KUCHING (May 25) : The High Court here on Thursday (May 25) allowed the application by the Malaysian federal government and Sarawak state government to strike out a suit filed by Sarawakian Dorus Katan Juman @ Theodorus Katan and 10 others, who are challenging the validity of the Malaysia Agreement 1963 (MA63), which saw Sabah and Sarawak forming Malaysia in 1963.

The decision was made by Judicial Commissioner Alexander Siew How Wai, who also ordered the plaintiff to pay RM10,000 in costs.

Siew, in his decision, said the suit shows no reasonable cause of action and was misconceived, more than anything else.

“The Federal Constitution (FC) is the supreme law of the nation. Under the FC, Sabah and Sarawak are a part of Malaysia. Sabah and Sarawak cannot be not part of Malaysia without the necessary amendments to the constitution, which would require a two-third majority of Parliament and the consent of Sabah and Sarawak.

“This court cannot disregard or rewrite the FC as this court could be guilty of doing, if this court were to grant the declarations sought in this suit. In the humble view of this court, after due consideration, this suit is obviously unsustainable. The application to strike out the suit under Order 18 of the Rules of Court is allowed,” Siew said.

Senior federal counsels Shamsul Bolhassan, Ahmad Hanir Hambaly, Liew Horng Bin, and Mohd Zain Ibrahim along with federal counsel Athina Sim appeared for the Malaysian government while Datuk JC Fong and Nicholas Bowie Anak Buyong appeared for the Sarawak government.

Counsel Voon Lee Shan appeared for Dorus Katan and the other 10 plaintiffs.

The outcome of the case was confirmed by Shamsul and Liew separately to The Edge.

Reliefs sought

Dorus Katan and others had named the Malaysian, Sarawak and UK governments as respondents in the suit.

They are seeking a declaration that the MA63 was not a binding international agreement by virtue of its failure to comply with the requirement of international law or rule for the making of treaties — that only sovereign states can make binding agreements with each other.

They further sought a declaration that the UK government’s purported decolonisation of Sarawak and Sabah in 1963 by transferring the two colonies to the Malayan Federation (renamed Malaysia) was not lawfully completed in a manner consistent with the right of people to unconditionally exercise self-determination as required by the UN General Assembly Resolutions (UNGAR) 1514XV & 1541XV and international law principles, nor in accordance with the Manila Accord 1963.

This, they claimed, required the UK and Malaya to seek the consent of the people in compliance with UNGAR 1541 to hold a referendum before establishing the proposed federation and resolution of the Philippines’ claim on a part of Sabah.

They also sought a declaration that as a consequence of the said breaches of international law, the integration of North Borneo and Sarawak into the Malayan federation was wrongful and unlawful, and that the Malaysian government’s continued control of the sovereignty of the two states and their territories is unlawful, and the two territories must forthwith be decolonised for independence.

Alternatively, they sought a declaration that if MA63 was validly made in accordance with international law, it was terminated by the federal government of Malaysia’s multiple wilful breaches of the agreement (acknowledged by the federal and state governments), together with the neglect and failure to faithfully comply with the treaty amounting to “wilful discontinuance” of the treaty over five decades.

They also sought damages and the cost of the action.

Why did the government apply to strike out the suit?

The Malaysian government in seeking to strike out the suit said the Kuching court has no power to grant the declaratory relief sought by the plaintiffs as the crux of their application is to seek the independence of Sabah and Sarawak.

“This is a relief which the court has no power to grant. This follows the High Court of Sabah and Sarawak being an institution established under the Federal Constitution, cannot alter the constitutional order so as to remove its source of power.

“Furthermore, any amendments to the Federal Constitution, involving Sabah and Sarawak is subject to certain constitutional requirements which the court cannot override.

"Furthermore, the court is not in a position to dictate as to how Sabah and Sarawak should exit from the Malaysia federation,” the representatives from the Malaysian government said.