Thursday, 21 September 2023

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Kuching High Court dismisses pro-independence activists’ suit challenging validity of Malaysia Agreement 1963

SARAWAK, MALAYSIA— Last Thursday (25 May), Kuching High Court dismissed a suit brought by 11 Sarawakians challenging the validity of the Malaysia Agreement 1963 (MA63). The agreement led to the formation of Malaysia in 1963, incorporating Sabah and Sarawak.

Judicial Commissioner Alexander Siew How Wai, in his decision, stated that the suit lacked a reasonable cause of action and was misconceived.

According to Siew, the Federal Constitution (FC) is the supreme law of the nation, and it states that Sabah and Sarawak are part of Malaysia.

Judge reiterated the necessary of two-third majority constitutional amendments in Malaysian Parliament.

“Sabah and Sarawak cannot be not part of Malaysia without the necessary amendments to the constitution, which would require a two-third majority of Parliament and the consent of Sabah and Sarawak.”

“This court cannot disregard or rewrite the FC as this court could be guilty of doing, if this court were to grant the declarations sought in this suit. ”

“In the humble view of this court, after due consideration, this suit is obviously unsustainable. The application to strike out the suit under Order 18 of the Rules of Court is allowed,” the Judge Siew added.

Additionally, the judge ordered the plaintiffs to pay RM10,000 (approximately 2,156 USD) in costs.

The suit was initially filed in March 2022 by Dorus Katan and 11 other Sarawakians, naming the Malaysian, Sarawak, and UK governments as respondents.

The 11 Sarawakians involved in the suit are: Dorus Katan Juman, Hugh Lawrence Zehnder, Nor Nyawai, Xavier Ginafah Sidop, Jemain Uji, Belayong Nyandang, Kalai Sibok, Yu Chin Liik, Chieng Kung Chiew, Ahmad Awang Ali, and Alim Giovanni Adlim.

The plaintiffs sought a declaration that the MA63 was not a binding international agreement since it failed to comply with the requirements of international law for the making of treaties, which state that only sovereign states can enter into binding agreements.

They also sought a declaration that the UK government’s decolonization of Sarawak and Sabah in 1963, by transferring the two colonies to the Malayan Federation (renamed Malaysia), did not lawfully fulfill the right of people to exercise self-determination, as mandated by UN General Assembly Resolutions (UNGAR) 1514XV & 1541XV and international law principles.

They argued that the decolonization process should have involved seeking the consent of the people through a referendum and addressing the Philippines’ claim on a part of Sabah in accordance with UNGAR 1541.

This, they claimed, required the UK and Malaya to seek the consent of the people in compliance with UNGAR 1541 to hold a referendum before establishing the proposed federation and resolution of the Philippines’ claim on a part of Sabah.

Plaintiffs claimed the integration of North Borneo and Sarawak into the Malayan federation was “wrongful and unlawful”

Furthermore, they sought a declaration that the integration of North Borneo and Sarawak into the Malayan Federation was wrongful and unlawful due to breaches of international law.

They claimed that the Malaysian government’s continued control over the sovereignty of the two states and their territories is unlawful, and thus, the territories should be decolonized for independence.

Alternatively, they sought a declaration that if the MA63 was validly made in accordance with international law, it was terminated by the federal government of Malaysia’s multiple willful breaches of the agreement, acknowledged by the federal and state governments.

They argued that the neglect and failure to faithfully comply with the treaty constituted a “willful discontinuance” of the treaty over the course of five decades.

In April 2022, the Sarawak government engaged the Sarawak Attorney General’s Chambers to file an application seeking to strike out the suit brought by the 11 Sarawakians.

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