People’s Petition on MA’63 May Be Way Forward On Malaysia

If I don’t mention source in this comment and analysis, I am connecting the dots as a legal scholar (jurist). There’s originality of thought even if inspired by source.

The graphics above on the “validity” of the Malaysia Agreement 1963 (MA’63) has been viralled in Sabah and Sarawak since forever.

MA’63 is the basis for the Borneo Territories, Sabah and Sarawak, being in Malaysia with Malaya, ostensibly as “Equal Partners”.

Malaysia isn’t a Federation, it can be argued, but again “Equal Partnership”.

The Federation was under the Federation of Malaya Agreement 1948 (it’s not 1957). See Definition of Federation in Article 160(2) of the Federal Constitution. The Federation of Malaya Independence Act 1957 reinforced the 1948 Agreement. Both should be mentioned in Article 160(2). Instead, the Article in the Federal Constitution dates the Agreement as 1957. This is an error in fact and error in law which can only be blamed on the printer’s devil.

Equal Partnership in this case cannot be about population and territory but only about law. That’s why there are two High Courts in Malaysia viz. High Court of Borneo (Sabah and Sarawak) and High Court of Malaya (yes Malaya, not Malaysia).

Malaya exists as seen in the High Court of Malaya, Universiti Malaya, and various statutes and case laws. Malaya cannot be read, in law, as synonymous with Malaysia. This is a fact in law. If it’s Opinion, it will stand up in the court of law.

The Opinion in the graphics isn’t law. Only the court can declare law.

Even an “invalid” law or Agreement “like MA’63” is valid in law unless the court declares otherwise. If MA’63 is invalid in law, the High Court of Borneo and the Federal Court wouldn’t refer to it from time to time before Ruling on matters which originate from the Borneo Territories.

Again, in the case of the Malaysia Agreement 1963 (MA’63), the passage of time may matter in law.

There have been so many elections and governments in Sabah and Sarawak since Malaysia Day, 16 Sept 1963.

If MA’63 is invalid in law, the matter should have been taken up by the parties concerned within a reasonable period of time from Malaysia Day.

It was not done.

That may be a fatal flaw in law. I stand corrected as, except for 1990 to 1994 in Sabah under Joseph Pairin Kitingan, the governments in Sabah and Sarawak have been proxy administrations of the Federal government. The government in Sarawak hasn’t changed since 1966. Under international law, the people of Sarawak have lost their sovereignty.

Still, as the University of London cautions law students, “it’s not possible for anyone to know law”.

“Law, ultimately, remains the power of language.”

Indeed, law students aren’t even marked for law, but for the English language, evidence of wide reading, and “the ability to think like a lawyer”.

There are no right or wrong answers in law exams.

Locus Standi

The people, under the international law on self-determination and human rights, have locus standi.

They should have lodged a Petition with the UN Security General, UN Security Council, UN General Assembly, the International Court of Justice, the International Criminal Court since the Federal government was allegedly party to illegalities in the Borneo Territories, the Federal Court, Agong, the High Court in London and the Queen in England. Before the UK left EU, the Petition could have been lodged at the European Court as well.

The people can still do it.

Belum cuba, belum tahu (if you don’t try, you won’t know).

In short, the People’s Petition on MA’63 may be the Way Forward in Malaysia.

Sabah and Sarawak also have other Options on MA’63 and Borneo rights.

These include seeking greater administrative powers by devolution for Sabah and Sarawak, autonomy, self-determination, independence, secession, and unilateral declaration of independence, among others.

Origin Of Law

At the risk of being labelled superstitious and delusional, it can be argued that science implies, if it has not acknowledged, that the Word of God is the origin of law.

All knowledge exists and is known either by revelations (given) or discoveries (found through calculations).

Word of God also inspired the rule of law.

Patently, all laws of science are Word of God. These laws are not inventions but discoveries of the Word of God i.e. they are perfect.

In human society, there’s creativity, inventiveness and innovation — new ways of doing old things — brought by technology. Innovation, by far, adds the greatest number to GDP growth. This explains why the US economy remains far ahead of others. Only India, according to former Harvard University Economics Professor Dr Subramaniam Swamy, can pace the US on innovations. “Innovations will propel India to the number one spot, ahead of China and the US,” he has claimed in many videos in YouTube.

He has “unconventional views” on law, politics and economics. Deja Vu!

Spiritual Nature

Word of God refers to eternal laws based on eternal truth. These have a spiritual nature.

Man is spirit. The mind, consciousness and spirit are all one and the same. The mind, according to spiritualist, mystic and yogi SadhGuru, isn’t only in the brain but permeates the whole body.

Word of God and God are synonymous. There can be no God separate from the Word of God. God, by itself, has no work. Mathematics and physics are the nearest to the Word of God.

In jurisprudence, God isn’t a source in law. Jurisprudence does not mention the Word of God.

Court Of Law

The court of law is only about law, not truth.

The court isn’t about ethics, morals, theology, sin, God or justice.

Law exists and has always existed as evident from the Word of God, based on common sense, universal values and the principles of natural justice.

Common sense may not be common but it exists.

Fleecing Clients

The Federal Court has previously declared that only what has been incorporated from MA’63, in the Federal Constitution, is law.

No court will compel compliance on a contract. At best it can only offer compensation. It must be quantified at the assistant registrar’s office.

MA’63 is an international Treaty or Agreement.

Political matters must be settled politically, not in a court of law.

In law, a government on paper can do whatever it wants unless restrained by the court or by the people taking to the streets.

Administrative law — government policy in action which has been gazetted — is about government doing whatever it wants.

The court may be in cahoots — for want of a better term — with the government on administrative law when it does not consider, during the judicial review, whether government policies are fair. It does not go into the merits of the Application.

The court in Malaysia only considers whether the government has complied with its own procedures. If so, again, it does not go into the merits of judicial review Applications.

Invariably, the government wins judicial review Applications. Lawyers generally mislead Clients on judicial reviews. The lawyers may be using such Applications to get publicity for their practice and “fleece” Clients as much as possible. There’s nothing in the papers when they lose. They allegedly pay court reporters not to carry the news when they fail in court.

I told off a lawyer in Sabah who is the “King of judicial review Applications” for “fleecing” Clients in this manner.

Parliament

Parliament should exercise oversight on administrative laws, and on whether government policies are fair, the process of gazetting, and judicial reviews.

Instead, Parliament confines itself to passing an average of 30 Acts a year and debating “irrelevant” issues like whether Health Minister Khairy Jamaluddin was vaccinated, why former Prime Minister Najib Abdul Razak was invited by Beijing to address the recent Chinese World Economic Forum and MACC Chief Azam Baki’s shares in publicly-listed companies.

The government in Malaysia takes hundreds, if not thousands, of policy decisions a year. In the UK for example, the government announces about 2K+ administrative laws every year. Parliament can only manage to pass about 70 Acts a year.

However, in England, the court considers whether gov’t policies are fair before going into the merits of judicial review Applications.

The Streets

Kazakhstan is an example of the people taking to the streets. It’s a People’s Movement on multiple issues.

The farmers in India, on the streets for months, is an example of the people taking to the streets. It was about a specific issue: three Agriculture Bills ostensibly designed to modernise agriculture. No surrender no compromise Modi recently agreed to withdraw the Bills.

Wednesday, 6 Jan 2021, in the US was an example of the people taking to the streets. It was about a specific issue: electoral integrity.

The US Supreme Court avoided addressing electoral integrity. It’s the basis of the US Constitution.

Such things happen when the court is unable to find the law and declare it.

The US Supreme Court left it to the states, i.e. the legislature and election officials, to conduct the US 2020 presidential elections.

The court said that “every vote must be counted”. It did not qualify its statement. There were no exceptions, caveats, ifs or buts.

In practice, this means that the votes of illegal immigrants, the deceased, votes brought by ballot harvesters, late votes, and votes allegedly manipulated by machines can be counted, subject to the prerogative and discretionary powers of the states.

In law, a line must be drawn somewhere, lest Pandora’s Box opens.

No court will allow the floodgates to open.

Many states in the US, in the wake of US 2020, have put in place laws to ensure electoral integrity. CNN, petrified and hysterical like the Democrats, has been running amok night after night on the issue and claims that “unvaccinated people are infecting those vaccinated.”

Biden wants to put in place a Federal law against what the states are doing on electoral integrity. It will never happen as Democrats don’t have the numbers. Also, the US Supreme Court has already declared, in finding the law in this case, that the conduct of the US Presidential election must be left to the states. It may have taken this position since the electoral college system is based in the states.

The US President is elected directly by the electoral college system. The national popular votes has no place in electing the US President.

Americans don’t elect the President directly. Indirectly, they vote for someone who can manage the economy.

The US President wears another hat, i.e. foreign affairs, where he or she has carte blanche to kill as many foreigners as possible and bomb any country to thy kingdom come or back to the Stone Age, ostensibly based on “keeping the American people from harm”, human rights, sovereignty and territorial integrity, bringing democracy, the global security framework and world peace a la Pax Americana.

Charity begins at home. If America does not resolve the electoral integrity issue, there will be another civil war come US 2024, if not sooner, which will end in the 3rd American Revolution i.e. after the War of Independence and the 1st Civil War.

The first civil war wasn’t over slavery as widely believed but the south had a disproportionate share of the political power under the system of slavery. Slaves, being not free, were denied the right to vote. They were treated as personal property of the slave owners who owned large plantations. It has been alleged that they raped the slaves with impunity.

Therein lies shades of the Brahmin created Hindu evil caste system which prohibits upward social mobility and inter-caste marriage.

The Pariah — casteless/outcaste — were confined to dirty, difficult, dangerous, demeaning and humiliating jobs forever.

Brahmin and caste Hindu allegedly rape Pariah women with impunity. Apparently, caste Hindu making up the force, the police look the other way if Pariah women are raped.

India is the rape capital of the world.

Extraordinary Event

If a Revolution takes place, the Constitution has been torn up. A new Constitution has to be drawn up.

Constitutions follow an extraordinary event. Examples include civil war, war, secession, partition, independence and Revolution.

Egypt, after the Arab Spring, had two Revolutions. Two Constitutions were drawn up.

Constitution isn’t law but as the ultimate political document, setting forth the governing institutions of the state, it has the force of law and emerges as the supreme law of the land.

Likewise, Adat isn’t law but it has the force of law, is based on customary practices.

Adat is the 1st law in international law. Human rights are the basis of international law. It derives from international customary practices.

It’s not necessary for Adat to be incorporated in the Constitution.

NCR land cases in Sabah and Sarawak, for example, should begin in the Land Office, move to the Native Court and end at the High Court, the appellate court for the inferior court. NCR land cases can’t begin in the High Court. It has no jurisdiction.

If NCR land cases begin in the High Court, it may end up in the Federal Court in Review. Invariably, the Orang Asal lose such cases. Apparently, the superior courts may not “recognise” Adat on the grounds that “it isn’t law”.

Jurisdiction

I watched an associate, senior lawyer Rakhbir Singh, argue for five hours in the High Court of Borneo on jurisdiction.

That was quite some time ago.

Five lawyers were on the other side.

They were making an oral submission.

Rakhbir told the judge that the High Court has no jurisdiction on NCR land cases.

He stressed the same point, over and over again from many angles, for five hours.

Finally, the Judge ruled in favour of Rakhbir. He said in a two-liner, “I have to agree with Rakhbir. The High Court has no jurisdiction on NCR land cases.”

Orang Asal isn’t about race, DNA or geographical origin but ancestral and historical property, i.e. NCR land, protected by Adat and Article I61A, 13, 8 and 5.

The Orang Asal have NCR land by the right of first settlement and working the land, in the emptiness and vastness of a geographical expanse bound by water, mountain and jungle.

Orang Asal existed before the modern government.

The right of first settlement is the operation of law.

In the rule of law, the basis of the Constitution, there’s a greater emphasis on the spirit of the law, read with the letter of the law.

The letter of the law, by itself, isn’t law at all.

There must be a basis for comparison.

We can’t compare apples and oranges.

If we understand the Definition, and thesis statement, we would be better placed to connect the dots for the Way Forward on relevant facts, the issues arising, and the law/s applicable.

The following on operation of law is an extract from Wikipedia and may have relevance in court . . .

Operation of law is a way in which someone gets certain rights (or sometimes responsibilities) automatically under the law without taking action, requiring cooperation from another person, or being the subject of a court order.

Operation of law can also describe what a person can or cannot do, or what rights or interests a person has.

Therein lies the case for letters of representation to the AGC and AG on matters in court. – New Malaysia Herald

About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.

Note: The points expressed in this article are that of the writer’s, and do not necessarily reflect the stand of the New Malaysia Herald.