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A Hidden Trustee in the Federation of Malaysia?

I am an independent researcher on Declassified Documents and Constitutional Rights of the Borneo States of Sabah and Sarawak

The trusteeship system of "Malaysia"

The trusteeship system of "Malaysia"

The Sixth Schedule of the Malaysia Agreement 1963 is entitled “Minor and Consequential Amendments of Constitution”. It provides for minor amendments of the former Federation of Malaya (1957) Federal Constitution based on the requirement of the Malaysia Agreement 1963. The minor amendment as listed in the Sixth Schedule will have it legal and constitutional consequential on how the current Federal Constitution can be enforced and understood under the formation of the new Federation of Malaysia in 1963. This is important as the former Federation of Malaya (1957) Federal Constitution was only used as a template for the construction of the new Federal Constitution of Malaysia, not a mere copy of it. It must also be kept in mind, that it is a common practice during the decolonization era in the 1960s for the former colonies to adopted (with major amendment) their parent country constitution in a path to achieve independence.

Now, let us get back and make further analysis on the new Federal Constitution of the Federation of Malaysia. According to Section 70 (Minor and consequential amendments) of the Malaysia Agreement 1963, it has been expressed that,

“The Constitution shall be amended by amending or omitting as specified in the second column of the Sixth Schedule to this Act the provisions specified in the first column.”

Let us go through in detail the Sixth Schedule and investigate the provisions of the Federal Constitution that need to be amended. In the first instance that I read the Sixth Schedule of the Malaysia Agreement 1963, one word struck me best, is the word “Federation” and “Malay Peninsula”. Here, I mean specifically, the second provision of the Federal Constitution that will be amended based on the Sixth Schedule of the Malaysia Agreement 1963. The provision is talking in relation to Article 8 of the Federal Constitution (right to equal treatment), on which, in Clause (5) of Article 8, for the word "Federation" there shall be substituted the words "Malay Peninsula". It is amending Article 8, Clause 5(c) of the Federal Constitution of the Federation of Malaya 1957, on which through Malaysia Act (No.26 of 1963), the new Article 8 Clause (5)(c) of the Federal Constitution of the Federation of Malaysia will then read as follow;

"This Article does not invalidate or prohibit—(c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service."

Here, based on the second provision provided in the Sixth Schedule of the Malaysia Agreement 1963, the word "Federation" there shall be substituted the words "Malay Peninsula". Based on this, on further assessment, we need to follow the constitutional trail and try to figure out the definition of "Federation" and "Malay Peninsula", and try to understand why the substitution was made on the word "Federation" with "Malay Peninsula". Why the substitution was not made with other words such as "Federation of Malaya" or "Malaya"? This is what we want to answer.

First, let us define "Federation" as provided in the former Federal Constitution of the Federation of Malaya 1957 because this is the word that was being amended. In the original Federal Constitution of the Federation of Malaya 1957, “The Federation” means the Federation established under the Federation of Malaya Agreement 1957. Directly, we can understand that the "Federation" in the original Article 8, Clause 5(c) referred to the Federation established under the Federation of Malaya Agreement 1957, which gained her independence on 31st August 1957. This is the original Federation of Malaya established before becoming one of the State of the new Federation of Malaysia on 16th September 1963. Take note of the date. The "Federation" here, referred to the Federation of Malaya which was established and come into existence on 31st August 1957.

Through the minor and consequential amendments of the Federal Constitution based on the Sixth Schedule of Malaysia Agreement 1963, this means, through the formation of the new Federation of Malaysia on 16th September 1963, the former Federation of Malaya has now been constitutionally referred to a new term, which is “Malay Peninsula”. Here, the Federation of Malaya established on 31st August 1957, has now been called the “Malay Peninsula” based on the new Constitution of the Federation of Malaysia.

Interestingly, we found again in the Sixth Schedule, provision of the Constitution of Article 160 (interpretation) was amended, on which, In Clause (2), before the definition of "Act of Parliament" there shall be inserted the definition - "aborigine" means an aborigine of the Malay Peninsula. Here, the word “Malay Peninsula” was again being used to refer to the aborigine that lives in the Federation of Malaya that was established on 31st August 1957. Although, there is no connotation on this provision to determine what exactly constitutes or definition for the “Malay Peninsula”, the same meaning can be derived from the previous amendments.

The next question is, what exactly is the “Federation of Malaysia” that has been spelled so many times in the new Federal Constitution of the Federation of Malaysia?

What is the "Federation of Malaya" in the new Federal Constitution of the Federation of Malaysia? As discussed earlier, does the former Federation of Malaya 1957 has now been referred to as the “Malay Peninsula”?

Let search and investigate further, the words “Malay Peninsula” in the Malaysia Agreement 1963. The word “Malay Peninsula” in the Malaysia Agreement 1963 can be found in Annex D, which is the Constitution of Singapore.

Article 91(1) of the Constitution of Singapore read as follow,

"In this Constitution unless it is otherwise provided or the context otherwise requires—"Malaya" means Singapore and the Malay Peninsula".

This is one big revelation! Through this simple constitutional definition, we now can confirm that based on the "term of merger" between the former Federation of Malaya 1957 (Malay peninsula) and Singapore, a new entity has been formed, called "Malaya", established and took effect on 16th September 1963. We must remember, that the mechanism on how Singapore joined the Federation of Malaysia was based on their "terms of merger" with the former Federation of Malaya 1957. The case for the Borneo States of Sabah and Sarawak is different.

This means, once the new Federation of Malaysia was formed on 16th September 1963, the former Federation of Malaya 1957 (also called Malay peninsula) and Singapore formed "Malaya".

The simple equation for the "term of merger" between the Federation of Malaya 1957 and Singapore will be,

  • Federation of Malaya 1957 = Malay Peninsula
  • Malaya = Singapore + Malay Peninsula
  • Federation of Malaysia = Malaya(Singapore and Malay Peninsula) + (Borneo States(Sabah and Sarawak)

Now, as Singapore through their Constitution giving a meaning that their State together with the Malay Peninsula constitutes as “Malaya”, does that mean the Government of Singapore shoulder the same responsibility as Trustees with the Federation of Malaya (Malay Peninsula) in discharging their responsibility for the decolonization of the Borneo States of Sabah and Sarawak?

My answer is YES.

It is common for any International Trusteeship System around the world to have two, three, or more Trustees in governing a single or more Trust Territory. The system of Trusteeship in Malaysia might be that the main Trustee is the Federation of Malaya 1957 (Malay Peninsula), while Singapore plays a minor role as co-Trustee.

The same principle of co-trustee appointment has been applied around the world if you do your homework on the decolonization process. The nature of how the constitutional mechanism has been created for Singapore to discharge their obligations upon the Borneo States of Sabah and Sarawak can even be defined as a hidden Trustee.

The case of Singapore being the co-Trustee of the Borneo States of Sabah and Sarawak is strengthen by several terms incorporated in the Malaysia Agreement 1963 itself, where Singapore also shoulder some responsibilities towards the advancements of the Borneo States of Sabah and Sarawak either politically, economically, and development. For example, such responsibility can be found in Section 9 of Annex J (Finance for Borneo Territories) of the Malaysia Agreement 1963. The provision was expressed that Singapore Government will assist the development in the Borneo territories.

Besides, the British seem to have a better idea in how positioning the State of Singapore in the new Federation of Malaysia by constructing a mechanism on which, that I believe, giving them the potential experience to become a Trustee of the Borneo States since the beginning of the talks for Malaysia. The Federation of Malaysia is one great decolonization experiment that has been devised by the British. We all already know that how the Federation of Malaysia was build to be in line with the International Trusteeship System, on which the Trustee is the Federation of Malaya 1957 (Malay Peninsula) and the Trust Territory is the former British colonies, now become a Borneo States of Sabah and Sarawak.

The construction and mechanism on how the Federation of Malaysia was indeed an International Trusteeship System were very obvious when United Nations Resolution 1541 (UN Resolution 1541) was taken into account. A similar emphasis has been reported in the United Nation Malaysia Mission Report on 14th September 1963.

Through the formation of the Federation of Malaysia, the British are also experimenting with the ascension of not just the independent country, Federation of Malaya 1957 (Malay Peninsula) as a Trustee, but also the progressive ascension of the State of Singapore as a co-Trustee for the Trust Territories of the Borneo States of Sabah and Sarawak. On which through the formation of Malaysia, Singapore has become the full self-governing state (UN Resolution 1541) with a hidden status of co-Trustee together with the Federation of Malaya 1957 (Malay Peninsula). Together, they became “Malaya” in the Federation of Malaysia.

Then again, if the new Federation of Malaysia was to be successful in decolonizing the Borneo States of Sabah and Sarawak, the Borneo States of Sabah and Sarawak would have two systems of governance to be chosen upon the completion of the decolonization process, either communal Malay Malaysia as being practice by Federation of Malaya 1957 (Malay Peninsula) or Malaysian Malaysia as being practice by Singapore. There is a possibility for the combination of both systems of governance altogether as well.

The Borneo States seem like being given immerse potential with the availability of the Federation of Malaya 1957 (Malay Peninsula) as Trustee and the State of Singapore as co-Trustee on which they can learn and experience the best system from both countries for their own future endeavor.

In 1965, Singapore was separated from the Federation of Malaysia and became an independent State. With the exclusion of Singapore, do the rights of the Borneo States of Sabah and Sarawak to be administered by Singapore as co-Trustee, perhaps to balances the antics of the Malay Peninsula, has been breached and denied?

Indeed, if we follow the constitutional trail over the years, the separation of Singapore has affected negatively the decolonization progress of the Borneo States of Sabah and Sarawak under the Malaysia Agreement 1963 today. I also suspect that the British have prepared this legal route on which, in case of non-compliance and breach of the rights of the Borneo States of Sabah and Sarawak under the trusteeship of Federation of Malaya 1957 (Malay Peninsula), the Borneo States of Sabah and Sarawak can transfer the sacred trust of administering their countries to Singapore as a new Trustee altogether. With this new revelation, it might be one of the best options for the Borneo States of Sabah and Sarawak to transfer the sacred trust and privileges of trusteeship to Singapore to accelerate their decolonization process before it is too late.

Watch the video in my Youtube channel for more information

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.

© 2021 Dr Zulfaqar Sa'adi

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