By Daniel John Jambun
President
Borneo’s Plight in Malaysia Foundation {BoPiMaFo}
KOTA KINABALU — The Borneo Plight in Malaysia Foundation (BoPiMaFo) today said that if the Federal Government had succeeded in defeating Sabah’s claim to its 40% revenue entitlement, it would have amounted to a fundamental breach of the Malaysia Agreement 1963 (MA63) — giving Sabah the moral and political right, though not yet the legal standing, to seek international remedy through the United Nations or even the International Court of Justice (ICJ).
BoPiMaFo emphasized that the 40% net revenue entitlement is not an ordinary fiscal issue but one of the core constitutional guarantees negotiated under MA63 to preserve Sabah’s fiscal autonomy within the Federation. Any attempt by Putrajaya to deny or nullify that right would effectively repudiate one of the founding terms upon which Sabah agreed to form Malaysia.
“Had the Federal Government won the case, it would have signalled a unilateral dismantling of the MA63 partnership — undermining the foundation upon which the Federation was built. Such a breach would have provided Sabah the moral right to seek international recourse, even if formal legal standing at the ICJ remains limited,” BoPiMaFo said.
The Legal and Constitutional Context
BoPiMaFo explained that under international law, only sovereign states may file or defend cases before the ICJ. Although Sabah and Sarawak were equal founding partners under MA63, subsequent constitutional developments — particularly the 1976 amendment to Article 1(2) of the Federal Constitution — downgraded both territories to the same status as Peninsular states, stripping them of their separate international identity.
The Foundation acknowledged that the 2021 constitutional amendment (which came into effect in 2022) restored the original structure of Article 1(2), once again distinguishing between the States of Malaya and the Borneo States of Sabah and Sarawak.
“This amendment was a welcome symbolic correction and a recognition of Sabah and Sarawak as co-founding partners. However, it was largely declaratory, not substantive. The amendment did not alter Article 160(2), which still defines ‘the Federation’ as the one established under the Federation of Malaya Agreement 1957 — a definition that continues to exclude Sabah and Sarawak’s distinct status under MA63,” BoPiMaFo said.
As such, Sabah and Sarawak are today acknowledged as equal partners in name, but remain subnational entities in law. This means that while Sabah cannot directly bring a case to the ICJ, it can still pursue international remedy through the United Nations system, including through diplomatic representations or UN General Assembly resolutions.
The Chagos Precedent
BoPiMaFo cited the Chagos Archipelago case as an example of how international bodies can review historical breaches of decolonization or partnership agreements.
In that case, the ICJ’s 2019 Advisory Opinion found that the United Kingdom’s separation of the Chagos Islands from Mauritius in 1965 violated international law. The proceedings were initiated not by the Chagos Islanders themselves, but by the Government of Mauritius, after the UN General Assembly formally requested the ICJ’s opinion.
“This demonstrates that international remedies exist for breaches of post-colonial agreements — but they must be pursued through the UN process, not by unilateral legal action. If MA63 is repeatedly violated, Sabah and Sarawak could similarly seek international review through the United Nations General Assembly or the Committee on Decolonization,” BoPiMaFo said.
Restoring Equal Partnership
BoPiMaFo stressed that it does not advocate secession, but calls for the full restoration of constitutional equality and the faithful implementation of MA63.
“The High Court’s judgment affirming Sabah’s 40% entitlement spared Malaysia a deeper constitutional and diplomatic crisis, but it also confirmed what we have said for years — that the Federal Government has been in continuing breach of MA63,” the Foundation said.
BoPiMaFo reminded Putrajaya that MA63 is not a domestic administrative arrangement, but an internationally recognized treaty deposited with the United Nations.
“When one party consistently violates the terms of such a treaty, the matter ceases to be internal — it becomes a legitimate concern of the international community. The restoration of Article 1(2) in 2021 reaffirmed Sabah and Sarawak’s status as equal partners. It is now time to give that equality real meaning through action, not symbolism,” BoPiMaFo concluded.
