of Enquiry as its name and terms of reference stated was just an inquiry, and no more than an investigation of the people’s views on a matter of public importance being the Malaysia federation proposal, and to make recommendations. It could not be assumed that this was the process of legally obtaining the people’s consent or mandate by voting on the federation question as should have been done by a referendum.
The Cobbold Commission was devised by the British government to avoid compliance with the strict requirements of UNGAR 1541. Professor Michael Leigh who has been researching Sarawak’s political development since 1962 and a witness to Malaysia formation concluded in his 1974 book “The Rising Moon” said that “In retrospect the Cobbold Commission can be said to have functioned as an important ‘cover’ to legitimize the British decision to withdraw from Sarawak without having first granted self-government, as promised at the time of Cession and as ‘embodied in the nine Cardinal Principles. There was pathos in the Dayak who answered a question from Lord Cobbold with the reply, ‘Whatever you advise, Sir”
UNGAR 1541 provided that in situations involving “non-self-governing territories” such as Sabah and Sarawak, the controlling colonial power had an obligation to unconditionally allow the people to freely express their wishes on the question of the federation of their respective countries with an independent state in a referendum. This Resolution is linked to UNGAR 1514 which was part of the 1960 UN Decolonisation Declaration which put great political pressure on many colonial powers especially Great Britain to decolonise their colonies for independence. If the people had exercised self-determination under this resolution, Sabah and Sarawak would have chosen independence and become prosperous and high-income states after 60 years.
They noted that Tan Sri Wan Junaidi was very careful to qualify his statement by saying that the Cobbold Commission report was only an “indicator” of the Sabah people’s views. By saying this he contradicted himself and appeared to acknowledge that the Cobbold Commission was only an inquiry not a referendum allowing the people to freely exercise self-determination.
Sir William Goode, the last British Governor of the North Borneo colony in 1963 said (according to declassified British documents) the Cobbold findings should be confirmed by a referendum. In other words, it was not a legally binding conclusion. The Singapore government which had greater experience in internal self-government since it was granted by Britain in 1959, took the precaution to get public consent and endorsement of the Malaysia Plan in a referendum on 1 September 1962.
Borneo nationalists and the Indonesian and Philippines governments had called for a referendum in rejecting the Cobbold Commission Report when it was released on 1 August 1962, on the ground that Malaysia would not have a legal basis without the people’s informed consent freely given in a referendum. A distinguished Malayan lawyer Karam Singh and a member of Parliament, said that MA63 was not made with people’s democratic assent nor concluded by an independent government (Malayan Hansard report 20/08/62).
It is noted that a day before the Report was released, the British and Malayan governments had sealed their deal to form Malaysia by signing a secret “Agreement to Set up the Federation of Malaysia” by 31 August 1963. The Malaysia federation proposal was therefore a pre-determined British Malayan Plan which did not directly involve the Borneo people in the negotiations from the beginning. The 2 governments had begun discussions in 1958 following Malayan independence in 1957 and they had decided before 1961 that Malaysia was “in the interests” of the Borneo people. (See Daily Express article on “Britain secretly planned M’sia since 1953.
https://www.dailyexpress.com.my/read/3534/britain-secretly-planned-m-sia-since-1953/ )
The British and Malayan governments attempted to ignore the criticisms of the Cobbold Report. However, the strong local and international opposition led to the Malayan Government (without a Borneo mandate) signing the Manila Accord with Indonesian and the Philippines governments on 31 July 1963 (22 days after MA63 was signed) agreeing to a UN assessment of the people’s wishes on Malaysia and resolution of the Philippines’ Sabah claim.
By conceding to the Accord terms for a UN assessment of the people’s wishes on Malaysia, the British and Malayan governments in effect acknowledged the people’s consent had not been properly and legally obtained by a referendum.
In fact the Accord questioned the authoritativeness of the Cobbold Report and put in question the credibility and validity of its findings. At the same time, this confirmed that MA63 was defective since Sabah and Sarawak being crown colonies were non-self-governing territories and therefore not sovereign independent states with power or legal capacity to make as an international agreement or treaty with the UK and Malaya on 9 July 1963.
The NGO leaders said the Cobbold report was not a legally binding document. It was just an unverified misleading assumption that there was two-third support from those interviewed and could not be used to substitute the process of a proper referendum. They said the Commission was merely part of the whole process (which was tainted with illegalities), used to legitimise Malaysia leading to the making of the Malaysia Agreement 1963 and proclamation of Malaysia.
They take issue with the report for the following reasons:
The purpose of the Commission was to facilitate implementation of the Malaysia concept which unlawfully denied the North Borneo and Sarawak people’s of their inalienable right to self-determination and real independence.
The Commission was formed after the 2 foreign British and Malayan governments had decided that “Malaysia” was “in the interest of the people” of North Borneo and Sarawak, following secret negotiations from 1958 to 1961 on the federation plan. The plan was therefore a violation of international law and UNGAR 1514 which stated that the people must freely and unconditionally exercise self-determination without outside interference. Malaya was a foreign power which has been secretly colluded with the UK government to seek a takeover of the Borneo colonies.
The Cobbold Commission of Enquiry terms of reference were just to ascertain the views of the people on Malaysia (but avoided asking the people if they preferred independence) and make recommendations on its findings which were not legally binding.
The composition of the Commission of 3 British officials and 2 Malayan officials was a conflict of interest as it was not an independent body but appointed by the proposers of Malaysia to conduct the inquiry. They had a bias towards producing a finding favourable towards Malaysia as seen in how release of the Commission Report was delayed and amended to claim that two-third of the people supported Malaysia.
The Report was never independently verified and was based on divided views on the Malaysia federation plan.
Many people are not aware of the long held British “Grand Design” to consolidate its South East Asian territories under a unified colonial administration. This was a strategic move which was finally decided during WW2 and put into effect after the war and Cold War period, by forming the Malayan Union. The British government’s plan to include the then independent Sarawak in the Union was however rejected by the Brooke Government. But the British went ahead to annex North Borneo and Sarawak as crown colonies in July 1946 as part of the final move to implement their long term plan.
As Prof Michael Leigh stated in his book “The Rising Moon”, the Cobbold Commission was in reality used to deny independence to Sarawak (and Sabah). However, he did not explain that this was done so that the British could accomplish their objective of securing all their South East Asian regional interest under a single political entity controlled by a friendly UMNO race religion supremacist regime.
The Cobbold Commission report referred to the 1946 “cession” terms but the British government did not see this as breach of their 1946 undertaking to restore Sarawak independence and raises the question of MA63 validity since it was made in breach of a prior international undertaking.
When the Malaysia Plan was publicly announced by Malayan PM Tunku Abdul Rahman on 27 May 1961, the general reaction of the north Borneo and Sarawak people was one of shock and immediate opposition to the plan as they were expecting the British to keep their promise of independence. The opposition was then diluted by a process of public relations exercises to sell the federation concept which included setting up the Cobbold Commission.
The unverified Cobbold Commission was not a “referendum” as has been wrongly claimed by even the Sarawak government and many commentators when it was no more than an opinion poll of apparently 4000 people in Sarawak & North Borneo.
The views of 4000 people could not be taken to be representative of entire Sabah and Sarawak populations which was based on an unverified assumption of support. Further it is unclear how the mythical 4000 people interviewed were split up for Sabah and Sarawak. The records of the interviews were never disclosed to the public.
The Cobbold report originally stated that it found that one-third of the people polled unconditionally supported Malaysia, one-third were unsure but would consider supporting the plan if there were adequate safeguards in place and one-third were totally against Malaysia and wanted independence.
The “unsure one-third” could not be included or extrapolated as part of the two-third supporting Malaysia or considered as a “definite” support as at the time of the poll there were no safeguards agreed to until later on. It was misleading to assume this as full support and include this uncommitted one-third.
One might wonder if this 3 part split was a “set up” to convert this into claim that there was a two-third support for Malaysia. Further the split look suspiciously like a division of views based on the major racial groupings in Sabah and Sarawak. The Malay community had leaned towards supporting the concept whereas the Dayaks or Kadazans were less informed and unsure of what they wanted. The then Chinese population in both colonies formed a third or more of the population and were inclined to opposed the British Malayan plan.
The Cobbold Commission was presented with a SUPP petition with over 112,000 signatures which was one seventh of the Sarawak population in 1963. This was not considered as weighing against the so-called two-third “support for Malaysia” and rejected as unreliable.
It is also noted when the UN Assessment team travelled around Sarawak there were anti-Malaysia demonstrations which exceeded 4000 people but their views were never considered as credible and taken into serious consideration but were brusquely dismissed as “rioters”.
The result was extrapolated to falsely claim that the majority of Borneo people supported Malaysia in the 1963 House of Lord’s Malaysia Bill debate. This disinformation is still being used by pro-Malaya people to claim that the Borneo had people freely & voluntarily agreed to support the federation plan.
This view of support was challenged by the Indonesian and Philippines Governments which pointed out that there was no legal basis for Malaysia formation unless a referendum was held on the Malaysia Question clearly showing that the majority of the Borneo people favoured it (in compliance with Principle 9 of UN GAR 1541 requiring universal adult suffrage).
This requirement was the main term of the Manila Accord 1963 which the Malayan government had made with Indonesia and the Philippines (& repeated in the peace agreement to end Konfrontasi in 1966). This amounted to an acknowledgement that a referendum was never held in 1963 and that MA63 was not legally binding without obtaining the people’s informed consent. However, Malaya reneged on its prior agreement to hold a referendum. The British government diverted this into an “assessment” which was not the legal process set out in the UN resolution 1541.
The SSRANZ and Bopimafo Presidents said in conclusion, there was no real self-determination for Sabah or Sarawak is highlighted by the fact that Sulu claim is still alive and continues to be asserted by the claimants. The resolution of the claim could have been achieved in a proper referendum in 1963 whereby the Sabah people were seen to have cast a vote to choose Malaysia, Philippines or independence.
The late Philippines Diosdado Macapagal said in 1982: “In laying claim to North Borneo in pursuance of the legal and historic rights and the security interests of the Philippines, we recognize the cardinal principle of self-determination of which the Philippines has been a steadfast adherent.
In the prosecution, of our valid claim, it is agreeable to us that at an appropriate time, the people of North Borneo should be given an opportunity to determine whether they would wish to be independent or whether they would wish to be a part of the Philippines or be placed under another state.
Such referendum, however, should be authentic and bona fide by holding it under conditions, preferably supervised by the United Nations that would insure effective freedom to the people of North Borneo to express their true and enlightened will.”
Robert Pei
President SSRANZ
Daniel Jambun President of the Borneo’s Plight in Malaysia
Foundation (Bopimafo).
Mosses Paul Anap
President of NGO- Republic of Sabah North Borneo
Emily Elvera Edward.
Woman Council Office & Secretariat.
Sabah Sarawak Borneo Natives Organisation Incorporated of Australia.
Endorsed by: NGOS & individuals
Doris Jones Sabah Sarawak Union – SSU
Kanul Gindol Chairman Gindol Initiative for Civil Society Borneo
Ricky Ganang Penasihat Persatuan Kebudayaan Orang Darat Sabah
Jovilis Majami President Persatuan pembangunan sosial komunity Sabah (BANGUN)
Wainin Setimin President Pertubuhan Prihatin Mualaf Sabah
Cleftus Stephen Mojingol President Pertubuhan Kebudayaan Rumpun Dayak Sabah.
PBK Life President- Yu Chin Lik
PBK President- Voon Lee Shan
Lina Soo - ASPIRASI President
Peter John Jaban-Deputy President for Global Human Rights Federation Borneo.
Alim Ga Mideh for Bulang Birieh Dayak
Lawrance Clement Ahsay for Bulang Dayak Bukit Kelingkang
Buln Ribos- Sarawak Rights activist
Appendix on MA63 validity issues.
The British authorities were well aware this legal problem which confronted the British MA63 drafts-men. The first draft of MA63 only included the UK, Malaya and Brunei as signatory parties and Singapore, North Borneo an Sarawak were excluded although they were the subject matter of the international treaty. The then Sarawak Attorney General Mr. Philip Pike said: “It ts true that Sarawak and North Borneo are not parties to the formal agreement and . . .the undertakings etc. would be given to Britain rather than Sarawak and North Borneo. Logically and Legally therefore it would be right to exclude them from the formal agreement but from a presentational point of view I think it important that if the form of undertaking is to be general rather than specific as to each assurance etc. it should go into the formal agreement.”
This issue was only highlighted at the last minute. Prof AJ Stockwell wrote that “Neither sovereign, nor even self-governing, strictly speaking North Borneo and Sarawak were not of a status to be parties to the formal agreement. It would have been injudicious, however, to have stuck to the letter of the law in this matter. In fact, the British recognised the presentational importance of ensuring that leaders of indigenous peoples of Borneo participated in the signing ceremony alongside representatives of the British, Malayan and Singapore governments” (178). Source A.J. Stockwell introduction p. XXIX “Malaysia”]
The British government claimed that Sabah and Sarawak were being decolonised under UNGAR 1541 but had in fact worked behind the scenes to deny the people their legal right. It actively circumvented the resolution’s requirement for a referendum, by undermining it with an “assessment” in collusion with UN Secretary-General U Thant whose officials had given assurance that the UN assessment team would be handpicked to produce a result favourable to the Malaysia plan.
UNGAR 1541 resolution laid down the required steps that must be taken for the “integration” of non-self-governing colonial territories (North Borneo and Sarawak) with an existing independent state by freely and unconditionally exercise real self-determination in a referendum. Principle IX (9) of the resolution in particular stressed that this must be done by “universal suffrage” with informed consent that is by adults voting in a referendum to agree or disagree on the federation question.
Principle IX
Integration should have come about in the following circumstances :
(a) The integrating territory should have attained an advanced stage of self-government with free political institutions, so that its peoples would have the capacity to make a responsible choice through informed and democratic processes;
(b) The integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these processes.]
