Reset needed: Reform federalism, return territorial justice to all states for equitable distribution of wealth

By see chee how on December 4, 2024, Wednesday at 2:42 PMColumns, Opinion

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See Chee How — Photo by Roystein Emmor

THE country needs a reset to reform federalism and return territorial justice to all the states to ensure equitable and sustainable growth, development, and distribution of wealth.

While some ‘legal experts’ and political analysts have been critical of Sarawak claiming and taking back more of the wealth of petroleum and gas resources in accordance with our rights, power, and authority under the Federal Constitution, they were however conspicuously silent and were non-committal to the justice and fairness that they are now harping on about when Sarawak, Sabah, and the oil producing states in the peninsula were the least developed and poorest in the last 50 years.

Before the petroleum resources are completely depleted, it is only fair to return the oil and gas to Sarawak after 50 years of exploitation by the federal government and authorities in complete disregard of the state’s sovereign and constitutional rights.

However, it is futile and counterproductive to be argumentative and I would be grateful if all groups and individuals will be constructive and devise means for the country to move forward to undertake the challenges ahead.

What Sarawak, particularly the present state administration, has done in the last few years is great for the nation. It has presented a new glimmer of hope that now appears on the Malaysian horizon.

Embarking on the quest to assert territorial sovereignty and rights, backed by the Malaysia Agreement 1963 and the Federal Constitution, the Sarawak government has been successful in imposing the State Sales Tax for oil, gas, and petroleum products, and gained traction in regaining ownership and licensing rights to oil and gas fields enabling Petros to work hand in glove with Petronas in the development of the petroleum and gas production.

With the additional income and wealth generated, the Sarawak government has not only devised and implemented development projects across the whole state, but has made strategic endeavours to set up a development bank, ventures into hydrogen economy and technology, green energy development, Carbon Capture Utilisation and Storage (CCUS) technology, setting up the Sarawak Sovereign Wealth Future Fund and many others with the vision and mission now best encapsulated in the Post Covid-19 Development Strategy (PCDS) 2030 to drive Sarawak forward for economic prosperity, social inclusivity, and environmental sustainability.

It would be rather shortsighted and uninspiring if our visions and pursuits, and thereby our arguments, are set solely on the petroleum and gas incomes and wealth, which will soon deplete.

What the Right Honourable Premier of Sarawak and his administration has presented and embarked upon is a blueprint for the federal administration and all the states in Malaysia to model and progress.

Indeed, we can steer the country out of the present political and economic doldrums if our political leaders are now focused on transforming and reforming our Malaysian federalism to return territorial justice to all the states to ensure equitable and sustainable growth, development, and distribution of wealth.

Territorial justice

As Sarawak has shown, the assertion of our constitutional and sovereign rights and authority to Sarawak’s territory was amongst the foremost crucial pursuits, taking a leaf from the evolution of global history, while at the same time examining where we come from.

It is therefore important for us to understand that the power and authority of Great Britain to determine the territory of her colonies, dominions, protectorates, and dependencies are neither random nor arbitrary, but through the law which was the common law of England and the British Acts of Parliament. After 1920, foreign territories were transferred to the British Crown administration under the supervision, mandate, and authority of the League of Nations and later the United Nations, after 1945.

The areas and territories of the colonies, dominions, protectorates, and dependencies, including the various other territories transferred to and formally under the sovereignty of the Great Britain were intended to be areas and territories to provide land for the indigenous settlers and others who came for permanent settlement.

The Great Britain or the ‘Crown’ claimed, assumed, and undertook absolute sovereignty over the areas and territories of these colonies, dominions, protectorates, and dependencies but these were not formally part of the United Kingdom. Under the covenants, treaties, mandates, and conventions of the League of Nations and the United Nations, the areas and territories are to be supervised, granted to the ‘responsible government’ of the colonies, dominions, protectorates, and dependencies, making them independent self-governing nations.

This is the source of legitimacy of the territories of the ‘Crown’ colonies, dominions, protectorates, and dependencies, of which Malaya, Sarawak, and Sabah (formerly ‘North Borneo’) inherit and derived their rights, power, and authorities.

For Sarawak, the legality, constitutionality, and legitimacy of her present territorial boundary is rooted in such expanse of legal foundation that is internationally unrivalled. This involves the Colonial Laws Validity Act 1865 to the Colonial Boundaries Act 1895, the Sarawak (Alteration of Boundaries) Order in Council 1954, the Sarawak (Definition of Boundaries) Order in Council 1958, the North Borneo and Sarawak (Alteration of Boundaries) Order in Council 1960, to the North Borneo and Sarawak (Alteration of Boundaries) Order in Council 1962, and the Sarawak Land Code (Cap 81) 1958.

It may be our blessing now, but it was clearly by design and purpose that took into consideration the international and regional political and socioeconomic situations that it was spelt out in no uncertain terms that the boundaries of Sarawak are extended to include the area of the continental shelf being the seabed and its subsoil, which lies beneath the high seas contiguous to the territorial waters of Sarawak. The four Orders-in-Council of 1954, 1958, 1960, and 1962 defined, altered, and determined Sarawak’s territorial boundary.

Our Federal Constitution cannot be more emphatic when it provides and expresses in Article 1 that the territories of each of the states are the territories comprised therein immediately before Malaysia Day.

And, our Federal Constitution, which reigns supreme in Malaysia, provides in Article 2 that no law altering the boundaries of a state shall be passed without the consent of that state (expressed by a law made by the legislature of that state) and of the Conference of Rulers.

For clarity, the Sarawak State Legislative Assembly has never, since the formation of Malaysia, ever passed any ordinance or law to alter Sarawak’s territorial boundary.

Here lies the huge difference between the 11 states in Peninsular Malaysia and the two Bornean states of Sarawak and Sabah, causing the confusion of some Malayan commentators. When the Constitution of the Federation of Malaya was adopted, it appears that the 11 peninsula states were in agreement with the federal government that when they formed the Federation of Malaya, their territorial rights are limited to “on-shore” and “fore-shore” (that little bit of land at low tide in ‘spring’), but not “off-shore”.

However, the Continental Shelf Act 1966 and the Territorial Sea Act 2012 (though having no legal effect to the territorial boundary and rights of Sarawak and Sabah) have arguably extended territorial rights of those Malayan States with a shoreline “to such part of the sea adjacent to the coast thereof not exceeding three nautical miles measured from the low-water line” to enjoy a little “off-shore” territorial authorities albeit restricted sovereign rights.

Unlike their counterparts in Sarawak and Sabah, the Malayan states seem least concerned with their territorial boundaries and what that may entails. Besides the then Kelantan state government in 2012, the matter has been typically been ignored.

It is testimony of a daunting reality that has been long overlooked by the Malayans, particularly the lawmakers and state legislative assemblies in Peninsular Malaysia, that the federal government has lorded over the state governments, domineering in the affairs, powers, and authorities of the states to such extent that the wishes of the founding fathers and the fundamental elements of the first Constitution of the Federation of Malaya may have been flouted and or infringed.

Indeed, the Malayan Constitution was the work of the Reid Commission and top of its terms of reference was to make recommendations for a federal form of constitution for the whole country as a single, self-governing unit within the Commonwealth based on parliamentary democracy with a bicameral legislature, which would include provisions for the establishment of a strong central government with the States and Settlements enjoying a measure of autonomy, that in the words of the Reid Commission’s Report – “an independent Federation of Malaya, to have the basic characteristics of a federal system of government based on the principles of Parliamentary democracy, and whereby powers are distributed amongst the central and state governments in a manner designed to protect the existence and authority of all the governments”.

The reality speaks for itself, the Malayan Constitution has, amongst others, made strong constitutional safeguards for the territorial integrity of all Malayan States, and the legislative and executive powers of the federal government and the state governments were set out, with the law-making power of and within the federation created and regulated in and pursuant to constitutional provisions. However, nowhere has it been seen that any state or states enjoy any greater measure of autonomy for which the state or states may have benefited therefrom.

For the formation of Malaysia, the amendment to the 1957 Malayan Constitution was preceded by essentially:

(i) the Cobbold Commission which was to ascertain the views of the people of North Borneo and Sarawak on the proposed Federation of Malaysia;

(ii) the Inter-Governmental Committee which was given the task of working out the future constitutional arrangements, including safeguards for the special interests of North Borneo and Sarawak to cover such matters of religious freedom, education, representation in the Federal Parliament, the position of the indigenous races, control of immigration, citizenship and the State Constitutions; and

(iii) the Malaysia Agreement that was signed in London on 09 July 1963 (“MA63”).

The Constitution of the Federation of Malaysia was thereafter extensively amended, crucially and amongst others, included the Legislative Lists in the Ninth Schedule of the Federal Constitution were amended to add List IIA (Additions to the State Lists for Sabah and Sarawak), List IIIA (supplementary to the Concurrent Lists for Sabah and Sarawak) and the Tenth Schedule which spelt out the grants and sources of revenues assigned to all the States was amended to include Part IV (Special grants to States of Sabah and Sarawak) and Part V (Additional sources of Revenue assigned to States of Sabah and Sarawak).

Again, a blessing for all Sarawakians (and Sabahans). Our foreparents may not have been as politically astute as their other partners or counterparts at that time, but they have zealously safeguarded our territorial integrity, resources, and special rights. This is also true for the officials and legislators who had worked to affect the constitutional amendments and ensure that the aspirations and wishes of all Sarawakians were set in stone.

In taking the lead to now championing the cause to safeguarded our territorial integrity, resources, and special rights, our present Sarawak administration deserves the full support of all Sarawakians and all Malaysians alike. The Right Honourable Sarawak Premier and his colleagues are taking the charge fully in accordance with and pursuant to the provisions of the Federal Constitution and the spirit and all intents of the Malaysia Agreement.

“We have to take the initiatives to carry out what are necessary for the benefits of our People,” the Right Honourable Premier and his Cabinet colleagues have said, repeatedly: “when the State progresses and is developed, so will the Country benefit from it.”

Revenue generation and fair, redistribution of wealth in Malaysia

As it has been pointed out, the Sarawak government has forged ahead to devise and implement needed development projects across the whole state, and through its PCDS 2023 has undertaken strategic endeavours to drive Sarawak forward for economic prosperity, social inclusivity, and environmental sustainability.

Hence, by continuing to roll out innovative and enterprising strategic programmes, besides the necessary basic amenities and infrastructural projects, Sarawak is making full use of additional incomes and is gradually but surely making progress in the state, bringing immediate and long-term benefits for all Sarawakians.

The Prime Minister has praised Sarawak for what we have been doing, so have other state leaders, and notably leaders of other countries in many parts of the world, commending Sarawak for not only the mission and vision of PCDS 2030 but actually implementing the strategic programmes, particularly those that are in line with the global efforts to combat global warming and climate change.

As long as Sarawak is carrying out and implementing those endeavours within the realm of our Constitution (to be fair, I must add that no critique has said that we are doing anything unconstitutional and illegal), I would think that it is only reasonable and right for the federal government and all states in the country to take a leaf from Sarawak and make sure that all the states will progress and grow like what Sarawak has achieved in the last decades.

With such a clear and plausible direction, vision, and mission, all the states and the people will be focused to make positive and constructive contributions, and thereby minimise any negative and damaging squabbles or political bickering. The federal leaders can then also be fully focused on building, strengthening, and revitalising the country’s economy.

The country is about to reveal its long-awaited national legal and development framework on the carbon capture, utilisation, and storage (CCUS). I am most hopeful that all the states in Malaysia will be given pivotal roles to play and that the national perspective and agenda will include making use of it for all the states, particularly those in Peninsular Malaysia, to share the burden and responsibilities with the federal government on the management of CCUS, and thereby sharing the revenue and wealth equitably to ensure that this new revenue source for the immediate and long term future of all the states will be distributed fairly, with particular emphasis to help the poorer and less developed states.

The wealth which can be generated through the development of countless initiatives to reduce greenhouse gas emission is limitless and it is the future of this Mother Earth, reducing and containing global warming and climate change.

I will pray that the federal leaders and the leaders of the Semenanjung states will have the same foresight as the Premier of Sarawak, and are able to move beyond politicking and drive all states and Malaysia forward for economic prosperity, social inclusivity, and environmental sustainability.