Will PH be bound by its Buku Harapan?
Legal Eagle
RECENT press statements by the newly elected MP for Stampin and other state Pakatan Harapan (PH) leaders in Sarawak raised serious doubt as to whether the PH government in Putrajaya will honour what is in the Buku Harapan with regard to ‘the return of Sabah and Sarawak to the status accorded in the Malaysia Agreement’.
The state assemblyman for Batu Lintang, See Chee How, said in The Borneo Post dated May 18, he had no doubt on “the PH government in fulfilling all its promises including the devolution of powers to Sarawak.” PH state chairman Chong Chieng Jen said that devolution of powers to the state was ‘off’ but See said he was “not sure in what context Chong was talking”.
The PH state chief is now reported to have said that “Sarawakians will only acquire autonomy by changing state government” (BP dated May 20. He added “PH will continue to explore other avenues of devolution, including setting up of a special committee to study other aspects of the devolution of powers.”
People are utterly confused on whether PH will restore rights which, according to the ex premier recently, had been inadvertently taken away.
Pakatan Harapan’s promises
The Buku Harapan (PH’s manifesto) promised that not only the status of Sabah and Sarawak would be restored to that stipulated in MA63, but that (a) both states will receive 20 per cent oil royalty, (b) 50 per cent of the revenue collected from the two states will be assigned to Sabah and Sarawak, and (c) devolving powers of education and health to the two states.
The public statements by the local PH politicians and the complete, unexplained silence by the PH national leaders, including the Prime Minister and the Council of Elders/Eminent Persons, on the promises of oil royalty, revenues and devolution of authority over education and health must be a cause of genuine and grave concern for the people of Sarawak and especially those who have been enticed by such promises to vote for PH. On my part I can sense these promises are very unlikely to be fulfilled.
My fears are not unjustified. Let’s look at Pakatan’s track record. In 2008, Pakatan Rakyat in Selangor promised special allowance for single mothers in its manifesto. This promise was never honoured. When the matter was brought to the court by several single mothers, the PKR-led Selangor government argued that what was promised during the election was not legally binding! The Court of Appeal ruled in favour of the Selangor government [State Government of Selangor v Murtini Kasman & Ors (2014) 7 CLJ 773]. The appellate Court said “A government should not be bound by an election manifesto.”
This brings me to what one of England’s most respected of Judges, Lord Denning, said in Bromley London Borough Council v Greater London Council (1982) 1 All.ER 129 @ p. 135:
“A manifesto issued by a political party, in order to get votes is not to be taken as gospel. It is not regarded a bond, signed and delivered, and it may contain promises and proposals unworkable or impossible of attainment.”
Lord Denning had in an earlier case of Regina v Liverpool Corporation Ex parte Liverpool Taxi Fleet Operators’ Association (1972) 2 QB 299 said:
“All political promises are not worth anything.”
What Lord Denning said in these cases have been applied by Justice Abdul Rahman Sebli in the Sabah case of Nasir @ Mohammed Manaf v Datuk Seri Panglima Joseph Pairin Katingan & 8 others (2009) 1 LNS 738 where the Berjaya government was sued for not honouring promises relating to land.
The PH leaders in Sarawak are lawyers by profession and we must assume they know the law in Malaysia is like in England, that is ‘All election promises are not worth anything’ and the PH government is not bound by its manifesto which was issued to get votes. So, PH voters have no legal remedies if the PH’s manifesto promises are not honoured either because of political expediency or because they are unworkable or impossible of attainment.
First order of business
To ease public concern on whether what was promised in Buku Harapan will be carried out and to empower the electorate to hold the PH government accountable for their electoral promises, PH government should as soon as Parliament convenes, pass a Bill to amend the Contracts Act, to make promises in election manifesto contractually and legally binding on the PH government and enforceable by any aggrieved citizen adversely affected by a breach of PH’s election promises.
Without such a law, which should also be made retrospective to a date before GE14,
the voters would continue to be hoodwinked to make voting decisions based upon false hopes that what is in an election manifesto would be carried out by the party when it wins the election. This is a challenge to the member for Stampin who knows how to move a Bill to amend an Act of Parliament. Very recently he moved a motion in Parliament to amend the Petroleum Development Act, 1974 so that the petroleum resources in Sarawak are not vested in Petronas. If the Stampin MP wants the people in Sarawak to have faith in his party’s manifesto, he must unequivocally support a law to make election promises enforceable in Court.
Unless such a law is passed, no one seriously believes that the promises in Buku Harapan on oil royalty, 50 per cent tax revenue for Sabah and Sarawak and devolution of powers for education and health will be honoured.
Unworkable and unattainable promises
Currently, under the Federal Constitution, royalty on minerals, including mineral oils up to 10 per cent ad volerem is assigned to the state under Part V of Tenth Schedule of Federal Constitution. No income or corporation tax collected from Sarawak is assigned to the states. To ensure that 20 per cent oil royalty may be imposed by the state for oil and natural gas, the Federal Constitution must first be amended.
The Tenth Schedule must also be amended to enable the federal government to assign 50 per cent of the taxes derived from Sarawak be paid to the state as an additional source of revenue for Sarawak.
Without such amendments to the Federal Constitution payment of 50 per cent tax revenues from Sarawak to the state may be challenged and ruled as unconstitutional.
Therefore, will the PH government, without a two-third majority in Parliament, be able to fulfil its promises to allow the state to impose and retain 20 per cent royalty from oil and to receive 50 per cent tax revenue? To prove that PH will carry out its election promises on oil royalty and tax revenue, PH should table a Constitutional Amendment Bill in Parliament to increase the amount of royalty from mineral oil assigned to the state to 20 per cent from the existing five per cent; and also to assign 50 per cent of federal tax collected in Sarawak to the state.
At the same time, the PH government through its new Finance Minister, the secretary general of DAP, must present a budget in Parliament to authorise the assignment of the promised tax revenue to Sarawak.
With regard to Education and Health, these are subject matters in the Federal List over which the federal government has both legislative and executive authority. To ‘devolve’ these subject matters to Sarawak, the Yang Di-Pertuan Agong should make an Order under Article 95C to extend the legislative and executive powers to the state to include ‘Education and Health’. This can easily be done within the first 100 days of the PH administration at Putrajaya.
Monitoring
Unless PH takes the actions outlined above, the promises in Buku Harapan for Sarawak which forms one of the five pillars in the manifesto cannot be implemented. The people, including myself, will closely monitor whether the PH government will take any of these necessary measures. Otherwise, like what the Law now says, “all political promises are not worth anything.”
Additionally, the Member for Stampin must reintroduce in the next sitting of Parliament his motion to amend the PDA to enable Sarawak to regain its sovereign rights to oil and gas found within her boundaries; and ensure that PH government will immediately repeal the ‘unconstitutional’ Territorial Sea Act, 2012. These steps can surely be done within 100 days of GE14 so that Sarawak can forthwith regain all its rights under the Malaysia Agreement 1963.
To the Member for Batu Lintang and the MP for Stampin (who is YB for Kota Sentosa) do not waste time forming Special Committee on oil ownership rights or on the PDA and the Territorial Sea Act, 2012, as both of you have repeatedly proclaimed, both inside and outside the Dewan Undangan Negeri, that our oil and gas belonged to Sarawak and was unconstitutionally taken away by the PDA, and also by the Territorial Sea Act, 2012. Now is the time to walk the talk. Get these ‘obnoxious’ laws out of the way as soon as possible, please. Within the first 100 days! The federal PH government should have the political will to do so.
Like all loyal Sarawakians, I await with great anticipation. If PH fails to live up to its promises in the Buku Harapan, we, Sarawakians, must extract retribution in future elections.
My comments:
Promises are made to keep, not to break. Respect is earned not by force. Yes, I am 100% agree with the writer that we need legal biding of all the manifestos stipulated to be passed by law. Don't let the manifestos made in Buku Harapan for Sarawak and Sabah turn out to be Barks of the dogs only.
