All broken relationships can be traced back to broken agreements.
— Stephen Covey, American author
Why does MA63 appear like a person sitting in a canoe with the oars being paddled by others? How long will it continue to be an enduring endless experiment exposed exponentially to excruciating experience?
And litigating its potency is a horrendous gamble. Courts of law are sausage factories waiting for litigants to walk in as cows. Law and justice are synonymous with deep pockets, expensive lawyers, partisan politics, and friendly judges.
Legislation instead of litigation is more potent in offering enduring solutions that will make sense of MA63 by using imported English common law doctrines and maxims expressed in Latin that are wholly favourable to Sarawak’s expectations that are missing in this internationally recognised document.
Non potest rex gratiam facere cum injuria et damno aliorum — the king cannot grant a favour which occasions injury or loss to others. This maxim requires no further explanation or elaboration.
Nam scire debet cum quo contrahit — one party ought to know who they were dealing with in the first place. Were the people of Sarawak made aware of the background of those persons most persuasive in wanting to form the federation called “Malaysia”? Was there total wholesome transparency in the Cobbold Commission?
Non accipi debet verba in demonstrationem falsam quae competent in limitationem veram — words in a treaty ought not to be taken or regarded as an erroneous description which suitably express a real limitation. How many limitations were imposed upon the intent, content, extent, scope, scale and effect of the Agreement that Sarawakians today need to mend and amend?
Nimia subtilitas in jure reprobatur et talis certitudo certitudinem — some words and phrases are destined for over-refinement in search of certainty which confounds the certainty otherwise attainable. The issue of decolonisation and re-colonisation has blurred certainty beyond description. Was any explanation offered?
Qoud meum est sine facto meo vel defectu meo amitti vel in alium transferri non potest — that which is mine cannot be lost or transferred to another except by my own act or neglect. Unsuspecting people quite oblivious to fraud silently and helplessly witness the recurring loss of land rights.
Non aliter a significatione verborum recede opportet quam cum manifestum est aliud sensesse testatorem — the ordinary meaning of words ought not to be departed from except where it appears manifest that the maker understood or used them in another sense. International law obscured Adat Iban and other local customs.
Nemo potest immittre in alienum — no one can throw or place anything on the property of another. Maps, boundaries, fences, alienation of land have been legitimated through legislation whose interpretation will require judicial scrutiny.
Nemo debet ex alieno damno lucrari — no one should be enriched out of the loss or damage sustained by another. The discerning public should have no difficulty in figuring out who lost, and who gained, till today.
Non possessori incumbit necessitas probandi possessions ad se pertinere — no necessity for a possessor proving that his possessions belong to him. The challenger must prove that the possessor has no title. A typical example of adat versus imported law.
Nemo patrium in qua natus est exuere nec ligeantiae debitum ejurare possit — no one may cast off his native country or renounce the obligation of allegiance. Does agreeing to join a federation with a foreigner qualify for renunciation of Natives’ inalienable rights?
In essence, MA63 has shrivelled the people’s spirits under the numbing breath of international law as applicable to national, regional and local law. Ignoring a vexatious uncertainty does not make it go away.
MA63 is caught in the labyrinth of doubt and uncertainty patched and sewn into the fabric of a web of deceit that has led to a growing belief that broken agreements must be fixed.
Barabbas jurisprudence mutates and survives in the safe haven of a lopsided compromise which forces an agreement whereby both parties get what neither of them wanted. Lawsuits will invariably encounter the “standing” requirement aimed at discouraging plaintiffs.
Sarawak is most assuredly vigilant out of the abundance of caution as the sole guardian of basic values and fundamental rights concerning territorial integrity and autonomy for the future generations who must resist hands from old graves guiding their destinies.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.
