BY ALEX LING ON MAY 26, 2019, SUNDAY AT 12:07 AM
Act354, PDA1974, EEZ Act1984, FA1985 and TSA2012 have seriously breached the 4 boundaries of coastal states of Borneo under Article 2 of FC, apart from the 7FCs and the 7PMs
FOR once in the interests of the true constitutional history, legal history, geographical and political history of Sarawak, Sabah, Singapore and the Federation of Malaya and the Federation of Malaysia and its Malaysia Agreement 1963 (“MA1963”) with its Annex, the Malaysia Act 1963 (“MAct63”) inserted as the Federal Constitution (“FC”) of Malaysia in 1963 then, these 4 Territories joined together or “federated with” each other or united together to form the Federation of Malaysia. Sarawak, Sabah and Singapore never joined the Federation of Malaya under The Federation of Malaya Agreement (“FMA”) 1948 nor 1957, and then renamed the new Federation as the Federation of Malaysia, as the new wine in an old bottle re-labelled, if you will. That was the simplest and easiest explanation for understanding given by Tun (O) Ong Yoke Lin to an 18 year-old General Assembly of UN, but totally erroneous as the constitutional and legal history of MA1963. For avoidance of doubt all amendments of the FC must be in pursuance of the MA63.
1) The ultra vires and void amendments of the original Article 1(2)(b) by Act354 and the present Article 1(2) cannot be properly and constitutionally amended without amending first Section 4 of the MAct63 and amending the same unconstitutional status of the present Article I(4) without amending the identical Section 9 of the MAct63 and Article 2(a) first also on the 3 Federal Territories (“FTs”), namely of Selangor with 11 MP seats (1973), Putrajaya 1 seat in 2001 and another seat for Labuan in 1984.
These FTs as “the Territories of the Federation” [of Malaysia]in the unconstitutional and void Article I(4) are not “other States” of the Federation of Malaysia Agreement (“FMs”) 1963 nor FMs of Malaya 1957nor under the “admission of other States of the Federation” under Article 2(a) nor under the interpretation of Article 160(2) with no definition on “Territories” nor on “Federal Territories.” Constitutionally, Section 9 of MAct63 inserted as the identical Article 46 of the FC and Section 66(3) as Article 161(E)(3) must be and were not amended first under a mandatory Supplementary Agreement to amend MA1963 itself, namely on its Annex A, the MAct63, with the agreed terms by the 3 remaining signatories, namely the States of Malaya, Sabah and Sarawak.
Therefore, the amendment of Articles 46 and 1(4) on the ultra vires increase of House of Representatives by the federal government and States of Malaya in breach of the “no two third rule” for the States of Malaya, after the Separation Agreement of Singapore 1965 was unconstitutional and void by increasing more seats not rightful owned by the States of Malaya and compounded by 13 unconstitutional seats of FTs under the void amended Article 1(4).
Section 4 of MAct63 inserted as identical Article I of the FC was equally not amended by a similar Supplementary Agreement with 3 unconstitutional amendments, namely the new Article 1(2) on Article I(2)(b), new Article 1(4) on the 3FTs with 13 seats and deleting Singapore under Articles 1(2)(c) and Section 4(2)(c) by Act 59/66 which though not properly and validly amended, yet the federal government has accepted at least the constitutional requirement to amend the identical Section 4(2)(c) of the MAct63 inserted as Article I(2)(c) of the FC first. These entrenched constitutional sections of MAct63 were ingeniously and subtly designed by the British lawyers.
2) The exit of Singapore was unconstitutional under Article 2(a)of the FC and Section 4(2)(c) of MAct63, as “admission” does not include “exit.” A new Article 2(c) “to approve the exit of States” is needed for that ratification.
3) The serious alterations of the 4 boundaries, namely the territorial sea/waters, continental shelf, exclusive economic zone and international boundaries of the coastal Borneo States on Malaysia Day by Act354 1976, Petroleum Development Act 1974 (“PDA1974”), Exclusive Economic Zone Act 1984 (“EEZ1984”), Fisheries Act 1985 (“FA1985”) and Territorial Sea Act 2012 (“TSA2012”) were “The 5 offending Acts” which were ultra vires, unconstitutional and void under the most stringent entrenched Article 2(b) and its proviso on the first tier; and void against the 7FCs on the second tier; and illegal under thethird tier breaching the 7PMs and the important provisions in the United Nations Convention on the Law of the Sea 1982 (“UNCLOS”), ratified by Malaysia and came into force on 14th November 1996. Please see the map attached.
4) It is mandatory to amend the violations of the most stringent entrenched constitutional provision of Article 2(b) with its proviso stating clearly, “a law altering the boundaries of a state [Sarawak or Sabah] shall not be passed without the consent of that state [Sarawak] (expressed by a law made by the legislature of that state (Sarawak) first in reality. Therefore, Council Negeri in the next sitting should pass first its municipal laws by adopting the provisions of UNCLOS1982 on the four boundaries as “Sarawak Laws on Boundaries.”
Understandably with the narrow Strait of Johore, Singapore insisted Article 2(b) and its proviso to be inserted with no fear of two-thirds voting in parliament for altering the fixed boundary of the narrow East-West band for military aircrafts’ take-offs and landings.
Equally, to protect their dominions of Sarawak’s and Sabah’s O&G, their Order in Council 1954 (“OIC”) (Alteration of Boundaries) stipulated their international boundaries which were also their boundaries of their respective continental shelf extended from the depth of 600 feet to 350 nautical miles under Article 76 of UNCLOS 1982. In fact, their territorial waters/seas were reduced only in 1982 to 12 nautical miles under UNCLOS reinforced by Section 73(5) of the “present laws of MAct63, the mother of the FC,” the Land Code 1958, Articles 162(1) and (2) and OMO1958.
5) In parallel Act A354 has unconstitutionally repealed Articles 161C and 161D without proper amendment first by Supplementary Agreement on Section 64 of MAct63 on an important Muslim Education Grant in the Borneo States under Article 110, inserted as Article 161C and similarly on Section 65 on the Freedom of Religion related to Clause (4) of Article 11, inserted as Article 161D. Both Articles 161C and D which were unconstitutionally repealed among the “wholesale” legislations overnight should be reinstated. The 6 amendments to Article 1(2) on land and others have been proposed in the DUN.
However, all these most important constitutional Lacunas and limbos must and can be rectified and ratified with proper agreed constitutional amendments and procedures in a holistic fashion to make Putrajaya shinning on the hill with the implementation of Rule of Law, constitutional parliamentary democracy and legislation under a fettered parliament, unlike British parliament before joining EU. The Article 162(3) on the Federation of Malaya and “to the extent applicable to the Federation of Malaysia” “established under the Federation of Malaysia Agreement 1963” can be inserted side by side harmoniously on dealing with officers.
Act354 of 27th August 1976 has breached Article 2(b), 7FCs and 7PMsat 3 levels. How?
(1) On the first level, Act354 and TSA2012 ostensibly were to relegate the Borneo States to the status of the States of Malaya in breach of Section 66(3) of MAct63, an identical section inserted as Article 161E(3), which forbids to relegate the Borneo States to the status of the States of Malaya in relation to the change on the quota of the House of Representatives under Article 46 of the FC which was inserted from Section 9 of MAct63, as “the mother of the FC.” Why? Under Section 3 and First Schedule stated at the top of MAct63, critical and identical sections including the schedules were inserted “in, and become Articles of the [Federal] Constitution” of MA1963 while the 1957 and 1948 constitutions of the States of Malaya were granny of Reid and Sir Ivor Jennings, and great granny, so to speak.
That Sections 4 and 9 of MAct63 inserted as Article I and Article 46 of the FC respectively were not constitutionally amended first by a Supplementary Agreement as stated above. The 3 Federal Territories under the “Territories of the Federation” with 13 unconstitutional seats in the House of Representative under Article 1(4) (new but void) of the present FC could not be covered by “admission of other States to the Federation” under Article 2(a), because “State” means “a State of the Federation of Malaysia” under Article 160(2) which does not include “the Federal Territory of the Federation” which would be a small piece of land excised from a State under the exclusive jurisdiction of the federal government. So, Federal Territories are not “States” at all. They are in the constitutional lacunas and limbos with financial benefits and unconstitutional status for the 13 MPs that would need a holistic ratification by proper and considered amendments without hasty attempts by amending 2(a) “Admit other States and [Federal Territories] to the Federation.”
PDA1974 was passed too hurriedly needing Tun Mahathir’s amendments to ratify Petronas powers to invest in 1985.
The present amendment should not follow the unfortunate passing of PDA1974 hurriedly during Tun Razak’s watch under a public company, due to wrong legal advice, with several breaches of the Companies Act, 7FCs and 7PMs which has to be amended in 1985 to ratify the power of Petronas to invest and undertake commercial deals after 11 years later. Then, Petronas later again has to delete the unconstitutional, illegal and non ratifiable new Section 4 of PD(Amendment) Act 1985 after another correct legal advice a few years later by restoring the original Article 4 on cash payment to avoid the wording of “payment of royalty” which is a rose by another name. Our Prime Minister, a medical doctor, and his cabinet unfortunately have totally to rely on his legal advisers. The present Federal AG who is very heavily engrossed in 1MDB case, hopefully will resolve these serious issues under holistic amendments to exempt the Borneo States from the 5 offending Acts primarily under Article 2(b).
Act354, PDA1974, TSA2012 passed outside Tun Mahathir’s watch
(2) On the second level, the collateral motivesof the Act354, PDA1974, TSA2012 with the Continental Shelf Act 1966, Petroleum Mining Act 1966 and Emergency Ordinances No 7, 10 and 11 repealed in 2011, passed outside Tun Mahathir’s watch, were unconstitutionally and illegally trying to reduce the putative but actually broader breath of the territorial sea which were the same as their international boundaries until the reduction to 12 nautical miles by UNCLOS1982, leaving their respective OIC 1954 unrepealed, to the similar 3 nautical miles of the territorial waters of the individual States of Malaya after the purported relegation in violations of Section 66(3) of MAct63 and Article 161E(3).
(3) On the third level, Act354 and TSA2012 were unconstitutionally and illegally passed along with PDA1974 and others aiming to get covertly extra 9 miles from the 3 nautical miles outwards the purported rights of O&G, minerals and fisheries in the shallow waters of Baram, Luconia and Balingian formations with limestone reefs for O&G with cheaper costs of exploration, development and operation. But, the Federal imperium could not legally acquire any natural resources of O&G on land nor offshore belonging to the dominion of the Borneo States. The PDA1974had factually altered and took over the 4 boundaries unconstitutionally and illegally without compliance to the proviso of Articles 2(b) and Articles 76(3), (4) and 95D including land onshore within the boundaries of the Borneo States in violation ofthe Land Codes, OIC1954 and OMO1958 under 7PMs and 7FCs.
Unconstitutionally and illegally, politically and geographically, PDA1974 has since 1975 effectively altered dramatically all the 4 boundaries for the O&G resources from land, territorial seas, EEZ of 200 nautical miles to 350 nautical miles of Sarawak’s and Sabah’s dominions on their O&G, evidenced conclusively from its “power” not “object” clause in Article 3(1) of the Memorandum and Articles of Association of Petronas which claims :
“To acquire……keep the ownership, rights in respect of petroleum lying offshore and onshore” of the Borneo States, adopted from Article 2(1) of PDA1974.
The vesting instrument under its Schedule, signed by Tun Rahman as the Chief Minister without the Council Negeri’s knowledge and consent, on Tun Razak’s misrepresentation and concealment at first was intended only to show and convince Tun Mustapha and Tun Fuad to amend Section 48 of the Sabah Land Ordinance from 99 years to perpetuity similar to Section 13(1)(a) of the Sarawak Land Code. That was rejected by them; so the recission of that vesting instrument would be in order.
The 3 tiers of entrenched constitutional provisions of the 4 Sarawak boundaries have been altered unconstitutionally and illegally under Article 2(b) of the FC and others by the 5 offending Acts. How?
a) That unconstitutional, void and illegal and therefore invalid and unenforceable PDA1974 and the other 4 offending Acts were promulgated clearly against Sarawak and Sabah in the most serious violation of the unique first tier of the proviso of Articles 2(b) in the whole FC which forbids parliament to pass these federal laws even with the two third majority if the Borneo States have not passed the same offending Acts.
b) The second tier of that breaches was under Articles 4(1), 76(3) and (4), 80(3) and 95D (forbidding parliament to pass laws on land on the 5 offending Acts for the purpose of “promoting uniformity of law of 2 or 3 States”), and 162 called, “7FCs”. The entrenched constitutional protections and provisions of that State List, Ninth Schedule Items 2(a) onland 2(c) on the exclusive right to issue licences for O&G and 2(d) no compulsory acquisition of land with O&G below were violated by these 5 offending Acts, as Article 13 of the FC (compulsory acquisition of O&G with reasonable compensation) was designed ab initio only to be applicable to the States of Malaya.
c) The breach of the last tier for that alteration of boundaries was under the 7 protective municipal laws of Sarawak (“7PMs”) on its 4 boundaries, namely under OMO1958, Article 162(1) and (2) on existing laws, OIC1954, 3 years before Merdeka of Malaya 1957, Sections 32(1), 36(2), 209(1) and effective only on registration under Section 112 of Land Code, Supplementary Deed 1956, Sarawak Interpretation Ordinance 2005, lastly Article 76 and others of UNCLOS. The 5 offending Acts were never being incorporated as municipal or state laws of Sarawak and Sabah under Section 73(5) MAct63 and the proviso of Article 2(b).
Therefore, these 5 offending Acts were ultra vires, void and illegal and therefore unenforceable under Article 2(b), apart from 7FCs and 7PMs; and could not be passed constitutionally as federal laws against the Borneo States on the alteration of the 4 boundaries because the Borneo States never have passed similar laws to the 5 offending Acts. The federal government must follow the municipal laws promulgated in the coastal Borneo States first similarly by legislation to exempt the Borneo States from the 5 offending Acts before they adopt as the new federal laws, the international legal provisions of UNCLOS1982 with the “present (existing) laws” of the Borneo States under Section 73(5) of MAct63, 7PMs and 7FCs.
Holistic amendments are absolutely necessary to amend Articles I(2) and previous 1(2)(c) on the State of Singapore, Articles I(4), 2(a) (most critical) and 46 after amending first Sections 4 and 9 of MAct63, the mother of FC, closely intertwined,to conform to Articles 2(a) and (b) and UNCLOS 1982.
We hope all Malaysian MPs, Parliamentary Committees, Borneo States’ Legislatures and Datuk Liew Vui Keong will scrutinize carefully the broader, deeper, critical constitutional, legal ramifications and amendments of various constitutional lacunas and limbos, not only the skin-deep Article 1(2) in a holistic fashion, as laws and politics without history have no roots.
Let Borneo States have structural amendments and autonomy, not a mere transactional political expediency.
– Borneo Post