Why Sabah should invoke a crucial MA63 clause in pursuit of rightful 40% entitlement

THE RATIFICATION of Article 8 of the Malaysia Agreement 1963 (MA63) could offer Sabah a powerful tool to proactively pursue its rightful 40% share of the revenue taken by the federal government from resources in the state.

Former Sabah Law Society president Roger Chin said Sabah can enhance its legal standing and utilise all available resources to engage a constructive negotiation with Putrajaya should the Sabah government integrate its legislative and executive arms with other measures to ratify the provision.

“Ultimately, achieving a just outcome requires continued commitment to upholding the spirit of MA63 and exploring all available avenues, with Article 8 serving as a key instrument in Sabah's quest for its rightful share,” he said.

Chin was commenting on Warisan deputy president Datuk Darell Leiking’s suggestion for the state to hold a special legislative assembly sitting to invoke Article 8 of MA63.

However, Chin warned that the move will not take place without possible opposition and challenges.

For instance, he foresees potential political resistance from the federal government over the move.

Also, the clause itself has its legal ambiguities which require to be dealt with.

Article 8 of MA63 grants the governments of Sabah, Sarawak, and the Federation of Malaya the power to take necessary actions, "including legislative, executive or other actions as may be required", to implement the agreement's assurances, undertakings, and recommendations.

This crucial clause empowers the state to take proactive measures to secure its rights.

Sabah claims a 40% share of the revenue generated from its resources by the federal government as stipulated in the Federal Constitution under Article 112C and Part IV of the Tenth Schedule.

However, the incomplete implementation of the entitlement has fuelled frustration among the Sabah people.

Like Leiking, Chin also believes that issues related to state rights can gain traction from the ratification of Article 8 due to the 2021 constitutional amendment where the status of Sabah and Sarawak were restored as equal partners with the Federation of Malaya.

He stressed that the MA63 is now entrenched in the Federal Constitution, making the agreement constitutionally valid.

“The amendment has given Article 8 the legal weight for Sabah to demand state rights, and invoking it in the state legislative assembly (would be) viewed not as a unilateral act but a legitimate step within the framework of the Federal Constitution itself,” he said.

Chin said there are also other potential avenues Sabah can gain should Article 8 of MA63 be ratified.

For instance, the state can pass laws affirming its 40% revenue entitlement and strengthen the legal basis of its claim, as well as send a clear message to Putrajaya over its revenue rights.

Further to this, Chin said Sabah can enact other laws requiring greater transparency in the extraction and revenue generated from exploitation of its natural resources, which is among the obstacles faced in the move to claim its rightful revenue rights.

Chin was referring to Sabah Finance Minister Datuk Seri Masidi Manjun’s statement that the state has not been furnished with all the data on the revenue sources.

“This would make it more difficult for the federal government to obscure or under-report revenue figures, facilitating verification of the 40% share,” said Chin.

He said the ratification will also give Sabah the leverage to negotiate with its state rights and the avenue to implement new regulations and practices in managing its own natural resources so they can be aligned with its own economic and environmental development goals.

“This can help assert control over Sabah's resources and demonstrate responsible stewardship, bolstering the state's claims for a fair share of the benefits,” he said.

Meanwhile, Upko president Datuk Ewon Benedick, when asked to comment on Leiking’s suggestion, said Warisan should forward their own proposal to the Sabah government.

Benedick said that he is aware of the provision in Article 8 of MA63, but maintained that it is not the avenue his party is looking at for the present.

The Penampang MP had recently presented Upko’s proposal to Sabah Chief Minister Datuk Seri Hajiji Noor on the payment of the 40% revenue-sharing rights and followed up by calling on the state to file a formal request to Putrajaya on the matter. – The Vibes, January 28, 2024