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| Malaysia and the Non-fulfillment of the 20 and 18 Point Agreements with Sabah and Sarawak Posted: 25 Sep 2013 11:30 AM PDT
There is resentment at and dissatisfaction with Sabah and Sarawak being treated as and equated to just another state of Malaysia. To be sure, there are other issues; but the two being equated to any of the 11 peninsular states is perhaps the most contentious. It had been simmering since the 1980s but it never surfaced, not as a formal articulation anyway. It is, nevertheless, a political wart that has the potential to come to a boil. Speech by Y.B.M. Tengku Razaleigh Hamzah At The Malaysian Branch of The Royal Asiatic Society Lecture in Conjunction with the 50th Anniversary of the Formation of Malaysia On Wednesday, 25.9.13 at 5.00 p.m. at the Tan Sri Hamzah Hall, Royal Selangor Club Annexe, Bukit Kiara, K.L. It is my singular honour to have been invited to such an august gathering as this. I am privileged to have this opportunity to talk about the birth of Malaysia. Allow me, therefore, to record my gratitude and appreciation to our host, the Malaysian Branch of the Royal Asiatic Society, for the invitation in the first instance. The timing is apt, coming as it does eight days after the 50th anniversary of her founding. It is also relevant given that Malaysia is facing unprecedented political and economic challenges. These challenges are formidable and, if left unsolved, could cause damage to the economy and political integrity of Malaysia. 2. The legitimacy of the formation of Malaysia is based on the fact that at the time of her formation, Malaya was the only country that was independent and had a democratic constitution, with institutions supporting such a constitution, within this region. Her economic foundation justifiably gave Malayans, at that time, a vision that we would one day be the shining example in South East Asia. It was with this perspective that Malaya, under the leadership of Tunku Abdul Rahman, took the initiative in helping to maintain stability in the region. This was at a time when British colonialism was forced by international opinion and in particular by Asia, to retreat as the colonial power without leaving a vacuum. 3. Malaysia was born, therefore, out of a historical necessity at that time. It bears reminding that this country still remains a stable political force in the region. The success or failure of Malaysia will not only affect Malaysia, but the entire ASEAN region. Therefore, a historical understanding of the birth of Malaysia is very important. Just as important is the legitimacy of Malaysia to the citizens of the country as well as to Sabah and Sarawak as part of Malaysia which is a political necessity to maintain the stability of the region. 4. Much has been written about the formation of Malaysia and, by and large, the writings have been consistent. But it is sad to note that there is a general ignorance of her founding among the younger Malaysians. The importance of remembering our past should never be made light; for it is the past that puts us where we are today. It is a pity that this ignorance exists; but in itself, it is harmless. However, the danger lies in the possibility of it being exploited for particular ends. 5. It is fair to say that an average middle-aged Sabah or Sarawak Malaysian does not seem to know about her formation, as is the average middle-aged peninsular Malaysian. But one thing is clear. There is resentment at and dissatisfaction with Sabah and Sarawak being treated as and equated to just another state of Malaysia. To be sure, there are other issues; but the two being equated to any of the 11 peninsular states is perhaps the most contentious. It had been simmering since the 1980s but it never surfaced, not as a formal articulation anyway. It is, nevertheless, a political wart that has the potential to come to a boil. 6. The advent of social media such as the Blog and Facebook has altered the scene. With such media reaching every nook and corner of the country, everyone is now acutely conscious of the angst of Sabah and Sarawak Malaysians over the issue. The anguish is magnified whenever 16th September comes around. We are then flooded with grouses of unfulfilled promises to Sabah and Sarawak relating to the formation of Malaysia. These grievances come from almost all sectors of our society, either in writings or speeches or other suchlike mode. People of religion would present their thoughts with a bias towards religious issues, and people of trade, from an economic perspective. Other issues that are often aired include education, human rights and politics. 7. It bears noting that this discontentment and whatever dissatisfaction expressed do not go beyond the superficial. The sad part is that not many would care to sieve through the events and development leading to the birth of Malaysia. It is my intent, this evening, to attempt this. But before that it might serve us well to note a few of these grouses. 8. Let me paraphrase the feeling of a particular Sabah academic. He pointed out that Sabahans and Sarawakians agreed to be part of Malaysia on the understanding that the interests of the states were safeguarded. These interests were enshrined in the 20/18-point Agreements, the London Agreements and the Inter-Governmental Reports. He pointed out further that the safeguards were not honoured and taken away at the whim and fancy of the Federal Government, and added in no uncertain terms that Sabah and Sarawak are equal partners to the Federation of Malaya in Malaysia and not two of her 13 states. A group of east Malaysian politicians and social activists went so far as to describe the transgressions as a looting of their riches. 9. A complaint from Sarawak took on a more symbolic strain. The formation of Malaysia was compared to a marriage with a prenuptial agreement, that is, the 18-point Agreement. The complainant described how the wife, Sarawak, was hurt by the lack of attention from the husband, Kuala Lumpur, but continued to be the dutiful and responsible wife. 10. In the recent past, a Sabah politician bluntly remarked that Sabah belongs to Sabahans and not to Malaysia as the Malaysia Agreement has yet to be implemented. He agitated for the review of its implementation while at the same time addressing the unhappiness of Sabahans and Sarawakians. He argued that Sabah has lost most of the 20 points after decisions affecting the state were made by Kuala Lumpur. Worse, he accused that Sabah was treated like a colony instead of an equal partner in Malaysia. A Sabah Bishop, speaking on Malaysia Day 2012, questioned whether the agreement to uphold freedom and other native rights and customs is being kept. He tellingly pointed out that it was the understanding and the compromise displayed during the negotiation that convinced the then North Borneo and Sarawak to jointly form Malaysia with the Federation of Malaya and Singapore. 11. An activist with the moniker anak jati Sabah (a genuine Sabahan), in venting his frustration, plainly and boldly pointed out that peninsular Malaysians have been wrong in referring to Sabah as having joined Malaysia. He argued that Malaysia had not always been in existence; that Sabah, together with Sarawak, Singapore and the Federation of Malaya had formed Malaysia. He contended that the 20-point Agreement and the Batu Sumpah – a monument of honour, as it were, that was erected in Keningau as a reminder of Sabah's support for Malaysia and the 20-point Agreement – were not honoured and had been discarded by Kuala Lumpur. His bitterness could be discerned from the following observation that has been attributed to him; that is, "the Batu Sumpah and the 20-point Agreement have been slowly and steadily violated and rubbished by Kuala Lumpur." 12. An equally strong sentiment had been echoed by a Sarawak professional who, in reflecting about Malaysia, had made it known that it is justifiable for Sarawak to opt out of Malaysia because of the perceived poor treatment of her by Kuala Lumpur through what he felt was the violation of the 18-point Agreement. However, he conceded that there are advantages of being in Malaysia. 13. These, then, are a sampling of the issues underpinning the listless and uneasy relationship between Sabah and Sarawak, and Kuala Lumpur. If we were to use the earlier Sarawak wife and Malayan husband analogy, it is not unbecoming to describe it as a relationship between strange bedfellows. These issues are critical when they viewed against the backdrop of the territorial realpolitik that is particular to Malaysia. They need to be redressed and the onus is greatest on those with the most political influence. Only in this way could the legacy of a vibrant and economically progressive Malaysia taking her rightful and dignified place on the world stage be meaningful to our children and grandchildren. 14. Ladies and gentlemen, I would suggest that we begin the process of reparation by looking at the gestation leading to the formation of Malaysia. I would suggest further that we approach this with an open mind, without any preconception. Let us analyse these grouses impartially. Let us not jump to any conclusion by saying that a point is no longer relevant or appropriate or significant. Let us view the issues in perspective and address them accordingly. And let us begin at the beginning. 15. In a speech on 16th September 1961, Tunku Abdul Rahman, the founding father of Malaysia, spoke of the decision to form the confederation. He pointed out that the formation was made with "much care and thought." There was "mutual consent" by "debate and discussion" and "inquiries and elections held over two and a half years." The Tunku was proud that Malaysia was created "through friendly arguments and friendly compromise." He believed that the cooperation and concord that prevailed were driven by the desire to share a common destiny. The Tunku and the other leaders must be cherished for Malaysia's successful formation. We also owe it to them to make good on the compromises as we realise the common destiny that the Tunku spoke of. 16. Earlier in May 1961, at the Delphi Hotel in Singapore, the Tunku had mooted the idea of bringing together Malaya, Singapore, North Borneo, Sarawak and Brunei. His proposal was seen as a move to counter the communist influence in the region, to balance the racial composition and to expedite the economic development and independence of Singapore, North Borneo, Sarawak and Brunei. The suggestion was well received as it had struck a chord with the British decolonisation attitude of the day. There was, however, concern over the possibility of opposition by the local leaders of the three Borneo territories. This was confirmed when the Sarawak United People's Party, Partai Rakyat Brunei and the United National Kadazan Organisation formed a United Front to denounce the proposal as "totally unacceptable." Subsequently, the Sarawak National Party supported this position. Opposition to the idea of a Malaysia was also strong from the people of the North Borneo interior. 17. To overcome this opposition, the Tunku visited Sarawak and North Borneo in July and August 1961 to win over the sceptics. Fact finding visits by the Borneo leaders to Malaya eventually convinced them that Malaysia was a good idea. In addition, Sarawak leaders were sent to the Commonwealth Parliamentary Association Conference taking place in Singapore during the period. This afforded them the opportunity to discuss the concept further with their Malayan and Singapore counterparts. 18. A consensus was eventually established and this led to the formation of the Malaysia Solidarity Consultative Committee (MSCC). It explained the concept further to the people of Sarawak, North Borneo and Brunei and discussed issues relating to the formation of Malaysia. The MSCC prepared a memorandum that underscored the need to gauge and ascertain the opinion of the general population of North Borneo and Sarawak on the Malaysia concept. In early 1962, this was submitted to the Cobbold Commission that had been set up to determine whether the people of North Borneo supported the formation of Malaysia. Later that year, the Commission submitted its report to the Malayan and British governments. Among other things, the report recorded that 80 per cent of the people of North Borneo and Sarawak supported the formation of Malaysia. 19. However, the Cobbold Commission reported that large sections of the population, especially in the interior, had no real appreciation of the Malaysia concept. But it recorded that about one third of the population favoured the idea strongly and wanted Malaysia to be formed as early as possible. This third was not too concerned about the terms and conditions. Another third asked for conditions and safeguards that varied in nature and extent, but was, in the main, favourable to the concept. The remaining third was divided into those who insisted upon independence before Malaysia and those who preferred to remain under the British. 20. The Commission also expressed the following caution which is taken verbatim from its report: "It is a necessary condition that from the outset Malaysia should be regarded by all concerned as an association of partners, combining in the common interests to create a new nation but retaining their own individualities. If any idea were to take root that Malaysia would involve a 'take-over' of the Borneo territories by the Federation of Malaya and the submersion of the individualities of North Borneo and Sarawak, Malaysia would not be generally acceptable and successful." 21. The safeguard demanded as a precondition to the formation of Malaysia was looked into by an Inter-Governmental Committee (IGC) set up upon the recommendation of the Cobbold Commission. At its first meeting in Jesselton on 30th August 1962, the IGC considered a memorandum calling for, among other things, the two territories having control over education and health for 10 years before reverting to the federal government. The memorandum was, with some modification, included into the Malaysia Act, the Federal Constitution and the relevant state constitutions. These safeguards have now come to be known as the 20-point Agreement for Sabah and the 18-point Agreement for Sarawak. 22. For the sake of clarity, I should spell out, in passing, the 20-point safeguards for Sabah. They are points relating to Religion The last two points regarding the name of the state and land, forest and local government, etc. are not in the safeguards for Sarawak. 23. These safeguards were to be reviewed 10 years after the coming into being of Malaysia, that is, after 16th September, 1973. Tun Razak, who was the then Prime Minister, set up a committee in that year under the chairmanship of his deputy, Tun Dr Ismail, to review the IGC agreements. However, the committee did not meet at all in that year because the Draft Bill of the Petroleum Development Act (PDA) was being drawn up at the time. The prevailing wisdom then was that priority be given to the acceptance of the PDA by Sabah and Sarawak. Upon the coming into force of the PDA, I was asked by Tun Razak to get the Chief Ministers and Menteris Besar of the relevant states to enter into agreements in accordance with the requirements of the PDA. As it turned out, Sabah and Sarawak put up formidable stands in making known their positions. 24. In any event, Tun Dr Ismail passed away in August 1973 and this was followed by the demise of Tun Razak in January 1976, giving the review a tragic twist with it being left on the backburner. I should like to emphasise here that the review not taking place despite Tun Razak's intention reflects the good faith of the federal government in the relationship with Sabah and Sarawak. However, this was overtaken by the development of events during that period that I have just described. Perhaps the review could be considered afresh as Malaysia celebrates her golden anniversary. 25. The story of Malaysia will be incomplete if I do not touch on the significant reactions by Indonesia and the Philippines to the idea of a Malaysia. Indonesia withdrew its initial support for the concept. The Philippines similarly objected to Malaysia's formation and announced its own claim on North Borneo. This led to another round of public opinion assessment, this time by the United Nations. Its report was made public on 13th September 1963. The UN confirmed that the people of North Borneo and Sarawak had freely expressed their wish for the formation of Malaysia. They were fully aware that this would bring about a change in their status. The report also noted that this was "expressed through informed democratic processes, impartially conducted and based on universal adult suffrage." The Malaysia Agreement had been signed earlier on 9th July 1963 at the Marlborough House in London, with her birth marked for 31st August 1963. In the event, Malaysia was proclaimed on 16th September 1963 to accommodate the UN report which was completed two days earlier. 26. I have tried to paint a comprehensive picture of how Malaysia came into being. Sadly, it does not quite match what was agreed upon originally. One could come up with any number of explanations for this, but I would respectfully submit that we do not go down this route. Let us muster enough courage to recognise and admit that we have a problem. To do so is to begin the process of its resolution. 27. That there was poor availability of information surrounding the formation of Malaysia in the public domain is most unfortunate. This has, in part, led to the breeding of animosity between Malaysians on both sides of the South China Sea. To be sure, this unfriendliness was not by design. Neither was it borne out of malice or prejudice. Certainly there was no ill intent. The oft repeated error that Sabah and Sarawak are but two Malaysian states is a case in point. It is an error that has Sabahans and Sarawakians blowing hot and cold under their proverbial collar. We must now right this misconception. For a start, there is a dire need for factual accuracy in the information on how Malaysia came to be. And it would help greatly if we could ensure that this critical part of our history is clearly spelt out in our school curriculum. 28. It should be pointed out, for instance, that 31st August is of no particular significance to Sabah and Sarawak, its grand celebration notwithstanding. It is but the date of Malaya's independence and it should be celebrated for just that. On the other hand, 16th September – the Malaysia Day – has a greater significance and is certainly a more important date in the annals of Malaysia. It must, therefore, be allowed to take its place as a major celebration in our national calendar of events. 29. I should also point out that the 20-point and 18-point Agreements have been incorporated into the Federal Constitution. Whether this is taken to mean that the two agreements no longer exist as once propounded by certain quarters is a conjecture that borders on the sensitive, given the emotive nature of the subject. In any case, the Batu Sumpah of Keningau will stand in perpetuity as a monument to the spirit of the 20-point Agreement. 30. This begs the question, what next? Where do we go from here? They are best answered by those in the political driving seat. It is, therefore, incumbent upon those in power to kick start the process. We have to, no, we must prove the cynics are off the mark when they say that the act of Sabah and Sarawak jointly forming Malaysia is but a transfer of political power from Britain to Malaya. We must prove the caution by the Cobbold Commission wrong. We must do this and reinforce and strengthen the building blocks of a united, prosperous and harmonious Malaysia. 31. A Malaysia such as this could provide the cornerstone for the growth and stability of our beloved land. By extension, such a growth and stability could offer a rippling effect to benefit this region which faces many uncertainties. A united, prosperous and harmonious Malaysia will, most certainly, garner international respect and admiration. Given the political uncertainty close to the Sabah shore, a calm and collected Malaysia, confident of her position in the international scheme of things, could well play a critical role in helping to resolve the complex and multifarious problems besieging the region. As an example, Malaysia could provide the calming voice in the effort to overcome the overlapping claims by various countries in the Spratlays as a result of the UN Law of the Sea Treaty recognising a 12-mile territorial sea limit and a 200-mile exclusive economic zone limit. 32. Ladies and gentlemen, it bears repeating the reminder that tensions and stress points among a people tend to increase in times of economic difficulty. Given that there are still large areas in Sabah and Sarawak, particularly in the interior, classified as poor with the standard of living nowhere near that of urban enclaves, it is not surprising if the animosity towards this side of Malaysia is felt strongly. It does not help that the greater Kelang Valley is seen as, rightly or wrongly, enjoying the level of wealth far ahead of the two eastern territories. Such a situation as the recent increase of the pump price of petroleum worsen the situation as providers of goods and services pass such increases to the consumers. This would heighten further the financial difficulty suffered by the poor of Sabah and Sarawak. Therefore, the government should seriously think of ways to overcome such hardships as this. It is time that the government absorbed the continually increasing financial burden rather than allowing it to ultimately land on the shoulder of the people. If this is well handled, I am confident that we can begin to mitigate and work towards overcoming the negative perception towards Kuala Lumpur that seem to be playing in the collective mind of Sabahans and Sarawakians. Ladies and gentlemen, thank you and good afternoon. |
| PCA, Penal Code and CPC amendments are the most serious assault on human rights and established ... Posted: 25 Sep 2013 10:09 AM PDT  Lawyers for Liberty is extremely shocked and concerned with the rash of proposed criminal law and procedure amendments with far reaching implications that were tabled in Parliament today. These amendments constitute the most serious assault on human rights and established legal principles since 1988 after the constitutional crisis and Operation Lallang. It is all the more deplorable since these very serious amendments were done in secret and without any consultation with opposition members of Parliament, civil society and the Malaysian Bar. The Prevention of Crime (Amendment & Extension) Act 2013 The bill seeks to re-introduce detention without trial when all Malaysians thought they had seen the last of this most draconian legislation with the abolishment of the Internal Security Act (ISA) and the Emergency Ordinance (EO). Under clause 19A, a person can be detained without trial for up to two years, which can be renewed indefinitely. The amendments also disallow substantive judicial review which would mean the detention order cannot be challenge in court, safe for procedural matters (which are effectively pointless). The amendments also deny legal representation to the detainee except when his/her own evidence is taken during the inquiry process. Further, the government has also surreptitiously amended the entire preamble of the PCA to include the provision under Article 149 of the Federal Constitution that the country is "threatened by a substantial body of persons inside and outside Malaysia to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property" thereby justifying detention without trial just like the ISA and EO. These amendments are absolutely scandalous and an antithesis to our democratic and fundamental rights to freedom from arbitrary detention and punishment, due process, rule of law and legal representation. It goes without saying that the amendments are unconstitutional especially since Malaysia is living in peace time with no threats of subversion, insurrection or civil unrest as envisaged by Article 149 of the Federal Constitution. By these amendments, Prime Minister Najib Razak had not only broken the promise he had made on 16 September 2011 to respect human rights and liberties when he announced the abolishment of the ISA and EO, he had also persistently lied and misled the public when he continuously affirmed that his government would respect human rights and liberties and will not revive detention without trial. Although the government may argue the amendments will only target organized crimes, it is almost certain from the government's appalling track record on the use of oppressive laws like the ISA, Sedition Act and Peaceful Assembly Act – the PCA will be misused against opposition politicians, dissidents and civil society activists. See for example how MP Jeyakumar and five other PSM activists were detained under the EO in 2011. The Penal Code (Amendment) Act 2013 Lawyers for Liberty is further extremely concerned with the proposed amendments to the Penal Code, particularly clause 121E(1) for mutilating, destroying or insulting any national emblem or flag; and clause 121E(2) for using, recognizing or promoting the use of any flag other than the official flags – both of which carry a mandatory punishment of imprisonment between 5 to 15 years and fine. Needless to say, these new offences transgress freedom of speech and expression as guaranteed by the Federal Constitution and are out of place in a modern and democratic Malaysia. Further, the proposed punishment for these offences are extremely harsh and disproportionate compared to the rather minor nature of the act of civil disobedience. In addition, clause 440A outrageously criminalizes as vandalism common acts of political and human rights activism and public communication like drawing, painting and writing on both public and private property; affixing, displaying, hanging and exhibiting poster, placard, banner and bunting unless they were done with the written authority or consent of the public/private owners – offences that can be punished with imprisonment for up to three years. The requirement for written authority is of course unrealistic and extremely burdensome and is just another underhanded tactic designed to frustrate the opposition and civil society. The Criminal Procedure Code (Amendment) Act 2013 Lawyers for Liberty is also further extremely concerned with the proposed amendments to the CPC, particularly clauses 265A, 265B and 265C that essentially allow for witnesses to testify in secret where the accused person and his/her counsel would not be able to see, hear or cross examine the witnesses. Such secrecy is repugnant to the very basic foundation of our criminal justice system that demands a fair trial – that justice must be done openly and transparently; the accused must be afforded an opportunity to challenge the evidence presented; and the guilt against the accused must be proven beyond a reasonable doubt. Released by: Eric Paulsen Co-founder & Adviser Lawyers for Liberty |
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