theborneopost.com
PDA 1974, Tun Rahman’s letter void and illegal
Alex Ling, MA LLB (CANTAB)
In a three-part commentary Alex Ling, a lawyer by training, explains Sarawak’s rights to its oil and gas resources
Litigation, compromise for legal and political settlement
IN
winning the battle of dominion on its O&G without sharing its split
barrels or share of profits of O&G, Sarawak will not win the war
against the Damocles’ Sword of the four federal taxes, impositions and
the federal’s demands of the state’s onerous proportionate contributions
or reduction for grants respectively for the costs of defence,
education, healthcare and infrastructure costing billions due to its
population scattered over the biggest state even proportionately or
reductions on the federal assistance to fulfil the commitments under MA
1963, even when the State Road Grant under Part II 10th Schedule was
viewed subjectively by Putrajaya as a return of investment on
infrastructure. One has to battle to the end, yet has to look beyond the
battle royale in the courts. Hopefully, that firing of the first salvo
in the federal court was merely an “invitation” for Sarawak to negotiate
with the new Putrajaya’s confirmation and commencement of the new
payments of the 20 per cent royalty, not profit under PH’s promise,
improving its offer step by step. For compliance to amended OMO 1958,
YAB CM Datuk Patinggi Abang Johari has given the grace period till the
end of 2019. Every minute delay is a loss to Sarawak but a gain to the
Federal government and Petronas.
Economic history has often seen
the play out of the war of politics with the law, equity and treaty, as
“politics without history has no roots, history without politics bears
no fruits”.
OMO 1958 amended is valid and enforceable
Sarawak’s
OMO 1958 even amended which remains valid and enforceable against
Petronas has not impliedly been repealed by the PDA 1974 under Articles
162(1) and (2) of the FC. Therefore the Council Negeri must reject
outright with specific motions in the next meeting to prevent Petronas
raising laches or acquiescence: (i) the void and illegal PDA 1974 (ii)
Territorial Sea Act 2012 (“TSA 2012”) which expressly and illegally has
tried to usurp SLC 1958 in its preamble and contravened Sarawak
Territorial waters and boundary of 12 nautical miles protected under
Article 2 Part II of The United Nations Convention on the Law of the
Seas (“UNCLOS 1982”), already reconfirmed by Section 3 of the updated
Sarawak’s Interpretation Ordinance 2005 from the international customary
law; (iii) Void Articles 4 and 5 of the Exclusive Economic Zone Act
1984 (“EEZ Act 1984”) relating to O&G (iv) The present Article 1(b)
of the FC with the unconstitutional and void amendment of Article
1(2)(b) by Act 354 of 1976 on the territorial waters and equal partners
has therefore not validly relegated the Borneo Territories as satellite
States of Malaysia similar to the States of Malaya. Therefore, the
original Article 1 (2) (b) which is identical to Article 4(2)(b) of
Malaysia Bill still unamended, except deleting Singapore and valid as
Annex A to MA 1963, must be reinstated.
Then under (v) the
consequential void and illegal Oil Agreement of 27th March 1975 due to
the non-effective, void conveyance and vesting of any right of O&G
of Sarawak to Petronas by the PDA 1974 and the Federal Government; (vi)
The void and illegal purported grant of perpetuity under TR’s letter;
and (vii) The unconstitutional and void amendment of Article 46 was in
breach of the identical unamended, valid and enforceable Article 9 of
the Malaysia Bill attached as Annex A to MA 1963 with the mandatory
provision of the no two-third MPs in the House of Representatives (MPs)
from States of Malaya, which would include the Federal Territories
later. That mandatory 65.4 per cent of the entrenched constitutional
provision is still legally, constitutionally and under international law
binding and enforceable under MA 1963 as a multi-lateral treaty and
constitutional agreement under the Annex A of MA 1963.Article 46 of the
FC cannot be amended without amending that Article 9 of the Malaysia
Bill first.
The OMO 1958 can only be repealed or amended by the
Council Negeri under Articles 73(b), 74(2) and 162(2) of the FC until
the Malaysian final court’s decision, unless there is a further appeal
to London in the international forum with proper nexus under MA 1963
where this multi-lateral treaty was signed, on whether the OMO 1958 has
been validly and impliedly repealed or still valid with the amendments
and enforceable in Sarawak, specifically sanctioned by the 7 FCs and 7
PM laws of Sarawak. The objective answer is patently clear. These issues
are collectively called the “7 offending matters.”
No two-third provision under Article 9 of Malaysia Bill under MA 63
For
restoring the original Article 46 in parliament that will mean that 32
newparliamentary seats must be allocated to Sarawak and Sabah in the
ratio of 31:25, making the total seats from 222 to 254 with States of
Malaya and the Federal Territories holding no more than 65.4 per cent of
the MP’s seats following the original Article 46 identical to Article 9
of the Malaysia Bill Annex A to MA 1963 where the States of Malaya
without Federal Territories then had 104 out of 159 seats or 65.4 per
cent also agreed and assured under Article VIII of MA 1963 by Tunku
Abdul Rahman, Tun Razak, Lee Kuan Yew of Singapore to the leaders of the
Borneo Territories under MA 1963 as a multi-lateral treaty and
constitutional agreement.
On 9th August 1965, in breach of the
three fundamental assurances of Tun Razak on 3rd August 1962 under
Article VIII of the MA 63, the exit of Singapore from Malaysia has sadly
shown the sheer domination of KL without informing the Borneo
Territories neither treated nor consulted them as equal partners. This
No Two-Third entrenched constitutional provision of the FC in the
federal parliament was a pivotal provision which should be restored
under that unamended and valid Article 9 of the Malaysia Bill. That
right of no two-third entrenched and constitutional provision was
confirmed personally by the famous international jurist on treaty, Lord
McNair, and Professor Jennings from Cambridge University to be
enforceable only against the States of Malaya and the Federal
Territories which were established afterwards. This restrictive strict
entrenched constitutional provision means that the States of Malaya and
the Federal Territories must not have more than 65.4 per cent in the
House of Representatives, constitutionally and under MA 63 multi-lateral
treaty at all times.
Legally and equitably, the Borneo
Territories deserve rightly the restoration and allocation of these new
32 parliamentary seats. Politically, PH and the political parties from
Peninsula Malaysia would also heartily welcome the new additional 32 and
critical political arenas for battle royale for years to come to change
the new political configuration, social landscape and development of
the rural areas at least up to the standard in Peninsula Malaysia, as
assured by Tunku Abdul Rahman and Tun Razak in 1962.
With the
O&G under Sarawak’s dominion, the Sarawak State Minerals Management
Authority (“SMMA”) on behalf of Petros shall legally issue prospecting
licences and O&G leases under the award system, namely under one
licence, namely for PSC contracts with R/C Index with 5 years for
exploration, 4 years for development and production period of 20 years
while for the deep water PSC contracts, it will be 4 years for
exploration, 6 years for development and 25 years for productions
period, mainly on the PSCs, different from the RSCs and the EORs.
The
PMA 1966 and the Continental Shelf Act 1966 (“CSA 1966”) have to be
repealed and been repealed in November 2011 along with the Emergency
Ordinances (“EOs”) after the formal acceptance of the Sarawak’s dominion
of its O&G. Therefore, with PH government on the same
constitutional path, Sarawak hopes that the various offending matters
will be repealed or amended under the 7 FCs and 7 PM laws of Sarawak;
and the original Article 1(2)(b) still valid and unamended (except
deleting Singapore (?) under 4(2)(c)) under Article 4(2)(b) of the
Malaysia Bill as Annex A to MA 63 will be restored by repealing the Act
354 of 1976 under Article 2, 4(1), 76(3), 80(3) and 162(1) along with
Article 9 of the Malaysia Bill which were both overlooked by the
parliamentary legislators.
We hope the discerning Prime Minister
will amend these above mentioned provisions of the constitutions and
federal legislations accordingly, beyond the political manifesto, beyond
the three fundamental Assurances of Article VIII of MA 1963 and beyond
the law and constitution by implementing what is right, fair and
equitable overdue on the distributive justice that would glow in the
hearts of Borneo.
My comments:
So, Petronas has been operating illegally in Sarawak and Sabah since 1974. The Peninsular Malaya, no doubt, have become prosperous at the expense of these two colonies. Time is up for them and the Peninsular Malayan government should be prepared to pay back for what they have swallowed. Many crowned political clowns and their family members have become billionaire through embezzlement in the process. They can boast about their robust development to the whole-wide world but they won't dare to let the world know that it is the colonised territories of Sarawak and Sabah are their main sources of capital to develop Peninsular Malaya at will.
We are yet to find out how many barrels of crude oil have been produced and how many recorded by Petronas and how many barrels go missing while transporting to the refineries in Singapore. This is Time for us to settle once and for all. Many Sarawakians are professional and literate to be cheated anymore. Most importantly, the age of revelation of the truths on the internet is right here for everyone to find out and verify what is true.
