Act 750: Federal Government latest attempt to plunder the Continental Shelf from All Malaysian States.


Executive Summary

The lifting of the Emergency Proclamation on the 24th November 2011 did not just abolish the Internal Security Act (ISA), it also made void the hundreds of laws and gazettes made between 15th May 1969 and 20th February 1971. The period when Parliament was suspended for 2 years following the racial riots in Kuala Lumpur. The number of laws and gazette abolished include those laws and gazette pertaining to the law of the sea or specifically pertaining to the ownership of the Continental Shelf.

The Ownership of the Continental Shelf is especially important because whoever owns the Continental Shelf, owns the Oil and Gas reserves contained therein. The racial riots in Kuala Lumpur have nothing to do with Continental Shelfs or the security of the country but the Federal Government took this opportunity to seize the Continental Shelf from every state in the Federation. In addition, the Federal Government limits the extent of each of the State’s territorial water to 3 nautical miles while anything beyond the 3 nautical miles belongs to the Yang Di-Pertuan Agong.

When the Prime Minister lifted the Emergency Proclamations in 2011, the laws and gazettes, which were used to grab the Continental Shelf and territorial waters of every state in Malaysia, were annulled as well. By right, the ownership of the Continental Shelf is no longer with the Federal Government but with the respective state government.

The Federal Government wants the Continental Shelf and  Territorial Waters back again

Realizing their mistake the Federal Government wants to take back the ownership of every States’ Continental Shelf and Territorial Waters. On 18th April 2012 before the six months lapse, the Federal Government tabled a Malaysia Territorial Sea Bill 2012 or ACT 750. The main purpose of the Bill was to comply with UNCLOS however; the other purpose of the Bill was to take back the Ownership of all the Continental Shelf and Territorial Waters inclusive of Sabah and Sarawak. The idea was based on the premise that since it is the Federal Government that needs to comply with the United Nation Convention Law of the Sea (UNCLOS), every state in Malaysia not only gives up their Continental Shelf but also limit their territorial waters to 3 nautical miles.

The Bill was passed without much debate from most MPs, perhaps it is because not many of our MPs understand the subject.

Since Malaysia is no more in the State of Emergency, Parliament cannot simply approve Act 750 without going through the proper process. Especially where State Rights is concern, Land is a State Matter. The Malaysia Constitution provides these safeguards to all States in the Federation under Schedule 9. There is also the case of the Federal Government limiting the boundary of each State to 3 nautical miles. This means Act 750 is changing the boundary of each of the State in Malaysia. In such a situation, Article 2 (b) of the Malaysia Constitution provides that the approval of each of the Dewan Negeri is required. In addition to the approval of the Dewan Negeri, the Malaysia Constitution also provides for the approval of the Council of Rulers before Act 750 is enforceable in each of the State in Malaysia.

Act 750 therefore is not enforceable in any state in Malaysia and the Federal Government cannot simply take over the Ownership of the Continental Shelf and Territorial Waters, Malaysia is no longer in a State of Emergency

Fulfilling UNCLOS is Malaysia obligation to determine its International maritime boundary. This has nothing to do with taking over the Ownership of the Land within the boundary.

 

Implications of Act 750 to the Malaysia Constitution

Act 750 creates more problems than solution for the mistake the Federal made in lifting the Emergency Proclamation. This situation is exacerbated when the limits of territorial sea for every state in Malaysia is limited to 3 nautical miles by Section (3) Sub-section (3) of Act 750 which says “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 coast thereof not exceeding 3 nautical miles measured from the low-water line”.

Firstly, the Continental Shelf Act 1966 and the Petroleum Mining Act 1966 was enforceable in Sabah and Sarawak because it was enforcable due to Emergency gazettes. Once Emergency was lifted these powers becomes void. Therefore the Continental Shelf Act 1966 and the Petroleum Mining Act 1966 is NOT enforceable on Sabah and Sarawak Continental Shelf any longer.

Secondly,”the National Land Code [Act56/65] and any written law relating to land in forced in Sabah and Sarawak” means this Act needs the approval of the Dewan Undangan Negeri of every state before it can be applied, this is because LAND is a State Matter.

Thirdly, Act 750 encroaches on Article 2 (b) of the Malaysia Constitution when the Federal Government limits the boundary of every state in Malaysia to 3 nautical miles to the coast thereof not exceeding 3 nautical miles”. This means that Act 750 changes the boundary of each of the State in Malaysia. Article 2 (b) provide that in the case of changing the boundary of any State it should be approved by the Dewan Undangan Negeri after which it should be approved by the Rulers Council. Act 750 has never been approved by any of the States in Malaysia; in addition it has never been brought to the Rulers Council as provided for by the Constitution.

Fourthly, by virtue of the above arguments, the Federal Government no longer has ownership over the Continental Shelf. Therefore the Federal Government no longer has anything to transfer to PETRONAS according to Section 2 (1) of the Petroleum Development Act 1974 (PDA74) and no longer has the rights to execute the Vesting Instrument provided for in Section 2 (2) of PDA74. The position and operations of PETRONAS is now questionable. In addition, all the Petroleum Sharing Contracts (PSCs) is also questionable. Which law is PETRONAS currently using to maintain its status quo? IF PETRONAS is illegal then is the Federal Government protecting its own company and supporting its illegal activities?

What should we do next?

Parliament is the highest law making body in the Federation, but this does not mean that Parliament can with impunity have the right to contravene the Constitution in making these laws. Unless the country is in a State of Emergency, then the Federal Cabinet holds absolute power provided all the laws and gazettes made in 1969 to 1971 are still enforceable. Since the country is no longer in the State of Emergency, the Federal Cabinet is just an arm of the government that must comply with the Malaysia Constitution – It no longer enjoys absolute power.

It is the Duty and responsibility of every State in Malaysia to create a motion in their respective Dewan Undangan Negeri to reject the enforcement of Act 750.

Zainnal Ajamain

Thank you

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About sifusiber
A husband & a father who wants his children to have a better future

3 Responses to Act 750: Federal Government latest attempt to plunder the Continental Shelf from All Malaysian States.

  1. Borneo Wiki says:

    My guess is that Act 750 was passed after UMNO was awakened by an article like this one by former Judge NH Chan: “Who owns the oil in Sabah & Sarawak”.

    An opinion by former Sarawak Attorney General said:

    State. J.C Fong in his book Constitutional Federalism in Malaysia, wrote, on p. 98:

    “But, the subject of ownership of petroleum (today, an important source of national wealth with current high global energy prices), found both on land and in the continental shelf of the States of Sabah and Sarawak which lies within the boundaries of Sarawak, was never a matter brought up to the Inter-Governmental Committee and hence, not included in its Report. Prior to Malaysia Day, the Borneo States exercised powers over petroleum found within its extended boundaries, i.e. the seabed and subsoil which lies beneath the high seas contiguous to the territorial waters of the respective states. With their boundaries maintained by virtue of Article 1(3) of the Federal Constitution, after Malaysia Day, the two states continued to exercise rights over petroleum found within its territories, including those found offshore.”

    You will note that this passage I have quoted from J.C Fong’s book says “… the continent shelf of the States of Sabah and Sarawak which lies within the boundaries of Sarawak“. The footnote for this sentence is:

    “20. See Sarawak (Alteration of Boundaries) Order 1954. A similar Order was made for North Borneo by the Queen in Council as both North Borneo (now Sabah) and Sarawak were colonies of Britain.”

    – See more at: http://www.loyarburok.com/2012/10/29/owns-oil-sabah-sarawak/#sthash.KLAaGjrv.dpuf

    http://www.loyarburok.com/2012/10/29/owns-oil-sabah-sarawak/

  2. I’m not a lawyer, I am but an average Joe with a little bit of understanding of the English language. If anyone would be able to clarify a few things that I’ve been thinking about, I would be glad. 1) What constitute a State of Emergency that will again enforce the 1969-1971 laws and gazzetes? Are there a definite criteria for such situation. 2)Given the recent incident in Lahad Datu, Sabah last year where i remembered a state of emergency was declared. Does that count as one? Does that mean that the 1969-1971 will be/ has been reinforced again in Sabah? and 3) As of this moment (August 2014), who own Sabah’s continental shelf’s custody? Thank you if anyone can clarify.

    • sifusiber says:

      A State of Emergency exist when it is declared via Article 150 of the Malaysia Constitution. Often it is declared because of Security issues in Malaysia that needs to be resolved. The State of Emergency is approved by the DYMM Yang Di Pertuan Agong through the Executives, the Care taker government or the Parliament. When Parliament is in session the Executive must first table it in Parliament and it must be approved by 2/3 members. In the case of the Caretaker government – the Executive will present it to the DYMM (1969 was in this manner) – this means Parliament will be suspended.
      It is possible for the State of Emergency to be imposed in Sabah again as how the Federal Government did it in 1966 to bring Stephen Kalong Ningkan down.
      As of this moment (2014) the Continental Shelf is in the custody of the Sabah State Government, because the Continental Shelf Act 1966 and the Petroleum Mining Act 1966 no longer enforceable in Sabah and there is no need to give notice to the Federal Government. YAB Datuk Musa Aman as the Chief Minister replied in the same manner to a question pose by YB Edwin Bosi in the DUN recently.
      PETRONAS continuing to extract Oil and Gas in Sabah’s Continental Shelf is therefor illegal but the State Government is not doing anything to stop such activity.

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