United we stand in safeguarding our rights
The Borneo Post Team, reporters@theborneopost.com
File photo
While the appointment was predicated by a sense of constitutional vindication – that Thomas’ elevation to the eminent position of chief legal adviser to the government was based on merit and in accordance with the Federal Constitution – uncertainties reign over the upcoming suit brought by Petroliam Nasional Berhad (Petronas) to challenge the constitutionality and legality of the Petroleum Development Act 1974 (PDA 1974).
On June 4, the national oil and gas company resorted to court action to seek legal redress to its oil and gas rights in Sarawak.
Petronas, in a statement, said it had filed an application before the Federal Court, seeking a declaration on PDA 1974 being the law applicable to the petroleum industry in Malaysia.
It is seeking to clarify that under the law, Petronas is the exclusive owner of the petroleum resources as well as the regulator of the upstream industry throughout Malaysia, including in Sarawak.
The suit comes two months after the Sarawak government announced that a new regulatory framework over the oil and gas industry would come into force, effective July 1.
Under the regulation, all companies, operating mining and oil and gas activities in Sarawak need to apply for licence, failing which actions and penalties will be taken against them.
Many quarters are apportioning blame of gross negligence and erroneous judgement on the Sarawak government for not challenging the constitutionality of the Territorial Sea Act 2012 (TSA) and the lapse and nullity of PDA 1974.
With a legal battle looming, Sarawakians have, so far, not heard from the Sarawak government on its take of the matter at hand – how ready it is to face the battle and whether it has, indeed, put its trust in the former prime minister that all autonomous rights, stipulated in MA63, would be devolved to Sarawak – hence, no action allegedly had been taken to challenge the legality of both PDA 1974 and TSA 2012.
If we are putting our hopes on the newly-minted Attorney-General who had appeared for PAS in Kelantan and Terengganu on oil royalty cases against Petronas and the federal government, to do the same for Sarawak, it is only fair to examine the inner thoughts of Tommy Thomas on PDA 1974.
Thomas had appeared for the Terengganu government against the federal government and Petronas for ceasing cash payments to the state after paying it for 22 years.
In the Feb 5 – Feb 11 issues of The Edge, Thomas wrote a piece “Time to review the Petroleum Development Act” under the Letter to the Editor column (Page 55).
He said he was prompted to make some observations in the light of an article “Why Sarawak questions the PDA” (Jan 29 – Feb 3 issue, The Edge).
His first observation is that PDA is a valid Act of Parliament.
“Merely because the 1969 Emergency was in force in 1974 when Parliament enacted the PDA does not render it unconstitutional,” he asserted.
As such, in his opinion, PDA is a valid Act of Parliament whose legality cannot be challenged – and more crucially, the Orders in Council that give Sarawak its territorial rights are just of “historical interest.”
This is a big setback for Sarawak’s claim to its oil and gas rights.
Thomas said parliament did not sit immediately after the 1969 general election. The May 13, 1969, riots led to the proclamation of Emergency on May 15 and the establishment of the National Operations Council which governed the nation. Parliament only sat for the first time after the 1969 general election on Feb 20, 1971.
PDA was passed by Parliament in 1974 and came into force on Oct 1 the same year.
Thomas argued that out of its 60 years as an independent nation (he counted from the year Malaya gained independence in 1957), Malaysia has been under emergency rule for over 50 years and sometimes under more than one emergency.
“During this lengthy period, successive Parliaments enacted hundreds of Acts, none of which is vulnerable to a constitutional challenge on the grounds that when Parliament passed it, it was under a cloud of emergency rule. If that were so, the result would be legal anarchy,” he noted.
What Sarawakians can take from the views expressed by Thomas is that he holds the view PDA 1974 should be amended.
Thomas had interviewed the late Tun Abdul Rahman Yakub who signed the grant and agreement as Chief Minister of Sarawak in March 1975, as he (Thomas) prepared to represent the Terengganu government in its civil suit instituted against the federal government and Petronas.
“ We asked him (Tun Yakub) why Sarawak had agreed to reduce the cash payment from 10 per cent which Shell had been paying it for decades, to five per cent under the PDA. Tun Rahman, unfortunately, had neither recollection nor explanation why five per cent was agreed to but accepted that it was simply too little.
“Hence, a cogent case can be made for a federal government, taking power after the 14th general election, to have a comprehensive review of the entire PDA and particularly, the inadequacy of the cash payments to the states concerned.
“The 90:5:5 oil royalty formula is patently unfair and must be reviewed,” he said.
On his first day at office, Thomas has stated that he shall always promote genuine constitutionalism, separation of power, rule of law and due process.
We can prepare for the Petronas suit, knowing the thoughts of Thomas, but in the final analysis, as Sarawakians, we should still depend on ourselves and be proactive in claiming our rights and not put all our hopes on the new AG just because he holds the view that PDA 1974 should be reviewed and amended.
A point to note is Tommy did not mention that any law affecting the territory and resources of Sarawak need the consent of the State Legislative Assembly for it to be tabled.
Records show that this was not adhered to in the passing of PDA 1974.
This is the main contention of the state government in challenging the validity of PDA 1974.
After chairing the Federal Cabinet meeting yesterday, Prime Minister Tun Dr Mahathir Mohamad was asked whether the PH government would honour the devolution of power to Sarawak that was agreed by the previous BN administration and he assured the present government “will honour all that they have committed to.”
While we can take heart from the assurance given by the prime minister, it’s also disturbing that the prime minister said he would be leaving it to Petronas and court to decide on the matter.
Sarawakians should ask what’s going to happen to the rights under Malaysia Agreement 1963 (MA63), the devolution of powers besides the oil and gas rights.
It is not wrong to say that PH Sarawak has increased its parliamentary seats from 6 to 12 as Sarawakians have vested their trust on the PH leaders who have been vocal to assure Sarawakians the return of rights.
Is it a valid question to ask – why can’t the devolution of powers be given back by PH just as how the GST is being zero-rated within 100 days?
It’s time for all Sarawakians not to play politics but be fully committed to maintaining our solidarity and stand united in the demand the return of our rights.
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