Sabah MCA’s stand on the Malaysia Agreement 1963


SABAH MCA welcomes the Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Dr Wan Junaidi Tuanku Jaafar’s recent announcement that the government is planning to table a Bill to amend several provisions of the Federal Constitution to bring it in line with the Malaysia Agreement 1963 (“MA63”), reinstating the rights of the peoples of Sabah and Sarawak as enshrined in the MA63.

The move by the minister to engage with Members of Parliament in order to obtain the two-thirds majority required for amending the Constitution, and also to engage with rakyat on the MA63, ensures that this Amendment will be done in the spirit of representative democracy and receive bipartisan support.

It should be noted that the provisions of the MA63 are consistent with the concept of federalism as contained in the Federal Constitution of 1963.

Importance of Malaysia Agreement 1963

The Federal Constitution, as well as relevant Acts of Parliament, will have to be amended in order to bring back what was originally envisaged in MA63, including the aspirations of the people of Sabah and Sarawak when they agreed to form the new country of Malaysia in 1963.

Therefore, it is important that what was originally agreed to in the MA63 must be upheld or reinstated in the interest of national unity, fairness and justice.

Proposed points to be considered

Several points must be taken into consideration when looking into the possible amendments the government will make to the Federal Constitution and its relevant Acts in order to bring it more in line with MA63. As a start, Sabah MCA would like to propose THREE areas for the Federal Government to study and focus upon:

(1) Representation in Parliament

In the MA63, the Dewan Rakyat was supposed to comprise 159 elected members, 104 of which were to be from the states of Malaya (West Malaysia) and the remaining 55 were to be from Sabah, Sarawak, and Singapore. This would ensure that no one territory would have a two-thirds (2/3) majority in the Dewan Rakyat.

Currently, out of 222 elected members, Sabah and Sarawak have only 56 seats in the

Dewan Rakyat combined, or 25.23%. This leaves West Malaysia a total of 166 seats or 74.77%, which is well over a two-thirds (2/3) majority (or 66.67%).

Sabah MCA proposes that the current Article 46(1) of the Federal Constitution be amended to reflect this, and ensure that neither West nor East Malaysia would be able to

have a two-thirds majority of Dewan Rakyat.

(2) Judiciary

(a) Constitution of the High Courts

Under the MA63, each of the High Court shall consist of a Chief Justice and no less than four other judges, which shall not exceed twelve in the High Courts of Malaya, eight in the High Court of Sabah and Sarawak (before 1994, the High Court in Borneo), and eight in the High Court in Singapore.

The current proportion of judges in Malaysia does not reflect the proportion of judges as stated in the MA63.

Sabah MCA proposes the Federal Government should look into amending Article 122AA(1) of the Federal Constitution on the number of judges allocated for the High Court in Malaya and High Court in Sabah & Sarawak to reflect the proportion originally set out in the MA63.

Likewise, it is proposed that the composition of the Federal Court and the Court of Appeal should also reflect a greater percentage of judges from Sabah and Sarawak.

(b) Appointment of judges

Pursuant to the MA63, the Heads of State (TYT) of Sabah and Sarawak may appoint Judicial Commissioners, but this power was removed by a 1994 constitutional amendment.

Sabah MCA proposes the Federal Government look into whether the 1994 constitutional amendment was done with the full consent of the Sabahan and Sarawakian state legislatures, and should also look into amending Article 122AB on the appointment of Judicial Commissioners for the High Court in Sabah and Sarawak by the Heads of State of Sabah and Sarawak to better reflect Section 16(3) of the MA63.

(3) Territorial rights and natural resources rights

By the North Borneo (Alteration of Boundaries) Order in Council 1954, the boundaries of

the Colony of North Borneo were extended to include the area of the continental shelf – the seabed and its subsoil which lies beneath the high seas contiguous to the territorial waters of North Borneo.

After the formation of Malaysia in 1963, laws such as the Territorial Sea Act 2012 (Act 750) were enacted, which effectively reduced the territorial waters of Sabah and Sarawak.

Sabah MCA proposes that the Federal Government should look into all Acts of Parliament that has an impact on the boundaries of Sabah and Sarawak, and whether these Acts of Parliament were in contravention with Article 2(b) of the Federal Constitution, whereby Parliament cannot pass laws altering the boundaries of a state in the federation without the express consent of the state itself, such consent being in the form of a law made by the legislature of that state.

Such acts may include the Continental Shelf Act 1966, the Petroleum Development Act 1974, and the Territorial Sea Act 2012, among others.

Conclusion

Sabah MCA hopes that the Government of Malaysia will initiate efforts to study the exact wordings of the MA63, as well as the wordings of the Federal Constitution, in order to protect the safeguards for Sabah and Sarawak, such as the special position of Sabah and Sarawak in the Federation; land, agriculture and forestry issues; powers of local government; religious freedom; native rights and matters; revenue; state sales tax; special grants, immigration, and language, just to name a few.

Sabah MCA also hopes that all the Members of Parliament would look into the interest of the Rakyat of Sabah and Sarawak when voting for the amendments to the Federal Constitution and various Acts of Parliament to bring it in line with the spirit of the MA63 which is the foundation of the formation of Malaysia.

All the safeguards for Sabah and Sarawak in the MA63 must be safeguarded, and where there are provisions in the current Federal Constitution and Acts of Parliament that are inconsistent or in conflict with the spirit of the MA63 or the Federal Constitution of 1963, it has to be considered to be amended.

Lu Yen Tung

Sabah MCA state liaison committee chairperson

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