On Monday, 14 April 2025, a Peninsular Malaysia newspaper carried a thought-provoking article labeled as “MA63 talks can be resolved out of court.” It showcased a national leader photographed stoically cutting a piece of lamb at an event in Kampong Segedup, Sarawak.
This article is dedicated to understanding the leader’s thinking as was directly reported by the journalist(s) who covered the event. So, to be sure and certain, the writer of this article will focus on what was allegedly said and reported.
That statement by the leader brought forth a gush of moral, political, legal, social, economic, and constitutional questions. The first paragraph stated that “Negotiations between the federal and state governments on the MA63 can be resolved amicably without going to court for legal action.”
“Legal action” is quite different from asking the Federal Court, as an original jurisdiction tribunal, and not as an appellate court, to decide on a constitutional point of law under Article 4(4) and Article 128 Federal Constitution.
No politician can constitutionally or extra-judicially stop that original jurisdiction petition to the Federal Court as provided for under the Federal Constitution and the Courts of Judicature Act 1964.
Did someone pose this question about keeping the courts out, or did the national leader make a sua sponte statement? The second paragraph continued that “Sarawak has also guaranteed that it would not involve the courts in finalising the legal interpretation of MA63.” So here, legal action and legal interpretation are two distinctly different issues.
This would mean that legal interpretations need not be raised to and resolved by the Judiciary but by the Executive and the Legislature who may have other plans and agendas to resolve the contentious MA63. Several issues come to mind.
First issue under the doctrine of the separation of powers, is whether the three organs of state — the Executive, Legislature and the Judiciary — are coequal sovereigns? If they are, then one sovereign telling another sovereign to obey a directive causes that organic sovereignty to cease.
The second issue is whether the law enforcer (Executive) and the lawmaker (Legislature) are qualified to resolve legal interpretations? That’s why the Judiciary is there as an explainer and applier of the law based on available incontrovertible facts.
The third obvious issue is whether the jurisdiction of the Judiciary can be ousted or made unnecessary by Executive and Legislative fiat? What if certain deals were made without regard to legal and moral questions when politicians past and present worked in secrecy?
One anonymous blogger wrote that “in March 2009, then-Prime Minter Abdulla Badawi signed a secretive agreement with Brunei that critics argue ranks among the nation’s most egregious diplomatic blunders.”
Allegedly, Malaysia handed Brunei sovereignty over two immensely valuable oil blocks belonging to Sarawak known as L and M (now Brunei’s CA1 and CA2). Reportedly it gave away Sarawak’s economic future for a pittance without rhyme, reason or remedy.
According to this blogger, the story made headlines in 2010 when an American company, Murphy Oil, terminated its contracts since those two oil blocks were no longer part of Malaysia.
Now, if this story is genuine, legal and constitutional questions become utterly necessary given the fact that the deal was done in secrecy? Can, as the national leader stated, the federal government deal with this issue with Sarawak knowing that it has violated MA63 Treaty provisions that robustly require judicial intercession to explain the applicable law?
Or are we going to spend hundreds of thousands of Euros importing a King’s Counsel from the UK to handle this matter as legally relevant and enforceable rights of the MA63 Partners?
In the UK, and other common law jurisdictions, the executive and legislature are closely entwined. The Prime Minister and a majority of his or her ministers are Members of Parliament and sit in the House of Commons. The executive is therefore present at the heart of Parliament. And they gave us our written constitution!
Lord President Tun Mohamed Suffian Hashim when writing his foreword to The Role of the Independent Judiciary by Tun Salleh Abas on Dec 17, 1988:
“When the judiciary decides against authority there is no question of its being superior to Parliament or the Executive; the three branches are co–equal partners, each branch being like the leg of a three–legged stool. When the judiciary decides against the authority it is simply doing its duty under the Constitution which expresses the will of the people just as when it decides for authority.”
Chief Justice, Tan Sri Md Raus Sharif in his 2017 inaugural speech at a ceremony celebrating his elevation that it is “his duty as well as everyone’s to ensure that the independence of the judiciary is safeguarded. As an institution, the judiciary is not and should never be beholden to anyone but the Federal Constitution. In other words, not even to the Executive nor Parliament.”
Therefore, it is clear that the Executive and the Legislature are constitutionally incapable of ousting the jurisdiction of the Judiciary especially in such a highly volatile and sensitive issue like MA63.
Donald Trump’s Executive order on travel ban is not unreviewable because it will run against the fundamental structure of a constitutional democracy which requires compliance with the supreme law of the land, said an American federal court in 2017.
This position by the Judiciary reviewing powers of Executive orders is well enumerated in Malaysia’s Federal Constitution at Article 4(1) which provides that any law passed which is inconsistent with the Constitution is void.
Searching and awkward questions are inevitable when one considers the DPM’s remarks over negotiating and settling the issues in MA63 that has caused strained relations, strife and spite between the Borneo Territories and Putrajaya.
Even if a political bargain is made without the Judiciary’s involvement, will the people have locus standi to ask the courts to declare a point of law whether the spirit and substance of MA63 was being bamboozled by the Executive and the Legislature?
Now, at this juncture, it is crucial and pivotal to ask if the People of the Borneo Territories will be consulted as to the correct interpretation and application of MA63. No contract can be made to favour one party. The maker of the contract is ultimately responsible for its meaning, application and enforcement.
The “contra proferentem” rule, or “against the drafter”, is a principle in Malaysian contract law used to interpret ambiguous clauses in a contract. It states that if a clause is unclear, it should be interpreted against the party who drafted it or insisted on its inclusion, in favour of the party who did not draft it. This rule is often applied in situations where one party is trying to rely on an ambiguous clause to avoid their obligations under the contract.
Malaysia operates under a dualist system of international law, meaning that international law only has domestic effect if it is explicitly incorporated into domestic law (doctrine of transformation). That is the surreptitious problem MA63 will face when its provisions are not mentioned in a domestic Malaysian law.
The Malaysia Act 1963, passed by the UK Parliament, is the key legal instrument that brought the Federation of Malaysia into being, including North Borneo (Sabah), Sarawak, and Singapore. It gave effect to the Malaysia Agreement 1963 (MA63). Surely it did not give sweeping powers to the main Partner Malaya.
The Federal Constitution of Malaysia also incorporated MA63 and its annexes, particularly the Ninth Schedule, which outlines the division of powers between the federal and state governments.
But are Sabah and Sarawak “states” of Malaysia like the other states in Peninsular Malaysia? This is where legal interpretation, not political dialogue, discourse, negotiations and settlement matters most. If the Ninth Schedule considers Sabah and Sarawak as Malaysian states, then the bargaining power will be topsy-turvy, turbulent and lopsided.
Putrajaya better heed American President Herbert Hoover’s advice that “peace is not made at the council table or by treaties, but in the hearts of men.”
William Shakespeare in Julius Caesar gave this a different twist:
“There is a tide in the affairs of men
Which, taken at the flood, leads on to fortune;
Omitted, all the voyage of their life
Is bound in shallows and in miseries.
On such a full sea are we now afloat;
And we must take the current when it serves,
Or lose our ventures.”
The Borneo Territories’ leaders must bargain for sound policies and structural reforms to fix things gone awry when the Malaysia Act 1963 sidelined MA63.
The views expressed here are those of the columnist and do not necessarily represent the views of Sarawak Tribune. The writer can be reached at chiefjudge@secamtektektribe.org.
