Unconstitutional Petroleum Acts in Sabah and Sarawak

http://www.dailyexpress.com.my/news.cfm?NewsID=109690

'Oil remark prevented clean sweep'

Published on: Friday, May 13, 2016

Kota Kinabalu: Sarawak BN's failure to make a clean sweep during the state election may have been due to the Prime Minister stating negotiations for oil and gas royalties would only resume once the global price of the commodity recovered. "Such statement could have easily killed off Chief Minister Tan Sri Adenan Satem's initiative for greater autonomy based on the Malaysia Agreement 1963. This statement was the single factor which contributed greatly to DAP retaining the seven urban seats in Sarawak," claimed political activist Zainnal Ajamain.
He said because of this statement, urban Chinese may have had reservations whether Adenan could deliver on what he had promised to Sarawakians for greater autonomy based on the Malaysia Agreement 1963 or that it would be the Prime Minister who would be calling the shots.
"Someone should advise the Prime Minister that the Federal Government is no longer the owner of Sabah and Sarawak oil and gas reserves; they belong to the respective states.
"There is a legal maxim Nemo Dat Quod Non Habet meaning 'no one gives what he doesn't have'.
The Continental Shelf which contains the oil and gas reserves ceased to be owned by the Federal Government the minute the state of Emergency was lifted in 2011," he said.
Zainnal further explained that with the lifting of the state of Emergency, both the Continental Shelf Act 1966 and the Petroleum Mining Act 1966 are no longer enforceable in Sabah and Sarawak and therefore the Continental Shelf was no longer the Federal Government's to transfer to Petronas.
Without the state of Emergency, he said the Petroleum Development Act 1974 automatically becomes unconstitutional because Article 112C(4)(b) of the Constitution clearly states that Parliament cannot be used to restrict Sabah and Sarawak from imposing royalty.
"Section 4 of the Petroleum Development Act 1974 provides that the corporation (Petronas) can only make 'Cash Payments' which also means it cannot pay 'Royalty'.
"Therefore, it is very clear Parliament was used to pass the Petroleum Development Act 1974 to restrict Sabah and Sarawak from imposing royalty on its own oil and gas and as a result, the Petroleum Development Act 1974 is unconstitutional," he said.
A usual counter-argument from the Federal Government may be that in 2012, Parliament passed the Malaysia Territorial Sea Act 2012. However, that Act is also unconstitutional, he said.
Zainnal said this is because both the Continental Shelf Act 1966 and Petroleum Mining Act 1966 are no longer enforceable in Sabah and Sarawak and secondly, in Section 3(3) of the Malaysia Territorial Sea Act 2012, the Federal Government encroached into State land laws without the consent of the respective State government.
Parliament, he said, is not supreme in Malaysia as only the Constitution is supreme and under the Constitution, it is very clear that land is a State matter and therefore Parliament cannot simply pass any law that they please.
"Perhaps Adenan is such a gentleman that he prefers to discuss such delicate matters in confidence with the Prime Minister privately.
"Unfortunately, I have no such restrictions. After more than five decades, Sabahans and Sarawakians are awakening to their rights and their birth rights and the result of this election clearly shows the people's trust in Adenan's leadership and what he wanted to do for Sarawak within five years.
"Time is not on our side. It is also time for redemption, we should no longer have any reason to compromise.
It is time to call a spade, a spade," he said.