The late Chief Minister, Datuk Patinggi Adenan Haji Satem, in his final speech during the last sitting of the State Legislative Assembly, said the state government would take all necessary measures to safeguard Sarawak’s rights and interests as a founding partner of the Federation of Malaysia.
The state government, after getting a strong electoral mandate from the people, must remind all those concerned that the foundation of the Federation of Malaysia comprises the special constitutional safeguards for the interests and territorial boundaries of the States of Sabah and Sarawak.
It is a matter of historical record, that without these safeguards, Sabah and Sarawak would not have joined in the formation of Malaysia; Britain would not have agreed to the creation of the Federation of Malaysia.
This foundation should never be undermined; and in fact, should be strengthened to sustain national solidarity and propel Malaysia to greater prosperity and progress towards a high income economy towards the year 2020 and beyond.
In this regard, the people in Peninsula Malaysia, high officials with the federal government or those responsible for the legislation in particular, must be made to understand that the principle behind the negotiation on the devolution of powers between the state and federal governments is that Sarawak, unlike other states, has been given special powers under the various Acts before the formation of Malaysia.
Obviously, after more than two generations ago, the people including high officials with the federal government or those responsible for the legislation, who were not even born before the formation of Malaysia do not know what happened then, so it is the job of the state to make them understand such matters.
Datuk Patinggi Adenan in his presentation, which was frequently interrupted by severe coughing, said the discussions with the federal government would not seek for powers, which constitutionally belonged to the federal government but would reclaim the state’s powers and rights that had been wrongly encroached upon by the federal authorities based upon the principle of “Render to Caesar what is Caesar’s” and to “God what is God’s”.
The State Legislative Assembly, unanimously passed a Motion on 7 December, 2015, which, among other things, called for a review of all federal laws affecting the state’s rights to its natural resources or its powers and functions under the Federal Constitution and upon such review, to amend or repeal such legislations.
Regrettably, since Malaysia Day, Parliament had passed laws, without prior consultation with the state government, which took away the state’s residual powers to enact laws under Article 77 of the Federal Constitution such as the Environmental Quality Act, 1974, and Tourism Industry Act, 1992.
Some of the amendments also transferred subject matters from either the State List or away from residual powers, to either the Federal List (for example Tourism) or Concurrent List (like Sports &Culture and Preservation of Heritage) thereby reducing the State Legislature’s powers to enact laws on the subject matters.
Besides, the amendments also contained provisions, which extended the federal jurisdiction onto matters which, constitutionally were under the control of the state. The federal legislations not only adversely affect the state’s rights to legislate on such matters but also its administrative and regulatory control of thereof or the promotion of activities associated therewith.
Datuk Patinggi Adenan said the state government would make representations to the federal authorities to amend the legislations or for Orders to be made under Article 95C of the Federal Constitution to extend the legislative powers of the state to make laws in respect of matters, which had been placed in the Federal List.
The extension of powers could be made through amendments of the Legislative Lists in the Ninth Schedule of the Federal Constitution without prior consultation and agreement of the state government.
Datuk Patinggi Adenan recalled when the Proclamation of Emergency, 1969 was still in force, the Yang di-Pertuan Agong made the Emergency (Essential Powers) Ordinance No.7 of 1969, which came into force on 10 August, 1969 to prescribe the limit of Malaysian territorial waters as 12 nautical miles from the coastline.
However, when the Proclamation of Emergency was annulled by both Houses of Parliament in 2011, Parliament passed the Territorial Sea Act, 2012, which, according to its preamble, was passed for reason that the Emergency (Essential Powers) Ordinance No.7 of 1969 had by virtue of Article 150(7) of the Federal Constitution ceased to have effect six months after the annulment of the Proclamation of Emergency, 1969. Therefore, there was no law, which stipulated the breath of the territorial sea of Malaysia.
The state government was never consulted before the Territorial Sea Act was passed in Parliament; Section 3(1) of the Act, states that the breath of the territorial sea of Malaysia shall for all purposes be 12 nautical miles.
However, Section 3(3) of the Act provides, inter alia, that for the purpose of any written law relating to land in force in Sabah and Sarawak, any reference to territorial sea therein shall be in relation to any territory construed as a reference to such part of the sea adjacent to the coast thereof not exceeding three (3) nautical miles measured from the low-water line.
Datuk Patinggi Adenan said the state government could not see any justification as to why for the nation (Malaysia), the breath of the territorial sea was 12 nautical miles but for Sabah and Sarawak, it was only three (3) nautical miles.
Moreover, no justification has been offered to the state as to why in times of Emergency, its territorial waters should be 12 nautical miles, but when there is no Emergency, the breath of its territorial waters should be limited to only three nautical miles. One would expect the opposite to apply instead of the other way round.
Datuk Patinggi Adenan said the state’s rights to fisheries, marine and mineral resources, tourism sites in marine areas, with the reduced width limits of the territorial waters, were confined to only three nautical miles from its coastline. The state disagrees with this arbitrary reduction in the breath of its territorial waters.
He said the sovereignty in respect of the bed and sub soil of the territorial sea, was vested and exercisable by the Yang di – Pertuan Agong by virtue of section 4. But, the seabed and sub soils in the continental shelf beneath the territorial sea are parts of state land, which is wholly within the legislative and executive control of the state by reason of Item 2 of List II (State List) in the Ninth Schedule of the Federal Constitution.
Datuk Patinggi Adenan reiterated Parliament had no authority to vest any state land of Sarawak in the Yang di-Pertuan Agong. The federal government has to comply with the provisions of Chapter 4 Part VI of the Federal Constitution if it wants any state Land for federal purposes.
He said the state government would make strong representations to the federal government to amend sections 3(3) and Section 4 of the Territorial Sea Act 2012 as they were not only unconstitutional and enacted without consultation with the state, but they were also ultra virus the powers of Parliament.
He said the state government would continue to zealously safeguard the rights of the state and the people and over the territorial waters and the seabed and sub soils in the continental shelf, which were within the boundaries of Sarawak even before Malaysia Day.
Further, the Parliament has passed legislations to amend Merchant Shipping Ordinance 1952 of Malaya and extend the Ordinance to Sarawak. It repealed Sarawak Merchant Shipping Ordinance, 1960.
He said the state government has objected to the Merchant Shipping (Amendment and Extension) 2011 (Act 1393), which could only be extended to Sarawak, after consultation with it. The amendments were prejudicial to the interests of Sarawak as the definition of “Malaysian waters” would be the same as the “territorial waters” under section 6 of the Territorial Sea Act, 2012, which imposes a limit to only three (3) nautical miles from the shores.
Datuk Patinggi Adenan said the amendments related to removal of wrecks in navigable rivers (which were under the jurisdiction of the Sarawak Rivers’ Board and the Controller was a Deputy Receiver of Wrecks in Sarawak). The Buoys and Lights Board (whose members are appointed by the Yang di-Pertua Negeri) would be abolished and all monies in its Fund would be transferred to a fund to be established under a proposed Light Dues Act to be passed in Parliament.
The extended provisions of Malaysian Shipping Ordinance shall prevail not withstanding any provisions in the state laws to the contrary. Thus, the powers given by the amendment to the Director of Marine to regulate cable lying, dredging, marine construction and mining in areas under the territorial waters would be assumed by the Director even though such activities were in the seabed and sub soils or state land.
He said the state government, which considered the amendments detrimental to state’s interests, did not agree to the changes in the law or the repeal of the Sarawak Shipping Ordinance1960.
He said the Gas Supply Act, 1993 (Act 501), passed by Parliament in 1993, to license and control the supply of gas by pipelines and related matters, was made applicable throughout Malaysia including Sarawak from 4 February, 1993.
The subject matter of Distribution of Gas, was delegated to Sarawak vide the Borneo States (Legislative Powers) Order 1963. This delegation is still in force. Hence, the authority to legislate on Distribution of Gas in Sarawak still lies solely within the legislative competence of the State Legislative Assembly.
The State Legislative Assembly, pursuant to the said Order, passed Sarawak Gas Supply Services (Operating Company) Ordinance 1995, which came into force on 30 November, 1995, to regulate the supply of piped gas, especially in the Miri areas.
Recently, a Bill was presented to Parliament to amend the Gas Supply Act, 1993 to expand the scope of the Act to cover “transportation, distribution, retail and use of gas in the supply of gas through pipelines”.
The Dewan Rakyat, following representations by the state government, when considering the Bill at Committee Stage, made an amendment to exclude the application of the Act to Sarawak before it was finally passed by Parliament. The state government had to say no to the extension of the Act to Sarawak, without prior consent of the Yang di-Pertua Negeri Sarawak
Obviously, the state government must be more vigilant in ensuring that laws passed by Parliament do not encroach upon the legislative authority of the state. In this regard, Members of Parliament from Sarawak must assist in maintaining this vigilance.
