On what basis Sarawak Day and Sabah Day?
Published on: Sunday, July 25, 2021
By: Joe Fernandez
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Sarawak Day celebration in Kuching.
There isn’t certainty on the vociferous minority, out of the blue, suddenly celebrating July 22 as Sarawak Day. Sabah has Aug 31 as its own “Day” in history.
Parti Bumi Kenyalang (PBK) President Voon Lee Shan said in a statement on Tues 21 July 2021 that his party does not recognise Sarawak Day as there’s no basis in history and law. He implied that it was pure politics building up public perceptions on the issue, for consoling the people, with an eye on the ballot box.
Human rights advocate Daniel John Jambun expressed similar sentiments on Sabah Day, during a whatsApp call following Voon’s statement which he viralled in social media. Daniel heads the UK-based Borneo’s Plight in Malaysia Foundation (BiPiMaFo), an ad hoc human rights NGO working across the political divide.
Daniel more recently emerged in the public limelight after the media reported that he contacted Buckingham Palace on the Borneo rights issue.
He urged the Queen to recommend a Public Inquiry on “the circumstances under which the British withdrew from Borneo on 16 Sept 1963”. He cited the UK government’s Public Inquiry on post-1997 Hong Kong as a precedent.
His efforts, needless to say, were an exercise in futility. Daniel spoke on Borneo rights before a House of Commons Committee several years ago.
He visited the UNHRC in Geneva, the Netherlands Parliament and dropped by the International Court of Justice (ICJ) at The Hague. Daniel was accompanied by social activist Nicholas Bawin from Sarawak.
Hindraf Makkal Sakthi, a human rights NGO, sponsored the visits after I turned down their sponsored invite to London. The law exams were coming up.
I had locus standi on Borneo rights. In a subsequent visit on his own, accompanied by social activist Kanul Gindol from Sabah, Daniel did research on Malaysia for a month at the British Library in London.
The declassified colonial documents on Malaysia are kept there as material in the public domain. Malaysia hasn’t declassified these documents.
“British documents on the End of Empire”, by A. J. Stockwell, was based on these declassified documents.
If it’s argued that 31 Aug 1963 and 22 July 1963 brought self-government for Sabah and Sarawak, respectively, it’s historically “inaccurate”. The local Council Negeri, reportedly convening on the said days at the urging of the departing British, may not have that much significance on anything.
The last British Governor in Sabah, Sir William Goode who was previously the last Governor in Singapore, left the territory on 16 Sept 1963.
The post of the last British Governor of Sarawak, Alexander Waddell, was abolished on 15 Sept 1963 when he left.
The British did not pass Self Government and Independence Acts for the Borneo territories. Singapore had the Self Government Act in 1959, Malaya in 1955. Again, Malaya has the Federation of Malaya Independence Act 1957.
Singapore obtained independence from Malaysia in 1965 via the Separation Act. It reversed the Merger of both territories, Singapore and Malaya during the run-up to Malaysia. Originally, Malaysia was set for 1 June 1963, then 31 Aug 1963. That’s another story. Let’s not go there.
The Malaysia Agreement 1963 was signed in London on 9 July 1963 and amended at the end of the month. It was realised that Malaysia was not possible on 31 Aug 1963 as the UN Secretary-General allegedly “dragged” his foot on Malaysia following strong objections by Indonesia and the Philippines and reportedly suddenly took ill.
The Colonial Office in London, in a disingenuous move, simply placed by “transfer” the Administration of Sabah, and Sarawak, under the Malayan government on 16 Sept 1963.
In law, anyone can transfer his or her property. The other party might get it free, based in law on “love and affection”, or on a “willing buyer, willing seller” basis.
The Malaysian government was the successor government and Malaysia the successor state under international law, emerging from Malaya, but perhaps not under MA63.
The “transfer” may have been euphemism for colonisation by another name. I stand corrected.
Decolonisation was decreed by the UN’s 24-nation Decolonisation Committee in the wake of World War II. Colonialism was outlawed by international law as a form of “criminal enterprise”.
In retrospect, Prime Minister Muhyiddin Yassin publicly conceded on April 2 this year in Kuching at the Gabungan Parti Sarawak (GPS) meet that Sabah and Sarawak were territories, as per the pre-13 July 1976 Article 1(2) in the Federal Constitution, and would no longer be called states.
In law, Malaysia in the Borneo territories was “unfinished business”.
Sabah, and Sarawak, may be organised territories. However, they remain unincorporated unlike the states and territories in Malaya which come under the Federation of Malaya Agreement 1948. The Agreement was reinforced by the Federation of Malaya Independence Act 1957.
It may be argued that Sabah, and Sarawak, are Equal Partners with Malaya in Malaysia under MA63.
For example, there are two High Courts in Malaysia viz. the High Court of Borneo (now the High Court of Sarawak and Sabah) and the High Court of Malaya. They have separate, equal and parallel jurisdiction.
A case in the High Court of Borneo, for example, cannot be transferred to the High Court of Malaya and vice versa.
[However, in the turtle eggs case involving current Deputy Prime Minister Ismail Sabri against Daily Express and its Chief Editor James Sarda, the Appeal Court in Kuala Lumpur held that the case could be heard in peninsula despite the alleged offence and witnesses as well as the publication all based in Sabah.
This was despite the challenge by the defendants that the case should be heard in Sabah on grounds of jurisdiction as per MA63.
Daily Express decided to settle the matter outside the court instead of taking it to the Federal Court as support from the then Sabah Law Association to be Amicus Curiae (watching brief) was not forthcoming.]
In jurisprudence – the theories, princiles and maxims on law – law must have source to have jurisdiction, authority and power.
The judge first looks at whether his or her court has jurisdiction.
Malaysia on 16 Sept 1963 may have been one form of “self-determination” for Sabah, and Sarawak, under the Malaysia Agreement 1963. International law on the principles on self-determination may beg to differ.
The police, before ex-PM Najib declared Malaysia Day – Sept 16 – as national public holiday from 2010, would in fact arrest anyone who publicly celebrated the day.
It’s telling that Malaya does not celebrate Malaysia Day.
Perhaps, this arises from the states in Malaya being not consulted on Malaysia.
The Kelantan government sued the Malayan government on Malaysia. The Malayan government assured the Supreme Court on 11 Sept 1963, five days before Malaysia, that Malaysia was not Federation. It further assured that the Federation defined in Article 160(2), under the Federation of Malaya Act 1948, would continue after 16 Sept 1963.
The Malaysia Day celebrations are alternated between Sabah, and Sarawak, in different official venues every year in Borneo. The Prime Minister presides over the celebration at the official venue.
Generally, people in Malaya are not sure what Malaysia Day was all about.
Many in Malaya think that Sabah, and Sarawak, are not in Malaysia. One reason may be that Sabah, and Sarawak, have special immigration powers. The people from Malaya have to run the gauntlet on this in the Borneo territories as foreigners under the law. There’s case law on this.
Just ask Sabahans and Sarawakians who have gone through “the experience” in Malaya.
The younger generation in Borneo ask their teachers: “How did we get into this situation?”
Their parents tell them: “We have been asking the same question, literally every day, since 1963!”
There’s lack of leadership in Sabah, and Sarawak, on Borneo rights, and no political will in Putrajaya.
I rest my case...
- Longtime Borneo watcher Joe Fernandez was formerly Chief Editor of Sabah Times. He
insists on not to be mistaken with a namesake previously in Daily Express.
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