The bigger question: Is land still a state matter?

Sunday, 13 April 2014

The rationale behind the group naming the Sabah State Government under Musa Aman as the second respondent because they wanted the State Government to come out and declare that land is a state matter, but they didn’t.

KOTA KINABALU: A Sabah economic researcher while defending former chief ministers Harris Salleh and Joseph Pairin Kitingan for ‘surrendering’ Sabah’s right to its oil and gas resources to the Federal Government has also expressed disappointment in Bingkor assemblyman for ‘barking up the wrong tree’. 

Contrary to popular notion that the two senior Sabah leaders were to be blamed, Zainnal Ajamain said that in fact it was good that they signed the Petroleum Agreement in 1976 for it resulted in Sabah receiving five per cent (in oil royalty).

“If they didn’t we might not get anything,” said Zainnal.

Speaking at the mini-Seminar on “How The Borneo States Lost Its Wealth”, the co-author of the State Government’s vision for development or Halatuju which later became the Sabah Development Corridor (SDC), Zainal said he was disappointed with Star Sabah chief-cum-Bingkor Assemblyman, Dr Jeffrey Kitingan.

Zainal, who created the Offshore Islamic Fund in Labuan, disagreed with Kitingan’s contention that the Petroleum Development Act (PDA) 1974 is “invalid”.

“It is valid. What he (Kitingan) should be looking at is the three fundamental laws that were formulated under the emergency in May 15 1969.

“The petroleum agreement and Petroleum Development Act (PDA) 1974 were only a red herring,” he said.

He also claimed that the Federal Government assumed rights over the oil and gas from Sabah and Sarawak during the Emergency in 1969.

“The Federal Government using Emergency to unconstitutionally and forcefully transfer Sabah and Sarawak territorial waters to the Federal Government,” he claimed.

He was referring to the Continental Shelf Act 1966, the Petroleum Mining Act 1966 and the Emergency (Essential Powers) Ordinance No. 7 1969 laws.

Under Section 4 (2) of the Emergency (Essential Powers) Ordinance No. 7 1969, it said “for the purposes of the Continental Shelf Act, 1966, the Petroleum Mining Act, 1966 the National Land Code and any written law relating to the land in force in Sabah, any reference to the territorial waters therein shall in relation to any territory be construed as a reference to such part of the sea adjacent to the coast thereof not exceeding three nautical miles measured from the low-water mark.”

Zainal lamented that everyone knew that land is a state matter and that it that ‘right’ was arrested by the Federal Government by the Emergency Proclamation.

Is land still a state matter?

He thus reiterated that the signing of the Petroleum Agreement 1976 was just a ‘red herring’ because Sabah’s territorial waters were already in the hands of the Federal Government.

He nonetheless argued that the Federal Government had lost its claim of ownership to Sabah and Sarawak territorial waters when it lifted the proclamation on Nov 23, 2011 to pave the way for the abolishment of the Internal Security Act (ISA).

“It means that all ordinances, gazettes and laws formulated during emergency are no longer usable including the three laws used by the Federal Government to take away territorial waters of Sabah and Sarawak,” he explained.

This was also the basis which prompted a group of six native Sabahans led by him to file civil suit in the High Court of Kota Kinabalu on March 2012 over the legality of the Petronas to operate in Sabah waters.

The six plaintiffs comprising of Lahirul Latigu, Micheal Peter Govind, Mohd Julfikar Abd Mijan, Dullie Marie, Joseph Welfred Lakai and Zainal. 

In the suit, Petronas was named as the first respondent and the Sabah State Government under Musa Aman, as the second respondent.

Zainal explained the rationale behind the group naming the Sabah State Government as the second respondent because they wanted the State Government to come out and declare that land is a state matter, but they didn’t.

“Instead of providing support, the State Government demanded that the court strike off the suit and consider the six plaintiffs not having any locus standi,” he said.

He went on to note that, one month after the annulment of the three laws, the Federal Government realised their “mistake” and attempted to rectify the situation by enacting the Territorial Sea Act 2012 Act 750 that was passed in June 2012. 

To this, he expressed regret that the MPs from Sabah and Sarawak failed to stop this when the Malaysia Territorial Sea Bill was debated and passed in Parliament on April 18, 2012.

“Based on the available Hansard none of our MPs was involved in the debate. For such an important Bill especially for Sabah and Sarawak our elected MPs then failed us,” he said. 

Act 750 ‘unconstitutional’

Zainnal pointed out that Act 750 was to fulfill the requirement of United Nation Convention on Laws of the Sea (UNCLOS).

“This means that Act 750 was merely to determine the limits of Malaysia maritime boundary internationally. This does not mean the ownership for the whole of Sabah and Sarawak territorial Waters including the seabed and the subsoil must be transferred to the Federal Government.

In this context, he claimed that Act 750 was unconstitutional because it contravened the Malaysia Constitution, it was not in accordance to the Malaysia Agreement 1963 and the safeguards and caveats provided on Inter-Governmental Reports. 

“Because Malaysia today is not under any Emergency Proclamation this Act 750 can be challenged by the Sabah and Sarawak State Government in the Court of Law,” he said.

While noting that it was the obligation of the Federal Government to determine the maritime international boundaries, Zainal nonetheless asserted that it was the obligation and rights of the Sabah and Sarawak government to manage, administer and regulate any exploration, mining and economic activities in the Territorial Waters adjacent to the Borneo States. 

“This is the rights of Sabah and Sarawak even before the formation of Malaysia,” said Zainnal who is also the co-founder of United Borneo Front (UBF) and now is the secretary-general of a newly formed party.

“Even when the law says that by May 24, 2012 the rights of Sabah and Sarawak Territorial Waters was given back to the respective state governments, it is disappointed to see that until today both the Sabah and Sarawak state government are still procrastinating on the issue. 

“It is now two years and nothing is being done, for everyday of inaction Sabah and Sarawak is losing millions of ringgit,” he told participants at the seminar organised by the Progressive Institute of Public Policy Analysis Sabah (PIPPA) and moderated by Sabah Progressive Party (SAPP) deputy president Amde Sidek.


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