Malaysia Agreement

Prior to World War II, British Malaya consisted of three groups of polities: the protectorate of the Federated Malay States, five protected Unfederated Malay States and the crown colony of the Straits Settlements.

In 1946, the Malayan Union was established in British Malaya which comprised the Federated Malay States of Perak, Selangor, Negeri Sembilan, Pahang; the Unfederated Malay States of Kedah, Perlis, Kelantan, Terengganu, Johor; and the Straits Settlements of Penang and Malacca. Meanwhile, Britain had direct rule over Singapore as a crown colony. It came through a series of agreements between the United Kingdom and the Malayan Union.^[7] The Malayan Union was superseded by the Federation of Malaya on 1 February 1948, and achieved independence within the Commonwealth of Nations on 31 August 1957.^[5]

Throughout the 20th century, decolonisation became the societal goal of the peoples under colonial regimes aspiring to achieve self-determination. The Special Committee on Decolonisation (also known as the U.N. Special Committee of the 24 on Decolonisation, reflected in the United Nations General Assembly's proclamation on 14 December 1960 of the Declaration on the Granting of Independence to Colonial Countries and Peoples hereinafter, the Committee of 24, or simply, the Decolonisation Committee) was established in 1961 by the General Assembly of the United Nations with the purpose of monitoring implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples and to make recommendations on its application.^[8]

The committee is also a successor to the former Committee on Information from Non-Self-Governing Territories. Hoping to speed the progress of decolonisation, the General Assembly had adopted in 1960 the Resolution 1514, also known as the "Declaration on the Granting of Independence to Colonial Countries and Peoples" or simply "Declaration on Decolonisation". It stated that all people have a right to self-determination and proclaimed that colonialism should be brought to a speedy and unconditional end.^[9]

Under the Malaysia Agreement signed between the United Kingdom and Malaya, Britain would enact an act to relinquish sovereign control over Singapore, Sarawak and North Borneo (now Sabah). This was accomplished through the enactment of the Malaysia Act 1963, clause 1(1) of which states that on Malaysia Day, "Her Majesty's sovereignty and jurisdiction in respect of the new states shall be relinquished so as to vest in the manner agreed".^[10]

The issue of self-determination with respect to the peoples of North Borneo, Sarawak, and Singapore formed the bedrock of yet another challenge to the formation of the Federation of Malaysia. Under the Joint Statement issued by the British and Malayan Federal Governments on 23 November 1961, clause 4 provided: Before coming to any final decision it is necessary to ascertain the views of the peoples. It has accordingly been decided to set up a Commission to carry out this task and to make recommendations ........

In the spirit of ensuring that decolonisation was carried in accordance with the wishes of the peoples of North Borneo, the British Government, working with the Malayan Government, appointed a Commission of Enquiry for North Borneo and Sarawak in January 1962 to determine if the people supported the proposal to create a Federation of Malaysia. The five-man team, which comprised two Malayans and three British representatives, was headed by Lord Cobbold.^[11]

In Singapore, the People's Action Party (PAP) initially sought merger with Malaysia on the basis of the strong mandate it obtained during the general elections of 1959 when it won 43 of the 51 seats. However, this mandate became questionable when dissension within the Party led to a split. In July 1961, following a debate on a vote of confidence in the government, 13 PAP Assemblymen were expelled from the PAP for abstaining. They went on to form a new political party, the Barisan Sosialis (BS), the PAP's majority in the Legislative Assembly was whittled down as they now only commanded 30 of the 51 seats. More defections occurred until the PAP had a majority of just one seat in the Assembly.

Given this situation, it would have been impossible to rely on the mandate achieved in 1959 to move forth with merger. A new mandate was necessary, especially since BS argued that the terms of merger offered were detrimental to Singaporeans – such as having reduced seats in the federal parliament compared to its population, only being able to vote in Singapore elections,^[12] and the obligation that Singapore contribute 40% of its revenue to the federal government. To allay these concerns, a number of Singapore–specific provisions were included in the Agreement.^[13] Singapore was ultimately expelled from Malaysia on 9 August 1965.

Although Brunei sent a delegation to the signing of the Malaysia Agreement, they did not sign, as the Sultan of Brunei wished to be recognised as the senior ruler in the entire federation and what had happened during the Brunei revolt.^[14] It would continue to be a British protectorate until it became a sovereign state on 1 January 1984.

On 11 September 1963, just four days before the new Federation of Malaysia was to come into existence, the Government of the State of Kelantan sought a declaration claiming that the Malaysia Agreement and Malaysia Act were null and void, or alternatively, that even if they were valid, they did not bind the State of Kelantan. The Kelantan Government argued that both the Malaysia Agreement and the Malaysia Act were not binding on Kelantan on the following grounds that the Malaysia Act in effect abolished Malaya and this was contrary to the 1957 Malaya Agreement that the proposed changes required the consent of each of the constituent states of the Federation of Malaya – including Kelantan – and this had not been obtained. This suit was dismissed by James Thomson, then Chief Justice, who ruled that the constitution had not been violated during the discussion and creation of the Malaysia Act.^[15][16]

Over the decades after the agreement, many academics and politicians have argued that the promises made to Sarawak and North Borneo (Sabah) have been eroded over time by the federal government.^[17][18][19] After the historic initial defeat of the Alliance/Barisan Nasional (BN) government in the 2018 Malaysian general election, the Pakatan Harapan (PH) government promised to look into Sarawak and Sabah's grievances in relation to the Malaysia Agreement which had been neglected.

After a proposed 2019 amendment to the Constitution of Malaysia to restore the status of Sabah and Sarawak according to the original content of Malaysia Agreement failed to pass a two-thirds majority, the federal government compromised to review the agreement to remedy breaches of the treaty with a "Special Cabinet Committee To Review the Malaysia Agreement".^[20][21] The seven agreed issues were:

• Export duty claims on logging exports and forest products.
• Gas distribution and regulatory powers on electricity and gas.
• Implementation of Federal and State Public Works.
• Manpower.
• The power of the state on health issues.
• Administration of Sipadan and Ligitan islands for Sabah.
• Agricultural and forestry issues.

The first meeting about these issues was held on 17 December 2018.^[21] Despite the willingness of the federal government to review the agreement, reports surfaced that negotiations between Sabah and the federal government had not been smooth, with the latter dictating some matters of the review, causing the perception that the review was a one-sided affair with the government appearing reluctant to relinquish control of affairs.^[22]

In another 2021 amendment to the Constitution of Malaysia, Article 160 (2) of the federal constitution was amended with the new definition of the term "federation" where the Malaysian federation is formed in accordance to the 1963 Malaysian agreement in addition to 1957 Malaya agreement.^[23] In February 2022, the name of the head of government of Sarawak was changed from "Chief Minister" to "Premier". In 2024, it was proposed that Sabah does the same.^[24]

In March 2022, 11 people from Sarawak filed writ into the High Court of Sarawak to declare the Malaysia agreement null and void because the people of Sarawak did not unconditionally exercise self-determination nor referendum was held before the formation of Malaysia. Therefore, Sarawak would not bind to the Malaysia agreement.^[25] In April 2022, the Government of Sarawak tried to strike out the suit on reasons that the High Court had no jurisdiction to enforce or nullify an international treaty like MA63.^[26] In May 2023, The high court in Kuching dismissed the suit because the Federal Constitution of Malaysia is the supreme law of the country and for Sarawak to leave the federation, the Federal Constitution needs to be amended.^[27]

The Malaysia Agreement lists annexes of

• 18-point agreement
• 20-point agreement
• 2021 amendment to the Constitution of Malaysia
• Cobbold Commission
• Independence of Singapore Agreement 1965
• Indonesia–Malaysia confrontation
• Malaysia Act 1963
• Manila Accord
• Separatist movements in Malaysia
• Timeline of Malaysian history
• Proclamation of Singapore
• Vienna Convention on the Law of Treaties

• Hansard of Parliament of the United Kingdom Malaysia Bill
• Malaysia Act 1963
• Affecting the Malaysia Act 1963
• Solidarity with the Peoples of Non-Self-Governing Territories by Resolution of General Assembly 60/119 of 18 January 2006
• Trust and Non-Self-Governing Territories listed by the United Nations General Assembly.
• United Nations General Assembly 18th Session – the Question of Malaysia (pages:41–44)
• Malaysia Timeline by the BBC News Channel.

• J. de V. Allen; Anthony J. Stockwell (1981). A Collection of Treaties and Other Documents Affecting the States of Malaysia: 1761–1963. Oceana Publ. ISBN 978-0379007817.
• James Chin (2014). "Federal-East Malaysia Relations: Primus-Inter-Pares?, in Andrew Harding and James Chin (eds) 50 Years of Malaysia: Federalism Revisited (Singapore: Marshall Cavendish)". The Straits Times: 152–185 – via Academia.edu.
• James Chin (31 May 2018). "Why new Malaysian govt must heed MA63 rallying cry". The Straits Times – via Academia.edu.
• James Chin (2019) The 1963 Malaysia Agreement (MA63): Sabah And Sarawak and the Politics of Historical Grievances – Via ResearchGate