Tuesday, September 29

Zainnal Ajamain’s misconception on Jurisprudence of Federalism

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Alex Ling

THE activist from Sabah, Zainnal Ajamain (‘ZA’), who is advising the Sabah Government, has unfortunately misperceived the intricacies of the analytic juris prudence on federalism and Federal Constitutional Monarchy. He made erroneous interpolations and interpretations on amending several serious violations of the FC under MA63 with ANNEX A, Malaysia ACT 1963 (MACT 63) and IGCR 1962 that would need the holistic approach, the raison d’être for rejecting the mere cosmetic Article 1(2) by our State Government.

Sir Ivor Jennings of Cambridge University, a top constitutional law expert involved in the Reid Committee and FC of 1963, has acknowledged that the entrenched Malaysian Constitution would be different from the uncodified Westminster, except its Parliamentary System instead of a Presidential System. So AZ’s ‘The Queen’s Obligations’ has produced many outlandish misconceptions.

 

Fallacious reasonings of ZA

I.1 ZA has fallaciously asserted that if Article 1(2) is not amended, the Borneo States would have to share their O&G with the States of Malaya! That is not syllogistic!

“A government is only the creature of a constitution. The Constitution is not the act of its government, but of the people’s constituting a government”: Thomas Paine

 

Holistic Amendments Needed

I.2

The void and illegal Act 354 tried to relegate the Borneo States to the same status as the various States of Malaya only for the reduction of 12 nautical miles to 3 in the territorial waters of Borneo States for cheap operations of O&G. But unlike the States of Malaya, Sarawak and Sabah have special entrenched rights on land and local government under the entrenched Articles 2(b), 95D, 76(4) Item 2(a)(c) & (d) of the State List 9th schedule which prohibit the compulsory acquisition of O&G under Article 13. That is applicable only to the States of Malaya. USA, Canada and Australia, called the ‘3 Federations’ would not violate that for O&G targeted for national development as in Malaysia.

 

I.3 Even article 161E (3) states that “no amendments to the constitution which affects its operation as regards to the quota of members of the House of Representatives allocated to the State of Sabah or Sarawak…. shall be equating or assimilating to the position of the states of Malaya.”

The same provision is also ‘encrypted’ in Section 66(3) of the Malaysian ACT 63 (MACT), the ANNEX A to MA63 and the mother of the FC.

 

I.4 (i) By amending the present Article 1(2), a constitutional mirage, does not make Sarawak equal to the Federal Government nor States of Malaya nor Sabah which has a rebate of 40 per cent of all the incomes received by the Federal Government from Sabah as grants under Item 2(1) of Part IV 10th Schedule.

(ii) The Federal Government with the power and money makes the rules and decides when to delay grants for school repairs, or cut the special grant of RM5.8 million in 1968 with the typical hallow federal assurance of DPM that all the offshore oil proceeds would go to Sarawak or when to review the grants, except once in 1973, although it should be every five years under Article 112 D(3). The Review of MA 1963 was overdue since 1973.

 

Our present CM has rightly asked for a specific formula of sharing wealth and time frame. This would include:

(a) Imposing 5 per cent State Sales Tax (item 7) on Petroleum products up to about15 per cent plus the present 5 per centroyaltytotalling 20 per cent royalty in lieu of item 3 Part II 10th Schedule locked on 10 per cent ad valorem basis on O&G (cost at production site only) out of 80 – 85 per cent for the Federal/Petronas, still leaving behind around 72 per cent.

(b) The State has been shortchanged in billions, as at least 35 per cent O&G was not reported in SSM used for calculation of royalty over 44 years; and

(c) The balance of at least RM25 billion of additional royalty of 5 per cent for additional development fund, not grant for Sarawak, for aborting the declaratory judgement on PDA 1974 in the Privy Council, London, was assured by Tun Razak under Article VIII of MA 1963.

Discounts and staggered payments and offsets against federal loans would be expected. Proofs of debts due to shortchanges in (b) and (c) can forensically be established in the court by Court’s Discoveries of accounts, documents and calculations. But that should be avoided to prevent embarrassment and maintain cordial relationship under the spirit of MA 1963.

 

Proper constitutional procedure for amending the FC

I.5 Constitutionally, MACT 63, ‘Appendix A’ to MA63 must be amended first, namely under Sections 4(2)(b), and (c) for Singapore, before amending constitutionally Article 1(2) of the FC itself which is a superficial political cosmetic and polemic, by way of a Supplementary Agreement to the MA1963 to be executed by the 3 remaining parties, namely the States of Malaya, Sabah, and Sarawak, as MA63 is a constitutional agreement and an international multi-lateral treaty under customary international law and Vienna Convention on the Law of Treaties.

 

I.6 In fact, this present void and illegal Article 1(2), amended under ACT354 on 27th August 1976 also has violated the Sarawak Constitution, as it was not constitutionally amended first by a Supplementary Agreement of MA63 under Section 4(2)(b) of MACT 63 on the original Article 1(2)(b) nor approved by DUN. The exit of the State of Singapore under Article 1(2)(c) was similarly void, as parliament is prohibited to skirt around with passing of Act 59/66. There is no provision in Article 2 (a) for the exit of Singapore except for admission of States into the Federation of Malaysia.

Why Article 160 on the ‘Federation’ needs amendments?

I.7 Section 5 of MACT 63 on the Interpretation of the Constitutional terms has no definition of section 160 on ‘The Federation’ as in the present FC, thereby confirming that it was fudged without Sarawak and Sabah agreeing under a Supplementary Agreement nor by DUN. Professor Farouki did not know that while ‘lecturing’ in front of lawyers and judges in Kuching. He has yet to fulfil his assured response to the writer’s over 20 articles given to him starting last year.

 

II.1. MA63 was deliberately omitted in Article 160 due to the void fudging. That is why Sarawak has specifically demanded that ‘The Federation’ of Malaysia ‘established under The Federation of Malaysia Agreement 1963’, but not under Federation of Malaya Agreement 1957.

 

II.2 ‘States of Sarawak, Sabah, and Singapore’ federated or united in an alliance or joined together with the existing States of Malaya to form Malaysia.

However, the 18-year old UN’s General Assembly with representatives of various nations were not familiar with the legal doctrine of State Succession. So the simplest explanation given by Tun Omar Ong Y.L. was erroneous historically, legally, and constitutionally, namely a new blended wine in the same old, relabelled bottle.

II.3. The Recital of Malaysia Bill 1963, (MACT 1963), ‘ANNEX A’ to MA63 has reinforced as follows:

“Where as on behalf of the Federation…agreed, that the British colonies of North Borneo.. Sarawak and State of Singapore shall be federated, (united in an alliance) with the existing States of the Federation of Malaya as the States of Sabah, Sarawak and Singapore, and that the name of the Federation should there after be Malaysia (established under the Malaysia Agreement 1963), to expressly, if not already impliedly, that would complete the clear meaning of the recital even without those words in the brackets. But it could never be under MA 1957.

II.4. The reference to the Federation of Malaya Agreement 1957 in Article 162(3), can be easily amended, namely: “as references to the Federation that is to say, the Federation of Malaysia under the Malaysia Agreement 1963 and to the extent applicable under the Federation of Malaya Agreement 1957…”.

 

Amending Article 1(2) guarantees no equal partnership

III.1. By amending the cosmetic Article 1(2) only does not make Sarawak and Sabah as equal partners. Sarawak was never treated as an equal partner, as assured by Tun Razak. The entrenched provisions of the FC were fudged and/or breached with void effects on Sarawak’s ‘oil and gas, petroleum products’, including mineral water, namely by blocking the impositions of SST by fudging Article 95B(3) and Item 8(j) of the Federal list, ADAT and Native Laws, ususcapio.

Despite DUN’s powers on legislations and various entrenched rights and Sarawak’s Supremacy of Constitution under Article 27. DUN’s resolutions must declare PDA 1974 void and illegal under the 7 PCs, 7 PMs and UNCLOS 1982, specifically under Articles 2(b), 72(1) and 162(2) for the illegal and unconstitutional alterations of the 4 Sarawak’s boundaries; namely the 350 nautical miles of continental shelf, 200 nautical miles of EEZ, 12 nautical miles of Territorial Waters, and Sarawak’s international boundaries at sea and matters on land and local government

III.2 PH Federal Government has set up the unconstitutional and void MPKKP in Sarawak, but not in Sabah, in serious violations of the 7 entrenched provisions of the FC (7 FES) and illegal under 4 Protective Municipal Ordinances (4 MPOS) , for touching on Sarawak’s land and local government with conflicting and devisive policies, directives and programmes against JKKK, the State’s body for local administration in the rural and around urban areas, amplified in the writer’s articles, namely ‘FC, illegal under State Ordinances against JKKK’ Dec 8th, 2019 and ‘Why MPPKP is void and illegal’ Dec 22nd, 2019, in thesundaypost.

Petronas’s directors liable for fraudulent concealment of about 35 per cent s/p or split/barrel in the annual A/CS filed with SSM

III.3. (i) Unfortunately Petronas, a public company, and its officers are liable for offences under the Companies Act and other laws for prosecutions on fraudulent misrepresentations or concealments in not filing the true accounts by excluding at least 35 per cent share profit/split barrels of O&G production yearly with a huge discrepancy of RM19.298 billion of net profit for example, in the 2017 annual accounts filed with SSM and publicly declared profits.Petronas has failed to clarify this.

Royalties are based on SSM. Sarawak has been short changed for 44 years. Professor Farouki said that the Federal Government should address that.

Even oil at US$45bbl, Federal/Petronas will still get US$25bbl revenues in the shallow O&G fields, with production costs of around US$8bbl.

(ii) The Petronas’s auditors and Auditor General have also to furnish under Court Discoveries for documents and books of accounts. Hope SST and correct royalties can be legally and politically settled to save that embarrassments:

(a) the shortchanges of RM billions of royalties; and

(b) The unofficial royalty of 5 per cent, half of the 10 per cent cash paid to the Federal before cost recovery, would have a balance now our RM25 billion without interest, accruing daily at 853,000 bbl/boe compared to about 300,000 bbl nationally in the 1970s.

So Parliament must protect Petronas’s Officers and amend PDA 1974. Petronas has publicly asked for the repealing of the OMO 1958, therefore all Sarawak’s parties must ensure that that will not happen in the DUN, else the PH Federal controlled government will definitely repeal and white wash PDA 1974 and all the void 7 FCs and illegal 7PMs.

 

(V) Why Sarawak should not be as one territory with Sabah?

(1) (i) Sarawak and Sabah are not one Territory, as alleged, quite evident in the original article 1(2)(b) and Section 4(2)(b) of MACT63: The Borneo States, namely Sabah and Sarawak; and the territories of each of the States mentioned in Clause 2 the territories ……….before Malaysia Day.”: Section 4(3) of MACT 63 and Article I(3) of the FC.

(ii)  Sarawak should never follow Sabah’s political, constitutional and legal as one territory nor history. Why?

Firstly, Sabah has waived its immigration powers under Article V of MA1963; education, religion have been waived; and Labuan was ceded as a Federal Territory(FT), one of the 13, which were void because FTs are not States under Article 2(A) nor under 160 with the unconstitutional amendment of Section 4(2)(C) of MACT 63 nor approved by DUN.

Secondly only Sabah has been plagued by the unfortunate Sulu’s claim. A mere yearly payment of ‘PADJAK’of RM5,300, would be a time bomb from the descendants of Sulu since Dayang vs Dayang (1939), as several thousands  of them have been ‘adopted’ and multiplied under ADAT as Sabahans.

 

VI. This critical letter is for ZA’s action at home first.

URGENT

“YB Datuk Liew Vui Keong 20th June 2019

Re: (1) Humbly request to look holistically the critical Articles I, 2(a), 2(b), 45(Senate), 46 (House of Representatives) and no ‘two-third rule’ beyond the present Article 1(2)…..

(2) To rectify and ratify the unconstitutional 4 alterations of the Borneo States, namely the Territorial Sea, Continental Shelf, the Exclusive Economic Zone and International Boundaries at sea on Malaysia Day, as shown in map attached under Article 2(b) with its proviso; United Nation’s convention on the Law of the Sea 1982 (‘UNCLOS’) ratified by Malaysia WEF on 14th November 1996; The Seven entrenched Constitutional Provisions (‘7FCs’); and The Seven Protective Municipal Laws of Sarawak (‘7PMs’).

DUN should insert an exemption clause in the void, and illegal ‘5 Offending Acts’, namely Act 354, (and Act A354), PDA 1974, EEZ Act 1982, Fisheries Act 1985 and Territorial Sea Act 2012 under the five-tiers of entrenched provisions, namely ‘This Act shall not be applicable to the coastal of Borneo States unless approved by their respective Legislatures expressly first’, under Article 2(b).

(3) To ratify the unconstitutional article 1(4) on the lacunas and limbos on the 13 Federal Territories by amending Article 2(a) and 22 namely, ‘admit other states [or Federal Territories (FTs)]to the federation of Malaysia’ by amending first that Section 4 of MACT 1963, provided that the States of Malaya [and The Federal Territories now]should not exceed 65.4 per cent (No two-third rule) of the total seats in parliament, as stipulated in Section 9 of MACT 1963, which is still valid and unamended as the mother of the FC which is identical with the original Article 46 before the exit of Singapore.

That assurances of NO ‘two third rule’ under Article VIII of MA 1963 by PM Tengku Abdul Rahman and DPM, Tun Razak, were made in front of Premier Lee Kuan Yew (LKY) and the Borneo States’ leaders and stipulated in Section 9 of the MACT 63 which must be amended by a Supplementary Agreement first, before amending the present void Article 46 that was unconstitutionally amended in 1983 – 1984, including the 13 Federal Territories (FTs) in Article 1(4). All of them are void under Marbury vs Madison (1803).

The States of Malaya and [The Federal Territories] were forbidden and must never have more than 65.4 per cent, seats as agreed, stipulated in the still valid Section 9(1) of MACT 63 and original Article 46, namely only 104 parliamentary seats out of 159.

Briefly, the States of Malaya and FTS will still get 166 seats (65.35 per cent) out of 254 instead of 222 seats, increased by 32 seats, while Sarawak will get 49 seats and Sabah 39 seats under the ‘No two-third rule’, as the 15 Singapore seats must go to the Borneo States to always maintain that agreed ‘no two-third rule’.

Yes, share 20 per cent ‘mon san wan’ durians or pay the 20 per cent royalty or 15 per cent state sale more and fulfill all the grants, assurances and restore all the eroded rights, then Putrajaya/Petronas would share around 65 per cent – 72 per cent of O&G or durians as Borneo States’ national services, for our national interest, for our people, for our King and country…

 

Wish for shared wealth under Vision 2020

Let us hope that ZA and Datuk Liew will convince Professor Farouki and the Federal Government for the holistic amendments of the MACT63 by Supplementary Agreements first to comply with 7 PCs and 7 PMs then the unfudged FC apart from paying SST and two short changed royalties to fulfil the dreams of the Borneo States’ founders of Malaysia under our PM’s shining legacy pursuant to vision 2020 of shared prosperity, with a peaceful but equitable, legal and political settlement.

Malaysia is a nation with Rule of law, Rule by law and Rule with equity, adat and the unfudged FC, bound by the most important federal case of the US Supreme Court of Marbury vs Madison (1803) where PDA 1974 and the vesting instrument to Petronas are repugnant to the FC and void also without DUN’s approval, ‘and the courts, as well as other departments are bound by that instrument (FC)’ under the serious violations of the 7 FCs and 7 PMs.

Violations of rights must be rectified; violations of financial life blood of Sarawak must be settled equitably, if possible outside the court, under MA63, FC Sarawak laws and Constitution.