Zaid’s arguments on Sarawak’s rights are flawed

 

From Ibrahim Baki

Former law minister Zaid Ibrahim has characterised as a “misunderstanding of maritime law” Sarawak’s claim that its boundaries were extended before Malaysia Day by the Sarawak (Alteration of Boundaries) Order in Council in 1954.

His contention was that the two concepts of “exploitability” (of petroleum resources) and “the geological concepts of a state’s territorial limit” cannot be conflated. Zaid was hair-splitting. His arguments were flawed.

In Malaysia, the Federal Constitution is supreme. It lays down who has the legislative authority over exploitation of resources such as petroleum. These resources come under powers over land.

Item 2 of the State List of the constitution provides the state with legislative (and hence executive) authority over land. Such legislative authority includes the issuance of prospecting licences, mining leases and certificates. All states, including Sarawak, have the right to regulate petroleum mining or development of oil fields on land in the state.

Under the Federal List, the federation may have the power of the development of natural resources, oil and oil fields – subject to prospecting licences, mining leases and certificates, issued by the state under item 2(c) of the State List.

Constitutional question

Bearing in mind that the constitution, and not Parliament, is supreme, on what constitutional basis did Parliament pass the Petroleum Mining Act 1966 to authorise a federal “petroleum authority” to issue mining leases?

Perhaps Zaid can enlighten every Malaysian: under what provision of the Federal Constitution is Parliament empowered to pass a law to vest all rights to petroleum found onshore and offshore Sarawak in Petronas?

Unless these pertinent questions are answered convincingly, Sarawakians have every reason to feel aggrieved that they have been deprived of their rights to exploit the petroleum resources found onshore and offshore, through laws which Parliament did not have the constitutional authority to enact.

Sarawakians want a more equitable and fair share of the revenue from petroleum produced in Sarawak, after contributing almost RM1 trillion to federal coffers since the advent of the Petroleum Development Act 1974, and to more natural gas to support its
industrial development and power generation expansion.

Continental shelf and crown land

On the geological territorial limits of Sarawak, no one can dispute that the 1954 Order in Council extended the boundaries of Sarawak to include the seabed and subsoils forming the continental shelf contiguous to the territorial waters.

These extended submerged areas were “crown land” which, on Malaysia Day, was vested by the British monarch in Sarawak by one of the constitutional instruments annexed to the Malaysia Agreement 1963 by Article III thereof.

The British crown had never vested these extended submerged areas in the continental shelf in the federation or in the federal government.

Malaysia’s claim to sovereignty over the continental shelf under the United Nations Laws of the Sea 1982 does not affect the rights and authority of Sarawak or the territory of Sarawak. This is clearly stated in the definition of “continental shelf” in the Continental Shelf Act 1966, as amended in 2009.

A fair shake

Sarawakians would like to have an amicable and fair resolution of their legitimate claim to fair and equitable share of the petroleum resources, to more natural gas for local industries, and greater right to participation in the upstream and downstream oil and gas businesses.

Sarawak’s contributions and sacrifices towards the nation’s economic well-being should not be overlooked.

Finally, and more importantly, Sarawakians want all the laws that safeguard the territory of Sarawak as well as its rights to petroleum resources and the downstream oil and gas industry to be respected and duly complied with by all parties operating in the state. - FMT

Ibrahim Baki of Gabungan Parti Sarawak is the assemblyman for Satok.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.