BY PROF. (DR.) NAVIN C NAIDU
To befoul the unholy alliances between corrupt business and corrupt politics is the first task of the statesmanship of the day.
– Theodore Roosevelt, 26th president of the United States
There is no escaping the post-MA63 awkwardness that has caused an uneasy and unholy alliance between the stakeholders. Statesmanship may be the ultimate solution since the rule of law fell silent as if there is a clash of arms.
Talk in Malaya claims that the Borneo Territories did not have the wherewithal to extract its natural resources (oil, gas, timber, etc.), and therefore the Petroleum Development Act 1974 (PDA 1974) was promulgated to aid and assist its equal partners in extraction, production and profit-sharing.
But thetaking power of the PDA 1974 is strong and durable till today as is grossly evident. “PETRONAS is given the entire ownership and exclusive rights in exploring, exploiting, winning, and obtaining hydrocarbon resources in Malaysia,” claims its website today (emphasis mine).
And to give effect to your desires and wishes, you have the power and authority to pass laws to forcefully and forcibly take what is not yours. That runs afoul of the treaty arrangements in MA63 and the IGCR 1962. Abject deception masquerading as sound government policy.
There was obviously a huge mistake when PDA 1974 was passed given the fact that what was discussed, debated and agreed upon could not have been to the disadvantage to the Borneo Territories.
The case of Strickland v Turner (1852) 7 Ex 208 confirmed that a mistake as to the subject matter would amount to one which is fundamental to the decision to enter the agreement. In this case, there was a contract for the annuity of a person’s life, but there was a (rather large!) mistake, in that the person was already dead.
The idea of surrendering oil and gas rights – the subject matter – to full ownership and exclusive rights to PETRONAS was nothing but a blisteringly painful mistake in that a meeting of minds would not have yielded such a disadvantage to the Borneo Territories.
But politics, policy making, politicians’ agendas and motives can override and overrule any law merely by the inherent powers of overreach. Not surprising, because in 1974 the Barisan Nasional’s majority in Parliament could have coercively decided passing the PDA 1974, mistake or not, in its pith and substance.
Records of parliamentary discussions and debates (Hansard) would shed a great amount of light as to the intent, content, extent, reason and purpose of consensus that required a majority vote in Parliament for the taking power of PDA 1974.
Pointless talking about the law and the philosophy behind property rights. One recent article in a Malayan tabloid mentioned John Locke’s labour theory of property, but got convoluted in the writer’s posture about the rights of Sarawak to its natural resources.
The point to be made is that law and justice do not decide, or amount to a hill of beans, when a political master is carrying the whip. Sarawak’s leaders in 1974 may have been coerced and cajoled into accepting the PDA 1974 with all its promises to develop, load and fatten the coffers of PETRONAS.
In 2024, the politics of change and reform are wholly evident. Sarawak pulling out of Barisan Nasional and forming the Gabungan Parti Sarawak (GPS) in June 2018. Now the GPS has more than a fighting chance to outlaw PDA 1974. It will entail practical wisdom to set things right.
Executive overreach had reached its zenith in1988. The then Supreme Court in Dato Yap Peng v. Public Prosecutor [1988] 1 M.L.J. 119, courageously struck down a statutory provision which allowed the Attorney General to withdraw criminal cases before a lower court as a violation of the constitutional provision that vests judicial power solely in the courts.
Imagine the horror the legal fraternity, and the court of public, is forced to face today with the recent spate of DNAA events. The point is this: the law does not help, aid or assist any aggrieved party when the defendant happens to be the Government of Malaysia.
And then. Like the PDA 1974, the Danaharta Act (Act 587) of 1998 enumerated that courts could not make any order that would stay, restrain, or affect any action taken by Danaharta, the nation’s asset management company. In 2004, the final nail was hammered in – Danaharta Urus v. Kekatong [2004] 2 M.L.J. 257.
Part of the 20 Points that engaged the Malaysia Agreement 1963 was that Sabah and Sarawak were to be given a high degree of autonomy over their financial affairs, that they would retain some control of their own finance, development expenditure and tariff.
The word “some” is troublesome for obvious reasons. If the English version said so, was MA63 and the IGCR 1962 translated into various ethnic languages which the Native communities of Sabah and Sarawak could have referred to?
My research does not reveal any such ethnic translations for an important treaty like MA63 which required everyone in Sabah and Sarawak, especially the rural communities, to know what they were agreeing to in the first place.
Many writers say one-third of the population of Sabah and Sarawak was not sure; one-third was sure; and another one-third did not agree to the federation. We need great clarity on this.
If the law – past, present and future – cannot not help Sabah and Sarawak even the playing field, what other recourse is there? What will Putrajaya’s reaction be when the legislative assemblies of Sabah and Sarawak decide to pass laws to invalidate the PDA 1974?
Invoking Article 161A (Special position of Natives of Sabah and Sarawak) Federal Constitution may offer solutions because section (5) guarantees the Natives rights to land. Article 89 (Malay reservations) does not apply to Sabah and Sarawak. It undeniably upholds the sacrosanct property rights of the Borneo Territories.
The upshot of Article 161A(5) is that DUN Sarawak has the right to pass a law to invalidate the PDA 1974 because their natural resources – both onshore and offshore – constitute Native land rights.
The federal government may seek judicial intercession as is to be expected. Sarawak should tie up this vexatious issue in Federal Court as a court of original jurisdiction under Article 4(4) and Article 128 Federal Constitution.
A Petition from the Government of Sarawak, if it decides to settle this matter permanently, to the Yang di-Pertuan Agong who is constitutionally empowered under Article 130 Federal Constitution to seek the Federal Court’s advisory jurisdiction concerning the validity of the PDA 1974.
This course of action would be better than that by eleven Sarawakians in 2022 who sought High Court intercession to invalidate MA63, an international treaty in a local court. They should have sought the support of Government leaders of Sarawak as an initial measure.
Sabah and Sarawak leaders may see the pragmatic effect of challenging unjust and unconscionable federal laws that impinge on their natural law rights, instead of the obvious drastic measure that would permanently resolve this thorny issue.
The English version of the Holy Quran declares: “O you who have believed, do not consume one another’s wealth unjustly but only [in lawful] business by mutual consent. . .” Surah An-Nisa Ayat 29.
The Federal Constitution in Article 13 (Rights to property) is very clear on deprivation of property belonging to another. So, a powerful religious text, and the supreme law of Malaysia are of no aid or assistance to Sarawak in restoring its natural rights to its natural resources.
Sarawak’s leaders are indeed practical in using the rule of law to decide the imperatives of a zero-sum game engendered by the unholy alliance made further uneasy by the PDA 1974 in violation of MA63. The desired solutions, answers and remedies must sprout from wise and astute political decisions in the spirit of statesmanship.
Peter Levenda’s observation that “the people – confused, embittered, hungry, fearful – will bow their heads and accept the inevitable. They will trade in their freedoms forever for the promise of security today,” may be applicable to a patient Sarawak that requires statesmanship.
GE-16 may bring the necessary impetus to find a just and lawful resolution to end the impasse created by an obdurate federal government that shrugs off the sacrosanct natural law property rights of the Borneo Territories.
The views expressed here are those of the writer and do not necessarily represent the views of Sarawak Tribune.
