Borneo rights activists in Sabah and Sarawak want former Sabah chief minister Harris Salleh to seek a Declaration in the Federal Court on the Malaysia Agreement 1963 (MA63).
“Harris is not the court. Only the court can declare on MA63,” Daniel John Jambun said, speaking on behalf of rights activists in Borneo.
He added that the law is not just about the letter but the spirit too.
“That’s Rule of Law, that’s democracy. Rule by Law is not law at all but dictatorship.”
Peter John Jaban, who echoed Jambun, cautioned Harris against continuing to issue “errorneous” statements in the media on MA63.
They were commenting on a statement by Harris reported in the Sabah newspaper, Daily Express, last week, in which Harris had agreed with Sabah Chief Minister Musa Aman that MA63, and other constitutional documents on Malaysia, have been incorporated in the Federal Constitution of Malaya (now Malaysia).
“It does not mean that MA63 was no longer valid. That is because MA63 is an international agreement and treaty signed by five governments,” Jaban said.
It has also been lodged with the UN secretary-general as a Trust Deed, he added.
Jambun said if Harris actually meant that MA63 was no longer valid, after being incorporated in the federal constitution, “that’s not the position in law”.
As a comparison, Jaban gave the example of the Magna Carta, or the Grand Charter, which was not only part of the uncodified/unwritten British Constitution but continues its separate existence.
“This is irrespective of whether it had been incorporated or otherwise in the British Constitution,” Jaban said.
Jambun argued that the federal constitution was only part of the story.
“MA63 called for a Malaysian constitution. However, the federal constitution was the Malayan Constitution,” he said.
Both men then agreed that the Malaysian constitution is an uncodified/unwritten one.
They also believe that the federal constitution was only one of the constitutional documents making up the Malaysian constitution.
“The others are the constitutional documents on Malaysia. This ensures compliance on the Malaysia concept,” Jambun said
The constitution, as the ultimate political document, has the force of law and hence emerges as the supreme law of the land.
“It’s the constitution that’s supreme, not parliament,” Jaban said.
According to Jambun, Harris was wrong in carrying on as if the Malaysian parliament was supreme over the constitution.
“That is because the sovereignty of parliament is confined to its five-year term.”
He said the bottomline is that the sovereignty of parliament cannot be bound by a previous parliament, nor can it bind a future parliament.
“It’s the Constitution that decides,” Jambun said.
Jaban said it was up to the Federal Court – sitting as the Constitutional Court – to interpret the intention of the framers of the constitution.
The Federal Court can also interpret the intention of parliament and the intention of the founding fathers in Borneo on Malaysia.
Joe Fernandez@FMT Online