A new beginning of Malaysia a renaissance of MA63

A new beginning of Malaysia a renaissance of MA63 (resend 19/7/2019)

Prof Dr Shad Saleem explained at a recent forum “Reimaging the New Federation of Malaysia” organised by Seeds as “The Cobbold Commission Report, the IGC, the 20 and 18 points and the Malaysia Agreement are historical documents of great significance. But they are not law under Article 160 (2) of the Federal Constitution,” If MA63 is not law, what are Sabah and Sarawak doing in Malaysia ?

He said only the Federal Constitution matters concerning authority on the status of Sabah and Sarawak.

Prof Dr Shad Saleem explained that the Federal Constitution was amended significantly in 1963 to accommodate the demands of the new states in East Malaysia for more autonomy.

“Eighty-nine out of 181 Articles and 12 out of 13 Schedules of the Federal Constitution were amended.

Prof Dr. also said“Thirty-seven new Articles were inserted into the Federal Constitution. Nearly 139 changes were incorporated into the 1957 charter to define Sabah and Sarawak’s special relationship with the federal government.

He went on to say “There is no legal basis for the claim that Sabah and Sarawak are equal to the 11 peninsular states combined.”

I hope Prof Dr Shad can give views on the following matters such as in the Proclamation of Malaysia.

Proclamation of Malaysia, whereas by an agreement made on the 9^th day of July, 1963 between Federation of Malaya, the United Kingdom, North Borneo, Sarawak, and Singapore, it has agreed that there shall be federated the states of Sabah, Sarawak and Singapore with the Federation of Malaya comprising the states of Pahang, Terengganu, Kedah, Johore, Negeri Sembilan, Kelantan,  Selangor, Perak, Perlis, Penang, Malacca and that the Federation shall thereafter be called “Malaysia”.

That was at the top portion of the Proclamation of Malaysia and at the bottom of the same document were as follows:-

“….that Malaysia comprising the states of Pahang, Terengganu, Kedah, Johore, Negeri Sembilan, Kelantan,  Selangor, Perak, Perlis, Penang, Malacca, Singapore, Sabah and Sarawak…”

The question here is was there any distinction-subtle or otherwise – in the two portions above?  In the first portion there appears to be 3 with Malaya and in the bottom portion it is 14 states.  It could be from the start there were two portions and we could have either one as we liked. Could this be deception ab initio - all subject to interpretation by whoever want attention?

The question is if Malaysia was right from the beginning of 14 states later minus Singapore (kicked out in 1965) in the Federal Constitution, then why need to amend the Federal Constitution in July 1976 to categorically spell out the 13 states?   Why the Federal Constitution on 13 states was not amended in 1965 but after the emergency declaration of 1969 in 1976?  The amendment was to justify the allocations of resources/expenditure for 13 instead of 3. The 1976 amendment was promptly done after Tun Fuad Stephen died in an air crash.  It would have been different if Tun Fuad was around.

Prof Dr Shad also said “The Cobbold Commission Report, the IGC, the 20 and 18 points and the Malaysia Agreement are not law under Article 160 (2) of the Federal Constitution,” and so in that vein Malaysia of 3 never existed and Sabah and Sarawak are nothing but “colonies” and to be treated as such.

So the great controversy is continued without any solution in sight because the people in power can do what they like for self interest.  

So what is the spirit of Malaysia from the beginning when MA63 could be set aside?

Do we think the national leaders really want to do good for all when there is a definite provision in the Federal Constitution as  follows:-

There is the return of the 40% Entitlement as agreed upon by Sabah’s Founding Fathers at the formation of Malaysia and provided for in Point No. 11 of the 20-Points and Paragraph 24(8) of the IGC Report. This safeguard was then entrenched in Article 112C(1) and Part IV of the Tenth Schedule of the Federal Constitution.

The 40% Entitlement is from revenues derived from Sabah by the Federation. This includes all Federal revenues such as personal and corporate income tax, GST/SST, customs duties, oil revenues taken by Petronas, collections by all Federal departments and agencies such as JPJ, Immigration, JPN, traffic summonses, court fines, and many others.

Also included are revenues collected from international oil companies in Production sharing contracts and plantations and other companies from operations in Sabah but pay their taxes to peninsular Malaysia or Sarawak.

Just to illustrate the Petronas case of contribution to tax revenue being the biggest one, they are RM17.4b (2008)  RM19.2b (2009)  RM57.6b (2010) RM65.7b (2011) RM80b (2012) RM73.4b (2013) RM75.3b (2014) RM38b (2015) RM31b (2016), RM ? (2017) amounting to RM457.6 b.  How much of RM457.6b belong to Sabah portion? 40% of Sabah portion can be a lot and much more than the illegal 5% of revenue without accountability and transparency..

The problem with 40% is that no proper records for Sabah since 1963 were maintained confirming the recalcitrant Federal Government.  So we need to settle it with an estimated amount that could add up to a trillion Ringgit for 55 years.  Whatever expended by the Federal Government to collect the revenue cannot be deducted.

Also were the substantial financial facilities to the Borneo’s states in the early years fulfilled as per Keesing’s Contemporary Archives – November 2-9, 1963 ?  (Sabah & Sarawak in Malaysia in 1963 by Joshua Y C Kong ISBN 983-2653-22-3.)

What Malaysia really need to do is to have “package of instant settlement” even after 55 years as Malaysia in concept and substance should not be a land of confusion.  After many committees formed in recent years and much discussions in dialogues and public forums, we don’t need any more official packages of arguments and agitation.

Some people want to relate Malaysia model to the USA where new states joined USA but USA did not have change of name. In MA63 or formation of a new nation, why doesn’t she retain the name of Malaya rather have it as Malaysia. So Malaysia was a new nation with special terms attached to that and we know that. So today since 1963 we are in a new wine skin with all the old hindrances of Malaya. So we have seen how Sabah and Sarawak have lost out for 55 years.

From the start there was the question of federation or confederation for Malaysia with respect to Sabah and Sarawak unresolved by Tunku Abdul Rahman by simply naming it “Malaysia”. Source “What indeed is Malaysia” in the series – The BENCH MARK – by Harun Hashim. (NST 4^th July, 1996).

In the “package for instant settlement”, we must have the following as:-

1.       The comprehensive  constitutional amendments in whole and not piecemeal to stop the confusion;

2.       A stipulated lists of all financial obligations for the past 55 years to Sabah and Sarawak ;

3.       The terms and conditions of 2 above and nature of settlement all agreed by three parties.

As Malaya Government has been non existent in 1963, it is the responsibility of Malaysian government as the successors to comply with the “package of instant settlement”.

We don’t need a new deal but restore the original deal despite sort of illegalities of MA63 on all sides.  It is now substance over form.  Lets there be a new beginning in New Malaysia or Malaysia Baru under PH Government.

Joshua Y C Kong 12/5/2019