Prof Dr Navin C Naidu
A former federal minister reportedly questioned Sarawak’s position on its territorial boundaries. He went on to assert that they are supposedly wrong in law. He omitted mentioning which law served as the guiding light since he made reference to a host of laws.
First assertion by the former minister: That the “state’s position is premised on a basic misunderstanding of maritime law.” There are two issues here: one, Sarawak is a co-equal partner under MA63, not a “state” as wrongly and irresponsibly enumerated in Article 1(2) Federal Constitution.
Two, his reference to maritime law obviously includes the Geneva Convention on the Law of the Sea 1958, and UNCLOS 1982. The year 1958 is crucial in our rebuttal as that was the year the sturdy, strong and stable Oil and Mining Ordinance (OMO) was promulgated in Sarawak.
Maritime law, a/k/a admiralty law, concerns shipping routes, safety, security against piracy, illegal cargo, insurance claims, and civil claims between shipowners, seamen and passengers. Territorial limits of sovereign states to terrestrial, seabed and subsoil matters are left to local national legislation, not international maritime law.
The 1958 Geneva Convention’s primary aim was “to examine the law of the sea, taking into account not only of the legal but also of the technical, biological, economic and political aspects of the problem and to embody the results of its work in one or more international conventions or such other instruments as it may deem appropriate.” Comity between sovereign nations is the key to dispute resolution despite superpowers rattling the sabres. Laws are impotent.
UNCLOS 1982, to which Malaysia is a signatory, is focused on marine pollution, not territorial rights to inground minerals and metals. It does not have any enforceable effect on a sovereign nation’s territorial boundaries.
The Latin maxim a coelo usque ad centrum – from the heavens to the centre of the earth – is the guard and guide to territorial limits under maritime law. International law may be binding, but other than civil sanctions, each sovereign nation has the Natural Law right to defend its territory and its (extended) boundaries.
All laws, bar none, emanate from Natural Law. Positive law reared its deformed head after the Magna Carta and continues to cause untold strife and endless wars.
Second assertion by the former minister:“Why is Sarawak only now challenging the legality and constitutionality of laws which were put in place shortly after the formation of Malaysia?” Answer: MA 63 and the IGCR 1962 have been unceremoniously ignored which justifies Sarawak’s challenging unconstitutional laws.
“Which we put in place” is deceitfully uncomfortable in its connotations. If he said, “laws were passed under the tenets and strictures of constitutional supremacy,” his assertions would have been readable and laudable.
Third assertion by the former minister: “Speaking in his personal capacity, he said Sarawak appears to have misunderstood the difference between ‘exploitability’ and ‘the geological concept of a state’s territorial limits’.”
Again, the word “state” creates great constitutional consternation as Sarawak is a co-equal partner notwithstanding the misinterpretations, misapplications, and mistaken views on MA63 by the “funding and founding fathers” of Malaysia.
Fourth assertion by the former minister: “The Sarawak (Alteration of Boundaries) Order in Council 1954 and the 1958 Geneva Convention on the Law of the Sea dealt with where and what could be mined, which is known as ‘exploitability’.
Orders in Council were types of legislation passed by the colonial Crown. Being a pre-Merdeka law, its efficacy, applicability, and enforceability can be easily dealt with by our able and capable judiciary given the latitude of Article 162(6) (Existing laws) Federal Constitution.
Fifth assertion by the former minister: “Issues surrounding the territorial limits of states were only dealt with in the 1982 United Nations Convention on the Law of the Sea (UNCLOS).” Research indicates that his Convention, addressed marine pollution, not territorial limits.
Sixth assertion by the former minister: “The mining lease granted by the state to the Sarawak Oilfield Limited 1952 merely gave the corporation an ‘exploitation right’.”
Was Sarawak a “state” in 1952? Unfair, unjust and unconscionable pre-Merdeka laws can be tweaked, adjusted, amended, and even repealed, under Article 162(6) and (7) Federal Constitution.
Seventh assertion by the former minister: “Section 13(a) of the Petroleum Mining Act 1966 expressly repealed the OMO 1958 as regards the state’s right to explore, prospect and mine for petroleum offshore.”
Section 13 says this: Repeal and Saving. (1) All references to oil prospecting licences and oil mining leases in the Mining Enactments, of the States in West Malaysia shall be deemed to have been repealed: provided that any oil prospecting licence or oil mining lease issued under any of those Enactments shall continue to subsist for the duration of time for which it is issued and shall not be affected by this Act.
Therefore, the 1958 OMO “shall continue to subsist for the duration of time for which it is issued and shall not be affected by this Act.”
OMO 1958 is valid law and has remained undisturbed even with the impact of Article 162(6) Federal Constitution simply because the supreme law of the land cannot be subsumed by disingenuous political chicanery reaching the Royal ears as “advice” per Article 43 Federal Constitution. The PDA 1974 cannot hold a (lit) candle to the 1958 OMO. The PMA 1966 took care of that in no uncertain terms.
A later law, like the PDA 1974 vis-à-vis the OMO 1958 and the PMA 1966, may implicitly repeal an earlier law if the two laws are inconsistent and the later law doesn’t explicitly address the earlier law. PDA 1974 has often been deemed a stealth statute that chose to ignore the lasting impact of the 1958 and 1966 laws designed and structured for Sarawak’s territorial sovereignty.
The major issue confronting the federal government is its uncomfortably misguided understanding of the legality of MA63 and the IGCR 1962. Self-styled advisors and experts have disturbed and disrupted socioeconomic and geopolitical realities of 1963 that is still confronting the Borneo Territories in the Malaysian Federation.
Media reports evidence a plethora of plans, programmes, policies and politics to right the wrongs of MA63, and the IGCR 1962. Sabah and Sarawak may want to raise the ante and demand their just desserts under treaty laws.
Politicians who happen to be lawyers take a cursory view of the laws of the land without going for an in-depth analysis. Parliamentary laws in Malaysia are subservient to the Federal Constitution since we do not practise parliamentary supremacy.
What if the Natives of Sabah and Sarawak approached the Conference of Rulers to demand their uninterrupted and undisturbed mining rights under Article 153 Federal Constitution as “it shall be the responsibility of the Yang di-Pertuan Agong to safeguard the special position of the Malays and the Natives of Sabah and Sarawak . . .”
What if the Natives of Sabah and Sarawak invoked Article 161A(5) Federal Constitution concerning “the reservation of land to Natives . . . or giving them preferential treatment as regards the alienation of land….” as a direct original jurisdictionchallenge in Federal Court as granted under Articles 4(4) and 128 Federal Constitution?
Unfortunately, the former minister chose to pontificate his personal views on matters that vacillate and oscillate in a stupor of misunderstanding. However, he must be courteous and courageous enough to offer sincere apologies to Sarawak. He should also start researching the law and its outlandish applications that create confusion in misinterpretations.
The former minister touched on Sarawak’s sovereignty under MA63. “Sovereignty is an obligation as well as an entitlement. A government that will not perform the role of a government forfeits the rights of a government,” observed Richard Perle.
The time is nigh for Putrajaya to respect, revere, and regard the political support and advantage it enjoys from Sabah and Sarawak which hold 25 and 31 parliamentary seats, respectfully. That 56 seats may be viewed by some naysayers as the sword of Damocles hanging over Putrajaya.
Those 56 seats represent the territorial legitimacy and sovereignty of Sabah and Sarawak.
The views expressed here are those of the writer and do not necessarily represent the views of New Sarawak Tribune.
