MALAYSIA AGREEMENT 1963

IS MA63 A VALID INTERNATIONAL AGREEMENT?

WAS MA63 DE-COLONIZATION OR RE-COLONIZATION?

WHAT THIS PAPER IS ABOUT

The formation of Malaysia as part of Britain's de-colonization plan was an extremely controversial issue
opposed both locally and internationally in the 1960s. According to the declassified secret British colonial
documents Britain had secretly planned a direct transfer (the second cession or annexation) of its Borneo
colonial territories to Malayan rule without even first granting independence to the territories. Its critics said
it was just exchanging the old colonial master for a new one. In other words it was a shocking denial of their
inalienable right to self-determination.

A recent comment by a historian Geoffrey Wade pinpointed the purpose of the British Malayan creation of
Malaysia was that By ensuring that Sabah and Sarawak did not seek independence and instead became
dependent on and subordinate to Kuala Lumpur, the British Cold War strategy of creating a Western-oriented
bulwark across the middle of Southeast Asia was achieved.

This relationship of dependence and subordination of Sabah and Sarawak to Kuala Lumpur has, however,
been a cause of dissatisfaction ever since.

Originally proclaimed as equal partners in the new nation, the two Bornean states have been continually
exploited for their oil and timber resources, fiscal allocations (they are given 5% of the oil and gas revenues
they produce) and their representation in the federal parliament. This exploitation has been exacerbated by
the corruption of those, such as Taib Mahmud, who were assigned fiefdoms in the Bornean states by Kuala
Lumpur.
http://www.lowyinterpreter.org/author/Geoffrey-Wade.aspx

Thus Despite its over 50 years of existence Malaysia has remained a smouldering and unsettled issue which
in very recent years saw it flaring up again as the poverty stricken Sabah and Sarawak people most affected
by its negative effects, are seriously questioning whether there is any benefit for their countries to remain in
Malaysia.

The main purpose of this paper is therefore to explore one aspect of this hot issue being the proposition that
the Malaysia Agreement 1963 (called MA63 in short) was not a validly made and binding multi-party
international treaty in accordance with international law, the Universal Declaration of Human Rights (1946)
and Declaration on the Granting of Independence to Colonial Countries and Peoples (in short
UNDD) (1960) and UN Resolution 1514 (XV) affirmed on 14 December 1960.
The outline arguments presented here are part of a piece of work in progress.

[Author's note: The international law aspects of the Malaysia formation issue have not been adequately
dealt with by scholars and researchers - hence this subject has been very much kept under the radar by
design or omission. Not surprisingly the British boasted that Malaysia has been one of their most
successful projects allowing the same Malayan government to ride rough shod over Sabah and Sarawak
rights over 50 years.

There are other questions which have not been discussed here including the distinct pre-Malaysia historic,
political, cultural and ethnic differences between Malaya and Borneo, and the question of secession and
independence, validity of unequal treaties , the Cobbold Commission and the wrongful part played by the
U.N. in endorsing Malaysia

Further the related question is asked: Was MA63/Malaysia really the de-colonization of North
Borneo (Sabah) and Sarawak according to the 1960 UN Decolonisation Declaration or was it just a
vehicle for re-colonization by a new colonial master Malaya by annexation of the Borneo
territories?

This is really a question of whether Sarawak (and Sabah) had actually achieved real independence and self-
determination or just annexed as dependent vassal states or colonies in Malaysia?

International law recognizes the right of self-determination for every people. In the decolonization
context, the right to self-determination has been interpreted as leading toward remedial secession, because
the colonized peoples were not properly represented by the governments of their mother-states (the colonial
powers). [Prof. Milena Sterio on the Crimea independence issue: http://ilg2.org/author/milenasterio/]

This paper is based on a reading of the declassified documents, and open sources and references listed in the
Index, as well as from secondary sources.

The details of the stated international laws and background facts are made by reference to the attached
appendices which the audience may read in their spare time. It is hoped that readers can also follow up or
join in further discussions on this paper when published in the Internet after the conference.

The book Sarawak: The Real Deal by Ms. Lina Soo is an invaluable source to gain a deeper understanding
of the issues as argued by both pro and anti-Malaysia sides.

It is also recommended readers read Vidal Yudin Weil's article Can Sabah and Sarawak Secede?. It
asserts that MA63 was void ab initio because Britain had no right to transfer Sabah Sovereignty and territory
which was (and is) being claimed and disputed by the Philippines in the 1960s.
http://www.freemalaysiatoday.com/category/opinion/2014/04/14/can-sabah-and-swak-secede/
THREE PROPOSITIONS ON MA63

The Concept and formation of Malaysia when examined in context of the declassified British colonial
documents stands out as a pre-determined plan and a deception carried out by Britain in collusion with
Malaya on one hand to consolidate administration of its South East Asia colonies pursuant to its mid-1942
wartime plan to create the Malayan Union. This was to be done by denying the people of Sabah and
Sarawak (and also Brunei as originally intended) their right to self determination and the United Nations was
manipulated to endorse the formation of Malaysia in contravention of its declared principles for national
self-determination.

On the other hand the Malaysia Plan also fitted in very neatly with Malayan UMNO colonial expansionist
plans to create a Greater Malaysia or Melayu Raya based on an apartheid religious system of Malay/Muslim
supremacy. It is also this supremacist agenda coupled with the unremitting plunder of Sabah and Sarawak to
develop Malaya which has re-awakened Borneon resistance against what is now widely perceived as
Malayan colonialism under the same very corrupt regime over 50 years of Malaysia.

There are 3 propositions relating to the validity of the Malaysia Agreement 1963 (MA63):

1. The first Proposition is: That the Malaysia Agreement as an international treaty was not validly
made in compliance with principles and rules of International Law and the U.N. Decolonisation
Declaration 1960. (There are 7 overlapping Reasons or grounds for invalidity). [If the MA63 is void
from the beginning it would be unnecessary to ask the other 2 questions below but lawyers like to cover
all the possibilities. So we ask the following alternative questions:]

2. The Second Proposition is: If the MA63 was valid, was it not abrogated by Singapore's
separation and independence from Malaysia in 1965?

3. The Third Proposition is: Assuming that the MA63 was valid despite propositions 1 and 2 above,
Malaya has repeatedly committed fundamental breaches of MA63 and completely repudiated
MA63 by over 50 years of non-compliance and failure to implement MA63 as an international
treaty and the Malaysia experiment itself.

The discussion will refer to the United Nations Declaration of Human Rights, the UN Declaration on
Decolonization and the Vienna Convention on Law of Treaties or VCLT. The UNDD motion was affirmed
unanimously in the United Nations as Resolution 1514 (XV) on 14 December 1960 (used herein as
abbreviated form UNDD )

The VCLT is itself an international treaty entered into by and binding on all the signatories on its roll.
The Vienna Convention on the Law of Treaties (VCLT) is a treaty concerning the international law on
treaties between states. It was adopted on 22 May 1969 and opened for signature on 23 May 1969. The
Convention entered into force on 27 January 1980. The VCLT has been ratified by 114 states as of April
2014. Some countries that have not ratified the Convention recognize it was a restatement of customary law
and binding upon them as such.

The VCLT was formalised after a 20 year research and study of the established international legal principles.

Although the VCLT is not retro-active that is, applicable to treaties made prior to this date such as MA63,
it is a useful reference to the established international laws principles and precedents for our discussion.

WHAT IS AN INTERNATIONAL TREATY?

A Treaty may be defined as follows:

A treaty is an agreement in written form between nation-states (or international agencies, such as the United
Nations, that have been given treaty-making capacity by the states that created them) that is intended to
establish a relationship governed by International Law. It may be contained in a single instrument or in two
or more related instruments such as an exchange of diplomatic notes. Various terms have been used for such
an agreement, including treaty, convention, protocol, declaration, charter, Covenant, pact, act, statute,
exchange of notes, agreement, modus vivendi ("manner of living" or practical compromise), and
understanding. The particular designation does not affect the agreement's legal character.

PROPOSITION 1

That the Malaysia Agreement 1963 purporting to be an international treaty to form the Federation of
Malaysia was null and void and not binding on the signatory parties from the beginning.

It is asserted here that MA63 was not validly made in compliance with the established principles and rules of
International Law (now codified by VCLT 1969) and the 1960 U.N. Decolonisation Declaration UNDD
R1514 (XV) for the interrelated reasons stated below.

The combination of all the seven (7) grounds or reasons below for MA63 invalidity stands as a damning
indictment of Britain and Malaya's external intervention and violation of the Sabah and Sarawak people's
right of self-determination. This was perpetrated by Britain's unashamed collusion with Malaya even before
the 1960s and later with the United Nations' endorsement, to deny the people their right in total disregard of
local and international opposition and in breach of established international laws making MA63 null and
void:
1. MA63 VOID AB INITIO - INVALID FROM THE BEGINNING
MA63 was made in breach of the established customary international law (jus cogens) that only
sovereign states can enter into valid international treaties.

2. BRITAIN BROKE 1946 TREATY TO RESTORE SARAWAK INDEPENDENCE

Britain was in breach of its 1946 Cession treaty with the then independent Sarawak Brooke
government to restore independence to Sarawak as demanded by the Sarawak United People's Party
(SUPP). Appendix A 9 Cardinal Principles, Appendix B

3. MA63 VOIDED BY BREACH OF UNDD (R1514) ARTICLE 5 BY BRITAIN IN

COLLUSION WITH MALAYA TO FORM MALAYSIA IN PLACE OF BORNEO
INDEPENDENCE

MA63 voided on the ground that Britain and Malaya's bilateral pre-determined plan to transfer
(cede, annex) sovereignty over the Borneo colonies to Malaya without independence under the
Malaysia concept was in contravention of the people's right to self-determination free from
foreign interference. UN De-colonization Declaration. Appendix A Clause 5, 6 & 7. Refer to also
Declassified Colonial documents. (Argument 3 & 4 overlap).

4. MA63 WAS USED TO LEGITIMISE ANNEXATION OF TERRITORIES IMPOSED WITH

COERCION BY USE OF FORCE SEEN IN THE BRITISH MALAYAN SUPPRESSION OF
BRUNEI ANTI-MALAYSIA INDEPENDENCE UPRISING & SARAWAK NATIONALISTS
ACT IN CONTRAVENTION OF UNDD (R1514).

MA63 was void and not binding as it was made by coercion with use of force to cede or annex the 2
territories to Malayan rule, against the background of foreign political interference British colonial
suppression of Borneo nationalists and armed intervention by Malaya which was prohibited under
the UNDD (R1514) and the principle codified in Article 52 VCTL.

The people were denied a genuine referendum and the whole formation process was wrongfully
endorsed by the United Nations in the face of strong open opposition to Malaysia and a travesty of
an justice.
Put simply, MA63 was used to legitimise Malaya's annexation of Sabah and Sarawak. APPENDIX
H. Read Case of Japanese annexation of Korea:
https://works.bepress.com/young_kim/3/
Michael Leigh Rising Moon..
5. MA63 & MALAYSIA CONCEPT WAS MADE IN BAD FAITH & CHANGED 3 TIMES
WITHOUT REFERENDUM OR PEOPLE'S CONSENT

BAD FAITH OR LACK OF GOOD FAITH: There was no intention by Britain and Malaya to
consider real independence for the Borneo colonies before considering the Malaysia concept.
Malaysia was a bilateral predetermined concept and decision which was made in bad faith and in
contravention of international principles of non-interference in the independence process of the
colonies under the UNDD (R1514).

As the final version of Malaysia was not the original Malaysia concept of federating 5 countries
which the British and Malayans had set to out to construct, the question is:

How could this be a valid concept by 1965 when Singapore gained independence from
Malaysia? Read Appendix F

6. BRITAIN COULD NOT TRANSFER DISPUTED SABAH TERRITORY & SOVEREIGNTY

It is Sabahan Vidal Yudin Weil's assertion in his article Can Sabah and Sarawak Secede? that
MA63 was void ab initio because Britain had no right to transfer Sabah Sovereignty which was
being disputed and claimed by the Philippines.
http://www.freemalaysiatoday.com/category/opinion/2014/04/14/can-sabah-and-swak-secede/

7. THE 1963 UNITED NATIONS ASSESSMENT WAS UNRELIABLE IN THAT IT WAS

NOT A FAIR & BALANCED ASSESSMENT & WAS IN CONTRAVENTION OF
RESOLUTION 1514 (XV) AND NOT A PROPER REFERENDUM ON THE PEOPLE
WISHES.
The so-called 1963 United Nations Assessment on views of the people of Sabah and Sarawak was
improper and an unacceptable as a valid fair reliable and balanced assessment and was in
contravention of the United Nations' 1960 Declaration on Decolconization . The U.N. endorsement
of Malaysia was a shameful travesty of justice. It was also done in contravention of the Manila
Accord which indicated a plebiscite or referendum was to be held in the Northern Borneo
territories.
DISCUSSION OF ABOVE 7 POINTS

1. MA63 WAS VOID AB INITIO- VOID FROM THE BEGINNING.

MA63 failed to comply with the established principle that international treaties can only be validly
entered into by independent sovereign states (and or with recognised organisations like the U.N.)

The Malaysia Agreement 1963 registered as an international treaty with the United Nations by the United
Kingdom in 1973 was purportedly made between 5 sovereign states on 9th July 1963, being the United
Kingdom, Malayan Federation, Singapore with North Borneo and Sarawak.

Firstly a 6th signatory Brunei had refused to sign the agreement. Brunei was also part of the scheme.
However the differences between the Malayan and Brunei sides were too far apart.

The (Vienna) Convention codifies several bedrocks of contemporary international law. It defines a treaty as
"an international agreement concluded between states in written form and governed by international
law," as well as affirming that "every state possesses the capacity to conclude treaties." Most nations,
whether they are party to it or not, recognize it as the pre-eminent "Treaty of Treaties";[citation needed] it is
widely recognized as the authoritative guide vis--vis the formation and effects of treaties.

See comment on this link on VCLT:

http://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties

The 1969 Vienna Convention states that treaties are to be interpreted "in good faith" according to the
"ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose."

On its very face, the MA63 document displayed a fatal and fundamental flaw which was clearly in
breach of the established principle of international law that only sovereign states can enter into valid
agreements with other states.
At international law there are four recognised attributes of independent statehood:
territory (even if borders are unsettled)
population
government (effective it governs the territory)
capacity to enter into relations with other states

At the time of the Malaysia Agreement on 9 July 1962, neither Sabah and Sarawak had attained statehood
as Britain had not granted nor intended to grant independence to them according to the declassified colonial
documents. Neither colonies had elected government which were in effective control of their territories. The
secret agreement with Malaya was to transfer the territories to Malayan rule without independence.
The Malaysia Agreement was actually entered into between only 2 independent sovereign States the United
Kingdom and Malaya and allegedly with a semi-colonial State Singapore (Singapore was still under British
Control prior to its UDI on 31 August 1963) and the 2 colonies of North Borneo (Sabah) and Sarawak which
did not have any capacity to make international treaties.

Quote from the:

Preamble to the Malaysia Agreement 1963 stated that:

AGREEMENT RELATING TO MALAYSIA

The United Kingdom of Great Britain and Northern Ireland, the Federation of Malaya, North Borneo,
Sarawak and Singapore;

Desiring to conclude an agreement relating to Malaysia;

Agree as follows:

Article I

The Colonies of North Borneo and Sarawak and the State of Singapore shall be federated with the existing
States of the Federation of Malaya as the States of Sabah, Sarawak and Singapore in accordance with the
constitutional instruments annexed to this Agreement and the Federation shall thereafter be called "
Malaysia".

The same description was used in the Proclamation of Malaysia by Malayan P.M. Tunku Abdul Rahman
and the Sarawak Proclamation of Malaysia by Sarawak Chief Minister Stephen K Ningkan on 16 September
2014

This is a definition of what is a colony from Wikipedia

[https://en.wikipedia.org/wiki/Colony]
In politics and history, a colony is a territory under the immediate political control of a state, distinct from
the home territory of the sovereign. For colonies in antiquity, city-states would often found their own
colonies. Some colonies were historically countries, while others were territories without definite statehood
from their inception. The metropolitan state is the state that owns the colony. In Ancient Greece, the city that
founded a colony was called the metropolis. Mother country is a reference to the metropolitan state from the
point of view of citizens who live in its colony. There is a United Nations list of Non-Self-Governing
Territories.
Unlike a puppet state or satellite state, a colony has no independent international representation, and its
top-level administration is under direct control of the metropolitan state.

See further on definition of colonies in Appendix G & Appendix I, List of colonial territories
My Comments:
Singapore gained internal government in 1955 but it was still controlled by Britain until 1963 so it could
not be considered an independent sovereign state capable of entering into international treaties. This view
is supported by the fact that Singapore found it necessary to declare unilateral independence (UDI) on 31
August 1963 after MA63 was signed but Britain did not recognise the UDI.

The focus is on the capacity of North Borneo (Sabah) and Sarawak to make international treaties when both
were definitely colonies (as defined) not independent states at the date of MA63 on 9th July 1963 as
described in the MA63 itself.

Sabah and Sarawak were not independent sovereign states with independent international representation
capable of making treaties but colonies controlled by Britain before 16 September 1963. Singapore came
under British colonial suzerainty from 1819 and North Borneo (administered by the North Borneo
Company) and Sarawak (ruled as an independent country by the Brooke Raj Government 1841-1941) were
both ceded to British colonial rule in 1946.

As if to reinforce this fact, both the Proclamation of Malaysia and the Sarawak Proclamation of
Independence on 16 September 1963 described Sabah and Sarawak as colonies not independent states.
See Appendix K & L

The effect is that Britain and Malaya were the only 2 sovereign states which made an Agreement with at
best, a semi-colony Singapore and Britain's own 2 colonies North Borneo and Sarawak. British colonial
officials signed MA63 on behalf of Sabah and Sarawak. It was not signed with the free independent and
voluntary will, wishes or consent of the people in Sabah and Sarawak and who were also denied a
referendum on the Malaysia issue which the Philippines and Indonesian governments and independence
movement had repeatedly called for.

This monumental legal absurdity and defect exposes the embarrassing haste in which the British took to de-
colonize by handing over Sabah and Sarawak to Malaya and the colonial assumption of the time that the
colonial master had a free hand to play with the future of nations.

However, it reflected the colonial determination to implement the original 1963 (Checkers) secret pact
between Britain and Malaya to form Malaysia as a cover to transfer sovereignty over the Borneo colonies
directly to Malayan rule. This was an open secret, as the nationalist leaders and ordinary people in all 3
territories very vehemently voiced their concern and opposition to this transfer plan.

That neither North Borneo and Sarawak were independent sovereign states on 9th July 1963 is confirmed by
the fact that Sarawak was only ostensibly granted self-rule on 22 July 1963 and Sabah was similarly
granted self-rule but was called independence on 31 August 1963.
The respective new Sabah and Sarawak governments purportedly ratified MA63 on their first session.

However the breach of an established principle of law and what is a fundamental defect or flaw cannot be
retrospectively ratified or perfected. MA63 was also made without a proper referendum to determine the
wishes of the people in Sabah or Sarawak on the future of their respective countries.

MA63 was invalid from the beginning.

Sabah and Sarawak (and Singapore) were just not independent sovereign states capable of making the
MA63.

They were not listed as independent states in 1963 but as only having a change of status (which sounds
quite meaningless!) in the UN list of Non-Self-Governing Territories. There was no effective treaty made by
them in 1963. See APPENDIX J

This fatal flaw must have been staring at both the British and Malayan creators and kept them in a state of
nightmares for 50 years. It seems that all the while when people debated on MA63 issues very few people
have critically looked at this point.

Second argument

2. Britain was in flagrant breach of its 1946 treaty with the Sarawak Brooke government to restore
independence to Sarawak (and avoiding a referendum so that the people could freely decide on the
Malaysia issue) as demanded by the Sarawak United People's Party (SUPP). Nine Cardinal Principles
Appendix B, UNDD (R1514) Article 5.

It is an international law principle that all treaties or agreements must be made, kept and honoured in good
faith. https://en.wikipedia.org/wiki/Pacta_sunt_servanda
A treaty is based on the consent of the parties to it, is binding, and must be executed in good faith. The
concept known by the Latin formula pacta sunt servanda (agreements must be kept) is arguably the oldest
principle of international law. Without such a rule, no international agreement would be binding
(Definition from Encyclopaedia Britannica:

http://www.britannica.com/EBchecked/topic/930509/pacta-sunt-servanda)
Sarawak was an independent state for 100 years from 1841 to 1941 and recognised by the United
States in 1850 and Britain in 1863 when most South East Asian countries including Malaya were
colonies.

Britain had reportedly coerced the Sarawak Brooke government in 1946 to cede independent Sarawak to its
colonial rule. But this strongly opposed by the Sarawak people who demanded that Sarawak remained an
independent country. In opposing cession the Tuan Muda Anthony Brooke had asked why Sarawak a
sovereign and independent country should be reduced the status of a Crown colony. Cession was finally
agreed by the Brooke Government to on the understanding that Sarawak was not to be included in the
Malayan Union and on condition that Sarawak independence was to be restored.

It must now be seen that it had also falsely promised to restore Sarawak independence in 1963.

The so-called grant of self-government on 22 July 1963 was not the independence Sarawak had for 100
years. If it was true independence there would be no need to be in Malaysia. The declassified colonial
documents reveal that Britain and Malaya had already decided it would be a straight transfer of sovereignty
over the Borneo territories including Brunei to Malaya control and rule.

Britain had committed a deliberate shameful breach of the trust placed in them by the former Sarawak
Government by failing to honour their agreement to restore Sarawak independence and as reiterated and
demanded by Sarawak nationalists in 1963. It was a pre-condition which Britain had failed to comply before
pushing Sarawak into the Malaysia Agreement.

Britain cannot legally resort to arguing that there was any change by intervening circumstances (which
they deliberately instigated and manipulated to suit their justifications for forming Malaysia with
arguments of protecting Sabah and Sarawak from Indonesia's Konfronstasi and cold war theory of an
communist takeover) to so blatantly deny the Sarawak people from freely exercising their right to self-
determination.

It was Britain's legal duty to ensure that this right was exercised by allowing all parties to do so instead of
suppression with mass arrests of the nationalists. This act can only be described in the most undiplomatic
language that the British Government in the most underhanded fashion cheated the Sarawak people out of
their independence.

This point has been explained very well in the landmark book Sarawak -The Real Deal by Lina Soo
published in September 2013. Reader can follow up on all the important information reproduced in this
book on how the British went about suppressing the Sarawak nationalist anti-Malaysia movement before and
after the Brunei Uprising from Chapter 5 in the book onwards. The Preface to Ms. Soo's book also rounds
up the arguments against the formation of Malaysia in Appendix C.

Thus the incorporation of Sarawak into Malaysia was a fundamental breach of trust and terms of the
Cession treaty which must nullified the MA63 as Britain had deliberately refused to fulfil a prior treaty, the
pre-condition to restore Sarawak independence so their people can then freely decide on the Malaysia issue
if they chose to. Sarawak was transferred and remained as a colony in status up to and after 16 September
1963.
3rd Argument

3. MA63 VOIDED BY BRITISH MALAYAN COLLUSION TO FORM MALAYSIA TO DEFEAT

SARAWAK SABAH INDEPENDENCE IN BREACH OF UNDD ARTICLE 5

UNDD Article 5
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories
which have not yet attained independence, to transfer all powers to the peoples of those territories, without
any conditions or reservations, in accordance with their freely expressed will and desire, without any
distinction as to race, creed or colour, in order to enable them to enjoy complete independence and
freedom.

The proposal to form Malaysia was on its face an interference with the people's right to self-
determination according to Article 5.

The declassified British colonial documents give details of how Britain and Malaya had bilaterally colluded
and pre-determined the formation of Malaysia by entering into a secret pact to (cede or annex) transfer
sovereignty over the Borneo colonies directly to Malaya without independence. Both countries had acted in
contravention of the people's right to self-determination free from foreign interference. UN De-colonization
Declaration Appendix A Clause 6 & 7. Refer to Declassified Colonial documents.
https://www.facebook.com/media/set/?set=a.555523671156385.1073741839.335090303199724&type=1
See appendix M.

Clause 7 of the UN Decolonization Declaration clearly states that:

All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the
Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-
interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their
territorial integrity.

However, in discussions between Britain and Malaya between 1960 and 1963, the 2 parties had secretly
agreed to transfer sovereignty of the Borneo territories to Malaya with first giving independence.

In order to cover up their illegal act Britain proposed to set up the Cobbold Commission to carry on an
inquiry on Malaysia and the wishes of the people on the issue. The Commission was drenched in illegality
as it was intended to avoid holding a referendum as demanded by the nationalists and was not an
independent body but had a huge conflict of interest as it comprising of only British and Malayan nominees.

Further there is clear evidence from the facts that Britain and Malaya jointly used force to coerce the
Borneo countries into Malaysia under cover of suppressing the Brunei Uprising and the guerrilla
independence war. This is prohibited in the UNDD and established legal principles now codified in the
VCLT
VCLT Article 52

Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the
principles of international law embodied in the Charter of the United Nations.

MA63 was signed following suppression of the anti-British anti-Malaysia Tentera Nasional Kalimantan
Utara (TNKU) freedom fighters and sweeping clampdown with mass arrests of anti-Malaysia pro-
independence Sarawak nationalists under the Internal Security Act (ISA)1960.

This argument overlaps that in Point 4 and in this context we read the next point-

4. MA63 WAS VOID AS IT WAS MADE TO FACILITATE ANNEXATION OF TERRITORIES

WITH COERCION BY USE OF FORCE SEEN IN THE BRITISH MALAYAN SUPPRESSION OF
BRUNEI ANTI-MALAYSIA INDEPENDENCE UPRISING & SARAWAK NATIONALISTS IN
CONTRAVENTION OF UNDD (R1514).

This proposition raises 2 points of international law:

(a) The established law as codified in the VCLT Article 52

Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the
principles of international law embodied in the Charter of the United Nations.

(b) Invasion and annexation of other countries are now illegal acts according to international law.
Case of Japanese annexation of Korea
https://works.bepress.com/young_kim/3/

Direct annexation, the acquisition of territory by way of force, was historically recognised as a lawful
method for acquiring sovereignty over newly acquired territory before the mid-1700s. By the end of the
Napoleonic period however, invasion and annexation ceased to be recognized by international law and were
no longer accepted as a means of territorial acquisition. The Convention respecting the Laws and Customs
of War on Land (Hague IV, 1907) contained explicit provisions concerning the protection of civilians and
their property in occupied territories. The United Nations Charter also has related provisions.
https://en.wikipedia.org/wiki/Acquisition_of_sovereignty

FIRSTLY- Malaysia was formed against the background of foreign political interference and British
colonial suppression of Borneo nationalists and with armed intervention by Malaya. This contravened Clause
4 to 7 of the UNDD (R1514). Appendix A.

Britain as the colonial power had the duty to de-colonise by allowing all the Borneo people to freely decide
their future without any conditions or reservations, according to the UNDD Article 5 cited above not to
mention that the 1946 Cession treaty was entered into on the understanding that Britain must restore
Sarawak independence. However Britain openly interfered with and restricted the right of the people by
imposing the Malaysia concept on them in place of giving them independence first as they had demanded.

Malaya as a foreign power had no legal right, mandate, authority or standing to interfere in Borneo affairs
by coveting and annexing the Borneo territories. It had colluded and pre-determined with Britain to interfere
and form Malaysia to deprive the people's right of self-determination in the Borneo colonies.
President Sukarno had correctly denounced this as a mere transfer of the colonial office from London
to Kuala Lumpur.

MA63 was therefore no more than a sham to legitimise the armed invasion and annexation by Malaya of the
2 territories under cover of forming Malaysia. Malayan armed intervention occurred when Malayan
armed forces entered Borneo to assist with the British suppression the anti-Malaysia TNKU forces
following the Brunei Uprising and later the guerrilla independence war in Sarawak was in reality an
invasion of Sarawak Territory. The country's legitimate resistance had to be pacified from 1962 to
1990.

The Brunei Uprising for national independence and to oppose Malaysia broke out on December 8, 1962
primarily after the British had illegally blocked the Brunei People's Party from forming government after its
landslide generation election win in the first and last Brunei General elections on 1962. The British ignored
nationalists' demands for independence and continued to harass and hinder the nationalists in their
independence campaign in Brunei, Sarawak Sarawak and North Borneo (Sabah). (Note: the Uprising
touched all three territories).

The Universal Declaration of Human Rights 1948 tacitly supports or condones the use of armed
insurrection or resistance by people to free themselves from the tyranny and oppression of colonial
rule.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the
conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and
belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of law,
The Anti-Malaysia Brunei Independence Uprising was downplayed by Britain to avoid compliance with
the UN Decolonization Declaration and the inference of coercion in forming Malaysia.

The Brunei Uprising had broken out when the independence movement failed in its peaceful attempts to get
independence from Britain by negotiations in 1957 and then in 1962 when the Brunei Partai Raykat (Brunei
People's Party) won a landslide election on its anti-Malaysia platform. On both occasions Britain refused to
listen to or accept the legitimate demands of the independence movement for independence which it
proposed as a federation of the 3 Borneo t

Britain was in flagrant breach by not ceasing its armed aggression against the TNKU anti-Malaysia Brunei
independence Uprising and allow the parties to participate in the independence process but proceeded to
form Malaysia. See Appendix A Clauses 4, 5, 6 & 7.

MA63 was thus arguably nullified by Britain's coercion by use of force and deceit to enforce the Malaysia
concept on Sabah and Sarawak and foreign interference in the independence process. Read Appendix D & A.

SECONDLY, the conquest or forcible annexation of territory is illegal under the Convention respecting the
Laws and Customs of War on Land (Hague IV, 1907) containing explicit provisions in relation to the
protection of civilians and their property in occupied territories. The United Nations Charter also has related
provisions.

As stated above, MA63 was really part of the exercise to legitimise Malaya's annexation of the Sabah and
Sarawak territories as both the Malayan and British Governments had predetermined by the beginning of
1960. The Malayan army had entered Borneo territory as part of the Commonwealth force to suppress the
Brunei independence uprising and this was really an invasion to enforce Malaya's annexation.

Only Brunei successfully resisted both politically and with their armed uprising against the British Malayan
plan and opposed their violation of the international law principle that foreign states are prohibited from
interfering in the local independence process.

The British portrayed the Brunei Uprising as an illegal revolt against the Sultanate so it appeared to the
world that it was not about fighting for national independence.

However many people were fooled even till today by this propaganda line as they were unaware of the
background of the uprising and believed it was illegal.

If people are still unable to see this point they must realise that the British did indeed embark on a cruel and
vicious campaign against the nationalists under the pretext of an anti-communist campaign and made
sweeping arrests and detention without trial of over 10,000 people in Sarawak between 1961 and 1963.

The Sarawak arrests represented almost 1 in 75 persons in this country (Sarawak population approx 750,000
in the 1960 Census) many of whom were detained for long periods from 10 to 25+ years without trial well
into the late 1970s.

Before the Brunei Uprising, the British were already arresting and harassing nationalists in Brunei and also
Sarawak under the Restrictive Residence Regulations 1961 and the Internal Security Act.

The British repression and suppression of nationalists was not just a violation of the UNDD but it was a
major violation of human rights under the Universal Declaration of Human Rights 1948. The recent
successful UK court claim by the Mau Mau Independence fighters claim against Britain illustrates the
illegality of Britain' s anti-independence actions around the world.

Britain's failure to comply with the customary international law had nullified MA63 by its coercion by use of
force and deceit to enforce the Malaysia concept on Sabah and Sarawak and foreign interference in the
independence process. Read Appendix D & A.
A most important fact adding weight to voiding MA63 is it was made without a prior referendum to
seek consent of the Sabah and Sarawak people in breach of the principles in the UN De-colonisation
Declaration (UNDD) which confirmed the right to self-determination as an established customary
international law. See APPENDIX C The Joint Northern Borneo UN Memorandum.

The Sarawak United People's Party (SUPP) had made repeated demands for independence first before the
people should consider the Malaysia question. When it became clear Britain was stubbornly determined to
push ahead with Malaysia they demanded a plebiscite/referendum.

It meant that Sarawak should have been given full independence and the new government should consider
whether to enter into negotiations on the Malaysia proposal. This was Brunei's position and it was able to
negotiate and refused to sign MA63 at the last minute.

Thus it can be immediately seen that because Britain debased and reneged on an existing treaty the MA63
was null and void from the beginning without any legally binding effect as an international treaty. It cannot
be claimed that MA63 superseded the Cession Treaty which was debated in the British Parliament 1946 and
it was officially confirmed by the British government member that Sarawak independence was to be
honoured and restored.

The position of the nationalist movement is best summed up in the Joint Memorandum to the United Nations
by the Brunei People's Party, the SUPP and the United National Pasuk Memonggon Party of Sabah (PMP) in
Appendix B. The SUPP petition against Malaysia formation and demand for independence with over
110,000 signatures and the Joint UN Memorandum were ignored by the British and UN. The conclusion in
the Memorandum reiterated the Borneo nationalist case for independence and is reproduced below:

THE JOINT NORTHERN BORNEO MEMORANDUM

APPEAL TO UNITED NATIONS 1962

18. The signatories to this memorandum appeal to the UN and urged that:

1. the UN should, in pursuance to its declaration and resolutions, intervene in the proposed
transfer of sovereignty in Sarawak and Sabah on the ground that such a transfer is a denial to
the peoples in these territories of their right to self determination and of their right to complete
independence.

2. Alternatively that a plebiscite organized and conducted by UN be held before such transfer of
sovereignty.
 3. In accordance with the peoples freely expressed will and desire and our belief, a federation of
Union of the three Borneo territories viz Sarawak, Sabah and Brunei be brought about with
his Highness the Sultan of Brunei as the Constitutional Head of such Federation or Union.

Dated this 9th September 1962.

The United National Pasok Momogun Party
(G.S. Sundang)
The Partai Rakyat of Brunei
(A.M. Azahari Mahmud)
The Sarawak United Peoples Party
(Ong Kee Hui)

THE MANILA ACCORD: Under severe international criticisms and opposition especially by Indonesia
and the Philippines, Malaya tried to undermine the 2 countries' opposition by convening the Manila talks in
late July 1963. The first 2 named countries demanded that a plebiscite or referendum be carried out in the
Borneo territories to determine the people's wishes on Malaysia formation.

The Manila Accord signed on 31 July 1963 agreed to a referendum but it was made by Malaya in bad faith
(and negotiated without the Borneo people's consent and authority) as this turned out to be a deliberate fraud
by Malaya which did not proceed with a referendum on the Malaysia issue and to hasten formation of
Malaysia.

Britain and Malaya even amended the MA63 anticipating the formation Malaysia by 16 September 1963
before any referendum had been concluded! Malaysia was already pre-determined. See Page 106
Sarawak The Real Deal.

This pre-determination is further confirmed by U.N. Secretary U Thant who said the UN Assessment had to
be completed (under 2 weeks by a 9 man team in Sabah and Sarawak) to comply with the dateline for
formation of Malaysia on 16 September 1963!
5. MA63 & MALAYSIA CONCEPT WAS MADE IN BAD FAITH & CHANGED 3 TIMES
WITHOUT REFERENDUM OR PEOPLE'S CONSENT

On this point readers are refer to the longer comments in APPENDIX F.

The MA63 was manifestly Britain and Malaya's arbitrary intentions made in bad faith to transfer
the Borneo colonies to Malaya rule directly without giving independence. (Revealed in the declassified
British colonial documents).

The people in the colonies were illegally prevented from getting independence and having a referendum on
the Malaysia question and from re-examination and proper re-negotiation of terms and conditions for
forming Malaysia Concept which was changed 3 times between 1961 and 1965.

Any vigorous challenge or debate was suppressed following the Brunei Uprising and under the several State
of Emergencies declared in 1964 (Konfrontasi) and 1966 affecting Sarawak. The 1966 State of Emergency
was actually designed to suppressed any such discussion following Singapore's secession in late August
1965. They were further denied a review in 1973.

The Malaysia concept as originally proposed was to form Malaysia with 5 countries including Brunei.
However, Brunei freely chose not to be in the union and the concept was changed to 4 countries. When
Singapore freely seceded and gained independence from Malaysia, the concept changed again to 3 countries
in Malaysia.

This totally changed the original proposed structure of the federation. The consequences are still being
debated by politicians today especially in relation to the unfair distribution of Parliamentary seats and loss of
Sabah Sarawak parliamentary power and oil and gas rights and many other rights. Dr. Jeffrey Kitingan listed
8 Losses in Proposition 3 below.

That the Malaysia concept was conceived in bad faith purely to annex these territories to Malaya is seen in
how over 50 years Malaya has virtually repudiated the entire MA63 ( that is if it were at all valid and
binding). After 1965 Sabah and Sarawak were reduced to mere vassal states of Malaya or colonies as
many Sabahans and Sarawakians are seeing it now.

On the above rational it could also be asserted MA63 was void because both Britain and Malaya did not
enter into the MA63 in good faith and Malaya failed to comply with the Agreement.

The original Malaysia concept actually ceased to exist when Brunei rejected and withdrew
participation in the Malaysia formation negotiations.
Discussions here on "good faith"- "Pacta sunt servanda"- suggested readings:
http://www.britannica.com/EBchecked/topic/238692/good-faith
https://en.wikipedia.org/wiki/Pacta_sunt_servanda
Paper on principle of Good Faith:
http://anthonydamato.law.northwestern.edu/encyclopedia/good-faith.pdf

6. BRITAIN COULD NOT TRANSFER DISPUTED SABAH TERRITORY & SOVEREIGNTY

Sabahan Vidal Yudin Weil asserted in his article Can Sabah and Sarawak Secede? that MA63 was void
ab initio because Britain had no right to transfer Sabah territory and sovereignty which was being disputed
and claimed by the Philippines.
EXCERPTS FROM VIDAL Y WEIL'S COMMENTS CAN SABAH & SARAWAK
SECEDE?

Official deceit which is one part of Machiavellian politics has always been the religion of
colonizers and one classic lie that has never fail to be used is you need us to protect you from
yourself has been said to the naive and brainwashed colonized population throughout the ages
until today.

We do not need to look far, actually; the present political drama unfolding in Malaysia that is
shaking right-thinking citizens reveals the unprecedented thievery and pretence perpetrated by
mendacious opportunists from both sides of the political divide is ample indications itself......

...Before we proceed, it is necessary to recapitulate that the Malaysia Agreement is absolutely

void from the very beginning because Britain at all material times never had sovereignty over
the whole of Sabah to give away and the government of Malaysia like its predecessor the British
government is still paying annual rentals to the Sulu Sultanate in the Philippines until today.

The Latin maxim nemo dat quod non habet is a legal principle that says you cannot confer
property you do not own on another person except with the authority of the true owner or
simply put you cannot give what you do not have.

For further reading, go to the Manila Accord which was signed on July 31, 1963 between Abdul
Rahman Putra, Soekarno, and Diosdado Macapagal; it is clearly and unambiguously
understood that the formation of Malaysia is subject to the claim of the Philippines on Sabah
being adjudicated in the International Court of Justice which Putrajaya is scared of going there
for fear of losing.

And worst, the more than 1.1 million people of Sabah and Sarawak at that point of time were
never consulted in a referendum whether they wanted Malaysia only about 4,000 were
reportedly interviewed by the Cobbold Commission.

Backward society

We cannot really blame Sabahans and Sarawakians who suffer from collective issues of
ignorance because like the rest of Malaya today, for more than 50 long years, they have been
indoctrinated with falsified historical facts and fed with substandard education that taught them
what to think instead of how to think and living their entire lives on assumptions peddled
by cheats and liars.

Do readers know why are things becoming so complicated and bad here in Sabah now?

Because the people of Sabah are so gullible to the extent that they cannot even be trusted to
honourably do the right thing on their own volition during elections for their own good and that
of their descendants.

Suffice to say, the Sabah of today has remained a feudal and backward society since the British
 left.

The fine example of Brunei not becoming a colony of Malaya, look at how they can do what
they want with their oil and gas wealth poverty practically does not exists there; the success
story of tiny and resource-less Singapore who left Malaysia in 1965 being transformed into a
First World nation today profoundly confirms that both Sabah and Sarawak are incurable
failures of epic proportions.

Now, we go to the circus to showcase our clown of the day.

SEE FULL ARTICLE IN APPENDIX I or on this Internet link:

http://www.freemalaysiatoday.com/category/opinion/2014/04/14/can-sabah-and-swak-secede/

[Owing to the time constraint the following short comments are made below. It is proposed that a fuller
discussion on the last 2 proposition below will be published at a later date.]

2. THE SECOND PROPOSITION IS: If the MA63 was valid, was it not abrogated by Singapore's
separation and independence from Malaysia in 1965?

An international treaty cannot be changed without the agreement and consent of all the parties. The bilateral
Singapore Separation agreement between Singapore and Malaya in 1965 was made without active
involvement of the other 3 signatory parties. The issue was secretly discussed with Britain which subtly
coerced the 2 countries to refrain from secession and impacted on the relation with Sabah and Sarawak
and Malaya for over 50 years.

The Singapore Separation Agreement basically changed the concept of Malaysia which should have been re-
negotiated. It effectively invalidated and abrogated MA63.

The Malaysia concept had effectively ceased to exist in 1965.

3. THE THIRD PROPOSITION IS: Assuming that the MA63 was valid despite propositions 1 and 2
above, there has been repeated fundamental breaches of MA63 by Malaya. Malaya in completely
repudiated MA63 by its 50 years of repeated non-compliance with and implementation of MA63 as an
international treaty.

The most basic principle of international law is that an international treaty must be made and kept in good
faith.
The current complaints by Sabahans and Sarawakians (based on the assumption that MA63 continue to be
valid) have not been faithfully complied with by Malaya which has assumed the alter ego of the Federation.

In international law if one party to the Agreement breaks this whether by deliberate act(s) of breach
or omission in its performance this constitutes a repudiation of the whole Agreement.
Dr. Jeffrey Kitingan has a good summary of Malaya's failure to keep good faith in complying with the
Malaysia Agreement 1963 in his Power Point KUCHING presentation (27 April 2014)

He listed 8 losses for Sabah and Sarawak in Malaysia:

1. Loss of Political Autonomy
2. Loss of State Franchise to patai
3. Loss of Oil Resources
4. Loss of Legitimate Role in Federation
5. Loss of Job Opportunities
6. Loss of Religious Freedom
7. Loss of Dignity
8. Loss of Independence
He said that since Malaysia was an absolute failure there are 3 options to resolve this problem:

1. DO NOTHING ACCEPT AND SURRENDER

2. GIVE UP AND LEAVE MALAYSIA
3. DEMAND FOR SOLUTIONS AND REVIEW AND RE-NEGOTIATE MA63
The last 50 years have seen Malaya totally reneging on the terms and conditions of the MA63 under
circumstances which Dr. Kitingan describes as the colonies of Sabah and Sarawak having gone round in full
circle and became colonies again.

This reflects that Malaya had really made the MA63 in bad faith and had no intentions to abide by the
agreement. Malaya had repeatedly made material breaches and thus repudiated all the fundamental terms and
conditions of MA63

VCLT ARTICLE 60 formalising established legal principles says that

3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

If MA63 has been repudiated, the obvious question is why would Sabahans and Sarawakians want to
reinstate Malaysia which is illegitimate and as the last 50 years have demonstrated beyond doubt that
Malaysia is fact as its name implies is pure BAD FAITH.

MALAYSIA was Britain's grand design in collusion with Malaya to preserve its strategic and economic
interests which fitted in with UMNO's supremacist Melayu Raya expansionist plans or Greater Malaysia.

50 years have been more than enough time to prove that reinstatement of Malaysia is not an option. The real
option is for Sabahans and Sarawak to accept Malaya's repudiation and take their countries out of Malaysia.
CONCLUSION

The conclusion is, if the Malaysia Agreement is void and illegal, the people of Sabah and Sarawak
are not bound to remain in a unequal and unfair relationship with Malaya which many see as no more
than a colonial master-and-slave relationship with their country being plundered and their people
marginalised into greater poverty than before 1963.

If MA63 is illegal, Malaysia only exists as a de facto state whereby Malaya is controlling Sabah and
Sarawak without any legal right. The issues of decolonization and independence become relevant.

Many Sabahans and Sarawakians are asking, was Malaysia really a decolonization plan or a re-
colonization plan?

They have seen how the structure of colonization has been built up now with virtual direct federal (read
Malayan) control of Sabah and Sarawak, Malayanization in place of Borneonization and
imposition of the UMNO's race and religion supremacist agendas on Sabah and Sarawak and the blatant
plunder of their resources at the expense of their people.

They see they have not benefited from the promised security and prosperity for the formation of Malaysia
but are the victims of what many are calling a fraudulent independence scam for over 50 years.

Countries like East Timor, South Sudan and Crimea have chosen independence from what was as an unequal
and submissive colonial relationship. Scotland will for similar reasons be voting in its independence
referendum on September 2014.

So it is not surprising that in the past year we have seen a growing movement of mostly young people coming
out to assert their rights in the slogans Sarawak for Sarawakians! and Sabah for Sabahans!

I thank the organisers of this forum for enabling this paper to be presented and I thank all Sarawakians
nationalists and other friends here today for their patience in listening to the propositions that the Malaysia
Agreement was not validly made.

Thank you very much.

Robert Pei -
Disclaimer: References and comments from Wikipedia links have been provided for basic understanding of the terms used and issues discussed here subject to verification
of the opinions expressed therein.

Permission from the author is required to quote and to reproduce the paper.