MA63 motion tabled by Deputy Chief Minister Datuk Amar Douglas Uggah Embas
Masing to mandate the State Government to take all necessary measures under the said Article VIII of the Malaysia Agreement for the complete implementation of all recommendation in the IGC Report and the safeguards of the special interests of the State and its people. 2. Measures Taken by the
State Government After the Motion, the State Government has taken the measures towards the realization of the objectives set out therein. Whilst agreement has been reached on some of the issues and resolved through administrative action, some important Constitutional and financial issues have yet to be satisfactorily resolved which I will touch on in the later part of my speech.
To reinforce the State’s position on these unresolved issues, the State Government felt that it is incumbent to gather as much documentary evidence to ensure that the State has a strong legal position to facilitate the negotiations with the Federal Government.
In this respect, it was important to have sight of original copies of these documents. These are only available in the British National Archives. We have procured, certified and authenticated copies of these important documents. Thus, a team headed by the Assistant Minister of Law, StateFederal Relations and Project Monitoring Sharifah Hasidah Sayeed Aman Ghazali was sent to London for this important purpose. It is without doubt that the State is now in a stronger negotiating position following the retrieval and confirmation of the availability of relevant documents. 3. Boundaries of Sarawak The Sarawak (Alteration of Boundaries) Order in Council, 1954 extended the boundaries of the State to include the area of the Continental Shelf being the seabed and subsoil which lies beneath the high seas contiguous to the territorial waters of Sarawak. The British Government in an official statement (now with the British National Archives) explained as follows: “The right of a littoral state to claim sovereignty over the seabed and subsoil adjacent to its coasts in order to control the exploitation of the natural resources therein has become established recently in international practice.
Accordingly, the boundaries of North Borneo, Sarawak and Brunei have been extended under the provisions of the North Borneo (Alteration of Boundaries) Order in Council, 1954; the Sarawak (Alteration of Boundaries) Order in Council, 1954 and the Brunei Proclamation to permit the Government of these territories to exercise jurisdiction over the exploitation of the natural resources of the continental shelf adjacent to their coasts. The status of the High Seas of the waters above the continental shelf is not affected.”
Consequently, the boundaries of Sarawak as at Malaysia Day have been clearly established under the Sarawak (Alteration of Boundaries) Order in Council, 1954. These are the boundaries of Sarawak as at Malaysia Day.
The State’s boundaries and its territorial integrity are protected by Articles 1(3) and 2(b) of the Federal Constitution. Britain determined the boundaries of the Sarawak to safeguard the State’s rights to all the natural resources, including oil and natural gas in the Continental Shelf.
The boundaries and territories of the State cannot be altered, by virtue of Article 2(b) of the Federal Constitution, without the consent of the State to be expressed by a law passed by this august House. 4. Oil Mining Rights The Sarawak Government had been granting oil concessions and mining leases for petroleum since the days of the Rajahs. Maps, kept in the British National Archives, produced in the 1930s, demarcated and identified the areas of the seabed and subsoil of what is now the Continental Shelf of the State which had been included in oil mining leases issued by the State for the exploration and exploitation of oil.
This confirms that even during the days of the Rajahs, Sarawak has been exercising jurisdiction over exploration and mining of oil or petroleum in the offshore areas of the State.
This august House had passed the Oil Mining Ordinance 1958 to regulate oil mining onshore and in the Continental Shelf of Sarawak. This Ordinance has never been repealed even during periods when Emergency laws were in operation.
After the Proclamation of Emergency in 1969, Emergencies (Essential Powers) Ordinances No.7 and 10 were promulgated under Article 150(2) of the Federal Constitution which have the effect of respectively reducing the limits of the State’s territorial waters and truncated the State’s boundaries to only 3 nautical miles from its coastline, and extended the Continental Shelf Act 1966 and the Petroleum Mining Act, 1966 to Sarawak.
These Federal Acts enabled the Federal Government to exercise jurisdiction over the Continental Shelf of the State and to regulate and control the exploitation of petroleum in the Continental Shelf.
The Proclamation of Emergency 1969 was annulled by both Houses of Parliament in December 2011 and by virtue of Article 150(7) of the Federal Constitution, the said Emergency Ordinances has ceased to have effect and the extension of the said Acts to Sarawak affected by the Emergency (Essential Powers) Ordinance, No. 10, 1969 also ceased to have effect.
The Constitutional authority over the issuance of oil exploration or prospecting licenses and mining leases continued to be vested in the State Government under Item 2(c) of the State List in the Ninth Schedule of the Federal Constitution and the Oil Mining Ordinance, 1958.
In the 1970’s, the differences between the State Government and the Federal Government in respect of the rights over the rights to oil and gas offshore Sarawak were resolved in the national interests ‘irrespective of what the Constitutional and legal positions were’ and an impending civil suit by the State against the Federal Government in this respect was dropped so that the Petroleum Development Act 1974 was passed.
Under that Act, the ownership and rights of petroleum was vested in Petronas in return for 5% royalty payment to Sarawak which was regarded as payment of compensation for taking over State property in the form of petroleum (and gas) – an unequivocal admission by the Federal Government of the State’s ownership of these natural resources over the State’s boundaries up to the continental shelf as provided by the Order in Council.
Sarawak, as a founder and member of the Federation, has always acted in the interests of Malaysia. Sarawak is committed and has made sacrifices in the national interests, by granting Petronas control and benefit from its valuable petroleum and natural resources in its Continental Shelf and also on land.
Consequently, Petronas has been able to grant rights or concessions for the exploration, development and production of oil and gas in the Continental Shelf, to many Companies such as Petronas Carigali, Nippon Oil, Shell, Murphy Oil, Mubadala Oil and Gas, Total etc. Sarawakian companies have yet to be involved in any development and production of oil and gas in the Continental Shelf.
Sarawak Government, being mindful of the aspirations of the people, has to ensure that Sarawakians have the opportunities to actively and meaningfully participate in both the upstream, midstream and downstream aspects of the oil and gas industry in the State.
Many Sarawakians and Sarawak companies today, have the skills, experience and financial resources to be involved in or to invest in the oil and gas industries.
For these reasons, the State Government had the Gas Distribution Ordinance, 2016 passed by this august House, and formed Petros in readiness as a vehicle of the State Government to spearhead the State’s active involvement in all aspects of the oil and gas industry.
The Board of Petroas comprises of persons who have vast experience in the oil and gas industry. 5. Oil Industry Players in Sarawak to Comply with State Laws The State Government would like all parties involved in oil and gas exploration and production within its boundaries, including Petronas, to comply with all relevant State laws such as the Oil Mining Ordinance and also the Land Code, in regard to the use and occupation of State land for their activities.
The State Government has never given any waiver to Petronas regarding strict compliance with State laws.
Therefore, since Petronas and its production sharing contractors have not obtained exploration or mining leases for petroleum in accordance with the Oil Mining Ordinance and no title or permit to occupy State Land (including the Continental Shelf areas) under the Land Code Petronas has to regularise their activities to comply with our laws.
The State Government will not jeopardize Petronas’ business or economic interests in Sarawak or act against the national interests. Furthermore, the State Government, at this stage, does not wish to resort to the Courts to resolve such issues.
As in the 1970s, the State Government desires to achieve an amicable solution whereby both Federal and State Governments interests can be accommodated with due recognition of the State’s Constitutional rights over the Continental Shelf and the natural resources in the seabed and subsoil within the State’s boundaries and the Federal Government having the State’s firm commitment to advance the national interests in the exercise of the State’s Constitutional rights over the natural resources of oil and gas found and produced within the State. 6. Territorial Sea Act, 2012 The Territorial Sea Act 2012 was passed, without consultation with the State Government and without securing the consent of the State Government under Article 2(b) of the Federal Constitution as this law undeniably has the effect of altering the boundaries of Sarawak by reducing its territorial waters from 12 to 3 nautical miles. According to the Explanatory Statement in the Bill tabled in Parliament to enact this Act, the reasons for this Law are: (1) The Emergency (Essential Powers) Ordinance No. 7 which reduced the limits of territorial waters to only 3 nautical miles had ceased to be in effect because of the annulment in 2011 of Proclamation of Emergency pursuant to which this Ordinance has been promulgated; and (2) To implement the United Nations Convention on Law of the Sea, 1982 which the Malaysian Government had signed as a Party. The features of this Act which adversely affects the State’s rights are: (1) It has the effect of altering
the boundaries of Sarawak; (2) It intends to vest ‘sovereignty’ over the seabed and subsoil in the Yang di-Pertuan Agong (who acts on the advice of the Federal Cabinet); (3) It restricts the territorial sea or waters of the State to 3 nautical miles whereas the width of territorial sea claimed by the Federal Government is 12 nautical miles. The maps and other documents in the British National Archives serve to confirm when Sarawak was a Colony; its territorial waters were already 12 nautical miles.
That limit should not be reduced after Sarawak became independent. Whilst it is accepted that Malaysia has the capacity under international law to claim sovereignty over its territorial waters (and land territory) to protect the nation’s sovereignty and security, such claims under international law or Convention cannot be a justification for the Federal Government to acquire rights to the land (including the Continental Shelf) which legally belong to the State.
Otherwise, the implementation of a Convention and Treaty could be used as a mechanism to acquire land of the State without compliance with Article 83 of the Federal Constitution, and to alter the boundaries of the State.
After the grant of Independence to Sarawak on Malaysia Day by Britain, and the transfer of sovereignty over the then Colony of Sarawak to the Federation by the British Crown, all lands belonging to the Crown became vested in the State and not the Federation.
This is expressly provided by Article 47 of the State Constitution. When the Land Code was passed by this august House during the Colonial Administration, all land in Sarawak was vested in the Crown, and titles issued were issued as ‘Lease of Crown Land’ (See: Sections 12, 13 and 21 of Land Code 1958 Ed.).
‘Crown’ is defined in the Land Code (1958 ed.) to mean ‘the Crown in the right of Her Majesty’s Government in Sarawak’.
The Land Code was modified in 1964 to comply with Article 47 of the State Constitution, vesting all Crown land on the State, to become ‘State Land’. A claim to ‘sovereignty’ by the Federal Government would not justify a claim to the rights of the seabed and subsoil in the Continental Shelf within the boundaries of Sarawak, as the Continental Shelf was Crown Land before the birth of Malaysia.
Upon the coming into force of the State Constitution on Malaysia Day by reason of Section 1 of the Malaysia Act, 1963, when the State Constitution came into force, all such land previously belonged to the Crown (Her Majesty’s Government of Sarawak) became vested in the State Government as ‘State land’.
It is unconstitutional for the Federal Government to claim rights over the seabed and subsoil which are part of the State land, by claiming sovereignty thereof under international law by enacting the Territorial Sea Act, 2012. 7. Financial Matters The Federal Government has agreed to have a financial review as required under Article 112D of the Federal Constitution on the Special Grants which the State is entitled under the Federal Constitution to receive from Federal Government and whether there should be any addition or substitution of the items of revenues assigned to the State under the 10th Schedule of the Federal Constitution.
The Federal Government has also agreed that the State’s claims relating to loss of revenue from import duties and excise duty on petroleum products, claims relating to stamp duties for dealing in lands and other financial issues be considered in this financial review. This review is long overdue. The State Government is now making preparations for this review. 8. Resolution of
Outstanding Issues The State Government desires that these important Constitutional issues be resolved amicably without resorting to legal action so as not to jeopardise the unity of the Federation and the good relationships that exist between the Sarawak State Government and the Federal Government.
When these issues are eventually resolved our Nation will be more united and relationship between the State Government and the Federal Government would remain harmonious.
These negotiations between the State and Federal Government should be conducted in accordance with the spirit and intent of the Malaysia Agreement and the IGC Report which was subscribed to by all parties leading to the formation of our beloved Malaysia. As correctly pointed out by Dato’ Seri Mohamad Nazri Abdul Aziz, Minister in the Prime Minister’s Department (as he was then) when tabling the Territorial Sea Bill, 2012: “Kita merdeka pada tahun 1957, kita sebagai satu unit walaupun ada sebelas buah negeri. Kita sebagai satu unit yang dipanggil semenanjung Tanah Melayu. Kemudian pada tahun 1963 apabila kita menubuhkan Negara Malaysia di mana Sabah dan Sarawak sebenarnya merupakan dua wilayah…. Sejarah pun tidak sama. Akan tetapi apabila Sabah dan Sarawak bersetuju untuk bersama menubuhkan Malaysia ada beberapa perkara yang telah dijanjikan bersama supaya dia mesti diikuti….”
The State Government has always maintained that Sarawak and Sabah should not be treated as one of the states in the Federation but as equal partners to the formation of Malaysia.
In view of the above, the State Government proposes that a high level Special Task Force be established to conclude the negotiations with the Federal Government and have the issues resolved in conformity with the legal and Constitutional positions outlined by me in this Speech.
The resolution of these important legal and Constitutional issues must be undertaken by the highest levels at both Federal and State levels.
Hence, the State Government would humbly request the Federal Government to establish a corresponding task force, so as to facilitate the resolution of these issues amicably and in the national interests with the State’s interests and rights properly safeguarded and entrenched.
The passing of this Motion should not in any way be misinterpreted or construed to mean that the State is willing to sacrifice and jeopardize the continued existence of Malaysia as a nation.
We respect and honour the decision of our past leaders for our beloved State to be part of Malaysia and we will always remain in Malaysia.