By Robert Pei
Sabah Sarawak Rights Australia New Zealand (SSRANZ)
(In response to the article by Datuk Roger Chin published in the Daily Express, September 2024)
KOTA KINABALU: May I draw attention to Datuk Roger Chin’s article defending the Malaysia Agreement 1963 (MA63). With respect to my learned friend, he inadvertently undermined his entire argument in the very first paragraph:
“The Malaysia Agreement 1963 (MA63) is a landmark treaty that not only shaped the modern geopolitical structure of Malaysia but also conferred unique rights and autonomy to the states of Sabah and Sarawak. As an agreement between sovereign states—namely the United Kingdom, Malaya, Sabah (then North Borneo), Sarawak, and Singapore—MA63 is classified as an international treaty…”
However, on 9 July 1963, when MA63 was signed in London, Singapore, North Borneo, and Sarawak were still British crown colonies, not sovereign states with legal capacity to make binding treaties as required under international law.
Their colonial status was clearly defined in Article 1 of MA63 itself, and under Article 11 of the Statute of Westminster 1931, only self-governing Dominions had treaty-making powers—not colonies.
Indeed, the British Colonial Secretary publicly confirmed on 31 August 1963 that all three colonies remained under British control until 16 September 1963.
Hence, they lacked legal capacity to sign an international treaty.
According to international law and reinforced by recent ICJ rulings—notably the Chagos Case (2019) and Mauritius v Maldives (2022)—MA63 was void ab initio.
Summary of the Invalidity of MA63 and Its Legal Consequences –
MA63 Signed by Colonies Without Legal Capacity as Sovereign Parties
The Malaysia Agreement 1963 (MA63), was void ab initio, that is an invalid treaty from the outset (ICJ ruling in the Chagos Case 2019, reaffirmed by the case of Mauritius vs. Maldive 2022)
MA63, signed on 9 July 1963, involved two sovereign states—the United Kingdom and the Federation of Malaya—and three British crown colonies: Singapore, North Borneo (now Sabah), and Sarawak. At the time, the latter three were not independent sovereign states and thus lacked the legal capacity under international law to enter into binding international treaties.
Fraudulent Representation of Consent
Both the UK and Malaya were aware that the crown colonies lacked treaty-making powers, but they included them as signatories to mislead the international community and the local populations into believing that a legitimate, consensual federation was being formed. In fact the terms and conditions for MA63 were already secretly negotiated on behalf of the North Borneo and Sarawak colonies by the UK and Malaya, and the treaty was drafted by the British colonial office before British nominated local leaders were co-opted to endorse of the treaty. This rendered MA63 a fraudulent and misleading treaty.
MA63 Invalid Under the Statute of Westminster 1931
The validity of MA63 under international law is critically impaired by the fact that, pursuant to the Statute of Westminster 1931, crown colonies such as North Borneo and Sarawak lacked the legal personality required to enter into binding treaties—thereby nullifying both the legal capacity and the consent necessary to legitimise the Malaysia formation plan.
Violation of UNGA Resolution 1514 (Declaration on the Granting of Independence to Colonial Countries and Peoples)
MA63 was signed during a declared state of emergency in northern Borneo due to ongoing armed resistance led by the Brunei People’s Party (PRB) and its TNKU forces. Mass arrests of Sarawakians opposed to Malaysia further suppressed democratic expression. The UK ignored the PRB’s call for negotiations and ceasefire, in breach of the UNGA 1514 requirement that independence must be granted freely and fairly.
Contravention of UNGA Resolution 1541 (Principle IX)
MA63 was negotiated solely by the British government on behalf of North Borneo and Sarawak, which did not have fully elected or self-governing administrations. This violates Principle IX of UNGA Resolution 1541, which requires that integration with an independent state must result from the voluntary, informed will of the people expressed through democratic processes.
No Referendum or Mandate from the People
The 1962 Cobbold Commission of Enquiry on the People’s wishes on Malaysia as the name suggested was only a survey of selected groups of people by a conflicted body of British and Malayan officials. No referendum was held in North Borneo or Sarawak to ascertain the people’s wishes on joining Malaysia, violating international legal norms for self-determination under UNGA Resolution 1541. The people were never given a direct vote or voice in the decision.
Manila Accord and the UN Assessment Requirement
On 31 July 1963, Malaya, Indonesia, and the Philippines signed the Manila Accord, in which they agreed that the formation of Malaysia must be based on the genuine wishes of the people of North Borneo and Sarawak, to be verified through a UN process in compliance with UNGA 1541. This was an explicit recognition that MA63, signed just days earlier, was insufficient without proof of public consent.
Compromised UN Assessment and Premature Malaysia Proclamation
The UN Secretary-General U Thant appointed a Malaysia Assessment Mission under pressure from the UK and Malaya. The team members were handpicked to secure a favourable outcome. Despite protests from Indonesia and the Philippines, the UN did not suspend the assessment even after the UK and Malaya prematurely announced that Malaysia would be formed on 16 September 1963—before the UN mission had concluded. U Thant acquiesced and accelerated the mission to end by 10 September; the final report was submitted on 14 September, just two days before Malaysia’s proclamation.
Implicit Admission of MA63’s Flaws
The decision by the UK and Malaya to seek a UN mission after signing MA63 on 9 July 1963 was itself an admission that the treaty lacked legitimacy. If MA63 had been valid and consensual, no further assessment would have been necessary. This reinforces Indonesia and the Philippines’ criticism that Malaysia was formed without a legal basis in international law.
Fundamental Breaches of MA63 and the Consequences Under International and Constitutional Law
Even if one accepts the legal validity of MA63 (which we do not), the treaty’s foundational terms—forming the constitutional basis for Malaysia—have been repeatedly breached, including:
Replacement of Secularism with a Race-Religion Supremacist State
Malaysia was intended to be a secular, multicultural federation. However, following the 1969 racial riots, the state was transformed under the New Economic Policy (NEP) into an ethno-religious system privileging Malay-Muslim supremacy—an act that violates both the spirit and letter of MA63 and international human rights law.
Removal of Sabah and Sarawak’s Veto Power via Parliamentary Seat Allocation
Sabah, Sarawak, and Singapore were collectively given one-third of parliamentary seats to veto constitutional amendments. After Singapore’s expulsion in 1965, this veto safeguard was unilaterally removed, violating a foundational constitutional guarantee.
Malayanisation and Centralisation
The original promise of autonomy and self-government for Sabah and Sarawak has been eroded by federal control over education, religion, law enforcement, natural resources, and administration. This process of Malayanisation breaches MA63 and violates the Basic Structure Doctrine of constitutional law.
Failure to Develop Sabah and Sarawak
One of the stated key objectives for Malaysia was the promise of equitable development and infrastructure for Borneo territories. Instead, Sabah and Sarawak remain the poorest and least developed regions in the country, despite contributing billions in oil and gas revenue to the federal government to develop Malaya.
The Legal and Political Consequences
The cumulative effect of these multiple, sustained, and material breaches of the foundational terms of MA63—including:
The dismantling of a secular constitutional order,
Abrogation of seat-based constitutional safeguards,
Loss of promised autonomy,
and systemic economic neglect—
means that the treaty has effectively collapsed under both international treaty law and the Basic Structure Doctrine.
Sabah and Sarawak are no longer bound to remain in this federation. The people of Borneo now possess a lawful and moral right to pursue self-determination, including peaceful exit from Malaysia, just as Singapore did in 1965.
Let the truth be known:
Malaysia was not created through free will, nor maintained through good faith. Its legitimacy stands not on ceremony, but on the honouring of solemn promises.
