Sabah’s decision to disallow a motion to discuss oil royalty at its Legislative Assembly sitting last month showed its fear of Umno-led Putrajaya.
Unlike Sabah, the Sarawak Legislative Assembly allowed such a motion to be discussed and passed.
But instead of discussing ‘ownership’, Sarawak passed a motion that the royalty payment should be increased from 5% to 20%.
The fact that Sarawak is taking the royalty route reflects that here too there is fear of Putrajaya.
But unlike Sabah, Sarawak has the audacity to “test the waters” so to speak.
Allowing opposition Kota Sentosa assemblyman Chong Chieng Jen to move a motion for the Federal Government to increase the royalty payment in lieu of oil and gas rights to 20% of the gross value of extractions showed the maturity of Sarawak politics.
It also showed the cunningness of the Sarawak Government.
By allowing the opposition to take the lead, the State Government has allowed itself deniability as consequence of this demand.
This is totally the opposite of Sabah politics whereby only the Sabah Government assemblymen are allowed to move a motion in the august house.
But oil and gas rights is a complicated issue and in this matter the Sabah Government is paralyzed by fear of the possible repercussions from the centre (Putrajaya).
What is clear however is that for the Sarawak Government the welfare of the people counts.
The Sabah Government on the other hand is only concerned about their masters in Putrajaya and not the people in Sabah.
Petronas has no say
Responding to Sarawak’s motion, the CEO of Petronas said they would leave it to the Federal Government to decide.
This is very interesting because it confirms that Petronas no longer owns the oil and gas reserves found in the Sabah and Sarawak territorial waters.
They are now looking to the Federal Government for answers.
It will be interesting to watch whether or not the Federal Government will acknowledge that they no longer have ownership of Sabah and Sarawak territorial waters.
This is because as far as the Territorial Sea Act 2012 is concern, it can only be applied in Malaya.
The Act cannot be applied in Sabah and Sarawak because Act 750 (3) states: “For the purpose of the Continental Shelf Act 1966 [Act 83], the Petroleum Mining Act 1966 [Act95], the National Land Code [Act56/65] and any written law relating to land in force 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 coast thereof not exceeding 3 nautical miles measured from the low-water line.”
This particular section of Act 750 is a direct duplicate of Section 4 (2) of the Emergency (Essential Powers) Ordinance, No.7, 1969.
During the emergency, the ordinance was enforceable but once emergency was lifted it contravened Schedule 9 of the Malaysia Constitution specifically on land matters.
This means Act 750 cannot simply override the Land Ordinance in Sabah and Sarawak as well as the North Borneo (Alteration of Boundaries) Order in Council 1954.
This Act 750 still requires the approval of the respective Sabah and Sarawak Legislative Assembly.
Legislations now void
In addition the Continental Shelf Act 1966 and the Petroleum Mining Act 1966 was only enforceable in Sabah and Sarawak through the Emergency gazette P.U. (A) 467/1969 dated 8th November 1969.
These Acts too are no longer enforceable in Sabah and Sarawak. They became void six months after the Emergency Ordinance was lifted on Nov 24, 2011.
The pertinent question here is does the Federal Government still have ownership over the Sabah and Sarawak Continental Shelf?
Using the opposition to lead the demand for 20% increase in royalty is Sarawak indirecty asking Putrajaya if it still owns these territorial waters.
Without ownership Putrajaya cannot transfer the Continental Shelf of Sabah and Sarawak to Petronas.
Which is why Petronas cannot make any decision.
The decision must be made by the Federal Government.
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
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