Malaysia. Report of the Inter-Governmental Committee, 1962.
Chapter II. Establishment of the Federation of Malaysia
14. In certain respects the Committee agreed that the requirements of the Borneo States could appropriately be met by undertakings or assurances to be given by the Government of the Federation of Malaya rather than by Constitutional provisions, and these are mentioned in the appropriate sections of this Report. The Committee agreed that the more important undertakings should be included in the formal agreement and envisaged that the other undertakings and assurances might be dealt with in exchanges of letters between the Government concerned.
- the Committee - United Kingdom of Great Britain and Northern Ireland, the Federation of Malaya, North Borneo, Sarawak and Singapore.
- Borneo States - North Borneo (Sabah) and Sarawak
First, we need to understand what is the requirements of the Borneo States. Where we can find the requirements of the Borneo States?
The requirements of the Borneo States can be seek and understand through the formation of the Federation of Malaysia itself which was contained in the IGC Report, Malaysia Agreement 1963 as well as United Nations (UN) Resolution 1541.
According to the UN Resolution 1541 and Malaysia Act 1963 Chapter 35, The Federation of Malaya must act as a Trustee of the Trust Territories (Sabah and Sarawak) by fulfilling the trusteeship obligation accordingly based on the IGC Report, Malaysia Agreement 1963, federal constitution and UN Resolution 1541. This is the requirements of the Borneo States where undertakings or assurances must be taken, devised and obliged by the Federation of Malaya and the Government of Sabah and Sarawak through the formation of the new Federation of Malaysia since 16th September 1963.
It was state in paragraph 14 of the Report of the Inter-Governmental Committee, "rather than by Constitutional provisions" which means that any undertakings or assurances taken by the Federation of Malaya towards Sabah and Sarawak and vice versa, can be made through free negotiation as peers between the equal partner relationship of the Federation of Malaya with Sabah and Sarawak.
This requirements of the Borneo States and undertakings or assurances actually explain the relationship between the Trustee and the Trust Territories which was an international relationship between the Government concerned based on the international agreement (Malaysia Agreement 1963). A relationship that go beyond the federal constitution, as peers in international relation, "rather than by Constitutional provisions". Since this relationship is based on the international agreement, it is beyond the reach of the Constitutional provisions. Thus explaining the sentences "rather than by Constitutional provisions".
This requirements of the Borneo States and undertakings or assurances actually explain the relationship between the Trustee and the Trust Territories which was an international relationship between the Government concerned based on the international agreement (Malaysia Agreement 1963). A relationship that go beyond the federal constitution, as peers in international relation, "rather than by Constitutional provisions". Since this relationship is based on the international agreement, it is beyond the reach of the Constitutional provisions. Thus explaining the sentences "rather than by Constitutional provisions".
However, it must not be misunderstood as if there is any superiority in the relationship of the Trustee and the Trust Territories. Principle VIII of the UN Resolution 1541 state that Integration with an independent State (the Federation of Malaya) should be on the basis of complete equality between the peoples of the erstwhile Non-Self-Governing Territory (Sabah and Sarawak) and those of the independent country with which it is integrated. Thus, The Federation of Malaya, Sabah and Sarawak was equal partner in the Federation of Malaysia.
The undertakings or assurances to solve any conflicts and problem or to seek the implementation must complied with the IGC Report, Malaysia Agreement 1963 and the UN Resolution 1541.
It was also state that the more important undertakings should be included in the formal agreement. In addition to the free negotiation to solve or to implement the requirements of the Borneo States, formal agreement must be sealed between the Federation of Malaya with the Government of Sabah and Sarawak respectively. The least that the Federation of Malaya and the Government of Sabah and Sarawak can do to take appropriate undertakings or assurances to solve or to implement any issues arises in regards to the relationship between the Federation of Malaya and the Government of Sabah and Sarawak is through exchanges of letters between the Government concerned.
After a free negotiation, formal agreement or exchange of letters or any other compliance mechanism has been undertaken and pursue properly, an appropriate enactment can be made to seal of the such undertakings or assurances.
The implementation and resolving the conflicts between the Federation of Malaya and the Government of Sabah and Sarawak through such mechanism as explained above, any decision thereof must be enacted or written in black and white.
Who are responsible for the compliance mechanism?
According to the paragraph 14 of the Report of the Inter-Governmental Committee, The government of the day is responsible to solve any conflicts and to seek a full implementation of the IGC Report, Malaysia Agreement 1963 and UN Resolution 1541. The government of the day is the Barisan Nasional under the leadership of the Prime Minister of the Federation of Malaya renamed Malaysia, Najib Razak and the Chief Minister of Sabah, Musa Aman and the Chief Minister of Sarawak, Adenan Satem. The government under their leadership is responsible to met such requirements of the Borneo States and to take proper undertakings or assurances thereof.
Let us not forget the responsibility of the British government which act as a former trustee of the Borneo States, custodian and co-signatories of the Malaysia Agreement 1963. The British government also responsible to ensure final responsibility of their trusteeship upon the Borneo states especially Sarawak in line with the 9 Cardinal Principles is fully met. Transfer of trusteeship through Malaysia Act 1963 Chapter 35 doesn't mean ceasing the obligation but a mere step to ensure the obligation can be ceased through the formation of the Federation of Malaysia. I doubt it was anywhere near successful and the British must take responsibility to ensure requirements of the Borneo States was fully met through their unsatisfactory irresponsible act to transfer the sovereignty on 16th September 1963.
Let us not forget the responsibility of the British government which act as a former trustee of the Borneo States, custodian and co-signatories of the Malaysia Agreement 1963. The British government also responsible to ensure final responsibility of their trusteeship upon the Borneo states especially Sarawak in line with the 9 Cardinal Principles is fully met. Transfer of trusteeship through Malaysia Act 1963 Chapter 35 doesn't mean ceasing the obligation but a mere step to ensure the obligation can be ceased through the formation of the Federation of Malaysia. I doubt it was anywhere near successful and the British must take responsibility to ensure requirements of the Borneo States was fully met through their unsatisfactory irresponsible act to transfer the sovereignty on 16th September 1963.
Successful or not the government of the day doing their job to meet their obligation, you be the judge.
*New information will be continue to be added in this article at a regular basis as per requirement.
Author: Zulfaqar bin Sa'adi. Information Chief of State Reform Party (STAR).
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