I am an independent researcher on Declassified Documents and Constitutional Rights of the Borneo States of Sabah and Sarawak
Over the years, since the early formation of the Federation of Malaysia in 1963, the new Federal Constitution has been subject to the various amendment which inadvertently affects the Borneo States of Sabah and Sarawak in one way or another.
If we look tentatively throughout history in the past decades, the constitutional trail was obvious on the purpose of such amendment. It begins with the separation of Singapore in 1965. On which, after this event, the Federal Government has made various Acts of Parliament and constitutional amendments affecting the Borneo States of Sabah and Sarawak. In particular, are the Continental Shelf Act 1966, Petroleum Mining Act 1966, Constitution (Amendment) Act 1968, Emergency (Essential Powers) Ordinance, 1969, Petroleum Development Act 1974, and Constitution (Amendment) Act 1976.
Ardent constitutional opinions have been put forwards to strengthen the case of Sarawak rights over our territorial waters in recent times. Here, let us look at it based on a new context, in addition to various other constitutional opinions that have been put forwards before us.
I’ll present another set of examples, on how the Federal Government of Malaysia can take over Sarawak territorial waters through a constitutional scheme that they have devised, even before the passing of the Petroleum Development Act (PDA) 1974 in parliament. This particular constitutional scheme which I’ll discuss in detail below was done through primary and secondary breaches of the Federal Constitution, regardless of the provisions given in the Malaysia Agreement 1963 (MA63), IGC Report (IGC), and Federal Constitution itself.
After reading this additional constitutional argument, less that we know, the Malayans have been scheming prior to the passing of the PDA, to ensure that they will certainly get their hands on our rich natural resources. One way or another.
The Federation of Malaysia has been constructed based on the IGC Report and Malaysia Agreement 1963 on which the representatives of the British, Federation of Malaya, North Borneo (Sabah), and Sarawak Governments work out the future constitutional arrangements, including safeguards for the special interests of North Borneo and Sarawak to cover various matters including the State Constitutions.
Unfortunately, not all provisions in the agreed terms have been annexed in the Federal Constitution to safeguards the State Constitution of Sarawak. In addition, manipulation of the Federal Constitution has been made through various constitutional amendments to curry the favor of the Federal Government, regardless of the rights of Sabah and Sarawak. Here, I put forward two constitutional discussions, on how the Malayans through the Federal Government have devised their constitutional scheme to encroach the rights of Sarawak especially on our territorial waters that come with it, our rich natural resources.
In the Federal Constitution, there is Part I of the Eighth Schedule which referred to as “the essential provisions”. Basically, “the essential provisions” contain the provisions to be inserted in the State Constitution on which it provides the basic template for the construction of the State Constitution. Therefore, any evolvement of the State Constitution must be made in compliance with “the essential provisions” to ensure no inconsistencies and to ensure compliance of the law among the State Constitution of various states in the federation and its compliance with the Federal Constitution.
In Part I of the Eighth Schedule of the Federal Constitution, Section 19(4) with sub-heading “Amendment of the Constitution” expressed that, "A Bill for making an amendment to the said Constitution (other than an amendment excepted from the provisions of this subsection) shall not be passed by the Legislative Assembly unless it has been supported on Second and Third Readings by the votes of not less than two-thirds of the total number of members thereof." These provisions provide that a majority of two-thirds of votes in the Legislative Assembly of the State is required to amend the State Constitution. There is nothing wrong with these provisions, as they properly safeguard the State from any major amendments of their constitution, unless with a high majority of support from the Legislative Assembly.
However, subsection 19(5)(aa) of “the essential provisions” (Part I, Eighth Schedule) of the Federal Constitution has been inserted on 5 May 1973 which expressed that; "The following amendments are excepted from the provisions of subsection (4), that is to say:(aa) any amendment to the definition of the territory of the State which is made in consequence of the passing of a law altering the boundaries of the State under Article 2 of the Federal Constitution to which the State Legislative Assembly and the Conference of Rulers have consented under the said Article." These added provisions which were made before the passing of the PDA 1974 (PDA was enacted on 1st October 1974) have the potential to alter the boundaries of Sarawak. Through these additional provisions, any political parties that form the Government of Sarawak don’t need a majority of two-thirds to pass a bill to change or alter the definition of the boundaries that comprised thereof the territory of Sarawak. A simple majority of at least 42 votes from the total 82 members of the Sarawak Legislative Assembly is all it takes to alter our boundaries. A simple majority government that is.
This is none other than a constitutional scheme to manipulate Article 2 of the Federal Constitution, on which the Parliament has no power to alter the boundaries of any State without the consent of that State and of the Conference of Rulers. Meanwhile, Article 34(8)(a) only provides that the Yang di-Pertuan Agong can amend the Constitution of his own State only. Meaning, Yang di-Pertuan Agong has no jurisdiction under Article 34(8)(a) to amend the Sarawak State Constitution because Yang di-Pertuan Agong will not be elected from Sarawak to exercise this function.
Therefore, instead of the various requirement that the Parliament needs to go through to alter the boundaries of Sarawak, they can do it another way around, where the State of Sarawak itself alter their own boundaries which only required simple majorities in the Legislative Assembly. This is what subsection 19(5)(aa) of “the essential provisions” is all about.
Constitutional scheme to reverse the constitutional provisions. It is no coincidence that the sudden amendments of the Federal Constitution by inserting subsection 19(5)(aa) of “the essential provisions” were made prior to the passing of the PDA 1974. It didn’t benefit any State in Malaysia other than the Federal Government itself, for acquiring the rights over their natural resources over territorial waters at that time. The Malayans are well prepared through these constitutional schemes, in case of strong opposition from the Borneo States if they act against signing the PDA 1974 (Section 2(2)).
If Sarawak Government doesn’t comply with the signing of the PDA 1974, it is my strong assumption that the Malayans will try to activate subsection 19(5)(aa) of “the essential provisions” that they made prior, on which they will need to engineer a political downfall of the Sarawak Government and replace them with their proxies. Less we forget, this has happened in Sarawak through the constitutional crisis in 1966 when they replace Chief Minister Stephen Kalong Ningkan with their own hand-picked Chief Minister Tawi Sli.
If they were able to topple the Sarawak Government again today, their proxies which then act as Sarawak Government, even with minority vote can without a doubt through the power confer upon subsection 19(5)(aa) of “the essential provisions”, can make a law to alter the boundaries of Sarawak, especially on the definition of the territorial waters where our rich natural resources lied upon. This is how the Malayans will get their hands on our resources in case PDA 1974 failed. If Petronas losing their suit in Federal Court to legalize their operation by using PDA 1974 in Sarawak territorial waters, we should be on guard as this possibility may occur where the Malayans can takeover Sarawak territorial waters through another constitutional scheme that they have put in place since 1973, prior to PDA 1974.
Watch the video in my Youtube channel for more information in relation with the territorial waters of Sarawak
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2021 Dr Zulfaqar Sa'adi