Amendments to Restore Borneo States’ Territories or Wilayah

Alex Ling

“A thing antecedent to a government, and a government is only the creature of a constitution. The constitution is not the act of its government, but of the people constituting a government” is an axiomatic jurisprudence by Thomas Paine.

For amending Article 1 (b) the erroneous definition of “The Federation” established under FMA 1957 instead of 1963 would seem to be fudged similarly to Item 8 (j) of the Federal List, 9th Schedule in Article 160 (2). It would be incomplete and meaningless without holistic amendments of the Act and Federal Constitution (FC) or “Economic Constitution” for the restorations of the equal partners’ status, rights and the ownerships of the O&G in the “Wilayah” or “Territories” of the States of Sarawak and Sabah, referred to in Articles 1 (3) & (4) and 2 (a) of the FC, that were used recently by the PM – not the other definitions of “Region” (too indefinite and wide) and nor “Province” (incorrect, only administrative division), originated from Arabic language.

The doctrine of State Succession under the FMA 1963 will take care of Public Service under the amended Articles 160 (2) and 162 (3).

Such amendments must comply with the 4 Fundamental Constitutional Documents (“4 FCDs”), namely, the Malaysian Agreement 1963 (MA 1963) with Malaysia Act 1963 (MAct 1963), as its Annex “A”, IGC Report 1962 and the original unfudged Federal Constitution, backed with Recommendations of the Cobbold Commission, and also under Public International Law, as MA 1963 is also an international multilateral treaty. Even when Singapore had exited Malaysia on 9th August 1965, that treaty was still intact, according to Lord McNair of Cambridge University, who wrote “Treaty”.

First Tier to execute the TSAM

These 4 FCDs are the basic instruments for holistic amendments of Article I, not merely Article I (b), in accordance with the compulsory constitutional and treaty’s protocols, for the amendments of the FC by a Tripartite Supplementary Agreement (TSAM) to be executed, after the approvals of the Legislative Councils of the 3 remaining parties, namely the States of Malaya or the equivalent legal entity, Sarawak and Sabah, not the federal parliament first, under Article VIII of MA 1963 on the pertinent related provisions of the FC and Acts. Act 354, Petroleum Development Act 1974 (PDA) Exclusive Economic Zone Act 1984 (EEZ), Territorial Sea Act 2012 (TSA) and others must be amended in tandem as provided and envisaged under the same Article VIII.

Under MA 1963 and MAct 1963, the TSAM on the agreed wordings of the proposed amendments must be executed first to restore the original constitutional provisions or to amend any subsequent unconstitutional and illegal amendments and other parliamentary Acts.

The critical entrenched 7 provisions of the FC (7 FCs) and 7 protective municipal laws of Sarawak (7 PMs) were reconfirmed by Article 76 and others of the United Nation Convention of the Law of the Sea 1982 (Unclos).

The 7 entrenched Federal Constitutional Clause’s (7 FCs) are Articles 4 (1), 76 (3), 76 (4), 80 (3), 95 D, Items (a), (c) and (d) of the State List in the 9th Schedule with no compulsory acquisition of land (including oil and gas) thereby prohibiting the application of Article 13 of the FCs on compulsory acquisition.

For the Seven Protective Municipal Laws of Sarawak (7 PMS) are section 3, 4 and 34 (1) of Oil Mineral Ordinance 1958 with amendments in 2018, Order in Council 1954, 3 years before Merdeka of Malaya in 1957, Section 32 (1) (g), 36 (2) and 209 (1) on all leases and 112 of the Sarawak Land Code 1958 for registration for all leases to be valid and enforceable, the Supplementary Deed 1956, Section 3 of the Sarawak Interpretation Ordinance 2015, reinforced by Articles 76 and others of the United Nations Convention On the Law of the Sea 1982 (Unclos) and under Article VIII of MA 63, a multilateral treaty and a constitutional agreement for “assurances, undertakings…. in so far as they are not implemented by express provisions of the constitution of Malaysia.”

The ultra vires and void amendments of the original Article 1 (2)(b) by Act 354 to the present Article 1 (2) cannot be constitutionally amended without amending first Section 4 of the MAct 1963 under TSAM. Similarly, the present amended Article I (4) on the Federal Territories (FTS) is void, as they are not “States” nor defined as “Territories” under the present Article I (3) before or after Malaysia Day nor in Sections 4 (2) & (3), Section 9 of the MAct 1963 and Articles 1 (2) & (3) and Article 46 originally. The 13 void FTs,
namely Selangor with 11 MPs seats (1973), Putrajaya 1 seat (2001) and 1 for Labuan (1984), were established under the Constitution (Amendment) Acts, without the approvals of DUN and Sabah’s Legislative Council for which the MPs cannot bind them by voting for any amendment in Parliament.

Similarly, the “Exit” of Singapore which was unconstitutional for breaching section of 4 (2)(c) of MAct 1963, identical to the original Article 1 (2)(c), could not be amended by parliament under Act 59/66 because there was no such TSAM executed. “Admit other States to the Federation” under Article 2 (a) does not include ”Exit”; even fiat accompli cannot “cure” constitutional breaches. “Admit other States or approve the exit of any State from the Federation. “ Is for the amendment of Article 2A.

Second Tier on Federal’s quid pro quo to regularize void Federal Territories.

In the Second Tier, these FTs under the present Article I (4) were also in breach of the Federation of Malaysia Agreement (“FMs”) 1963, FMS of Malaya 1957, Section 4 (3), the original Article I (3) and Article 2 (a) on the admission of “new Territories” or “other States of the Federation” with no definition on “Federal Territories” in Article 160 (2), except Territories meaning Wilayah which were specifically stipulated in Articles 1 and 2. “State” means a State of the Federation of Malaysia.

Constitutionally, Section 9 of MAct 1963, identical to Article 46, has stipulated 104 House of Representatives or MPs from the States of Malaya out of 159 or 65.4%, These must be constitutionally amended first under the mandatory TSAM, under MAct 1963, the “Annex A” to MA 1963.

Thus, the amendments of Articles 46 and 1 (4) on the ultra vires increase of the MPs by the Federal government and States of Malaya in breach of the assurance of the NTTR or 65.4% for the States of Malaya, after the Separation Agreement of Singapore on 9th August 1965, was unconstitutional and void by taking over Singapore seats not rightful “owned” by the States of Malaya, and compounded by the subsequent 13 void and illegal FTs under the void Article 1 (4).

Moreover, section 4 of MAct 1963, identical to Article I, was equally not amended under the TSAM thereby rendering the 3 amendments void, namely (a) the new Article 1 (2) on Article I (2)(b), (b) new Article 1 (4) on the void and illegal 13 FTs and (c) by deleting Singapore under Articles 1(2)(c) and Section 4(2)(c) by Act 59/66 without the constitutional protocol of TSAM.

Oral assurances or undertakings by PM Tun Razak which are binding under Article VIII of MA 1963 “in so far as they are not implemented by express provision of the Constitution of Malaysia” are also sanctioned under Article 3 (a) of the Vienna Convention on the law of Treaties and Customary International Law on (a) the additional 5% “royalty”/cash payment (“R”/CP) as development fund to be paid by the Federal Government, not Petronas, in consideration of Sarawak aborting the Declaration of PDA 1974 in the Privy Council, London to be, void, illegal and therefore unenforceable; (b) on the Assurance of Tun Razak stipulated under Section 9 of MAct 1963 and Article 46 of the FC that the States of Malaya would abide NTTR or 35.4% in parliament to entice and convince the leaders of the Borneo Territories to join in the formation of Malaysia.

The Third Tier is to amend Act A 354, PDA 1974, EEZ Act 1984 and TSA 2012.

On the Third Tier the unconstitutional Section 2 of Act A 354 of 27th August 1976 must be repealed for breaching Section 4 (2) (c) of MAct 1963, and the original Articles 1 (2) (c) – by the amended Article I (2) – and Article 2 (b) because:

It has relegated the status of Sarawak and Sabah as equal partners or “Nation – States” – e.g. Singapore – to the same status as other States of Malaya – such as Malacca – as the 12th and 13th States of Malaysia, but Sections 66 (1), (2), and particularly (3) of MAct 1963 and Articles 161E (1), (2) and particularly (3) have forbidden that relegation.

Besides, it has also breached Article 2 (b) by the void and illegal alterations of Sarawak’s and Sabah’s boundaries of its Territorial Sea, namely by reducing from 12 to 3 nautical miles for the O&G, similar to the States of Malaya, without the prior – nor even subsequent- approvals by Sarawak’s Dun nor Sabah’s, thereby rendering Act 354 void, illegal and not enforceable.

So, the original Articles 1 (2)(b) and 1 (3) must be restored, “The Territories of each of the States …in clause 2…are the territories…before Malaysia Day”, excluding even the amended FTs.

TSA 2012 on the same reduction to 3 nautical miles must be amended not to be applicable to the Borneo States, including FT of Labuan, to prevent unhappy Federal encroachments or violations of Sabah’s Territorial water of 12 nautical miles, the EEZ of 200 nautical miles and 350 nautical miles of its continental shelf.

By breaching Article 2 (b) and the rest of 7 FCs and 7 PMs, the Petroleum Act of 1974 (PDA 1974), EEZ Act 1984 and TSA 2012 must be amended to be not applicable to the Coastal States of Sarawak and Sabah – reconfirmed by Enclos 1982 which was ratified by Malaysia on 14th November 1996.

Fourth Tier is Rectification of the breach of the “ NTTR” or over 65.4%

None of the Borneo States has amended first under Sections 4, 8, 9 and 66 (3) of MAct63 constitutionally and Article 2, specifically under the TSAM as “Annex A” to MA 1963, before amending Articles 45, 46, 1 (2) & (3) and 1 (4) on the unconstitutional and void increase of the seats of MPs for the States of Malaya on or after the 9th August 1965, when Singapore exited Malaysia. Therefore, retrospective amendments to restore the original Articles 1 (2) (b) and agreed amendments of 46 are mandatory including the 4 void Senate members of FTs under Article 45.

The Borneo State’s leader who were deliberately kept in the dark until that Separation Agreement was executed, had lost that only opportunity to get the Prime Minister Lee Kuan Yew, our PM and Deputy PM of Malaysia, to reconfirm face-to-face the verbal assurance given to the Borneo States’ leaders on NTTR by Tun Razak before the formation of Malaysia, before the execution on the formal “Exit” and necessary amendments for the 15 seats of Singapore to be all assigned irrevocably to Sarawak and Sabah proportionately in the ratio of 24 to 16 to maintain that 65.4% or NTTR for the States of Malaya. With the breaches of NTTR, the 13 void FTs were created subsequently as a constitutional gloss and limbo in breach of Sections 4 and (9) of MAct 1963, Articles I, 2 (a), Articles 46 and 45.

Similarly, without amending under the 4 FCDs with TSAM first, the void and illegal amendments of Articles 1(2), 1(3), 46 and 45 on the void “FTs” under Article 1(4) (Subs. Act A1095) have breached the NTTR or 65.4% by reducing the Borneo States’ entrenched seats from 77 to 56, and by allocating 75% or 166 seats out of the void increase to 122, totalling 222 seats by the Constitution (Amendment) Acts 1983 and 84.

Indeed, these serious constitutional violations and the ultra vires “admission” of the 13FTs under Sections 4, 8 (4 seats for the Senate under Article 45) and 9 of MA1963 and purported Articles I (4) and 46 of the FC and Article 2(a) have paved also for the void increase of seats to 166 for the States of Malaya, including the 13 parliamentary seats for the FTs against the spirit and letter of the Constitutional Agreement and International Treaty of MA 1963.

But the quid pro quo for the necessary amendments to restore MA63 will be the fundamental reasonable pre-conditions by Borneo States to demand the restoration of that NTTR (65.4%) for the States of Malaya and 13 FTs by increasing 32 seats for the Borneo Territories for legalizing constitutionally the 13 FTs on which they must accept as the fair trade-off for necessary rectifications and ratifications of the constitutional gloss and limbo of the 13 FTs under Articles 1(4), 2(a), 1(2), 45, 46 and the fundamental breaches of the proviso of Article 2 (b) and corresponding Sections of MAct 1963, apart from the 7 FCs and 7 PMs.

Equitable Solution with amendments.

In brief,

(i). For the preconditions for amending Sections 4 and 9 of MAct63 first, then Article 46, 1(2), 1(4), 2(a) with new Articles 2A and 46A proposed to rectify and ratify the unconstitutional 13 seats of the FTs in the parliament and 4 seats in the Senate, 32 new seats must be legislated to be added to the total House of Representatives from 222 to 254, with the 32 new seats to be allocated to Sarawak and Sabah in the ratio of 31(18) to 25 (14), henceforth always to maintain the NTTR or 65.4% for the States of Malaya and the FTs, as the States of Malaya had only 104 out of 159 parliamentary seats originally and Federal Territories never existed then.

(ii). Parliament would have to pass the 3 following contents of amendments under Article 46 A, namely by:
Stipulating that from the date of the amendment, the States of Malaya or equivalent and FTs shall henceforth abide NTTR or 65.4% of the total seats of the MPs under the amended Article 46 and Section 9 of MA 1963 to rectify and ratify the illegal and void status of their 13 MPs and 4 Senators of the FTs, apart from reimbursements of their decades of financial perks.

Stipulating that 32 new seats in the House of Representatives shall be increased to maintain the NTTR for the States of Malaya and the 13 FTs at all times henceforth from 222 seats to 254 seats now to be allocated at the ratio of 31 to 25 for the States of Sarawak (18) and Sabah (14) respectively, including any increase of seats in the future. No more increase beyond 13 FTS and no alterations of the 4 boundaries from 12 nautical miles of Territories waters to 350 nautical miles of the continental shelf of Sabah shall be allowed.
Stipulating that the amendments of Articles 1(2), 1(4) and 46 must be made only after the amendments of Sections 4 and 9 of the MAct63 and Articles 2 (a) and (c) with new Articles 2A and 46A under that TSAM to be executed before the 13 FTs under Articles I, 1(4) 45 and 46 can be constitutionally amended.

Only with these holistic amendments the Borneo States’ Territories or Wilayah can restore their original rights enshrined in the constitution that were whittled away by the Federal winds and waves over the last few decades.

Restoration on paper rights are important, but more importantly will be the sharing of the wealth of Sarawak’s and Sabah’s oil and gas, legally and equitably overdue for over four decades, apart from grants.

After receiving briefings on the methodology and sad history of 35% short changes in Sarawak’s O&G, YAB Tok Nan wanted to use the constitutional, legal and the financial leverages as well as the State’s immigration powers with the State’s right to issue licences under Item 2 (c) Ninth Schedule State List for its O&G. Then, the State Sale Tax would be imposed as the alternative legal avenue under Item 7 of Part V 10th schedule to substitute the restrictive and pertinent 10% ad valorem “royalty” under Item 3 to increase up to 20% “R”/CP approved by DUN, consisting of 5% official (from Petronas); and 5% unofficial “R”/CP assured by PM above (from Federal); 5% increase for “R”/CP; and another 5% under the proper States Sale Tax – now enforced in 2020.

That demand of 20% “R”/CP would be legal, equitable, overdue from Sarawak’s O&G – a “pittance” of 5% official, 5% unofficial “R”/CP with a big unpaid balance of over RM 30 billion and shortchanges of 35% by Petronas and the Federal Government which are enjoying 75 to 80% of the total profits with the declaration of 65% only of the productions/net profits to the ROC/SSM already for 4 decades.

There were shortchanges of about 35% in the Share Sale/Split Barrels by Petronas on both official and unofficial “R”/CP, not declared to ROC/SSM, amounting to several hundreds of billions for four decades until 2018-2019 – now Kudos to Petronas in reporting the 100% productions/net profits.

Hope that Putrajaya would consider the shortchanges to be paid with big discounts over 25 years.

Infact, there was a whooping shortchange of RM 19.298 billion alone in the 2017 Annual Accounts filed by Petronas with SSM against the true net profit of RM45.4 billion declared in the media.10% “R”/CP was RM 1.93 billion.

In early January 2021 Tunku Razaleigh the ex-Chairman of Petronas from 1981-2011 revealed unsolicitedly that RM 1.4 trillion was handed by Petronas to the biggest political party in West Malaysia over a period of 30 years, out of which at least RM 700 to 800 billion would have come from Sarawak.

The holistic amendments mentioned above of the various Articles and Acts would be the assured gateway for the meaningful restorations of Sarawak rights under Article VIII of MA 1963 targeted ultimately as Sarawak’s rights in the “Economic Constitution” to redress an overdue, balanced and equitable sharing of Sarawak’s oil and gas to finance the development of our State, the Nation and the King.

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