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KUCHING, Oct 21: Santubong MP Datuk Seri Dr Wan Junaidi Tuanku Jaafar grants support to Sarawak Legislative Assembly Speaker Datuk Amar Mohd Asfia Awang Nassar that laws enacted during emergency cease to be effective once emergency is lifted.
He thus questioned that validity of Petroleum Development Act 1974 (PDA 1974).
“Without such emergency powers, the federal government still has to observe the provision of Article 2 of the Federal Constitution by getting consent of the State expressed by a law made by the legislature of the State and the Conference of the Rulers which the federal government never did.
“It is quite pertinent to say that even the validity of the extension under the Emergency (Essential Powers) Ordinance 1969 which was repealed and replaced by the Emergency (Essential Powers) Act of 1979, the same title is questionable.
“Similarly, if PDA 1974 was purportedly brought to Parliament without the ‘constitutionally adequate and acceptable consent’ of the State of Sarawak, then that validity of the Act too to be questionable.
“Under the same token, all the laws purportedly validated by the emergency Act 1979 are all of questionable validity,” said Wan Junaidi in a press statement today.
He said, considering all the emergency legislations were abolished in 2011, all the laws that were not made in accordance with the provisions of the Constitution should cease to have effect, following letters and spirit of the Article 150(7) itself.
“Under the circumstances I agree with the Speaker Datuk Amar Mohd Asfia Awang Nassar on the question of the validity of PDA 1974,” said Wan Junaidi.
He explained that the powers of Parliament to enact laws is well defined by several Articles in the Federal Constitution, for example, Articles 74, 75 and 76 of the Federal Constitution.
He said the Federal Constitution also provides for the residual power under Article 77 given to the State to legislate in matters not listed in the three Lists in the above mentioned Articles 74 of the Federal Constitution.
“There are restrictions, limitations and conditions provided to the Power of Parliament to legislate, especially, when the legislation affecting the State’s right and authority, for example, under Article 2 of the Federal Constitution.”
He believed that the Federal government was obviously aware of this constraint in the Federal Constitution on the Power of Parliament to make laws such as the Oil Mining Act 1966 and the Continental Shelf Act 1966 which were only applicable to Malaya when the laws were enacted in 1966.
When the May 13 incident happened, the Tunku Abdul Rahman requested the YDP Agong to declare emergency under Article 150(1) of the Federal Constitution.
“But like the declaration of of emergency itself, the laws made under this sub-Article 150(1) also ceases after the period of six months.
“In order to overcome this the Emergency (Special Powers) Ordinance was also promulgated in 1969 for the extension of the period beyond six month, the Parliament was called to meet again.
“An Act of Parliament called the Emergency (Essential Powers) Act 1979 was later introduced to replace the Emergency (Essential Powers) Ordinance 1969 purportedly to extend the ‘legal emergency perpetually’.
“The purposed Act was obviously to extend the life of various laws created under the emergency ordinances until repealed, knowing that most these legislations were in breach of the requirements of the Federal Constitution,” he said.
To him, the Emergency (Essential Powers) Act 1979 was also introduced to allow the federal government to extend the Continental Shelf Act 1966 to Sarawak, to ratify the UN Convention on the Law of the Sea (UNCLOS) signed by the government 1998.
“Perhaps, it was under the same token PDA74 was enacted, purportedly to give right to Petronas, a corporation created under the Act 1974 to licence the prospecting and mining of oil and gas in Sarawak far beyond what was allowed under the Oil Mining Act 1966.
“The Act of 1974 (PDA 1974) seems to be in breach of the provision of The Ninth Schedule – List II(2)(c) of Article 74 of the Federal Constitution. Similarly, the Territorial Sea Act 2012 which relies on the Emergency (Essential Powers) Act 1979 and the provision of Article 150(7) to validate itself.”
“I could not imagine that provision of the Federal Constitution that requires stringent safeguard, example, the passing of an Act of Parliament that requires the consent of the State through a legislation in the State DUN could be easily be circumvented by passing an Act of Parliament to extend the emergency so that the Federal Government needn’t have to comply with requirement of the Federal Constitution with only a simple majority in House of Parliament,” said Wan Junaidi. — DayakDaily