Posts
1.
INTRODUCTION
As
many are aware, the hot topics on Sabah and Sarawak currently are related to
the Review of the Malaysia Agreement 1963 and the issue of “Oil
Royalties”. What used to be topics
raised mainly by the opposition, they have now become mainstream with Sabah BN
leaders jumping on the bandwagon seemingly changing their tune that the
Malaysia Agreement/20-Points are not relevant to that of championing for the
rights of Sabah with regards to the Malaysia Agreement and the 20-Points
together with the so-called “oil royalties”.
But
what is clear, the voices of the people in Sabah and Sarawak are getting clearer
and louder. They are demanding the
restoration of the rightful autonomy and equal partner status to Malaya as well
as the stopping of the rape, pillage and stealing of Sabah and Sarawak’s oil
and gas resources and wealth.
2.
MOTIONS
AND PRIVATE MEMBER’S BILL FOR DUN SESSION 14-17 APRIL 2014
After
the 13th General Elections in May 2013, the State Reform Party, Sabah (STAR
Sabah) reiterated that it will continue its political struggle for justice,
change and for the recognition and implementation of Sabah's rights and
autonomy and that STAR will be the voice of Sabahans who want justice, their
rights reinstated, and for Sabah to be an autonomous region in the federation
of Malaysia.
This
is also consistent with my humble self’s continued struggle for Sabah rights
and autonomy, the restoration of Sabah as an equal partner in Malaysia as well
as the re-claiming of Sabah’s oil and gas resources that were wrongfully and
unlawfully vested by the federal government to Petronas in 1975/76.
Therefore,
consistent with our struggles and as the sole STAR representative in the Sabah
State Legislative Assembly, I have tabled three (3) Motions and a Private
Member’s Bill for debate in the forthcoming DUN session scheduled on 14-17
April 2014.
The
Private Member’s Bill is the proposed CONSTITUTION OF SABAH (AMENDMENT) BILL,
2014 which proposes an amendment to restore the position of the Head of State
of Sabah, TYT Yang DiPertua Negeri back to its original TYT Yang DiPertua
Negara. The proposed Bill is set out
below.
The
3 Motions are:-
(1) BAHAWASANYA
Kerajaan Sabah digesa dengan segeranya
mengkaji kesahihan Akta Pembangunan Petroleum 1974 (Petroleum
Development Act 1974) yang bercanggah dengan Perlembagaan Persekutuan dan
hak-hak Sabah dan seterusnya Kerajaan Sabah digesa mengambil segala tindakan
yang selanjutnya termasuk tindakan undang-undang dan melalui wakil rakyat Sabah
di Parlimen untuk membatalkan dan atau memansuhkan Akta tersebut; dan
BAHAWASANYA Kerajaan Sabah
digesa dengan segeranya mengkaji kesahihan Perjanjian Minyak bertarikh 14hb.
Jun 1976 yang dimeterai diantara Kerajaan Sabah dengan Petroliam Nasional
Berhad (Petronas) dan bidangkuasa Ketua Menteri Sabah ketika itu yang menandatanganinya
tanpa perbahasan dan kelulusan Dewan Undangan yang mulia ini dan seterusnya
Kerajaan Sabah digesa mengambil segala tindakan yang selanjutnya termasuk
tindakan undang-undang dan melalui Dewan mulia ini untuk membatalkan Perjanjian
Minyak tersebut;
(2) BAHAWASANYA
Kerajaan Sabah digesa dengan segeranya mengkaji semula Perjanjian Malaysia 1963
bersama-sama dengan Kerajaan-kerajaan Persekutuan Malaysia, Persekutuan Tanah
Melayu dan Sarawak, yang sepatutnya dikaji semula sepuluh (10) tahun selepas 1963
seperti yang dipersetujui dahulu dan yang telah tertangguh sejak 1975; dan
BAHAWASANYA
Kerajaan Sabah digesa dengan segeranya menyaran Kerajaan-kerajaan Persekutuan
Malaysia, Persekutuan Tanah Melayu, Sarawak dan Great Britain, menghidupkan
semula Jawatankuasa Antara Kerajaan (Inter-Governmental Committee) dengan empat
(4) perwakilan setiap Kerajaan Persekutuan Tanah Melayu, Sabah, Sarawak dan
Great Britain, untuk memantau dan melaksanakan Perjanjian Malaysia 1963 dengan
sepenuhnya bersama-sama segala dokumen, memorandum, perjanjian, jaminan,
akujanji dan syor yang berkenaan dan berkaitan.
(3) “Bahawa
untuk menjalankan kuasa-kuasa yang diberi dibawah Artikel 44 Perlembagaan
Sabah, Dewan ini memberi ketetapan memberi kuasa kepada Pencetak Kerajaan Sabah
mencetak Perlembagaan Sabah yang berkuatkuasa pada 16 September 1963”.
3.
RESTORATION
OF TYT YANG DIPERTUA NEGARA
The
Private Member’s Bill on the amendment of the Constitution of Sabah to restore
the position of TYT Yang DIPertua Negara is as follows:-
RANG UNDANG-UNDANG
PERLEMBAGAAN SABAH (PINDAAN) 2014
Suatu Enakmen untuk meminda Perlembagaan Sabah.
1.
Enakmen ini bolehlah dinamakan Enakmen Perlembagaan Tajuk
(Pindaan) 2014, dan hendaklah dibaca bersekali dengan ringkas
Perlembagaan
dan hendaklah disifatkan sebagai telah mula
berkuatkuasa
pada …….. 2014.
2.
Perlembaggan adalah dengan ini dipinda dengan Pindaan bagi
menggantikan perkataan-Perkataan “Yang DiPertua perkataan-
Negeri” di mana jua terdapat dalam Perlembagaan dengan perkataan
perkataan-perkataan “Yang DiPertua Negara”. “Yang DiPertua Negeri”
(terjemahan
dalam Bahasa Inggeris)
CONSITUTION
OF SABAH (AMENDMENT) BILL 2014
An Enactment to amend the
Constitution of Sabah.
1.
This Enactment may be cited as the Constitution Short Title
(Amendment) Enactment 2014, shall be read as one
with the Constitution and shall be deemed to have
come into operation on the ……. 2014.
2.
The Constitution is hereby amended by substituting Amendment
for the words “Yang DiPertua Negeri” wherever they of the word
appear in the Constitution the words “Yang DiPertua “Yang DiPertua
Negara”. Negeri”
EXPLANATORY STATEMENT
ON RANG UNDANG-UNDANG
I am glad to note that in recent
times Sabahans are growing more aware of the status of Sabah and the historical
fact that Sabah did not join Malaysia as manipulated and distorted by some but
that Sabah formed Malaysia on 16 September 1963 with the Federation of Malaya,
Sarawak and then Singapore before it left in
1965.
This growing awareness of Sabahans
are slowly but surely influencing Sabah leaders in general and Sabah BN in
particular, to acknowledge that Sabah formed Malaysia and are equal partners in
Malaysia.
Historically, Sabah had been equal to
the Federation of Malaya in many aspects and TYT the Governor was known as TYT
Yang Di Pertua Negara in the Constitution of Sabah effective from 16 September
1976. Unfortunately, the sanctity and
status of TYT was down-graded to TYT Yang DiPertua Negeri on 29 August
1976. It is a sad turn of event in the
history of Sabah.
The position of TYT Yang DiPertua
Negara of Sabah is acknowledged in Paragraph 20(1) of the Report of the IGC as
well in numerous Articles in the Federal Constitution as at 16 September 1963
and the Proclamation of Malaysia that was read and proclaimed by our beloved
first Prime Minister of Malaysia, the late Tunku Abdul Rahman on 16 September
1963.
The position of Sabah as a nation
state within a family of nations in the Federation of Malaysia should be
respected and acknowledged and should not be questioned or changed for change
sake. It is akin to the nations of
Scotland and Wales in Great Britain and many other similar federations.
The proposed Constitution of Sabah
(Amendment) Bill is a straight forward legislation with the sole objective of
restoring the position of TYT to TYT Yang DiPertua Negara as it stood on 16
September 1963.
The proposed amendment does not seek
to gain any additional rights or to take away the rights of any party in the
Federation of Malaysia. It merely seeks
to restore the constitutional and birth right of Sabah on 16 September 1963 as
embodied in the Constitution of Sabah at its inception.
4.
PETROLEUM
DEVELOPMENT ACT 1974 AND PETROLEUM AGREEMENT 1976
4.1
The 1st Motion deals with the legality
and constitutionality of the Petroleum Development Act, 1974 and the Petroleum
Agreement signed by the then Chief Minister of Sabah on behalf of the
Government of Sabah with Petronas on 14 June 1976.
The
Petroleum Development Act 1974 (“the said Act” or “PDA”) passed by the Federal
Parliament in 1974 is an unconstitutional piece of legislation that unlawfully
vested Sabah’s oil and gas resources and ownership rights. This Motion serves to authorize the Sabah
government to take the necessary and appropriate action to annul and or abolish
the said Act.
Sabah
and Sarawak had a long history of oil exploration and production long before
the formation of Malaysia in 1963. Oil
was discovered in Miri, Sarawak in 1882 with the 1st production on 22 December
1910 with Shell starting its 1st refinery in Miri in 1914. Sarawak started off-shore oil production off
West Lutong in 1968. Shell started its
petroleum business from the Miri production and if not for Sarawak, Shell today
may not be involved in petroleum industry as a major international player.
In
Sabah, Shell started oil exploration off-shore Sabah in the late 1950s with oil
subsequently found at Erb West I in 1971 and Samarang in 1975 and with
production starting in 1975 in Samarang.
As a result, Sabah became Malaysia’s 2nd oil-producing State after
Sarawak.
It
was reported in the Sabah State Legislative Assembly on 15 December 1971 that
the Sabah government had already signed 5 petroleum agreements with another
6 applications being
considered to be signed.
It was also reported that Sabah would be getting 12.5% of the revenue as
royalties in addition to rents for the areas involved. This is the legal right of Sabah under
Section 24 of the Land Ordinance, Sabah (Chapter 68) where minerals including
petroleum and petroleum gas is reserved to the Sabah government which is also
empowered to grant petroleum exploration and mining rights and licences as well
as to impose royalties and quit rents.
On
the other hand, the federal government was entitled to impose petroleum income
tax on the net oil revenues including deductions for the royalties and rents
payable to Sabah as well as other deductions under the Petroleum Income Tax
1967.
Oil
and gas resources whether located on-shore or off-shore Sabah belongs to the
Sabah government under Section 24 of the Land Ordinance. There should be no dispute as to the territorial
right or boundary of Sabah in respect of any oil and gas found off-shore Sabah.
In
1954, by the North Borneo (Alteration of Boundaries) Order in Council 1954, the
Queen in Council, in pursuance of the powers conferred upon Her by the Colonial
Boundaries Act 1895, extended the boundaries of the Colony of North Borneo 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 North
Borneo.
Article
1(3) of the Federal Constitution provides that the territories of Sabah are the
territories comprised therein immediately before Malaysia Day, 16 September
1963.
Therefore,
the territory of Sabah as at Malaysia Day extends to the continental shelf as
set out in the North Borneo (Alteration of Boundaries) Order in Council
1954. This is the boundary recognized
even today by the Sabah government.
Accordingly, any oil and gas found off-shore Sabah in the continental
shelf belongs to Sabah.
Under
Article 76 of the Federal Constitution and Item 2 of the State List in the
Ninth Schedule, land is a state matter under the jurisdiction of the
State Assembly. Item
2(c) of the
State List provides that land
includes permits and licences for prospecting for mines: mining leases and
certificates.
Any
counter-argument that the Federal Parliament is empowered to legislate the PDA
under Item 8(j) of the Federal List is misconceived as Item 8(j) is subject to
Item 2(c) in the State List. In any
event, Item 8(j) does not include any right to vest Sabah’s oil and gas in
Petronas as Item 8(j) only relates to development of mineral resources; mines,
mining, minerals and minerals ores; oils and oilfields; purchase, sale, import
and export of minerals and mineral ores; petroleum products; regulation of
labour and safety in mines and oilfields.
In
addition, “land” as defined in Section 4 of the Sabah Land Ordinance includes
“land under water” or under the sea and the Sabah government can only
“alienate” which in Section 4 means “to lease or otherwise dispose of State
land” for a period not exceeding 99 years other than native customary land
which are granted in perpetuity. This
only means
that even the Sabah government has no authority or right to grant or vest the
land to Petronas in perpetuity.
Therefore,
even if the Sabah government were to alienate the lands under which oil and gas
is found, it has no right to alienate the said lands for more than 99
years. Where is the power and
authority for the then Prime Minister of Malaysia, the late Tun Abdul Razak,
father of the present Prime Minister, to sign the Vesting Order on 25 March
1975 vesting all of Sabah’s oil and gas resources in Petronas in
perpetuity. If this is not daylight
robbery, what is?
It
is as clear as daylight that the PDA is unconstitutional and impinges on
Sabah’s State rights under the State List and the Sabah Land Ordinance and
robbing Sabah of its oil and gas wealth.
I
need to highlight that on 15 December 1976, which is 6 months and 1 day after
the signing of the Petroleum Agreement between Sabah and Petronas on 14 June
1976, the then Finance Minister of Sabah reported that Sabah received RM20
million in the oil revenue which was not budgeted for by the previous USNO-led
Sabah Alliance government. This can
only mean that oil production was actively produced in Sabah even before the
signing of the Petroleum Agreement in June 1976 and that based on the 5% or
RM20 million received by the Sabah government, Petronas would have received
RM360 million with the federal government another RM20 million, totalling RM380
million.
Under
the petroleum agreements signed by the Sabah government with the petroleum
companies, Sabah would have received at least 12.5% or RM50 million in addition
to rents and other moneys imposed in the petroleum agreements. By signing the Petroleum Agreement in 1976,
Sabah lost at least RM30 million. In 2014, Petronas
and the federal government is projected to receive RM26.6 billion from Sabah’s
oil and gas and Sabah receiving only RM1.4 billion. If the 12.5% is still applicable today,
Sabah would be receiving at least RM3.5 billion not RM1.4 billion, a loss of
RM2.1 billion.
Therefore,
the Sabah government needs to take all necessary actions to invalidate the PDA
and to take back and protect Sabah’s oil and gas resources for the benefit of
Sabah and all Sabahans and their future generations.
Our
UBF co-founder, Zainal Ajamain, has presented a view that the illegality of the
PDA 1974 can also be seen from the perspective – that the PDA74 does not have
the power to takeover land and natural resources which are the absolute right
and privilege of Sabah and Sarawak that are safeguarded by the Malaysia
Agreement and the terms of the formation of Malaysia except in an emergency
situation.
Zainal
views that the incorporation of Petronas and the PDA was subject to the powers
under the:-
(a) Petroleum Mining Act 1966/1969; and
(b) Continental Shelf Act 1966/1969,
Both
of which were extended to be in force in Sabah and Sarawak under the emergency
powers under the Emergency (Essential Powers) (No. 7) Ordinance 1969.
The
present scenario has changed and any emergency powers can no longer be enforced
as the Emergency Act 1969 and the Emergency (Essential Powers) Ordinance 1969 were
abolished and revoked on 23 November 2011.
This means that any authority or powers under the Emergency Act 1969
were automatically abolished and revoked.
The second portion of the 1st Motion deals with the
authority of the then Chief Minister of Sabah who signed the Petroleum
Agreement with Petronas on 14 June 1976, a mere 8 days after the history
changing air-crash which killed the then Chief Minister and several senior
members of his Cabinet.
Under the said Petroleum Agreement 1976, it was stated
that the Sabah government agreed to receive 5% as the cash payment under
Section 4 of the Petroleum Development Act, 1974 in return for the vesting of
the oil and gas resources found on-shore and off-shore Sabah to Petronas as
signed by the then Prime Minister of Malaysia, the late Tun Abdul Razak, father
of the present Prime Minister, in the Vesting Order on 26 March 1975 vesting
all of Sabah’s oil and gas resources in Petronas in perpetuity.
It was further agreed that the Sabah government will
waive all collections of royalties against Petronas on the petroleum won
on-shore and off-shore Sabah which the Sabah government was legally entitled to
impose and collect under Section 24 of the Sabah Land Ordinance. In
fact, this was imposed on the petroleum companies that were undertaking
exploration in the petroleum agreements that were signed with the Sabah
government.
As stated above, it was reported to the Sabah State
Legislative Assembly on 15 December 1971 that the Sabah government had already
signed 5 petroleum agreements with another 6
applications being considered
to be signed. It was also reported that Sabah would be
getting 12.5% of the revenue as royalties in addition to rents for the areas
involved. This is the legal right of
Sabah under Section 24 of the Land Ordinance, Sabah (Chapter 68) where minerals
including petroleum and petroleum gas is reserved to the Sabah government which
is also empowered to grant petroleum exploration and mining rights and licences
as well as to impose royalties and quit rents.
I need to highlight that on 15 December 1976, which is
6 months and 1 day after the signing of the Petroleum Agreement between Sabah
and Petronas on 14 June 1976, the then Finance Minister of Sabah reported that
Sabah received RM20 million in the oil revenue which was not budgeted for by
the previous USNO-led Sabah Alliance government. This can only mean that oil production was
actively produced in Sabah even before the signing of the Petroleum Agreement
in June 1976 and that based on the 5% or RM20 million received by the Sabah
government, Petronas would have received RM360 million with the federal
government another RM20 million, totalling RM380 million.
Under the petroleum agreements signed by the Sabah
government with the petroleum companies, Sabah would have received at least
12.5% or RM50 million in addition to rents and other moneys imposed in the
petroleum agreements.
I am advised that the petroleum oil and gas resources
belong to the Sabah government and does not vest with the office of the Chief
Minister under the Chief Minister (Incorporation) Ordinace (Cap. 23). I further verily believe that the Petroleum
Agreement was never discussed in the Sabah State Legislative Assembly before
its signing on 14 June 1976 which was signed by the then Chief Minister under
questionable circumstances.
Therefore,
the Sabah government needs to take all necessary actions to review the legality
of the Petroleum Agreement 1976 and the authority of the then Chief Minister in
signing the said Agreement without debate and mandate from the State
Legislative Assembly and to take all further actions to revoke and repudiate
and or annul the said Agreement.
5.
REVIEW
OF THE MALAYSIA AGREEMENT 1963
The
2n Motion deals with the review of the Malaysia Agreement 1963 and the basis
and terms of the formation of Malaysia on 16 September 1963.
At the outset, it needs to be
highlighted that as stated in Paragraph 6 of the Report of the IGC, the
Legislative Council of North Borneo, which is the predecessor of the Sabah
State Legislative Assembly adopted the Motion on 12 September 1962 that the
Council accepted the decision to
establish the Federation of Malaysia PROVIDED THAT the terms of participation
and the constitutional arrangements will safeguard the special interests of
North Borneo (now Sabah).
If the Federation of Malaysia do not
recognize this and fails to honour the constitutional safeguards for the
special interests of Sabah, there is no basis for Sabah to continue its
participation in Malaysia. As it is now,
it has been said that a slight majority of Sabahans wish for Sabah to leave the
Federation due to the continued disregard and mal-alignment of Sabah’s
interests.
Article VIII of the Malaysia Agreement
1963 provided that the Governments of the Federation of Malaya, North Borneo
(now Sabah) and Sarawak was to take such legislative, executive or other action
as may be necessary to implement the assurances, undertakings and
recommendations contained in the Report of the IGC in so far as they are not
implemented by express provision of the Constitution of Malaysia. The Report of the IGC clearly sets out
various matters that were to be reviewed both in five and ten years.
On 29 December 1975 the then Chief
Minister disclosed to the State Legislative Assemby that the review as provided
in the Report of the IGC, was already past the 10 years set out in the
Report. We are now in the 41st year after
the 10 years and there is no proposed Review in sight.
By the 2nd Motion, the Sabah
government is urged to re-activate the Sabah Review Committee to consider and
review the Malaysia Agreement and the matters set out in the Report of the
IGC. As the issue affects Sabah and all
Sabahans, it is proposed that the Review Committee should comprise of
representatives across the political divide, both government and opposition representatives, and that
the Review Committee should also gather the views and
opinions of Sabahans in order that these views be brought up and considered in
the review with the governments of Malaysia, the States of Malaya and Sarawak.
It is also proposed that Sabah
government should urge the governments of Malaysia, the States of Malaya,
Sarawak and Great Britain to re-activate the Inter-Governmental Committee (IGC)
to monitor and implement the Malaysia Agreement 1963 in full together with the
relevant documents, memorandum, agreements, assurances, undertakings and recommendations.
With due respect, in the best
interests of both the Federation of Malaysia and Sabah, the Sabah government
needs to take all necessary actions to set up the Review Committee, gather the
views of Sabahans and then review the implementation of the Malaysia Agreement
with the re-activation of the IGC. If
the federal government fails to agree and implement the Malaysia Agreement and
the terms and conditions with the assurances and undertakings in full, there is
NO BASIS FOR SABAH TO REMAIN IN THE FEDERATION OF MALAYSIA. In such an event, the Sabah government
should take immediate steps to unwind the formation of Malaysia and depart like
Singapore did in 1965.
6.
RE-PRINT
OF THE CONSTITUTION OF SABAH 1963
The
3rd Motion deal with the re-print of the 1963 Constitution of Sabah.
It
appears that there is no available copies of the 1963 Constitution of Sabah
which the general public can have access to.
Even the Sabah Archives and the Sabah Library do not have available
copies with the earliest available being the 1977 Reprint.
The
Constitution of Sabah as at 16 September 1963 which came into force on the same
day Malaysia was formed is a very important and integral part of the history of
our beloved Sabah homeland. It should be
readily available to all Malaysians so that the correct history of Sabah and
Malaysia is available especially to our younger generations.
The
3rd Motion is to authorize the Sabah Government Printers to reprint the 1963
Constitution of Sabah pursuant to Article 44 of the Constitution.
The situation
is now that Sabah needs to take back its oil and gas resources, there is no
better time than now with Sabah and Sarawak being the kingmakers, as well as to
review the position and status of Sabah in the federation of Malaysia.
With the
proposed Bill to amend the Constitution of Sabah and the Motions on the
Petroleum Development Act 1974 and the Petroleum Agreement 1976 as well as the
Malaysia Agreement 1976, the patriotism of the Sabah BN leaders and the
sincerity of the federal and Sabah government are now laid before the people of
Sabah and it is hoped that history will be changed for the future well-being of
Sabahans and Malaysians.
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