In a three-part commentary Alex Ling, a lawyer by training, explains Sarawak’s rights to its oil and gas resources
Litigation, compromise for legal and political settlement
IN winning the battle of dominion on its O&G without sharing its split barrels or share of profits of O&G, Sarawak will not win the war against the Damocles’ Sword of the four federal taxes, impositions and the federal’s demands of the state’s onerous proportionate contributions or reduction for grants respectively for the costs of defence, education, healthcare and infrastructure costing billions due to its population scattered over the biggest state even proportionately or reductions on the federal assistance to fulfil the commitments under MA 1963, even when the State Road Grant under Part II 10th Schedule was viewed subjectively by Putrajaya as a return of investment on infrastructure. One has to battle to the end, yet has to look beyond the battle royale in the courts. Hopefully, that firing of the first salvo in the federal court was merely an “invitation” for Sarawak to negotiate with the new Putrajaya’s confirmation and commencement of the new payments of the 20 per cent royalty, not profit under PH’s promise, improving its offer step by step. For compliance to amended OMO 1958, YAB CM Datuk Patinggi Abang Johari has given the grace period till the end of 2019. Every minute delay is a loss to Sarawak but a gain to the Federal government and Petronas.
Economic history has often seen the play out of the war of politics with the law, equity and treaty, as “politics without history has no roots, history without politics bears no fruits”.
OMO 1958 amended is valid and enforceable
Sarawak’s OMO 1958 even amended which remains valid and enforceable against Petronas has not impliedly been repealed by the PDA 1974 under Articles 162(1) and (2) of the FC. Therefore the Council Negeri must reject outright with specific motions in the next meeting to prevent Petronas raising laches or acquiescence: (i) the void and illegal PDA 1974 (ii) Territorial Sea Act 2012 (“TSA 2012”) which expressly and illegally has tried to usurp SLC 1958 in its preamble and contravened Sarawak Territorial waters and boundary of 12 nautical miles protected under Article 2 Part II of The United Nations Convention on the Law of the Seas (“UNCLOS 1982”), already reconfirmed by Section 3 of the updated Sarawak’s Interpretation Ordinance 2005 from the international customary law; (iii) Void Articles 4 and 5 of the Exclusive Economic Zone Act 1984 (“EEZ Act 1984”) relating to O&G (iv) The present Article 1(b) of the FC with the unconstitutional and void amendment of Article 1(2)(b) by Act 354 of 1976 on the territorial waters and equal partners has therefore not validly relegated the Borneo Territories as satellite States of Malaysia similar to the States of Malaya. Therefore, the original Article 1 (2) (b) which is identical to Article 4(2)(b) of Malaysia Bill still unamended, except deleting Singapore and valid as Annex A to MA 1963, must be reinstated.
Then under (v) the consequential void and illegal Oil Agreement of 27th March 1975 due to the non-effective, void conveyance and vesting of any right of O&G of Sarawak to Petronas by the PDA 1974 and the Federal Government; (vi) The void and illegal purported grant of perpetuity under TR’s letter; and (vii) The unconstitutional and void amendment of Article 46 was in breach of the identical unamended, valid and enforceable Article 9 of the Malaysia Bill attached as Annex A to MA 1963 with the mandatory provision of the no two-third MPs in the House of Representatives (MPs) from States of Malaya, which would include the Federal Territories later. That mandatory 65.4 per cent of the entrenched constitutional provision is still legally, constitutionally and under international law binding and enforceable under MA 1963 as a multi-lateral treaty and constitutional agreement under the Annex A of MA 1963.Article 46 of the FC cannot be amended without amending that Article 9 of the Malaysia Bill first.
The OMO 1958 can only be repealed or amended by the Council Negeri under Articles 73(b), 74(2) and 162(2) of the FC until the Malaysian final court’s decision, unless there is a further appeal to London in the international forum with proper nexus under MA 1963 where this multi-lateral treaty was signed, on whether the OMO 1958 has been validly and impliedly repealed or still valid with the amendments and enforceable in Sarawak, specifically sanctioned by the 7 FCs and 7 PM laws of Sarawak. The objective answer is patently clear. These issues are collectively called the “7 offending matters.”
No two-third provision under Article 9 of Malaysia Bill under MA 63
For restoring the original Article 46 in parliament that will mean that 32 newparliamentary seats must be allocated to Sarawak and Sabah in the ratio of 31:25, making the total seats from 222 to 254 with States of Malaya and the Federal Territories holding no more than 65.4 per cent of the MP’s seats following the original Article 46 identical to Article 9 of the Malaysia Bill Annex A to MA 1963 where the States of Malaya without Federal Territories then had 104 out of 159 seats or 65.4 per cent also agreed and assured under Article VIII of MA 1963 by Tunku Abdul Rahman, Tun Razak, Lee Kuan Yew of Singapore to the leaders of the Borneo Territories under MA 1963 as a multi-lateral treaty and constitutional agreement.
On 9th August 1965, in breach of the three fundamental assurances of Tun Razak on 3rd August 1962 under Article VIII of the MA 63, the exit of Singapore from Malaysia has sadly shown the sheer domination of KL without informing the Borneo Territories neither treated nor consulted them as equal partners. This No Two-Third entrenched constitutional provision of the FC in the federal parliament was a pivotal provision which should be restored under that unamended and valid Article 9 of the Malaysia Bill. That right of no two-third entrenched and constitutional provision was confirmed personally by the famous international jurist on treaty, Lord McNair, and Professor Jennings from Cambridge University to be enforceable only against the States of Malaya and the Federal Territories which were established afterwards. This restrictive strict entrenched constitutional provision means that the States of Malaya and the Federal Territories must not have more than 65.4 per cent in the House of Representatives, constitutionally and under MA 63 multi-lateral treaty at all times.
Legally and equitably, the Borneo Territories deserve rightly the restoration and allocation of these new 32 parliamentary seats. Politically, PH and the political parties from Peninsula Malaysia would also heartily welcome the new additional 32 and critical political arenas for battle royale for years to come to change the new political configuration, social landscape and development of the rural areas at least up to the standard in Peninsula Malaysia, as assured by Tunku Abdul Rahman and Tun Razak in 1962.
With the O&G under Sarawak’s dominion, the Sarawak State Minerals Management Authority (“SMMA”) on behalf of Petros shall legally issue prospecting licences and O&G leases under the award system, namely under one licence, namely for PSC contracts with R/C Index with 5 years for exploration, 4 years for development and production period of 20 years while for the deep water PSC contracts, it will be 4 years for exploration, 6 years for development and 25 years for productions period, mainly on the PSCs, different from the RSCs and the EORs.
The PMA 1966 and the Continental Shelf Act 1966 (“CSA 1966”) have to be repealed and been repealed in November 2011 along with the Emergency Ordinances (“EOs”) after the formal acceptance of the Sarawak’s dominion of its O&G. Therefore, with PH government on the same constitutional path, Sarawak hopes that the various offending matters will be repealed or amended under the 7 FCs and 7 PM laws of Sarawak; and the original Article 1(2)(b) still valid and unamended (except deleting Singapore (?) under 4(2)(c)) under Article 4(2)(b) of the Malaysia Bill as Annex A to MA 63 will be restored by repealing the Act 354 of 1976 under Article 2, 4(1), 76(3), 80(3) and 162(1) along with Article 9 of the Malaysia Bill which were both overlooked by the parliamentary legislators.
We hope the discerning Prime Minister will amend these above mentioned provisions of the constitutions and federal legislations accordingly, beyond the political manifesto, beyond the three fundamental Assurances of Article VIII of MA 1963 and beyond the law and constitution by implementing what is right, fair and equitable overdue on the distributive justice that would glow in the hearts of Borneo.