Zainnal Ajamain, author of two books on the Malaysia Agreement 1963 (MA63), warned that the ruling had opened a can of worms that could leave a lasting impact on the Federation of Malaysia.
Zainnal was commenting on last week’s Federal Court ruling which held that Sabah and Sarawak could not rely on the 1962 IGC Report if the proposals were not given effect by the Malaysia Agreement, parliament or the Executive.
Zainnal insisted that the IGC Report was part of the MA63 because it was an agreement signed by the Federation of Malaya and Sabah and Sarawak.
“The IGC Report was part and parcel of the agreed terms and should be read together with the Malaysia Agreement 1963. This requirement is clearly spelt out in Article VIII of the agreement,” he told FMT.
Article VIII of the agreement states that the three governments will implement the assurances, undertakings and recommendations contained in Chapter 3 and Annexes A and B of the IGC Report if they are not expressly provided in the Constitution of Malaysia.
However, Zainnal said while the court made the decision to the “detriment of the rights of Sabahans and Sarawakians”, the judgment had opened wide the serious question of the definition of “Malaysia Day”.
“The act cited by Justice Zulkefli Ahmad Makinudin, which is the Court of Judicature Act 1964, made a reference to ‘Malaysia Day’. However, the definition of ‘Malaysia Day’ cannot be found anywhere in the Federal Constitution,” he said.
Not only that, he pointed out that Article VIII specifically stated that there must be three governments to “take such legislative, executive or other actions”.
The problem, he said, was that the “Government of the Federation of Malaya” was not to be found anymore, and thus Article VIII could never be executed.
“In order to understand about the missing ‘Government of the Federation of Malaya’ we need to go back to Aug 20, 1963.
“As soon as Annex A – Malaysia Bill of the Malaysia Agreement was approved by the Malaya Parliament, the Government of the Federation of Malaya ceased to exist and in its place is an entity named Malaysia, both in English and Malay.
“This means that the Federation of Malaya is now masquerading as Malaysia. The Federation of Malaya masquerading as Malaysia should not be confused as the Federation of Malaysia,” he said.
Zainnal said the British created the Federation of Malaysia through Annex A of the Malaysia Agreement.
Unfortunately, he said, the Malaya Parliament did not make any changes to Article 160 of the Federal Constitution, specifically when defining the word “The Federation”.
Article 160 remains unchanged to this day, defining “The Federation” as the federation established under the Federation of Malaya Agreement 1957.
Subsequently, the same article also defined Merdeka Day as Aug 31, 1957, making no mention of the day Malaysia was formed or even any reference to the MA63.
“We can safely assume that the Malaya Parliament on Aug 20, 1963, purposely did not make any changes to the word ‘The Federation’ in Article 160 with the hope that the present problem would never surface.
“Unfortunately, it finally appears, and it is embarrassing to resolve. The basic question now is who is sitting in Putrajaya – is it the Government of Malaya masquerading as Malaysia or is Putrajaya the seat of administration for the Federation of Malaysia?” he asked.
Federal Court: Sabah, Sarawak cannot depend on 1962 report to enforce rights