Issue of illegitimate Malaysia Federation underscored by six decades of breach of foundational terms

https://www.theborneopost.com/2025/09/26/former-dewan-rakyat-speaker-art-harun-dismisses-claims-borneo-states-entitled-to-35-pct-parliamentary-seats-says-merely-political-narrative/

PRESS RELEASE

29 September 2025

BOPIMAFO AND SSRANZ ASSERT ILLEGITIMACY OF THE FEDERATION UNDERSCORED BY SIX DECADES OF CONSTITUTIONAL NON-RECOGNITION AND BREACH OF FOUNDATIONAL TERMS

MA63 Treated as Non-Binding: 60 Years of Malaysia Founded on a Denied Agreement

For Immediate Release

Date: 29 September 2025

MELBOURNE/KOTA KINABALU – The Sabah Sarawak Rights Australia New Zealand (SSRANZ) and the Borneo’s Plight in Malaysia Foundation (BoPiMaFo) jointly responded to the current disputes over MA63 rights, triggered by comments such as former Speaker Azhar Harun’s dismissal of Sabah and Sarawak’s 34.6% parliamentary seat entitlement as a mere “political narrative.”

The NGOs stressed that the acrimony over the 34.6% seat allocation and oil and gas rights is not a political squabble but direct evidence of a broken bargain and a deeper constitutional and legal crisis. IGC Chairman Lord Lansdowne confirmed that the seat guarantee was the decisive inducement for Sabah and Sarawak’s entry into Malaysia. Its repeal in 1976 was a fundamental breach of MA63. Similarly, the seizure of resources under the Petroleum Development Act 1974 violated autonomy guarantees. Yet these breaches are secondary to a more profound illegality.

They argued that the ongoing disputes reflect the non-consensual and unlawful foundation of the Federation. The peoples of Sabah and Sarawak were never given the free and informed choice of their future through a referendum or real independence but were hastily forced into Malaysia by Britain and Malaya. The British government acted ultra vires the Statute of Westminster 1931 by including North Borneo and Sarawak as MA63 signatories, knowing the colonies had no legal capacity to enter treaties. This democratic deficit was compounded by 60 years of constitutional non-recognition of MA63, confirming it was never treated as binding but a foundational fraud—rendering the Federation de facto illegitimate.

The Federal Government’s six decades of non-recognition, coupled with repeated violations of Sabah and Sarawak’s rights, show Malaya never regarded MA63 as binding. This position is incompatible with international law, particularly UNGA Resolution 1514 (XV) on decolonisation and Resolution 1541 (XV) requiring a genuine and freely expressed act of self-determination. The belated insertion of MA63 into the Constitution in 2022 only underscores Malaysia’s illegitimacy, as no state can retroactively validate an agreement void ab initio.

“The current federation is a legal phantom,” said Robert Pei, President of SSRANZ. “For 59 years, the Federal Constitution ignored MA63 because acknowledging it would have exposed its inherent invalidity. Its treaty violations, non-implementation, and deliberate omission from the nation’s supreme law underscore that the agreement was void ab initio under international law—explaining why Malaya never treated MA63 as binding.”

Constitutional Erasure and the Void Ab Initio Reality

The Malayan legal narrative collapses under three interconnected facts:

Bad Faith Foundations: The 20-Point and 18-Point Memoranda set out the political safeguards demanded by Sabah and Sarawak. While not treaties themselves, MA63 was meant to enact them. Systematic violations—from dilution of parliamentary representation to erosion of state rights—prove the bargain was struck in bad faith.

Six Decades of Constitutional Denial: The Federal Constitution, enacted solely by the Malayan Parliament in 1963, presented Malaysia as an extension of Malaya, not a new federation of equal partners. By omitting MA63 for 59 years, and then refusing in 2022 to include the phrase “pursuant to the Malaysia Agreement 1963”, the foundational bargain was erased from the legal record.

MA63 Void Ab Initio: The 2019 ICJ Chagos Advisory Opinion affirmed colonies lack sovereign capacity to enter treaties. As Crown colonies in July 1963, Sabah and Sarawak’s “signatures”—by British colonial attorneys general, not local leaders—were legally null. The UK’s transfer of sovereignty to Malaya violated UN decolonisation requirements, making Malaysia’s formation an unlawful annexation.

From Broken Bargain to National Crisis

The so-called “MA63 negotiations” since 2015, disputes over the 34.6% seat guarantee (repealed by Act A354 in 1976), the Petroleum Development Act 1974, and the Territorial Sea Act 2012 are direct evidence of a broken bargain. These breaches were possible only because MA63 had been rendered constitutionally invisible and was void from the start.

This denial has pushed the federation into crisis. Senior Sarawak State Legal Counsel Datuk Seri JC Fong warned of “serious consequences for national unity” if state rights continue to be undermined. This is not politics but law: a de facto arrangement that ignores its own void foundation cannot endure.

Bridging Position of BoPiMaFo and SSRANZ

BoPiMaFo and SSRANZ are united in affirming that the erosion of Sabah and Sarawak’s parliamentary representation, the imposition of the Petroleum Development Act 1974 and Territorial Sea Act 2012, and the continued denial of constitutional safeguards, all demonstrate the extent of the betrayal faced by the Borneo States within Malaysia. 

While BoPiMaFo has consistently highlighted these breaches as evidence of a broken bargain that must, at minimum, be rectified within the Malaysian constitutional framework, SSRANZ emphasises that such breaches also expose a deeper truth — that the Malaysia Agreement 1963 was never valid under international law, rendering the entire federation void ab initio. 

Both perspectives are not contradictory but complementary: the repeated violations of MA63 prove both the impossibility of meaningful reform within Malaysia’s present system and the urgent necessity of asserting the right of self-determination under international law.

The Illusion of Renegotiation and the Path to Self-Determination

For six decades, powers were stripped while MA63 was erased. The 2022 amendment is a tardy admission after the original terms had long been dismantled. To renegotiate within this fraudulent framework is to be a “glutton for punishment.” The only logical escape is the exercise of self-determination.

The Failed Federal Narrative vs. the International Law Path

Renegotiate MA63 Terms: Futile, as MA63 was never binding.

Review MA63 Validity: Must be tested under the ICJ’s Chagos ruling and the Statute of Westminster.

Accept Concessions: Cosmetic and non-binding.

Assert Self-Determination: The only lawful remedy for six decades of constitutional betrayal.

Ignore Constitutional Erasure: A flawed strategy of denial.

Acknowledge Unlawful Decolonisation: The UK failed its duty; the Federation is void ab initio.

BoPiMaFo and SSRANZ Joint Calls to Action

We call on the governments of Sabah and Sarawak to acknowledge that 60 years of constitutional erasure, and the fact that MA63 was void ab initio, prove the federation’s incurable illegitimacy, and to:

Commission an Independent International Legal Review: Examine MA63’s validity in light of the ICJ’s Chagos ruling and the Statute of Westminster.

Assert the People’s Right to Self-Determination: Remedy six decades of betrayal through a lawful act of choice.

Demand UK Accountability: The UK, as initiating signatory, must answer for its role in unlawful decolonisation and facilitate a proper act of self-determination for Sabah and Sarawak.

The escalating East–West conflict is the final symptom of an arrangement that never constitutionally acknowledged its void foundation. The only just solution is the peaceful restoration of independence for Sabah and Sarawak.

Signed by:

Daniel John Jambun

President, The Borneo’s Plight in Malaysia Foundation (BoPiMaFo)

-and-

Robert Pei

President, Sabah Sarawak Rights Australia New Zealand (SSRANZ)

About BoPiMaFo: The Borneo’s Plight in Malaysia Foundation is a non-profit based in Kota Kinabalu committed to defending the constitutional and historical rights of the people of Sabah.

About SSRANZ: Sabah Sarawak Rights Australia New Zealand is an NGO based in Australia advocating for the restoration of the rights of Sabah and Sarawak under international law.