PART II OF III — WHEN A FEDERAL COURT JUDGMENT TELLS US A FOUNDING SAFEGUARD WAS NEVER IMPLEMENTED
By Daniel John Jambun
Commentary & Analysis, Borneo’s Plight in Malaysia Foundation (BoPiMaFo)
Yesterday we asked a fundamental question:
Was Malaysia ultimately implemented in the form that had been promised to Sabah?
Today we move from historical argument to judicial evidence.
Because there is one remarkable fact that every Sabahan should know.
Malaysia’s own Federal Court has recorded that an express safeguard in the Inter-Governmental Committee Report was never implemented.
Not delayed.
Not partially fulfilled.
Never implemented.
But before examining that judgment, we must first clear away another historical confusion.
SELF-GOVERNMENT WAS NOT THE SAME AS INTERNATIONAL SOVEREIGNTY
There is a popular narrative that North Borneo became a fully sovereign independent country on 31 August 1963 and then, sixteen days later, voluntarily entered Malaysia.
The documentary record requires greater precision.
North Borneo certainly underwent an enormously important constitutional transition on 31 August 1963.
A local Cabinet under Chief Minister Donald Stephens assumed responsibility for internal government under the new constitutional arrangements.
Sabah Day therefore deserves recognition and commemoration.
But internal self-government and separate international sovereignty are not necessarily the same thing.
The British Government’s own language is important.
On 1 August 1962, British Colonial Secretary Duncan Sandys told the House of Commons that the British and Malayan Governments intended to conclude a formal agreement providing, among other things, for the:
**“transfer of sovereignty in North Borneo, Sarawak and Singapore.”**
That statement cannot simply be wished away.
If sovereignty was still to be transferred under the Malaysia arrangements, we should be careful about reconstructing history as though North Borneo had already become a completely separate sovereign State in international law before Malaysia was established.
This does not diminish Sabah Day.
It does not diminish self-government.
It simply requires us to distinguish between:
SELF-GOVERNMENT,
SOVEREIGNTY,
and
THE INTERNATIONAL LEGAL PROCESS BY WHICH MALAYSIA WAS CREATED.
Sabahans should celebrate history.
But we should celebrate the history that actually happened.
DONALD STEPHENS WAS NOT SPEAKING ALONE
There is another point that deserves correction.
Donald Stephens’ early reservations about the Malaysia proposal were not merely the private hesitation of one North Borneo politician.
Political thinking across the Borneo territories included proposals for greater cooperation among North Borneo, Sarawak and Brunei before entering any wider federation.
The underlying concern was straightforward:
the Borneo territories should not enter negotiations with Malaya from a position of weakness.
They should possess sufficient political strength and constitutional protection to participate as genuine partners.
That historical concern is extremely important because it helps explain why so many safeguards were demanded.
The issue was never merely whether North Borneo should cooperate with Malaya.
The deeper question was:
ON WHAT TERMS?
Would North Borneo enter Malaysia as a genuine partner whose special position was constitutionally protected?
Or would it eventually become merely another component of a federation overwhelmingly controlled from the Peninsula?
More than sixty years later, that question has not disappeared.
BRUNEI PROVES THAT ENTRY INTO MALAYSIA WAS NOT INEVITABLE
Brunei provides another important comparison.
Brunei participated in negotiations concerning the proposed Federation of Malaysia.
But Brunei ultimately did not join.
There were several outstanding disagreements.
Among the most important was the future treatment of Brunei’s substantial oil revenues.
Contemporary diplomatic records described oil revenue as a principal stumbling block.
Brunei wished to retain those revenues for its own development, while the Malayan position contemplated the revenues eventually entering Central Government funds after an agreed period.
Brunei did not accept the final arrangement.
The Sultan did not sign MA63.
This tells us something important.
ENTRY INTO MALAYSIA WAS NOT HISTORICALLY INEVITABLE.
Terms mattered.
Revenue mattered.
Political status mattered.
Safeguards mattered.
Brunei could decline to participate when it considered the proposed terms unsatisfactory.
North Borneo and Sarawak took a different path.
But they did so within a framework of negotiated safeguards, assurances, undertakings and constitutional protections.
Those safeguards therefore cannot now be dismissed as historical decoration.
AN EVEN DEEPER LEGAL QUESTION
When MA63 was signed in London on 9 July 1963, North Borneo and Sarawak were still British colonial territories.
They were not yet sovereign independent States comparable in international status with the already independent Federation of Malaya.
Yet representatives signing for North Borneo and Sarawak appear on the Malaysia Agreement itself.
The United Nations Treaty Series records North Borneo and Sarawak among the participants.
The Agreement states that those signing were duly authorised.
That is part of the historical and legal record.
But another part of the record must also be confronted:
Britain still possessed sovereignty and responsibility for the international relations of North Borneo and Sarawak.
That raises a serious legal question:
IN WHAT PRECISE INTERNATIONAL-LEGAL CAPACITY DID NORTH BORNEO AND SARAWAK SIGN MA63 WHILE THEY REMAINED COLONIAL TERRITORIES UNDER BRITISH SOVEREIGNTY?
Who conferred authority upon their representatives?
What was the nature of that authority?
Were they signing as prospective constituent States?
As territorial governments operating under British constitutional authority?
As representatives of peoples undergoing decolonisation and exercising self-determination?
Or in some combination of those capacities?
These questions deserve serious scholarly and legal examination.
But BoPiMaFo does not say that colonial status, by itself, automatically proves that MA63 was null and void.
Such a conclusion has to be demonstrated through law and evidence.
There is an important difference between asking a legitimate legal question and pretending that the answer has already been conclusively established.
Our argument is both narrower and stronger:
THE PROCESS BY WHICH NORTH BORNEO AND SARAWAK ENTERED MALAYSIA DESERVES FAR GREATER LEGAL AND HISTORICAL SCRUTINY THAN IT HAS RECEIVED.
And that scrutiny must include not merely how MA63 was signed.
It must also examine whether the safeguards upon which participation depended were subsequently honoured.
That takes us directly to Article VIII.
ARTICLE VIII WAS NOT DECORATION
Article VIII of the Malaysia Agreement 1963 provides that the Governments of the Federation of Malaya, North Borneo and Sarawak would take the legislative, executive or other action required to implement the assurances, undertakings and recommendations contained in Chapter 3 and Annexes A and B of the IGC Report where they had not already been implemented expressly in the Constitution.
The language is important.
It says the governments **“will take”** the necessary action.
That is substantially different from saying that they might consider doing so.
The IGC arrangements therefore contained two broad categories.
Some safeguards went directly into constitutional law.
Others required subsequent legislative, executive or other implementation under Article VIII.
And this is where an extraordinary problem arose.
THE BORNEO JUDGE SAFEGUARD
Paragraph 26(4) of the IGC Report recommended that when the Supreme Court heard a case originating in a Borneo State, normally at least one judge should possess Bornean judicial experience and the court should normally sit in the Borneo State concerned.
Why would such a provision have been proposed?
Because Sabah and Sarawak possessed distinctive laws, indigenous customs, land systems, historical institutions and constitutional arrangements.
A judge familiar with the Borneo legal environment was not intended merely as decoration.
It was a safeguard.
Yet when the Courts of Judicature Act 1964 was enacted, no enforceable requirement was included compelling such Bornean representation on the appellate panel.
Eventually the matter reached Malaysia’s highest court.
WHAT THE FEDERAL COURT SAID
In Keruntum Sdn Bhd v Director of Forest & Ors, the Federal Court concluded that the recommendation in paragraph 26(4) had never been implemented through an express constitutional provision or legislative, executive or other governmental action.
The court therefore held that a litigant could not claim an enforceable legal right to have a judge with Bornean judicial experience sitting on the panel.
That reasoning was subsequently affirmed by the Federal Court majority in TR Sandah Ak Tabau & Ors v Director of Forest Sarawak & Anor.
Because the IGC recommendation had not been implemented under Article VIII, the applicant could not claim a legal right to the benefit of that recommendation.
Let us understand what this means.
We should not exaggerate it.
The Federal Court did not declare that every Sabah and Sarawak safeguard had been ignored.
It did not declare MA63 invalid.
It did not declare Malaysia unlawful.
But it confirmed something enormously significant:
AT LEAST ONE IDENTIFIABLE SAFEGUARD FORMING PART OF THE IGC ARRANGEMENTS WAS NEVER IMPLEMENTED.
That fact alone should trigger a much larger national inquiry.
THE CONSTITUTIONAL PARADOX
Consider the sequence.
First, a safeguard was negotiated.
Second, Article VIII required governmental action where necessary to implement IGC assurances.
Third, the safeguard was not implemented.
Fourth, decades later, when litigants attempted to rely upon it, the answer was essentially that because it had never been implemented into enforceable domestic law, it could not now be claimed as an enforceable legal right.
That produces a profound constitutional paradox:
CAN GOVERNMENTAL FAILURE TO IMPLEMENT A SAFEGUARD ULTIMATELY BECOME THE REASON THE INTENDED BENEFICIARY CANNOT ENFORCE IT?
That is not merely an academic question.
It goes directly to the integrity of the founding bargain.
And once that question arises, Sabah must look beyond one judicial safeguard.
We must ask about the fundamental assurances upon which the entire Malaysia proposal was sold to the people of North Borneo.
Two stand above almost everything else.
SECURITY.
And:
DEVELOPMENT.
WHAT HAPPENED TO THE SECURITY ASSURANCE?
Security was fundamental to the case for Malaysia.
North Borneo was emerging from colonial rule.
Its population was relatively small.
Its borders were exposed.
Regional instability was real.
Security, immigration and protection of the territory’s demographic and political character therefore mattered enormously.
That is one reason Sabah and Sarawak received special immigration safeguards.
Control over entry into Sabah was not an accidental privilege.
It formed part of the constitutional architecture intended to protect the State.
But what subsequently happened in Sabah raises deeply disturbing questions about whether that assurance was faithfully performed.
For decades Sabah experienced mass undocumented immigration on a scale unmatched in most of Malaysia.
Then came the allegations surrounding what became widely known as Project IC.
These were not merely rumours discussed in coffee shops.
Malaysia established a Royal Commission of Inquiry into Immigrants in Sabah.
The official parliamentary repository describing the RCI report states that the inquiry dealt with evidence concerning the issuance of identity cards to foreigners through abuse of power and corruption, contributing to Sabah’s extraordinary population growth.
That is an astonishing matter.
If foreigners improperly obtained Malaysian identity documentation and some subsequently became registered voters, the consequences go far beyond ordinary immigration enforcement.
Immigration and electoral integrity intersect.
A person improperly inserted into the citizenship system may eventually enter the electoral system.
And once that happens, the political character of Sabah itself can be affected.
The questions therefore become unavoidable:
Who received identity documents improperly?
Who authorised or facilitated their issuance?
How many eventually acquired citizenship?
How many subsequently appeared on Sabah’s electoral rolls?
How many voted in State or parliamentary elections?
What agencies knew what was happening?
Who benefited politically?
And were all the recommendations and findings arising from the RCI ever fully acted upon?
This is not merely an immigration matter.
It is a constitutional security matter.
If the demographic composition and electorate of Sabah were deliberately manipulated through the unlawful documentation of foreigners, that would constitute a profound betrayal of the security safeguards owed to Sabah.
It would strike directly at the democratic right of Sabahans to determine their own political future through a legitimate electorate.
THE POSSIBILITY OF A REVERSE TAKEOVER
Sabahans are entitled to ask another uncomfortable question.
Conventional security thinking imagines a takeover through armies, invasion and territorial occupation.
But in the modern world, political control can also be altered demographically.
If sufficiently large numbers of foreigners are unlawfully absorbed into citizenship and subsequently into the electorate, political power can gradually move without a single foreign soldier crossing the border.
That is why Sabah must take its demographic security seriously.
The danger is not the presence of legitimate migrants or lawful citizens.
The danger lies in any deliberate manipulation of citizenship and voting rights for political purposes.
If such manipulation occurred on a sufficiently large scale, Sabah could face what might be described as a reverse demographic and political takeover from within.
That possibility is too serious to be hidden behind political sensitivities.
It demands evidence.
It demands transparency.
And it demands implementation of every recommendation necessary to restore confidence in Sabah’s citizenship records and electoral roll.
The basic question is therefore:
DID THE FEDERAL SYSTEM PROTECT SABAH’S SECURITY — OR DID FEDERAL INSTITUTIONS FAIL SABAH AT THE VERY POINT WHERE SECURITY PROTECTION MATTERED MOST?
THEN COMES THE PROMISE OF DEVELOPMENT
The second great assurance concerned economic advancement.
Malaysia was promoted not merely as a security arrangement.
It was also presented as a pathway towards development and prosperity.
North Borneo entered Malaysia possessing extraordinary natural resources.
Oil.
Gas.
Timber.
Land.
Agricultural resources.
Fisheries.
Minerals.
A vast coastline.
Strategic maritime resources.
These resources have contributed enormously to the Malaysian economy.
Yet today we confront one of the greatest contradictions in the Malaysian federation:
ONE OF MALAYSIA’S MOST RESOURCE-RICH STATES HAS THE HIGHEST INCIDENCE OF ABSOLUTE POVERTY IN THE COUNTRY.
According to the Department of Statistics Malaysia, Sabah’s incidence of absolute poverty in 2024 stood at 17.7 per cent.
The Malaysian national rate was 5.1 per cent.
Sabah therefore recorded the highest poverty incidence of any State.
That fact should trouble every Malaysian.
How does a territory blessed with such immense natural wealth end up at the bottom of the national poverty table?
This cannot simply be answered by announcing another development allocation.
It requires us to examine the structure itself.
WHERE DID SABAH’S WEALTH GO?
For decades Sabah’s resources contributed to national wealth.
Its petroleum entered national arrangements.
Its timber generated enormous revenues.
Its agricultural lands produced wealth.
Federal taxes and revenues were collected.
Yet large parts of Sabah continued struggling with basic infrastructure.
Roads.
Water.
Electricity.
Healthcare.
Schools.
Rural communications.
Employment opportunities.
Housing.
These are not the characteristics Sabahans expected after more than six decades inside a federation partly justified in the name of development.
The question therefore cannot simply be:
HOW MUCH MONEY HAS PUTRAJAYA GIVEN SABAH?
The correct questions are:
HOW MUCH WEALTH HAS SABAH CONTRIBUTED TO THE FEDERATION?
HOW MUCH FEDERAL REVENUE HAS BEEN DERIVED FROM SABAH?
WHAT WAS SABAH CONSTITUTIONALLY ENTITLED TO RECEIVE?
AND HOW MUCH WAS ACTUALLY RETURNED?
That is the accounting Sabah deserves.
THE 40 PER CENT ENTITLEMENT CANNOT BE SEPARATED FROM DEVELOPMENT
This is where Sabah’s constitutional 40 per cent entitlement assumes enormous importance.
Unlike the unimplemented Borneo judge recommendation, Sabah’s special financial arrangements were incorporated into the Federal Constitution.
Articles 112C and 112D and the Tenth Schedule gave Sabah a special constitutional financial position.
The 40 per cent entitlement is therefore not federal charity.
It is not a discretionary development handout.
It is not something Sabah should have to beg for annually.
It forms part of the constitutional fiscal structure created at Malaysia’s formation.
That distinction matters enormously.
If Sabah was denied or deprived for decades of revenue constitutionally intended for the State, then we must also ask whether that failure contributed directly to Sabah’s development deficit.
How many roads could have been constructed?
How many water systems?
How many rural clinics?
How many schools?
How many electricity projects?
How many scholarships?
How many industries?
How many jobs?
How much poverty could have been prevented?
These are not hypothetical political slogans.
They are precisely the questions that should follow whenever money constitutionally intended for development is disputed over decades.
RESOURCE-RICH BUT POOR — SOMETHING HAS GONE WRONG
There is a contradiction Malaysia can no longer avoid.
Sabah is extraordinarily rich in natural resources.
Yet Sabah remains the State with Malaysia’s highest absolute poverty incidence.
One cannot indefinitely celebrate Sabah’s oil, gas, timber, land and maritime resources at the national level while treating Sabah’s poverty as merely a local administrative failure.
Certainly Sabah governments themselves must also be held accountable.
Corruption, waste, poor governance, failed projects and bad State-level decisions cannot simply be blamed on Kuala Lumpur.
BoPiMaFo has consistently demanded accountability from Sabah’s own leaders as well.
But State-level failures do not erase federal constitutional obligations.
Both can be true.
Sabah leaders may have governed badly.
And the Federal Government may also have failed to honour important parts of the founding fiscal bargain.
The answer is therefore not political finger-pointing.
The answer is accounting.
How much came out?
How much should have come back?
How much actually came back?
Where did it go?
Who was responsible?
Those figures should be published.
A FEDERATION CANNOT HAVE TWO DEFINITIONS OF SABAH
There is something fundamentally wrong with a system in which Sabah’s resources are described as national assets when they leave Sabah, but Sabah’s poverty becomes merely Sabah’s responsibility when the consequences return.
A genuine federation cannot operate indefinitely on the principle:
YOUR RESOURCES ARE OUR NATIONAL WEALTH.
But:
YOUR POVERTY IS YOUR LOCAL PROBLEM.
That is not the partnership Sabahans were led to expect.
