In a three part commentary Alex Ling a lawyer by training explains Sarawak’s rights to its oil and gas resources
Part III
Federal imperium cannot supercede Sarawak’s dominion on its O&G
The Sarawak’s boundary which is not moveable under the federal imperium has been reconfirmed by Article 2 Part II of UNCLOS 1982.The Emergency Ordinances(“Eos”) 7, 10,11 of 1969 could not reduce Sarawak’s international boundary from 12 to 3 nautical miles. In fact, the CCO communists were in the jungles, not at sea nor in the territorial waters. The brave Sarawak Rangers were dispatched to KL to assist in quelling the riot there.
In pursuance to President Truman’s policy on the continental shelf after 1945, the federal governments of USA, Canada and Australia had overreached with their jurisdictions, controls with self-assertions of their similar “implied rights” under the emerging concept of international law erroneously and illegally over the O&G in the seabeds and sub soils of the continental shelves of the coastal states of their respective federations governed by the common law and municipal law, not by the emerging concept of international law in the patchwork quilt of jurisprudence. But, they have not the 7 FCs and 7 PM laws of Sarawak under the dominion for their federal judges, else the legacy of President Truman would have been different only in the supreme court. But the political and legal settlement for sharing the O&G would still be the end game in the economic battles for the sharing of the benefits of O&G.
In fact, the federal government has only imperium, namely political rights and legal sovereignty only in the context of jurisdiction and full administrative control over affairs under international law within the territorial waters and continental shelf of Sarawak recognised by other sovereign nations under UNCLOS 1982. But Putrajaya has no dominion over the natural resources of the coastal states based on municipal laws, except where the FC has been modified in item 9(D) of the Ninth Schedule Federal List I where Sarawak has constitutionally and legally waived its right on fishing and fisheries, but not turtles nor O&G inside the EEZ of 200 nautical miles. But, the federal imperium under international law can never be legally superimposed upon nor can it supercede the dominion of Sarawak governed by its municipal laws, especially on the natural resources of O&G on land and offshore in the continental shelf under the 7 FCs and 7 PM laws of Sarawak.
Therefore, the 7 offending matters which are in breach of MA 1963 as a Constitutional Agreement and multi-lateral treaty are ultra vires, void and illegal, unenforceable against Sarawak as they have also never been approved by the Council Negeri under the 7 FCs and 7 PM laws of Sarawak. Apart from the Council Negeri rejecting them, there is a need also to declare the 7 offending matters null and void by the federal court for Sarawak or even in London or to be repealed to that same extent in line with the already repealed the CSA 1966, PMA 1966 and EOS mentioned above under the proposed legal and political win-win solution for both parties.
Sarawak’s iron clad rights on its O&G
Firstly, Sarawak as a coastal state would plead under the applicable 7 PM lawsand 7 FCsto establish its dominion, namely the ownership of its land with the sole sovereign right of its O&G and other minerals that extend from onland to 350 nautical miles on the seabed and subsoil sanctioned under Article 76 of the UNCLOS 1982, enshrined constitutionally in the entrenched provision of item 2 (a) of the State List Ninth Schedule.
Secondly, Sarawak has the exclusive and sovereign economic right and the exclusive right as the exclusive regulator through Petros
to issue and to reissue the existing prospecting licences and leases of O&G under one licence now in terms of PSCs, RSCs and EORs under the award system used by Petronas under the entrenched provision of item 2(c) unequivocally with the sole right to reissue all the PSCs issued by Petronas in Sarawak, subject only to the administrative and jurisdictional control of the imperium of the federal government under 8(j) of the Federal List on environmental compliances, regulations for safety and workers regulations and others. It is the duty of the federal government under the constitution and international law to defend the rights of Sarawak’s O&G operations offshore in the Continental Shelf under the UNCLOS 1982, 7 FCs and 7 PM laws of Sarawak including the EEZ of 200 nautical miles “of” Sarawak, not “off” Sarawak, within its continental shelf, as labelled incorrectly in the map under the EEZ Act 1984, published by the federal government.
Thirdly, Sarawak as the coastal state has the sole, sovereign, proprietary and property rights of the O&G and minerals beneath its land from onshore to offshore under its continental shelf of 350 nautical miles under the entrenched provision of item 2(d) where no federal compulsory acquisition or “expropriation”of the land and its seabed and subsoil of its contiguous continental shelf with the O&G below is allowed. This is reinforced by Articles 2, 4(1), 76(4), 95(D) and 162(1) with no compulsory acquisition whatsoeverfor promoting uniformity of laws unless approved by the Council Negeri under Articles76(1)(b), 76(3), 80(3) and 2 of the FC.
That compulsory acquisition under Article 13 of the FC has never been approved nor will it be approved by Council Negeri. Article 95(D) is on the “Exclusion for Sabah and Sarawak of Parliament’s power to pass uniform laws about land” which includes their respective continental shelf and O&G underneath. Therefore Article 13 of the FC is applicable only to the States of Malaya and the Federal Territories on compulsory acquisition with adequate compensation. However, 5 per cent royalty on O&G would never be adequate compensation from the point of net loss not net profit to the state.
Furthermore, Article 160 of the FC which refers to the Concurrent List on the “Federal purposes” does not include O&G nor the right of imposition of oil royalty nor the power of parliament to legislate the PDA 1974 and TA 2012, the EEZ Act 1984 relating to O&G and the unconstitutional and illegal amendment of Article 1(2)(b) to Article 1(2) of the FC and Article 46 of the FC identical to Article 9 of the Malaysia Bill, as the Annex “A” to MA 1963 as a constitutional agreement and multi-lateral treaty, all of which are specifically protected by the constitutional taboos unless they are approved by the Council Negeri, as amplified above. Article 75 is subject to Articles 73(b), 74(2), 76(3), 76(4), 80(3),95D, 162(1) and (2), 4(1) and (2) of the FC.
The 7 offending matters are also unenforceable under MA 1963 and international law.
The customary international law, UNCLOS 1982, Malaysia Agreement 1963 (MA 1963) as a multi-lateral treaty and constitutional agreement and Article 3(a) of the Vienna Convention on the Law of Treaties on oral assurances apart from customary international law and international law are applicable too with far reaching ramifications. Those 7 offending matters could not be legally enforced against Sarawak under international law and MA 1963 as a multi-lateral treaty as well as a constitutional agreement, according to Lord McNair on Treaty and Mr Wynn Parry of Cambridge University. Their ramifications will reinforce the solid fortress of the 7 FCs and 7 PM laws of Sarawak for the federal court and the court in London as the last forum, not in the ICJ (International Court of Justice) with no legal status, nor under the optional clause of the ICJ statues.
True Sarawak history on MA 1963 must be written
Tengku Razaleigh gently reminded this forgotten national, historical and constitutional duty on: “Malaysia and non-fulfilment of 18 points and 20 points Agreements with Sabah and Sarawak,” more specifically referring to the IGC Report 1962, MA 1963 and FC. Tengku urged that the true story of Sarawak and North Borneo joining in the formation must be written and studied in schools to promote a better national understanding, mutual respect and integration overdue and to prevent quoting the embarrassing “alternative facts” and the wrong perception of the laws and FC.
Sarawakians will be nationalistic but zealous in restoring their state’s rights with restoration and reformation in getting more autonomy and others overdue since 1973 and that 20 per cent royalty at least and the recognition of the Sarawak dominion on its O&G. However, they will appreciate and empathize with the constraints of the new federal government under the new PM, who is forging ahead on his national mission with rescue packages and salvation of our blood stream while making Putrajaya shining on the hill.
Still plenty of good will, give and take, and most of the revenues from their respective O&G after paying at least the very affordable20 per cent royalty to Sarawak and Sabah will be needed, after weeding out the excesses, to fulfil the commitments for the rural development, particularly of the neglected Borneo Territories under MA 1963, for the States of Malaya and the Federal Territories, the federal government, our King and our country.