Letter to the Editor
By Shankar Ram Asnani
Dear Sarawakians,
Allow me to take you through this simple journey—a simple approach—to understand why Sarawak must assert its rights firmly with the Federal government, which means protecting, among others, its entrenched rights to oil and gas and mining rights within its territory and boundaries which include the ‘continental shelf’.
Firstly, it is important to understand the impact of the Sarawak (Alteration of Boundaries) Order in Council 1954, which was made pursuant to the United Kingdom’s Act of Parliament called the Colonial Boundaries Act 1895 that regulated boundaries of the United Kingdom’s colonies.
After the Second World War, the Third Rajah ceded Sarawak to the British Empire on July 1, 1946.
As a Crown Colony, the Queen passed the Sarawak (Alteration of Boundaries) Order in Council 1954 to expressly extend the boundaries of Sarawak, which was meant to protect the rights of Sarawak as part of Crown property, 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”.
In 1958, Sarawak’s Oil Mining Ordinance (Cap. 85) was passed to make better provisions in the law relating to oil mining in Sarawak and on its continental shelf. The Sarawak (Alteration of Boundaries) Order in Council 1954 was then adopted into the Sarawak Land Code 1958.
We in Sarawak have a different Land Code from the Malayan Land Code.
The definition of ‘State Land’ in the Sarawak Land Code 1958 incorporated the foreshore and beds of the sea within the boundaries of Sarawak as extended by the Sarawak (Alteration of Boundaries) Order in Council 1954.
These laws—the Sarawak (Alteration of Boundaries) Order in Council 1954, the Oil Mining Ordinance 1958, and the Sarawak Land Code 1958—are all pre-Malaysia Day laws and remained intact as part of the Malaysia Agreement 1963.
Section 73 of the Malaysia Act 1963 (No. 26 of 1963) declared this position specifically that the pre-Malaysia Day laws of the Borneo States shall on and after Malaysia Day have effect.
For the avoidance of doubt, allow me to quote the express provisions of Sections 73 (1) to (5) of the Malaysia Act 1963 (No. 26 of 1963) passed in Parliament of the Federation of Malaya:
“Continuation and effect of present laws.
73. (1) Subject to the following provisions of this Part of this Act and to any law passed or made on or after Malaysia Day, all present laws shall, on and after Malaysia Day, have effect according to their tenor, and be constructed as if this Act had not been passed:
Provided that references to the Federation (except in relation to a time before Malaysia Day) unless the context otherwise requires or it is otherwise expressly provided by any written law including any orders made under section 74, shall be construed as references to Malaysia, and expressions importing such a reference shall be construed accordingly.
(2) Any present law of the Federation passed or made on or after the day this Act is passed shall extend to any part of Malaysia to which it is expressed to extend; but save as aforesaid no present law of the Federation shall extend to any of the Borneo States or to Singapore, unless or until it is so extended by a law passed or made as aforesaid.
(3) Subject to the following provisions of this Part, the present laws of the Borneo States and of Singapore shall, on and after Malaysia Day, be treated as federal laws in so far as they are laws which could not be passed after Malaysia Day by the State Legislature, and otherwise as State laws.
(4) This section shall not validate or give effect to any provision contained in the present law of the Federation which is inconsistent with the Constitution, or any provision of present law which is invalid for reasons other than inconsistency with the Constitution.
(5) In this Part of this Act “present laws” means the laws of the Federation, or of any part thereof of each of the Borneo States, and of Singapore passed or made or applied to any part of the Federation or to either of the Borneo States or Singapore before Malaysia Day, but does not include the Constitution of the Federation or of any State in Malaysia or this Act.”
What is plain and clear from the express wordings of Section 73 of Malaysia Act 1963 is that the Sarawak (Alteration of Boundaries) Order in Council 1954, the Oil Mining Ordinance 1958, and the Sarawak Land Code 1958, are pre-Malaysia Day laws that continue to have effect and force.
In simple terms, Sarawak’s boundaries 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 and cannot be whittled away or taken away were part of Crown Property before Malaysia-Day and now clearly vested in Sarawak.
These rights are fundamental rights entrenched in the Malaysia Agreement brought about by the Malaysia Act 1963.
It is in this respect that the Federal government must understand that they cannot take away such rooted rights of Sarawak to its oil and gas and mining.
Sarawak’s rights cannot be waived nor downplayed because within the Federal Constitution, Article 2, which expressly protects against any arbitrary action of the Federal government, reads as follows:
“Parliament may by law –
(a) admit other States to the Federation; (b) alter the boundaries of any State,
but a law altering the boundaries of a State shall not 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.”
Sarawak inherited all its Property and Assets from the Crown, and this was explicitly protected in Article 47 of the Sarawak Constitution which reads as follows:
“Succession to property
47.—(1) Subject to the provisions of this Article, all property and assets which immediately before the commencement of this Constitution were vested in Her Majesty for the purposes of the Colony of Sarawak shall on the commencement of this Constitution vest in the State.
(2) Any land in the State which immediately before the commencement of this Constitution was vested in Her Majesty shall on the commencement of this Constitution vest in the State.
(3) Any property which was immediately before the commencement of this Constitution liable to escheat to Her Majesty shall on the commencement of this Constitution be liable to escheat to the State.”
Secondly, it is important for all Sarawakians to know that Sarawak’s Oil Mining Ordinance 1958 is a Sarawak Law that the Sarawak government has the power to pass to protect its oil, gas and mining rights over what was previously Crown Land now vested in Sarawak government after Malaysia-day and which rights are protected under item 2(c) of List II (State List) in the Ninth Schedule of the Federal Constitution.
This right has never been waived by the Sarawak government in accordance with Article 76 of the Federal Constitution which reads as follows:
“76 (1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say:
(a) for the purpose of implementing any treaty, agreement or convention between the Federation and any other country, or any decision of an international organization of which the Federation is a member; or;
(b) for the purpose of promoting uniformity of the laws of two or more States; or
(c) if so requested by the Legislative Assembly of any State.”
What is clear is that Sarawak has never passed any laws to give away or waive its rights under the Oil Mining Ordinance 1958 and its rights over Land under the Sarawak Land Code 1958.
The Federal government may have the power to pass laws concerning the development of mineral resources, mines, mining, minerals and mineral ores; oils and oil fields but such powers are specifically and explicitly subject to or under the dominion of Item 2 (c) in the State List, under List II of the Federal Constitution which has the overriding force.
This means that the Sarawak government has the full and final say when the matter concerns “Permits and licences for prospecting for mines; mining leases and certificates” under Item 2 (c) in the State List II of the Federal Constitution and which directly concerns Sarawak Land.
It is equally clear that what rights Petronas has does not exempt them from strict compliance with the requirements of Sarawak’s Oil Mining Ordinance 1958 and Sarawak’s Land Code 1958, which concerns with the use of land as defined above to include land forming part of the continental shelf being the seabed and its subsoil which lies beneath the high seas contiguous to the territorial waters of Sarawak.
Sarawak has never waived such rights. Any laws that violate Sarawak’s entrenched constitutional rights as guaranteed under the Federal Constitution are unconstitutional and void.
Unless sanctioned by the Constitution itself, any statute including one amending the Constitution that offends the basic structure may be struck down as unconstitutional.
Of late, there have been a lot of comments made by people in Malaya urging Sarawak to compromise but the key issue here is are they in the first place going to acknowledge that Sarawak rights were never waived and are they willing to seriously work in harmony with Sarawak Administration while benefiting from Sarawak, recognising and giving back what Sarawak truly deserves?
Over the years since the Petroleum Development Act 1974, Petronas has never tabled its accounts in Parliament for scrutiny and many Sarawakians feel that our people have been shortchanged.
Now is the time to stand tall and demand that Petronas work in harmony with Petros and the Sarawak government to ensure fair distribution of our wealth because the wealth from Sarawak has over the years been used largely or mainly for the benefit of Malaya and Sarawak remains very much behind in many crucial aspects that affect our people.
Today, we have compelling needs in education and healthcare and our Premier and Deputy Premiers are working hard to achieve Sarawak’s autonomy in these two main areas for our future.
It is in the interest of all Sarawakians that we guard our ‘rights’ jealously to protect our future against those who are ever-ready to snatch from us what we are perfectly entitled to.
On this note, I commend the relentless effort made by the Right Honorable Sarawak Premier Abang Johari, Sarawak Government and Deputy Premier Dr Sim for their relentless effort in pursuing Sarawak’s rights. — DayakDaily
Shankar Ram Asnani is the president of Sri Maha Mariamman Temple and a concerned Sarawakian.
This is the personal opinion of the author(s) and does not necessarily represent the views of DayakDaily. Letters to the Editor may be lightly edited for clarity.
