The Emergency Proclamation which was lifted on Nov 23, 2011 and the legal requirement for six months lapsed on May 24, 2012.
By May, 2014, twenty-four months would have lapsed.
A full two years of non-activity on the part of the state government of Sabah and Sarawak is appalling.
As at May 24, 2012 Petronas is no longer the “legal owner” of the Sabah and Sarawak territorial waters.
The Federal Government had tried to rectify their mistakes by tabling Act 750 under the Malaysia
Territorial Sea Act 2012, and passing in parliament in June 2012.
This was done two months after the legal requirement had lapsed.
The interesting thing is that this Act 750 is unconstitutional yet it received the Royal Assent on June 18, 2012. It was gazetted on the 22nd of June 2012.
Act 750 is unconstitutional because under Section (1) Sub-Section (2) it states: “This Act comes into operation on 22nd June 2012 and shall apply throughout Malaysia”, which means that it also applies in Sabah and Sarawak territorial waters.
The question arises however when the limits of territorial sea is set to 3 nautical miles by Section (3) Sub-section (3) of Act 750 which states: “For the purpose of the Continental Shelf Act 1966 [Act 83] and the Petroleum Mining Act 1966 [Act95], the National Land Code [Act56/65] and any written law relating to land in forced in Sabah and Sarawak, any reference to territorial sea therein shall in relation to any territory be construed as a reference to such part of the sea adjacent to the cost thereof not exceeding 3 nautical miles measured from the low-water line”.
This Section (3)(3) of Act 750 is the same as the Emergency (Essential Powers) Ordinance No.7 of 1969 which is no more applicable after the Emergency Proclamation was lifted.
It is now unconstitutional
The Emergency (Essential Powers) Ordinance No.7 1969, Section (4) Sub-section (2) states: “For the purposes of the Continental Shelf Act, 1966, the Petroleum Mining Act, 1966, the National Land Code and any written law relating to land in force in Sabah and Sarawak, any reference to territorial waters therein shall in relation to any territory be construed as a reference to such part of the sea adjacent to the coast thereof not exceeding three nautical miles measured from the low-water mark.”
The word “any written law relating to land in force in Sabah and Sarawak” is perfectly legal to use in the Emergency (Essential Powers) Ordinance No.7 1969 because of the Emergency Proclamation was still in effect.
But it is now unconstitutional to use in Act 750 because the Emergency Proclamation has been lifted.
Act 750 becomes unconstitutional when it touches the powers vested to the State Government by the Malaysia Constitution Schedule 9.
This is one of the safeguards and caveats put in the Malaysia Constitutions by the Inter-Governmental Committee Report (IGC) and the Malaysia Agreement 1963.
This Act 750 also encroached into the respective Sabah and Sarawak Land Ordinance which administers, manage and regulate land and mining in Sabah and Sarawak.
Act 750 therefore, requires the approval of both the State Legislative Assemblies in Sabah and Sarawak before it is applicable in these territories.
The question now is do both state governments have the political will discuss the issue and protect their respective state assets.
By Zainnal Ajamain
Zainnal Ajamain has held several senior positions in the civil service and government think tanks. He has worked as a lecturer, researcher, stockbroker and has published several papers in international media journals. He helped organise the United Borneo Front (UBF) grouping and remains active in politics.
No comments:
Post a Comment