I am an independent researcher on Declassified Documents and Constitutional Rights of the Borneo States of Sabah and Sarawak
Inter-Governmental Committee (IGC) Report is an agreement between Britain, Malaya, North Borneo (Sabah), and Sarawak which was signed on 27 February 1963. Meanwhile, Malaysia Agreement 1963 is an agreement between the United Kingdom, Federation of Malaya, North Borneo (Sabah), Sarawak, and Singapore which was signed on 9 July 1963. Both of these agreements made before Malaysia Day (16 September 1963).
Therefore, under Article 169 of the Federal Constitution with the subject heading ‘International agreements, etc., made before Merdeka Day’, Malaysia Agreement 1963 and IGC Report which was signed and agreed before Malaysia Day is deemed as an international agreement.
A new provision in the form of Article 169(c) has been annexed from Malaysia Agreement 1963 and inserted into the new Federal Constitution of the Federation of Malaysia through the Malaysia Act (No.26 of 1963). These new provisions in Malaysia Agreement 1963 are added based on Section 41 with the subject heading ‘Power of Parliament to give effect to existing treaties, etc. for the Borneo States and Singapore’. As we can see, the heading for the current Article 169 is different compare to the provisions given in section 41 of the Malaysia Agreement 1963. The difference was due to the provisions from Malaysia Agreement 1963 was made particularly for the Borneo States of Sabah and Sarawak. Therefore, aside from providing a provision for anything related to the international agreement, etc. in general, Article 169 also tells us how Parliament can give effect to the existing treaties, etc. on behalf of the Borneo States of Sabah and Sarawak.
Article 169(c) has been added into Article 169 by Malaysia Act (No.26 of 1963), section 41, in force from 16 September 1963. Over the years, Article 169 has been amended two times. The words “and to Singapore” which appeared after the words “Borneo States” were deleted by Act 59/1966, section 2, in force from 9 August 1965. The words “the States of Sabah and Sarawak” substituted for “the Borneo States” by Act A354, section 43, in force from 27 August 1976.
Under item 1 of the Ninth Schedule of the Federal Constitution, “External affairs” fall within the jurisdiction of the Parliament to make laws. Specifically, under item 1(a), the Parliament has the power to make laws in relation to “treaties, agreements and conventions with other countries and all matters which bring the Federation into relations with any other country” and under item 1(b), “implementation of treaties, agreements and conventions with other countries”. These provisions give effect to the Parliament to exercise their obligations under international “treaties, agreements and conventions with other countries”.
According to the new provision in Article 169(c), the reading of Article 169(a) will be as follow,
“For the purposes of Clause (1) of Article 76, any treaty, agreement or convention entered into before Malaysia Day between Her Majesty or her predecessors or the Government of the United Kingdom on behalf of the territories comprised in those States or any of them and another country shall be deemed to be a treaty, agreement or convention between the Federation and that other country”
The words “the territories comprised in those States or any of them” refer to the Borneo States of Sabah and Sarawak. This provision reveals that the United Kingdom is the plenipotentiary on behalf of Sabah and Sarawak during the signing of the Malaysia Agreement 1963 and the IGC Report.
Therefore, under item 1(b) of the Ninth Schedule, and Article 169(a) read together with Article 169(c), the Parliament of the Federation of Malaysia has the obligations to implement Malaysia Agreement 193 and the IGC Report that was signed on 9 July 1963 and 27 February 1963, respectively, which is deemed as an international treaty, signed before Malaysia Day (16 September 1963).
Now, let us look at the caveat given in Article 169, which is “For the purposes of Clause (1) of Article 76”. Any onward discussion on Article 76(1), doesn’t change the information that was previously given that the IGC Report is an international treaty that needs to be implemented by the Parliament of the Federation of Malaysia. When we read Article 76(1) of the Federal Constitution, it actually provides a provision on how the State government of Sabah and Sarawak can take legislative action to ensure that the Parliament will implement the international treaty, agreement, or convention on behalf of the State.
Article 76(1) when read together with Article 169, provide a mechanism on how the Parliament can implement their obligation under an international treaty, in certain cases, extending their legislative jurisdiction which might under another circumstance fall within under State legislative rights (State List).
Article 76(1)(a) expressed that, “Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say for the purpose of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member”.
However, the most important provision in Article 76(1) for the Borneo States of Sabah and Sarawak is under Article 76(1)(c), which expressed “if so requested by the Legislative Assembly of any State.” This means the Legislative Assembly of the Borneo States of Sabah and Sarawak can request the Parliament to implement the terms that have been agreed in any international treaty, agreement, or convention, including Malaysia Agreement 1963 and the IGC Report. If there is any breach of the term in Malaysia Agreement 1963 and the IGC Report, Article 76(1)(c) read together with Article 169, provide the constitutional mechanism on how the Legislative Assembly of the Borneo States can make active participation to ensure the implementation of the agreed term in Malaysia Agreement 1963 and the IGC Report.
Let me quote Mr. MO Ariff, Malaysian representative himself in confirming the sanctity of treaties. At the United Nations Conference on the Law of Treaties, Malaysian representative, Mr. MO Ariff during a discussion on the proposed Article 60 of what eventually became the Vienna Convention on the Law of Treaties. In discussing the sanctity of treaties, Ariff said that:
‘… the principle that treaty obligations between parties to a treaty should continue despite the severance of diplomatic relations between them was rooted in practice. Some treaties might be so fundamental to the very existence of States that they simply could not be dispensed with, whatever political differences might arise.’