Government motion on Malaysia Agreement 1963 and Sarawak's rights and interests tabled by Deputy Chief Minister Datuk Amar Douglas Uggah
The Motion is:-
“WHEREAS the Prime Minister, YAB Datuk Patinggi Mohd
Najib Bin Tun Abdul
Razak had, on Malaysia Day, 16th September 2017 in Kota
Kinabalu given an
unequivocal assurance that the rights of Sabah and
Sarawak will continue to be
preserved;
WHEREAS on the 7th December, 2015, this august House
passed a Motion to
mandate the State Government to take all necessary
measures under Article VIII of the
Malaysia Agreement to ensure complete implementation of
recommendations contained
in the Inter-Governmental Committee Report (IGC Report)
intended to safeguard the
special interests of Sarawak; and
Whereas the State Government has taken measures to
exercise those
constitutional authorities and safeguards accorded to the
State, including the enactment
of the Gas Distribution Ordinance, 2016; the
incorporation of PETROS to actively
participate in the oil and gas industries in Sarawak;
preparation for the financial review
under Article 112D of the Federal Constitution;
submissions of claims for stamp duties
chargeable on instruments for land dealings and
amendments to the Territorial Sea Act,
2012; and securing from the British National Archives
relevant historical documents to
support the State Government’s position on these issues.
Therefore it is moved that this House hereby resolves
that:-
This House hereby mandates the State Government to form a
high level special
task force to negotiate with the Federal Government to
resolve all outstanding issues
related to the compliance and upholding of the
constitutional safeguards and special
rights accorded to the state of Sarawak in accordance
with the terms, intent and spirit of
the Malaysia Agreement, 1963.
Safeguards for Sarawak
Tuan Speaker, on 16th September, 2017, in Kota Kinabalu,
Sabah, the Prime
Minister Yang Amat Berhormat Datuk Patinggi Mohd Najib
Bin Tun Abdul Razak
reassured Sabah and Sarawak that they will be accorded
their rights as enshrined in the
Malaysia Agreement 1963. This assurance is not just a
political rhetoric. The Federal
Government had responded positively to Sarawak’s
initiative to regain our rights under
the Malaysian Agreement. This august House was informed
of the headway achieved in
the negotiation with the Federal Government by the Late
Pehin Sri Adenan, during his
winding speech on the 30th November 2016. This is also
reflected through the exemption
of Sarawak from the Gas Supply Act and the right to
vetting of all deep sea fishing
licenses over the deep sea within Sarawak EEZ. These are
all implemented on the
premises and recognition of the State’s right over its
Continental Shelf together with the
oil and gas and marine resources therein. Thus, we record
our appreciation to Yang Amat
Berhormat Prime Minister for his understanding and
readiness to consider our appeal to
regain Sarawak’s Rights.
Tuan Speaker, the IGC’s Report on the safeguards for
Sarawak and Sabah are
part of the Malaysia Agreement and have been incorporated
into the Federal Constitution.
For those safeguards which have not been included in the
Constitution, Article VIII of the
Malaysia Agreement provides that, these are to be
implemented through executive,
legislative and other actions by the Federal and the
State Governments of Sabah and
Sarawak.
Tuan Speaker, in December, 2015, this august House passed
a Motion,
introduced by the Honourable Member for Baleh, to mandate
the State Government to
take all necessary measures under the said Article VIII
of the Malaysia Agreement for the
complete implementation of all recommendation in the IGC
Report and the safeguards of
the special interests of the State and its people.
Measures Taken by the State Government
Tuan Speaker, after the Motion, the State Government has
taken the measures
towards the realization of the objectives set out
therein. Whilst agreement has been
reached on some of the issues and resolved through
administrative action, some
important constitutional and financial issues have yet to
be satisfactorily resolved which I
will touch on in the later part of my speech.
Tuan Speaker, to reinforce the State’s position on these
unresolved issues, the
State Government felt that it is incumbent to gather as
much documentary evidence to
ensure that the State has a strong legal position to
facilitate the negotiations with the
Federal Government. In this respect, it was important to
have sight of original copies of
these documents. These are only available in the British
National Archives. We have
procured, certified and authenticated copies of these
important documents. Thus, a team
headed by the Honourable Assistant Minister and Member
for Semariang was sent to
London for this important purpose. It is without doubt
that the State is now in a stronger
negotiating position following the retrieval and
confirmation of the availability of relevant
documents.
Boundaries of Sarawak
Tuan Speaker, the Sarawak (Alteration of Boundaries)
Order in Council, 1954
extended the boundaries of the State to include the area
of the Continental Shelf being
the seabed and subsoil which lies beneath the high seas
contiguous to the territorial
waters of Sarawak. The British Government in an official
statement (now with the British
National Archives) explained as follows:-
“The right of a littoral state to claim sovereignty over
the seabed and subsoil adjacent to
its coasts in order to control the exploitation of the
natural resources therein has become
established recently in international practice.
Accordingly, the boundaries of North
Borneo, Sarawak and Brunei have been extended under the
provisions of the North
Borneo (Alteration of Boundaries) Order in Council, 1954;
the Sarawak (Alteration of
Boundaries) Order in Council, 1954 and the Brunei
Proclamation to permit the
Government of these territories to exercise jurisdiction
over the exploitation of the natural
resources of the continental shelf adjacent to their
coasts. The status of the High Seas of
the waters above the continental shelf is not affected.”
Tuan Speaker, consequently, the boundaries of Sarawak as
at Malaysia Day have
been clearly established under the Sarawak (Alteration of
Boundaries) Order in Council,
1954. These are the boundaries of Sarawak as at Malaysia
Day. The State’s boundaries
and its territorial integrity are protected by Articles
1(3) and 2(b) of the Federal
Constitution. Britain determined the boundaries of the
Sarawak to safeguard the State’s
rights to all the natural resources, including oil and
natural gas in the Continental Shelf.
The boundaries and territories of the State cannot be
altered, by virtue of Article 2(b) of
the Federal Constitution, without the consent of the
State to be expressed by a law
passed by this august House.
Oil Mining Rights
Tuan Speaker, the Sarawak Government had been granting
oil concessions and
mining leases for petroleum since the days of the Rajahs.
Maps, kept in the British
National Archives, produced in the 1930s, demarcated and
identified the areas of the
seabed and subsoil of what is now the Continental Shelf
of the State which had been
included in oil mining leases issued by the State for the
exploration and exploitation of oil.
This confirms that even during the days of the Rajahs,
Sarawak has been exercising
jurisdiction over exploration and mining of oil or
petroleum in the offshore areas of the
State. This august House had passed the Oil Mining
Ordinance 1958 to regulate oil
mining onshore and in the Continental Shelf of Sarawak.
This Ordinance has never been
repealed even during periods when Emergency laws were in
operation.
After the Proclamation of Emergency in 1969, Emergencies
(Essential Powers)
Ordinances No.7 and 10 were promulgated under Article
150(2) of the Federal
Constitution which have the effect of respectively
reducing the limits of the State’s
territorial waters and truncated the State’s boundaries
to only 3 nautical miles from its
coastline, and extended the Continental Shelf Act 1966
and the Petroleum Mining Act,
1966 to Sarawak. These federal Acts enabled the Federal
Government to exercise
jurisdiction over the Continental Shelf of the State and
to regulate and control the
exploitation of petroleum in the Continental Shelf.
The Proclamation of Emergency 1969 was annulled by both
Houses of Parliament
in December 2011 and by virtue of Article 150(7) of the
Federal Constitution, the said
Emergency Ordinances has ceased to have effect and the
extension of the said Acts to
Sarawak affected by the Emergency (Essential Powers)
Ordinance, No. 10, 1969 also
ceased to have effect. The constitutional authority over
the issuance of oil exploration or
prospecting licenses and mining leases continued to be
vested in the State Government
under Item 2(c) of the State List in the Ninth Schedule
of the Federal Constitution and the
Oil Mining Ordinance, 1958.
In the 1970’s, the differences between the State
Government and the Federal
Government in respect of the rights over the rights to
oil and gas offshore Sarawak were
resolved in the national interests “irrespective of what
the constitutional and legal
positions were” and an impending civil suit by the State
against the Federal Government
in this respect was dropped so that the Petroleum
Development Act 1974 was passed.
Under that Act, the ownership and rights of petroleum was
vested in PETRONAS in
return for 5% royalty payment to Sarawak which was
regarded as payment of
compensation for taking over State property in the form
of petroleum (and gas) – an
unequivocal admission by the Federal Government of the
State’s ownership of these
natural resources over the State’s boundaries up to the
continental shelf as provided by
the Order in Council.
Tuan Speaker, Sarawak, as a founder and member of the
Federation, has always
acted in the interests of Malaysia. Sarawak is committed
and has made sacrifices in the
national interests, by granting PETRONAS control and
benefit from its valuable petroleum
and natural resources in its Continental Shelf and also
on land. Consequently,
PETRONAS has been able to grant rights or concessions for
the exploration,
development and production of oil and gas in the
Continental Shelf, to many Companies
such as Petronas Carigali, Nippon Oil, Shell, Murphy Oil,
Mubadala Oil and Gas, TOTAL
etc. Sarawakian companies have yet to be involved in any
development and production of
oil and gas in the Continental Shelf.
Sarawak Government, being mindful of the aspirations of
the people, has to
ensure that Sarawakians have the opportunities to
actively and meaningfully participate in
both the upstream, midstream and downstream aspects of
the oil and gas industry in the
State. Many Sarawakians and Sarawak companies today, have
the skills, experience and
financial resources to be involved in or to invest in the
oil and gas industries. For these
reasons, the State Government had the Gas Distribution
Ordinance, 2016 passed by this
august House, and formed PETROS in readiness as a vehicle
of the State Government to
spearhead the State’s active involvement in all aspects
of the oil and gas industry. The
Board of PETROS comprises of persons who have vast
experience in the oil and gas
industry.
Oil Industry Players in Sarawak to Comply with State Laws
Tuan Speaker, the State Government would like all parties
involved in oil and gas
exploration and production within its boundaries,
including Petronas, to comply with all
relevant State laws such as the Oil Mining Ordinance and
also the Land Code, in regard
to the use and occupation of State land for their
activities. The State Government has
never given any waiver to Petronas regarding strict
compliance with State laws.
Therefore, since Petronas and its production sharing
contractors have not obtained
exploration or mining leases for petroleum in accordance
with the Oil Mining Ordinance
and no title or permit to occupy State Land (including
the Continental Shelf areas) under
the Land Code Petronas has to regularize their activities
to comply with our laws.
The State Government will not jeopardize PETRONAS’
business or economic
interests in Sarawak or act against the national
interests. Further, the State Government,
at this stage, does not wish to resort to the Courts to
resolve such issues. As in the
1970s, the State Government desires to achieve an
amicable solution whereby both
Federal and State Governments interests can be
accommodated with due recognition of
the State’s constitutional rights over the Continental
Shelf and the natural resources in the
seabed and subsoil within the State’s boundaries and the
Federal Government having
the State’s firm commitment to advance the national
interests in the exercise of the
State’s constitutional rights over the natural resources
of oil and gas found and produced
within the State.
Territorial Sea Act, 2012
Tuan Speaker, the Territorial Sea Act 2012 was passed,
without consultation with
the State Government and without securing the consent of
the State Government under
Article 2(b) of the Federal Constitution as this law
undeniably has the effect of altering the
boundaries of Sarawak by reducing it’s territorial waters
from 12 to 3 nautical miles.
According to the Explanatory Statement in the Bill tabled
in Parliament to enact this Act,
the reasons for this Law are:-
(1) The Emergency
(Essential Powers) Ordinance No. 7 which reduced the limits of
territorial waters to only 3 nautical miles had ceased to
be in effect because of the
annulment in 2011 of Proclamation of Emergency pursuant
to which this
Ordinance has been promulgated; and
(2) To implement the United Nations Convention on Law of
the Sea, 1982 which the
Malaysian Government had signed as a Party.
The features of this Act which adversely affects the
State’s rights are:-
(1) It has the effect of altering the boundaries of
Sarawak;
(2) It intends to vest “sovereignty” over the seabed and
subsoil in the Yang di-Pertuan
Agong (who acts on the advice of the Federal Cabinet);
(3) It restricts the territorial sea or waters of the
State to 3 nautical miles whereas the
width of territorial sea claimed by the Federal
Government is 12 nautical miles.
The maps and other documents in the British National
Archives serve to confirm
when Sarawak was a Colony; its territorial waters were
already 12 nautical miles.
That limit should not be reduced after Sarawak became
independent.
Whilst it is accepted that Malaysia has the capacity
under international law to
claim sovereignty over its territorial waters (and land
territory) to protect the nation’s
sovereignty and security, such claims under international
law or Convention cannot be a
justification for the Federal Government to acquire
rights to the land (including the
Continental Shelf) which legally belong to the State.
Otherwise, the implementation of a
Convention and Treaty could be used as a mechanism to
acquire land of the State
without compliance with Article 83 of the Federal
Constitution, and to alter the boundaries
of the State.
After the grant of Independence to Sarawak on Malaysia
Day by Britain, and the
transfer of sovereignty over the then Colony of Sarawak
to the Federation by the British
Crown, all lands belonging to the Crown became vested in
the State and not the
Federation. This is expressly provided by Article 47 of
the State Constitution.
When the Land Code was passed by this august House during
the Colonial
Administration, all land in Sarawak was vested in the
Crown, and titles issued were
issued as “Lease of Crown Land” (See: Sections 12, 13 and
21 of Land Code 1958 Ed.).
“Crown” is defined in the Land Code (1958 ed.) to mean
“the Crown in the right of Her
Majesty’s Government in Sarawak”. The Land Code was
modified in 1964 to comply with
Article 47 of the State Constitution, vesting all Crown
land on the State, to become “State
Land”.
A claim to “sovereignty” by the Federal Government would
not justify a claim to
the rights of the seabed and subsoil in the Continental
Shelf within the boundaries of
Sarawak, as the Continental Shelf was Crown Land before
the birth of Malaysia. Upon
the coming into force of the State Constitution on
Malaysia Day by reason of Section 1 of
the Malaysia Act, 1963, when the State Constitution came
into force, all such land
previously belonged to the Crown (Her Majesty’s
Government of Sarawak) became
vested in the State Government as “State land”. It is
unconstitutional for the Federal
Government to claim rights over the seabed and subsoil
which are part of the State land,
by claiming sovereignty thereof under international law
by enacting the Territorial Sea
Act, 2012.
Financial Matters
Tuan Speaker, the Federal Government has agreed to have a
financial review as
required uner Article 112D of the Federal Constitution on
the Special Grants which the
State is entitled under the Federal Constitution to
receive from Federal Government and
whether there should be any addition or substitution of
the items of revenues assigned to
the State under the 10th Schedule of the Federal
Constitution. The Federal Government
has also agreed that the State’s claims relating to loss
of revenue from import duties and
excise duty on petroleum products, claims relating to
stamp duties for dealing in lands
and other financial issues be considered in this
financial review. This review is long
overdue. The State Government is now making preparations
for this review.
Resolution of Outstanding Issues
Tuan Speaker, the State Government desires that these
important constitutional
issues be resolved amicably without resorting to legal
action so as not to jeopardize the
unity of the Federation and the good relationships that
exist between the Sarawak State
Government and the Federal Government. When these issues
are eventually resolved
our Nation will be more united and relationship between
the State Government and the
Federal Government would remain harmonious.
These negotiations between the State and Federal
Government should be
conducted in accordance with the spirit and intent of the
Malaysia Agreement and the
IGC Report which was subscribed to by all parties leading
to the formation of our beloved
Malaysia. As correctly pointed out by the Honorable Dato’
Seri Mohamad Nazri Abdul
Aziz, Minister in the Prime Minister’s Department (as he
was then) when tabling the
Territorial Sea Bill, 2012:
“Kita merdeka pada tahun 1957, kita sebagai satu unit
walaupun ada sebelas buah
negeri. Kita sebagai satu unit yang dipanggil semenanjung
Tanah Melayu. Kemudian
pada tahun 1963 apabila kita menubuhkan Negara Malaysia
di mana Sabah dan
Sarawak sebenarnya merupakan dua wilayah…. Sejarah pun
tidak sama. Akan tetapi
apabila Sabah dan Sarawak bersetuju untuk bersama
menubuhkan Malaysia ada
beberapa perkara yang telah dijanjikan bersama supaya dia
mesti diikuti….”
The State Government has always maintained that Sabah and
Sarawak should
not be treated as one of the states in the Federation but
as equal partners to the
formation of Malaysia.
Tuan Speaker, in view of the above, the State Government
proposes that a high
level Special Task Force be established to conclude the
negotiations with the Federal
Government and have the issues resolved in conformity
with the legal and constitutional
positions outlined by me in this Speech. The resolution
of these important legal and
constitutional issues must be undertaken by the highest
levels at both Federal and State
levels. Hence, the State Government would humbly request
the Federal Government to
establish a corresponding task force, so as to facilitate
the resolution of these issues
amicably and in the national interests with the State’s
interests and rights properly
safeguarded and entrenched.
Tuan Speaker, the passing of this Motion should not in
any way be misinterpreted
or construed to mean that the State is willing to
sacrifice and jeopardize the continued
existence of Malaysia as a nation. We respect and honour
the decision of our past
leaders for our beloved State to be part of Malaysia and
we will always remain in
Malaysia. Let there be no doubt about this fact. We will
always uphold the sanctity of the
spirit and the words of our State Anthem that:-
“Sarawak dalam
Malaysia
Aman makmur rahmat Tuhan Maha Esa
Kekallah Sarawak bertuah
Teras perjuangan rakyat
Berjaya berdaulat.”
Tuan Speaker, I beg to move. - November 9, 2017
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