theborneopost.com
United we stand in safeguarding our rights
The Borneo Post Team, reporters@theborneopost.com
SARAWAK
welcomes the appointment of Tommy Thomas as the new Attorney-General
with mixed feelings amidst heightened expectations for institutional
reforms against corruption and abuse of power in high places to ensure
moral, ethical and clean practices at all levels of government.
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.