He told FMT de facto law minister Liew Vui Keong was putting the cart before the horse when he said on Monday that restoring the pre-1976 phrasing of Article 1 (2) would do the trick.
According to Zainnal, it is Article 160 that must be corrected first.
Article 160 (2) defines “federation” as the entity established under the Federation of Malaya Agreement signed in 1957.
“Thus, even if Parliament were to restore the original wording of Article 1 (2) and define Sabah and Sarawak as territories apart from Malaya, both territories will, by the constitution’s definition, still be part of Malaya,” Zainnal said.
“Therefore, if the federal government is sincere, it should first look at Article 160 of the constitution for interpretations of all the words used in the document.”
He said he was certain that the majority of MPs, particularly those from Sabah and Sarawak, would agree to redefining “federation” to mean the entity established under the Federation of Malaysia Agreement 1963 (MA63).
However, he warned that doing so would give rise to the possibility of Malaysia’s loss of Kedah and perhaps Perlis and Kelantan as well.
“In Article 167 (7), the constitution refers to the Bangkok Treaty of 1869, which states that the federation – in this case, Malaya – is obligated to make annual payments to Thailand relative to the state of Kedah.
“If the Federation of Malaya ceases to exist because Article 160 is amended, then who would continue making the payment?”
He added that Kedah’s case was different from Sabah’s and the claim made over it by the defunct sultanate of Sulu.
He pointed out that Britain acquired full sovereignty over Sabah when it annexed the territory in 1946, whereas it never annexed Kedah but accepted it as a gift from the King of Siam in 1869, 1909 and again in 1946.
“These are all complicated legal issues, made more complex by the long history behind them,” he said.
“But Liew would be wise not to think everything will fall into place once Article 1 (2) is amended. That is far from the truth. Amending Article 1(2) without amending Article 160 will mean nothing. It’s just putting the cart before the horse.
“Amending Article 160, including redefining Merdeka Day and adding a new interpretation of Malaysia Day, will set us in the right direction.
“But is the federal government ready for this?”