PRESS STATEMENT
PRESS CONFERENCE – 09 APRIL 2014
MOTIONS SUBMITTED FOR DUN SABAH SESSION 14-17 APRIL 2014
------------------------------------------------------------
Kota Kinabalu: INTRODUCTION
As many are aware, the hot topics on Sabah and Sarawak currently are related to
the Review of the Malaysia Agreement 1963 and the issue of “Oil Royalties”. What
used to be topics raised mainly by the opposition, they have now become
mainstream with Sabah BN leaders jumping on the bandwagon seemingly
changing their tune that the Malaysia Agreement/20-Points are not relevant to
that of championing for the rights of Sabah with regards to the Malaysia
Agreement and the 20-Points together with the so-called “oil royalties”.
Whether these BN leaders are genuine and sincere or merely following the coat-
tails of Sarawak leaders and jumping on the bandwagon to gain cheap publicity
because the people are demanding for these rights, it is left to be seen? Of course,
the people are saying that these Sabah BN leaders are not sincere and merely
mimicking because they need to be seen to be in support of the people’s growing
demands.
But what is clear, the voices of the people in Sabah and Sarawak are getting
clearer and louder. They are demanding the restoration of the rightful autonomy
and equal partner status to Malaya as well as the stopping of the rape, pillage
and stealing of Sabah and Sarawak’s oil and gas resources and wealth.
MOTIONS AND PRIVATE MEMBER’S BILL FOR DUN SESSION 14-17 APRIL 2014
After the 13th General Elections in May 2013, the State Reform Party, Sabah
(STAR Sabah) reiterated that it will continue its political struggle for justice,
change and for the recognition and implementation of Sabah's rights and
autonomy and that STAR will be the voice of Sabahans who want justice, their
rights reinstated, and for Sabah to be an autonomous region in the federation of
Malaysia.
This is also consistent with my humble self’s continued struggle for Sabah rights
and autonomy, the restoration of Sabah as an equal partner in Malaysia as well
as the re-claiming of Sabah’s oil and gas resources that were wrongfully and
unlawfully vested by the federal government to Petronas in 1975/76.
Therefore, consistent with our struggles and as the sole STAR representative in
the Sabah State Legislative Assembly, I have tabled three (3) Motions and a
Private Member’s Bill for debate in the forthcoming DUN session scheduled on
14-17 April 2014.
The Private Member’s Bill is the proposed CONSTITUTION OF SABAH
(AMENDMENT) BILL, 2014 which proposes an amendment to restore the position
of the Head of State of Sabah, TYT Yang DiPertua Negeri back to its original TYT
Yang DiPertua Negara. The proposed Bill is set out below.
The 3 Motions are:-
(1) BAHAWASANYA Kerajaan Sabah digesa dengan segeranya mengkaji kesahihan
Akta Pembangunan Petroleum 1974 (Petroleum Development Act 1974) yang
bercanggah dengan Perlembagaan Persekutuan dan hak-hak Sabah dan
seterusnya Kerajaan Sabah digesa mengambil segala tindakan yang selanjutnya
termasuk tindakan undang-undang dan melalui wakil rakyat Sabah di Parlimen
untuk membatalkan dan atau memansuhkan Akta tersebut; dan
BAHAWASANYA Kerajaan Sabah digesa dengan segeranya mengkaji kesahihan
Perjanjian Minyak bertarikh 14hb. Jun 1976 yang dimeterai diantara Kerajaan
Sabah dengan Petroliam Nasional Berhad (Petronas) dan bidangkuasa Ketua
Menteri Sabah ketika itu yang menandatanganinya tanpa perbahasan dan
kelulusan Dewan Undangan yang mulia ini dan seterusnya Kerajaan Sabah digesa
mengambil segala tindakan yang selanjutnya termasuk tindakan undang-undang
dan melalui Dewan mulia ini untuk membatalkan Perjanjian Minyak tersebut;
(2) BAHAWASANYA Kerajaan Sabah digesa dengan segeranya mengkaji semula
Perjanjian Malaysia 1963 bersama-sama dengan Kerajaan-kerajaan Persekutuan
Malaysia, Persekutuan Tanah Melayu dan Sarawak, yang sepatutnya dikaji semula
sepuluh (10) tahun selepas 1963 seperti yang dipersetujui dahulu dan yang telah
tertangguh sejak 1975; dan
BAHAWASANYA Kerajaan Sabah digesa dengan segeranya menyaran Kerajaan-
kerajaan Persekutuan Malaysia, Persekutuan Tanah Melayu, Sarawak dan Great
Britain, menghidupkan semula Jawatankuasa Antara Kerajaan (Inter-Governme
ntal Committee) dengan empat (4) perwakilan setiap Kerajaan Persekutuan Tanah
Melayu, Sabah, Sarawak dan Great Britain, untuk memantau dan melaksanakan
Perjanjian Malaysia 1963 dengan sepenuhnya bersama-sama segala dokumen,
memorandum, perjanjian, jaminan, akujanji dan syor yang berkenaan dan
berkaitan.
(3) “Bahawa untuk menjalankan kuasa-kuasa yang diberi dibawah Artikel 44
Perlembagaan Sabah, Dewan ini memberi ketetapan memberi kuasa kepada
Pencetak Kerajaan Sabah mencetak Perlembagaan Sabah yang berkuatkuasa pada
16 September 1963”.
RESTORATION OF TYT YANG DIPERTUA NEGARA
The Private Member’s Bill on the amendment of the Constitution of Sabah to
restore the position of TYT Yang DIPertua Negara is as follows:-
RANG UNDANG-UNDANG
PERLEMBAGAAN SABAH (PINDAAN) 2014
Suatu Enakmen untuk meminda Perlembagaan Sabah.
Enakmen ini bolehlah dinamakan Enakmen Perlembagaan Tajuk
(Pindaan) 2014, dan hendaklah dibaca bersekali dengan ringkas
Perlembagaan dan hendaklah disifatkan sebagai telah mula
berkuatkuasa pada …….. 2014.
Perlembaggan adalah dengan ini dipinda dengan Pindaan bagi
menggantikan perkataan-Perkataan “Yang DiPertua perkataan - Negeri” di mana
jua terdapat dalam Perlembagaan dengan perkataan
perkataan-perkataan “Yang DiPertua Negara”. “Yang DiPertua Negeri” (terjemahan
dalam Bahasa Inggeris)
CONSITUTION OF SABAH (AMENDMENT) BILL 2014
An Enactment to amend the Constitution of Sabah.
This Enactment may be cited as the Constitution Short Title
(Amendment) Enactment 2014, shall be read as one
with the Constitution and shall be deemed to have
come into operation on the ……. 2014.
The Constitution is hereby amended by substituting Amendment for the words
“Yang DiPertua Negeri” wherever they of the word appear in the Constitution the
words “Yang DiPertua “Yang DiPertua Negara”. Negeri”
EXPLANATORY STATEMENT
ON RANG UNDANG-UNDANG
I am glad to note that in recent times Sabahans are growing more aware of the
status of Sabah and the historical fact that Sabah did not join Malaysia as
manipulated and distorted by some but that Sabah formed Malaysia on 16
September 1963 with the Federation of Malaya, Sarawak and then Singapore
before it left in 1965.
This growing awareness of Sabahans are slowly but surely influencing Sabah
leaders in general and Sabah BN in particular, to acknowledge that Sabah formed
Malaysia and are equal partners in Malaysia.
Historically, Sabah had been equal to the Federation of Malaya in many aspects
and TYT the Governor was known as TYT Yang Di Pertua Negara in the
Constitution of Sabah effective from 16 September 1976.
Unfortunately, the
sanctity and status of TYT was down-graded to TYT Yang DiPertua Negeri on 29
August 1976. It is a sad turn of event in the history of Sabah.
The position of TYT Yang DiPertua Negara of Sabah is acknowledged in Paragraph
20(1) of the Report of the IGC as well in numerous Articles in the Federal
Constitution as at 16 September 1963 and the Proclamation of Malaysia that was
read and proclaimed by our beloved first Prime Minister of Malaysia, the late
Tunku Abdul Rahman on 16 September 1963.
The position of Sabah as a nation state within a family of nations in the
Federation of Malaysia should be respected and acknowledged and should not be
questioned or changed for change sake. It is akin to the nations of Scotland and
Wales in Great Britain and many other similar federations.
The proposed Constitution of Sabah (Amendment) Bill is a straight forward
legislation with the sole objective of restoring the position of TYT to TYT Yang
DiPertua Negara as it stood on 16 September 1963.
The proposed amendment does not seek to gain any additional rights or to take
away the rights of any party in the Federation of Malaysia. It merely seeks to
restore the constitutional and birth right of Sabah on 16 September 1963 as
embodied in the Constitution of Sabah at its inception.
PETROLEUM DEVELOPMENT ACT 1974 AND PETROLEUM AGREEMENT 1976
----------------------------------
The 1st Motion deals with the legality and constitutionality of the Petroleum
Development Act, 1974 and the Petroleum Agreement signed by the then Chief
Minister of Sabah on behalf of the Government of Sabah with Petronas on 14 June
1976.
The Petroleum Development Act 1974 (“the said Act” or “PDA”) passed by the
Federal Parliament in 1974 is an unconstitutional piece of legislation that
unlawfully vested Sabah’s oil and gas resources and ownership rights. This
Motion serves to authorize the Sabah government to take the necessary and
appropriate action to annul and or abolish the said Act.
Sabah and Sarawak had a long history of oil exploration and production long
before the formation of Malaysia in 1963. Oil was discovered in Miri, Sarawak in
1882 with the 1st production on 22 December 1910 with Shell starting its 1st
refinery in Miri in 1914. Sarawak started off-shore oil production off West Lutong
in 1968. Shell started its petroleum business from the Miri production and if not
for Sarawak, Shell today may not be involved in petroleum industry as a major
international player.
In Sabah, Shell started oil exploration off-shore Sabah in the late 1950s with oil
subsequently found at Erb West I in 1971 and Samarang in 1975 and with
production starting in 1975 in Samarang. As a result, Sabah became Malaysia’s
2nd oil-producing State after Sarawak.
It was reported in the Sabah State Legislative Assembly on 15 December 1971
that the Sabah government had already signed 5 petroleum agreements with
another 6 applications being considered to be signed. It was also reported that
Sabah would be getting 12.5% of the revenue as royalties in addition to rents for
the areas involved. This is the legal right of Sabah under Section 24 of the Land
Ordinance, Sabah (Chapter 68) where minerals including petroleum and petroleum
gas is reserved to the Sabah government which is also empowered to grant
petroleum exploration and mining rights and licences as well as to impose
royalties and quit rents.
On the other hand, the federal government was entitled to impose petroleum
income tax on the net oil revenues including deductions for the royalties and rents
payable to Sabah as well as other deductions under the Petroleum Income Tax
1967.
Oil and gas resources whether located on-shore or off-shore Sabah belongs to the
Sabah government under Section 24 of the Land Ordinance. There should be no
dispute as to the territorial right or boundary of Sabah in respect of any oil and
gas found off-shore Sabah.
In 1954, by the North Borneo (Alteration of Boundaries) Order in Council 1954, the
Queen in Council, in pursuance of the powers conferred upon Her by the Colonial
Boundaries Act 1895, extended the boundaries of the Colony of North Borneo to
include the area of the continental shelf being the seabed and its subsoil which
lies beneath the high seas contiguous to the territorial waters of North Borneo.
Article 1(3) of the Federal Constitution provides that the territories of Sabah are
the territories comprised therein immediately before Malaysia Day, 16 September
1963.
Therefore, the territory of Sabah as at Malaysia Day extends to the continental
shelf as set out in the North Borneo (Alteration of Boundaries) Order in Council
1954. This is the boundary recognized even today by the Sabah government.
Accordingly, any oil and gas found off-shore Sabah in the continental shelf
belongs to Sabah.
Under Article 76 of the Federal Constitution and Item 2 of the State List in the
Ninth Schedule, land is a state matter under the jurisdiction of the State
Assembly. Item 2(c) of the State List provides that land includes permits and
licences for prospecting for mines: mining leases and certificates.
Any counter-argument that the Federal Parliament is empowered to legislate the
PDA under Item 8(j) of the Federal List is misconceived as Item 8(j) is subject to
Item 2(c) in the State List. In any event, Item 8(j) does not include any right to
vest Sabah’s oil and gas in Petronas as Item 8(j) only relates to development of
mineral resources; mines, mining, minerals and minerals ores; oils and oilfields;
purchase, sale, import and export of minerals and mineral ores; petroleum
products; regulation of labour and safety in mines and oilfields.
In addition, “land” as defined in Section 4 of the Sabah Land Ordinance includes
“land under water” or under the sea and the Sabah government can only
“alienate” which in Section 4 means “to lease or otherwise dispose of State land”
for a period not exceeding 99 years other than native customary land which are
granted in perpetuity. This only
means that even the Sabah government has no authority or right to grant or vest
the land to Petronas in perpetuity.
Therefore, even if the Sabah government were to alienate the lands under which
oil and gas is found, it has no right to alienate the said lands for more than 99
years. Where is the power and authority for the then Prime Minister of Malaysia,
the late Tun Abdul Razak, father of the present Prime Minister, to sign the Vesting
Order on 25 March 1975 vesting all of Sabah’s oil and gas resources in Petronas
in perpetuity. If this is not daylight robbery, what is?
It is as clear as daylight that the PDA is unconstitutional and impinges on
Sabah’s State rights under the State List and the Sabah Land Ordinance and
robbing Sabah of its oil and gas wealth.
I need to highlight that on 15 December 1976, which is 6 months and 1 day after
the signing of the Petroleum Agreement between Sabah and Petronas on 14 June
1976, the then Finance Minister of Sabah reported that Sabah received RM20
million in the oil revenue which was not budgeted for by the previous USNO-led
Sabah Alliance government. This can only mean that oil production was actively
produced in Sabah even before the signing of the Petroleum Agreement in June
1976 and that based on the 5% or RM20 million received by the Sabah
government, Petronas would have received RM360 million with the federal
government another RM20 million, totalling RM380 million.
Under the petroleum agreements signed by the Sabah government with the
petroleum companies, Sabah would have received at least 12.5% or RM50 million
in addition to rents and other moneys imposed in the petroleum agreements. By
signing the Petroleum Agreement in 1976, Sabah lost at least RM30 million. In
2014, Petronas and the federal government is projected to receive RM26.6 billion
from Sabah’s oil and gas and Sabah receiving only RM1.4 billion. If the 12.5% is
still applicable today, Sabah would be receiving at least RM3.5 billion not RM1.4
billion, a loss of RM2.1 billion.
Therefore, the Sabah government needs to take all necessary actions to invalidate
the PDA and to take back and protect Sabah’s oil and gas resources for the
benefit of Sabah and all Sabahans and their future generations.
Our UBF co-founder, Zainal Ajamain, has presented a view that the illegality of the
PDA 1974 can also be seen from the perspective – that the PDA74 does not have
the power to takeover land and natural resources which are the absolute right and
privilege of Sabah and Sarawak that are safeguarded by the Malaysia Agreement
and the terms of the formation of Malaysia except in an emergency situation.
Zainal views that the incorporation of Petronas and the PDA was subject to the
powers under the:-
(a) Petroleum Mining Act 1966/1969; and
(b) Continental Shelf Act 1966/1969,
Both of which were extended to be in force in Sabah and Sarawak under the
emergency powers under the Emergency (Essential Powers) (No. 7) Ordinance
1969.
The present scenario has changed and any emergency powers can no longer be
enforced as the Emergency Act 1969 and the Emergency (Essential Powers)
Ordinance 1969 were abolished and revoked on 23 November 2011. This means
that any authority or powers under the Emergency Act 1969 were automatically
abolished and revoked.
The second portion of the 1st Motion deals with the authority of the then Chief
Minister of Sabah who signed the Petroleum Agreement with Petronas on 14 June
1976, a mere 8 days after the history changing air-crash which killed the then
Chief Minister and several senior members of his Cabinet.
Under the said Petroleum Agreement 1976, it was stated that the Sabah
government agreed to receive 5% as the cash payment under Section 4 of the
Petroleum Development Act, 1974 in return for the vesting of the oil and gas
resources found on-shore and off-shore Sabah to Petronas as signed by the then
Prime Minister of Malaysia, the late Tun Abdul Razak, father of the present Prime
Minister, in the Vesting Order on 26 March 1975 vesting all of Sabah’s oil and gas
resources in Petronas in perpetuity.
It was further agreed that the Sabah government will waive all collections of
royalties against Petronas on the petroleum won on-shore and off-shore Sabah
which the Sabah government was legally entitled to impose and collect under
Section 24 of the Sabah Land Ordinance. In fact, this was imposed on the
petroleum companies that were undertaking exploration in the petroleum
agreements that were signed with the Sabah government.
As stated above, it was reported to the Sabah State Legislative Assembly on 15
December 1971 that the Sabah government had already signed 5 petroleum
agreements with another 6 applications being considered to be signed. It was also
reported that Sabah would be getting 12.5% of the revenue as royalties in addition
to rents for the areas involved. This is the legal right of Sabah under Section 24
of the Land Ordinance, Sabah (Chapter 68) where minerals including petroleum
and petroleum gas is reserved to the Sabah government which is also empowered
to grant petroleum exploration and mining rights and licences as well as to
impose royalties and quit rents.
I need to highlight that on 15 December 1976, which is 6 months and 1 day after
the signing of the Petroleum Agreement between Sabah and Petronas on 14 June
1976, the then Finance Minister of Sabah reported that Sabah received RM20
million in the oil revenue which was not budgeted for by the previous USNO-led
Sabah Alliance government. This can only mean that oil production was actively
produced in Sabah even before the signing of the Petroleum Agreement in June
1976 and that based on the 5% or RM20 million received by the Sabah
government, Petronas would have received RM360 million with the federal
government another RM20 million, totalling RM380 million.
Under the petroleum agreements signed by the Sabah government with the
petroleum companies, Sabah would have received at least 12.5% or RM50 million
in addition to rents and other moneys imposed in the petroleum agreements.
I am advised that the petroleum oil and gas resources belong to the Sabah
government and does not vest with the office of the Chief Minister under the Chief
Minister (Incorporation) Ordinace (Cap. 23). I further verily believe that the
Petroleum Agreement was never discussed in the Sabah State Legislative
Assembly before its signing on 14 June 1976 which was signed by the then Chief
Minister under questionable circumstances.
Therefore, the Sabah government needs to take all necessary actions to review
the legality of the Petroleum Agreement 1976 and the authority of the then Chief
Minister in signing the said Agreement without debate and mandate from the
State Legislative Assembly and to take all further actions to revoke and repudiate
and or annul the said Agreement.
REVIEW OF THE MALAYSIA AGREEMENT 1963
-----------------------------------
The 2nd Motion deals with the review of the Malaysia Agreement 1963 and the
basis and terms of the formation of Malaysia on 16 September 1963.
At the outset, it needs to be highlighted that as stated in Paragraph 6 of the
Report of the IGC, the Legislative Council of North Borneo, which is the
predecessor of the Sabah State Legislative Assembly adopted the Motion on 12
September 1962 that the Council accepted the decision to establish the Federation
of Malaysia PROVIDED THAT the terms of participation and the constitutional
arrangements will safeguard the special interests of North Borneo (now Sabah).
If the Federation of Malaysia do not recognize this and fails to honour the
constitutional safeguards for the special interests of Sabah, there is no basis for
Sabah to continue its participation in Malaysia. As it is now, it has been said that
a slight majority of Sabahans wish for Sabah to leave the Federation due to the
continued disregard and mal-alignment of Sabah’s interests.
Article VIII of the Malaysia Agreement 1963 provided that the Governments of the
Federation of Malaya, North Borneo (now Sabah) and Sarawak was to take such
legislative, executive or other action as may be necessary to implement the
assurances, undertakings and recommendations contained in the Report of the
IGC in so far as they are not implemented by express provision of the Constitution
of Malaysia. The Report of the IGC clearly sets out various matters that were to
be reviewed both in five and ten years.
On 29 December 1975 the then Chief Minister disclosed to the State Legislative
Assemby that the review as provided in the Report of the IGC, was already past
the 10 years set out in the Report. We are now in the 41st year after the 10 years
and there is no proposed Review in sight.
By the 2nd Motion, the Sabah government is urged to re-activate the Sabah
Review Committee to consider and review the Malaysia Agreement and the
matters set out in the Report of the IGC. As the issue affects Sabah and all
Sabahans, it is proposed that the Review Committee should comprise of
representatives across the political divide, both government and opposition
representatives, and that the Review Committee should also gather the views and
opinions of Sabahans in order that these views be brought up and considered in
the review with the governments of Malaysia, the States of Malaya and Sarawak.
It is also proposed that Sabah government should urge the governments of
Malaysia, the States of Malaya, Sarawak and Great Britain to re-activate the
Inter-Governmental Committee (IGC) to monitor and implement the Malaysia
Agreement 1963 in full together with the relevant documents, memorandum,
agreements, assurances, undertakings and recommendations.
With due respect, in the best interests of both the Federation of Malaysia and
Sabah, the Sabah government needs to take all necessary actions to set up the
Review Committee, gather the views of Sabahans and then review the
implementation of the Malaysia Agreement with the re-activation of the IGC. If the
federal government fails to agree and implement the Malaysia Agreement and the
terms and conditions with the assurances and undertakings in full, there is NO
BASIS FOR SABAH TO REMAIN IN THE FEDERATION OF MALAYSIA. In such an
event, the Sabah government should take immediate steps to unwind the
formation of Malaysia and depart like Singapore did in 1965.
RE-PRINT OF THE CONSTITUTION OF SABAH 1963
The 3rd Motion deal with the re-print of the 1963 Constitution of Sabah.
It appears that there is no available copies of the 1963 Constitution of Sabah
which the general public can have access to. Even the Sabah Archives and the
Sabah Library do not have available copies with the earliest available being the
1977 Reprint.
The Constitution of Sabah as at 16 September 1963 which came into force on the
same day Malaysia was formed is a very important and integral part of the history
of our beloved Sabah homeland. It should be readily available to all Malaysians
so that the correct history of Sabah and Malaysia is available especially to our
younger generations.
The 3rd Motion is to authorize the Sabah Government Printers to reprint the 1963
Constitution of Sabah pursuant to Article 44 of the Constitution.
The situation is now that Sabah needs to take back its oil and gas resources,
there is no better time than now with Sabah and Sarawak being the kingmakers,
as well as to review the position and status of Sabah in the federation of
Malaysia.
With the proposed Bill to amend the Constitution of Sabah and the Motions on the
Petroleum Development Act 1974 and the Petroleum Agreement 1976 as well as
the Malaysia Agreement 1976, the patriotism of the Sabah BN leaders and the
sincerity of the federal and Sabah government are now laid before the people of
Sabah and it is hoped that history will be changed for the future well-being of
Sabahans and Malaysians.
Dr. Jeffrey Kitingan
Chairman
STAR Sabah
09 April 2014
Sumber: Feed Bahasa Malaysia
PRESS CONFERENCE – 09 APRIL 2014
MOTIONS SUBMITTED FOR DUN SABAH SESSION 14-17 APRIL 2014
------------------------------------------------------------
Kota Kinabalu: INTRODUCTION
As many are aware, the hot topics on Sabah and Sarawak currently are related to
the Review of the Malaysia Agreement 1963 and the issue of “Oil Royalties”. What
used to be topics raised mainly by the opposition, they have now become
mainstream with Sabah BN leaders jumping on the bandwagon seemingly
changing their tune that the Malaysia Agreement/20-Points are not relevant to
that of championing for the rights of Sabah with regards to the Malaysia
Agreement and the 20-Points together with the so-called “oil royalties”.
Whether these BN leaders are genuine and sincere or merely following the coat-
tails of Sarawak leaders and jumping on the bandwagon to gain cheap publicity
because the people are demanding for these rights, it is left to be seen? Of course,
the people are saying that these Sabah BN leaders are not sincere and merely
mimicking because they need to be seen to be in support of the people’s growing
demands.
But what is clear, the voices of the people in Sabah and Sarawak are getting
clearer and louder. They are demanding the restoration of the rightful autonomy
and equal partner status to Malaya as well as the stopping of the rape, pillage
and stealing of Sabah and Sarawak’s oil and gas resources and wealth.
MOTIONS AND PRIVATE MEMBER’S BILL FOR DUN SESSION 14-17 APRIL 2014
After the 13th General Elections in May 2013, the State Reform Party, Sabah
(STAR Sabah) reiterated that it will continue its political struggle for justice,
change and for the recognition and implementation of Sabah's rights and
autonomy and that STAR will be the voice of Sabahans who want justice, their
rights reinstated, and for Sabah to be an autonomous region in the federation of
Malaysia.
This is also consistent with my humble self’s continued struggle for Sabah rights
and autonomy, the restoration of Sabah as an equal partner in Malaysia as well
as the re-claiming of Sabah’s oil and gas resources that were wrongfully and
unlawfully vested by the federal government to Petronas in 1975/76.
Therefore, consistent with our struggles and as the sole STAR representative in
the Sabah State Legislative Assembly, I have tabled three (3) Motions and a
Private Member’s Bill for debate in the forthcoming DUN session scheduled on
14-17 April 2014.
The Private Member’s Bill is the proposed CONSTITUTION OF SABAH
(AMENDMENT) BILL, 2014 which proposes an amendment to restore the position
of the Head of State of Sabah, TYT Yang DiPertua Negeri back to its original TYT
Yang DiPertua Negara. The proposed Bill is set out below.
The 3 Motions are:-
(1) BAHAWASANYA Kerajaan Sabah digesa dengan segeranya mengkaji kesahihan
Akta Pembangunan Petroleum 1974 (Petroleum Development Act 1974) yang
bercanggah dengan Perlembagaan Persekutuan dan hak-hak Sabah dan
seterusnya Kerajaan Sabah digesa mengambil segala tindakan yang selanjutnya
termasuk tindakan undang-undang dan melalui wakil rakyat Sabah di Parlimen
untuk membatalkan dan atau memansuhkan Akta tersebut; dan
BAHAWASANYA Kerajaan Sabah digesa dengan segeranya mengkaji kesahihan
Perjanjian Minyak bertarikh 14hb. Jun 1976 yang dimeterai diantara Kerajaan
Sabah dengan Petroliam Nasional Berhad (Petronas) dan bidangkuasa Ketua
Menteri Sabah ketika itu yang menandatanganinya tanpa perbahasan dan
kelulusan Dewan Undangan yang mulia ini dan seterusnya Kerajaan Sabah digesa
mengambil segala tindakan yang selanjutnya termasuk tindakan undang-undang
dan melalui Dewan mulia ini untuk membatalkan Perjanjian Minyak tersebut;
(2) BAHAWASANYA Kerajaan Sabah digesa dengan segeranya mengkaji semula
Perjanjian Malaysia 1963 bersama-sama dengan Kerajaan-kerajaan Persekutuan
Malaysia, Persekutuan Tanah Melayu dan Sarawak, yang sepatutnya dikaji semula
sepuluh (10) tahun selepas 1963 seperti yang dipersetujui dahulu dan yang telah
tertangguh sejak 1975; dan
BAHAWASANYA Kerajaan Sabah digesa dengan segeranya menyaran Kerajaan-
kerajaan Persekutuan Malaysia, Persekutuan Tanah Melayu, Sarawak dan Great
Britain, menghidupkan semula Jawatankuasa Antara Kerajaan (Inter-Governme
ntal Committee) dengan empat (4) perwakilan setiap Kerajaan Persekutuan Tanah
Melayu, Sabah, Sarawak dan Great Britain, untuk memantau dan melaksanakan
Perjanjian Malaysia 1963 dengan sepenuhnya bersama-sama segala dokumen,
memorandum, perjanjian, jaminan, akujanji dan syor yang berkenaan dan
berkaitan.
(3) “Bahawa untuk menjalankan kuasa-kuasa yang diberi dibawah Artikel 44
Perlembagaan Sabah, Dewan ini memberi ketetapan memberi kuasa kepada
Pencetak Kerajaan Sabah mencetak Perlembagaan Sabah yang berkuatkuasa pada
16 September 1963”.
RESTORATION OF TYT YANG DIPERTUA NEGARA
The Private Member’s Bill on the amendment of the Constitution of Sabah to
restore the position of TYT Yang DIPertua Negara is as follows:-
RANG UNDANG-UNDANG
PERLEMBAGAAN SABAH (PINDAAN) 2014
Suatu Enakmen untuk meminda Perlembagaan Sabah.
Enakmen ini bolehlah dinamakan Enakmen Perlembagaan Tajuk
(Pindaan) 2014, dan hendaklah dibaca bersekali dengan ringkas
Perlembagaan dan hendaklah disifatkan sebagai telah mula
berkuatkuasa pada …….. 2014.
Perlembaggan adalah dengan ini dipinda dengan Pindaan bagi
menggantikan perkataan-Perkataan “Yang DiPertua perkataan - Negeri” di mana
jua terdapat dalam Perlembagaan dengan perkataan
perkataan-perkataan “Yang DiPertua Negara”. “Yang DiPertua Negeri” (terjemahan
dalam Bahasa Inggeris)
CONSITUTION OF SABAH (AMENDMENT) BILL 2014
An Enactment to amend the Constitution of Sabah.
This Enactment may be cited as the Constitution Short Title
(Amendment) Enactment 2014, shall be read as one
with the Constitution and shall be deemed to have
come into operation on the ……. 2014.
The Constitution is hereby amended by substituting Amendment for the words
“Yang DiPertua Negeri” wherever they of the word appear in the Constitution the
words “Yang DiPertua “Yang DiPertua Negara”. Negeri”
EXPLANATORY STATEMENT
ON RANG UNDANG-UNDANG
I am glad to note that in recent times Sabahans are growing more aware of the
status of Sabah and the historical fact that Sabah did not join Malaysia as
manipulated and distorted by some but that Sabah formed Malaysia on 16
September 1963 with the Federation of Malaya, Sarawak and then Singapore
before it left in 1965.
This growing awareness of Sabahans are slowly but surely influencing Sabah
leaders in general and Sabah BN in particular, to acknowledge that Sabah formed
Malaysia and are equal partners in Malaysia.
Historically, Sabah had been equal to the Federation of Malaya in many aspects
and TYT the Governor was known as TYT Yang Di Pertua Negara in the
Constitution of Sabah effective from 16 September 1976.
Unfortunately, the
sanctity and status of TYT was down-graded to TYT Yang DiPertua Negeri on 29
August 1976. It is a sad turn of event in the history of Sabah.
The position of TYT Yang DiPertua Negara of Sabah is acknowledged in Paragraph
20(1) of the Report of the IGC as well in numerous Articles in the Federal
Constitution as at 16 September 1963 and the Proclamation of Malaysia that was
read and proclaimed by our beloved first Prime Minister of Malaysia, the late
Tunku Abdul Rahman on 16 September 1963.
The position of Sabah as a nation state within a family of nations in the
Federation of Malaysia should be respected and acknowledged and should not be
questioned or changed for change sake. It is akin to the nations of Scotland and
Wales in Great Britain and many other similar federations.
The proposed Constitution of Sabah (Amendment) Bill is a straight forward
legislation with the sole objective of restoring the position of TYT to TYT Yang
DiPertua Negara as it stood on 16 September 1963.
The proposed amendment does not seek to gain any additional rights or to take
away the rights of any party in the Federation of Malaysia. It merely seeks to
restore the constitutional and birth right of Sabah on 16 September 1963 as
embodied in the Constitution of Sabah at its inception.
PETROLEUM DEVELOPMENT ACT 1974 AND PETROLEUM AGREEMENT 1976
----------------------------------
The 1st Motion deals with the legality and constitutionality of the Petroleum
Development Act, 1974 and the Petroleum Agreement signed by the then Chief
Minister of Sabah on behalf of the Government of Sabah with Petronas on 14 June
1976.
The Petroleum Development Act 1974 (“the said Act” or “PDA”) passed by the
Federal Parliament in 1974 is an unconstitutional piece of legislation that
unlawfully vested Sabah’s oil and gas resources and ownership rights. This
Motion serves to authorize the Sabah government to take the necessary and
appropriate action to annul and or abolish the said Act.
Sabah and Sarawak had a long history of oil exploration and production long
before the formation of Malaysia in 1963. Oil was discovered in Miri, Sarawak in
1882 with the 1st production on 22 December 1910 with Shell starting its 1st
refinery in Miri in 1914. Sarawak started off-shore oil production off West Lutong
in 1968. Shell started its petroleum business from the Miri production and if not
for Sarawak, Shell today may not be involved in petroleum industry as a major
international player.
In Sabah, Shell started oil exploration off-shore Sabah in the late 1950s with oil
subsequently found at Erb West I in 1971 and Samarang in 1975 and with
production starting in 1975 in Samarang. As a result, Sabah became Malaysia’s
2nd oil-producing State after Sarawak.
It was reported in the Sabah State Legislative Assembly on 15 December 1971
that the Sabah government had already signed 5 petroleum agreements with
another 6 applications being considered to be signed. It was also reported that
Sabah would be getting 12.5% of the revenue as royalties in addition to rents for
the areas involved. This is the legal right of Sabah under Section 24 of the Land
Ordinance, Sabah (Chapter 68) where minerals including petroleum and petroleum
gas is reserved to the Sabah government which is also empowered to grant
petroleum exploration and mining rights and licences as well as to impose
royalties and quit rents.
On the other hand, the federal government was entitled to impose petroleum
income tax on the net oil revenues including deductions for the royalties and rents
payable to Sabah as well as other deductions under the Petroleum Income Tax
1967.
Oil and gas resources whether located on-shore or off-shore Sabah belongs to the
Sabah government under Section 24 of the Land Ordinance. There should be no
dispute as to the territorial right or boundary of Sabah in respect of any oil and
gas found off-shore Sabah.
In 1954, by the North Borneo (Alteration of Boundaries) Order in Council 1954, the
Queen in Council, in pursuance of the powers conferred upon Her by the Colonial
Boundaries Act 1895, extended the boundaries of the Colony of North Borneo to
include the area of the continental shelf being the seabed and its subsoil which
lies beneath the high seas contiguous to the territorial waters of North Borneo.
Article 1(3) of the Federal Constitution provides that the territories of Sabah are
the territories comprised therein immediately before Malaysia Day, 16 September
1963.
Therefore, the territory of Sabah as at Malaysia Day extends to the continental
shelf as set out in the North Borneo (Alteration of Boundaries) Order in Council
1954. This is the boundary recognized even today by the Sabah government.
Accordingly, any oil and gas found off-shore Sabah in the continental shelf
belongs to Sabah.
Under Article 76 of the Federal Constitution and Item 2 of the State List in the
Ninth Schedule, land is a state matter under the jurisdiction of the State
Assembly. Item 2(c) of the State List provides that land includes permits and
licences for prospecting for mines: mining leases and certificates.
Any counter-argument that the Federal Parliament is empowered to legislate the
PDA under Item 8(j) of the Federal List is misconceived as Item 8(j) is subject to
Item 2(c) in the State List. In any event, Item 8(j) does not include any right to
vest Sabah’s oil and gas in Petronas as Item 8(j) only relates to development of
mineral resources; mines, mining, minerals and minerals ores; oils and oilfields;
purchase, sale, import and export of minerals and mineral ores; petroleum
products; regulation of labour and safety in mines and oilfields.
In addition, “land” as defined in Section 4 of the Sabah Land Ordinance includes
“land under water” or under the sea and the Sabah government can only
“alienate” which in Section 4 means “to lease or otherwise dispose of State land”
for a period not exceeding 99 years other than native customary land which are
granted in perpetuity. This only
means that even the Sabah government has no authority or right to grant or vest
the land to Petronas in perpetuity.
Therefore, even if the Sabah government were to alienate the lands under which
oil and gas is found, it has no right to alienate the said lands for more than 99
years. Where is the power and authority for the then Prime Minister of Malaysia,
the late Tun Abdul Razak, father of the present Prime Minister, to sign the Vesting
Order on 25 March 1975 vesting all of Sabah’s oil and gas resources in Petronas
in perpetuity. If this is not daylight robbery, what is?
It is as clear as daylight that the PDA is unconstitutional and impinges on
Sabah’s State rights under the State List and the Sabah Land Ordinance and
robbing Sabah of its oil and gas wealth.
I need to highlight that on 15 December 1976, which is 6 months and 1 day after
the signing of the Petroleum Agreement between Sabah and Petronas on 14 June
1976, the then Finance Minister of Sabah reported that Sabah received RM20
million in the oil revenue which was not budgeted for by the previous USNO-led
Sabah Alliance government. This can only mean that oil production was actively
produced in Sabah even before the signing of the Petroleum Agreement in June
1976 and that based on the 5% or RM20 million received by the Sabah
government, Petronas would have received RM360 million with the federal
government another RM20 million, totalling RM380 million.
Under the petroleum agreements signed by the Sabah government with the
petroleum companies, Sabah would have received at least 12.5% or RM50 million
in addition to rents and other moneys imposed in the petroleum agreements. By
signing the Petroleum Agreement in 1976, Sabah lost at least RM30 million. In
2014, Petronas and the federal government is projected to receive RM26.6 billion
from Sabah’s oil and gas and Sabah receiving only RM1.4 billion. If the 12.5% is
still applicable today, Sabah would be receiving at least RM3.5 billion not RM1.4
billion, a loss of RM2.1 billion.
Therefore, the Sabah government needs to take all necessary actions to invalidate
the PDA and to take back and protect Sabah’s oil and gas resources for the
benefit of Sabah and all Sabahans and their future generations.
Our UBF co-founder, Zainal Ajamain, has presented a view that the illegality of the
PDA 1974 can also be seen from the perspective – that the PDA74 does not have
the power to takeover land and natural resources which are the absolute right and
privilege of Sabah and Sarawak that are safeguarded by the Malaysia Agreement
and the terms of the formation of Malaysia except in an emergency situation.
Zainal views that the incorporation of Petronas and the PDA was subject to the
powers under the:-
(a) Petroleum Mining Act 1966/1969; and
(b) Continental Shelf Act 1966/1969,
Both of which were extended to be in force in Sabah and Sarawak under the
emergency powers under the Emergency (Essential Powers) (No. 7) Ordinance
1969.
The present scenario has changed and any emergency powers can no longer be
enforced as the Emergency Act 1969 and the Emergency (Essential Powers)
Ordinance 1969 were abolished and revoked on 23 November 2011. This means
that any authority or powers under the Emergency Act 1969 were automatically
abolished and revoked.
The second portion of the 1st Motion deals with the authority of the then Chief
Minister of Sabah who signed the Petroleum Agreement with Petronas on 14 June
1976, a mere 8 days after the history changing air-crash which killed the then
Chief Minister and several senior members of his Cabinet.
Under the said Petroleum Agreement 1976, it was stated that the Sabah
government agreed to receive 5% as the cash payment under Section 4 of the
Petroleum Development Act, 1974 in return for the vesting of the oil and gas
resources found on-shore and off-shore Sabah to Petronas as signed by the then
Prime Minister of Malaysia, the late Tun Abdul Razak, father of the present Prime
Minister, in the Vesting Order on 26 March 1975 vesting all of Sabah’s oil and gas
resources in Petronas in perpetuity.
It was further agreed that the Sabah government will waive all collections of
royalties against Petronas on the petroleum won on-shore and off-shore Sabah
which the Sabah government was legally entitled to impose and collect under
Section 24 of the Sabah Land Ordinance. In fact, this was imposed on the
petroleum companies that were undertaking exploration in the petroleum
agreements that were signed with the Sabah government.
As stated above, it was reported to the Sabah State Legislative Assembly on 15
December 1971 that the Sabah government had already signed 5 petroleum
agreements with another 6 applications being considered to be signed. It was also
reported that Sabah would be getting 12.5% of the revenue as royalties in addition
to rents for the areas involved. This is the legal right of Sabah under Section 24
of the Land Ordinance, Sabah (Chapter 68) where minerals including petroleum
and petroleum gas is reserved to the Sabah government which is also empowered
to grant petroleum exploration and mining rights and licences as well as to
impose royalties and quit rents.
I need to highlight that on 15 December 1976, which is 6 months and 1 day after
the signing of the Petroleum Agreement between Sabah and Petronas on 14 June
1976, the then Finance Minister of Sabah reported that Sabah received RM20
million in the oil revenue which was not budgeted for by the previous USNO-led
Sabah Alliance government. This can only mean that oil production was actively
produced in Sabah even before the signing of the Petroleum Agreement in June
1976 and that based on the 5% or RM20 million received by the Sabah
government, Petronas would have received RM360 million with the federal
government another RM20 million, totalling RM380 million.
Under the petroleum agreements signed by the Sabah government with the
petroleum companies, Sabah would have received at least 12.5% or RM50 million
in addition to rents and other moneys imposed in the petroleum agreements.
I am advised that the petroleum oil and gas resources belong to the Sabah
government and does not vest with the office of the Chief Minister under the Chief
Minister (Incorporation) Ordinace (Cap. 23). I further verily believe that the
Petroleum Agreement was never discussed in the Sabah State Legislative
Assembly before its signing on 14 June 1976 which was signed by the then Chief
Minister under questionable circumstances.
Therefore, the Sabah government needs to take all necessary actions to review
the legality of the Petroleum Agreement 1976 and the authority of the then Chief
Minister in signing the said Agreement without debate and mandate from the
State Legislative Assembly and to take all further actions to revoke and repudiate
and or annul the said Agreement.
REVIEW OF THE MALAYSIA AGREEMENT 1963
-----------------------------------
The 2nd Motion deals with the review of the Malaysia Agreement 1963 and the
basis and terms of the formation of Malaysia on 16 September 1963.
At the outset, it needs to be highlighted that as stated in Paragraph 6 of the
Report of the IGC, the Legislative Council of North Borneo, which is the
predecessor of the Sabah State Legislative Assembly adopted the Motion on 12
September 1962 that the Council accepted the decision to establish the Federation
of Malaysia PROVIDED THAT the terms of participation and the constitutional
arrangements will safeguard the special interests of North Borneo (now Sabah).
If the Federation of Malaysia do not recognize this and fails to honour the
constitutional safeguards for the special interests of Sabah, there is no basis for
Sabah to continue its participation in Malaysia. As it is now, it has been said that
a slight majority of Sabahans wish for Sabah to leave the Federation due to the
continued disregard and mal-alignment of Sabah’s interests.
Article VIII of the Malaysia Agreement 1963 provided that the Governments of the
Federation of Malaya, North Borneo (now Sabah) and Sarawak was to take such
legislative, executive or other action as may be necessary to implement the
assurances, undertakings and recommendations contained in the Report of the
IGC in so far as they are not implemented by express provision of the Constitution
of Malaysia. The Report of the IGC clearly sets out various matters that were to
be reviewed both in five and ten years.
On 29 December 1975 the then Chief Minister disclosed to the State Legislative
Assemby that the review as provided in the Report of the IGC, was already past
the 10 years set out in the Report. We are now in the 41st year after the 10 years
and there is no proposed Review in sight.
By the 2nd Motion, the Sabah government is urged to re-activate the Sabah
Review Committee to consider and review the Malaysia Agreement and the
matters set out in the Report of the IGC. As the issue affects Sabah and all
Sabahans, it is proposed that the Review Committee should comprise of
representatives across the political divide, both government and opposition
representatives, and that the Review Committee should also gather the views and
opinions of Sabahans in order that these views be brought up and considered in
the review with the governments of Malaysia, the States of Malaya and Sarawak.
It is also proposed that Sabah government should urge the governments of
Malaysia, the States of Malaya, Sarawak and Great Britain to re-activate the
Inter-Governmental Committee (IGC) to monitor and implement the Malaysia
Agreement 1963 in full together with the relevant documents, memorandum,
agreements, assurances, undertakings and recommendations.
With due respect, in the best interests of both the Federation of Malaysia and
Sabah, the Sabah government needs to take all necessary actions to set up the
Review Committee, gather the views of Sabahans and then review the
implementation of the Malaysia Agreement with the re-activation of the IGC. If the
federal government fails to agree and implement the Malaysia Agreement and the
terms and conditions with the assurances and undertakings in full, there is NO
BASIS FOR SABAH TO REMAIN IN THE FEDERATION OF MALAYSIA. In such an
event, the Sabah government should take immediate steps to unwind the
formation of Malaysia and depart like Singapore did in 1965.
RE-PRINT OF THE CONSTITUTION OF SABAH 1963
The 3rd Motion deal with the re-print of the 1963 Constitution of Sabah.
It appears that there is no available copies of the 1963 Constitution of Sabah
which the general public can have access to. Even the Sabah Archives and the
Sabah Library do not have available copies with the earliest available being the
1977 Reprint.
The Constitution of Sabah as at 16 September 1963 which came into force on the
same day Malaysia was formed is a very important and integral part of the history
of our beloved Sabah homeland. It should be readily available to all Malaysians
so that the correct history of Sabah and Malaysia is available especially to our
younger generations.
The 3rd Motion is to authorize the Sabah Government Printers to reprint the 1963
Constitution of Sabah pursuant to Article 44 of the Constitution.
The situation is now that Sabah needs to take back its oil and gas resources,
there is no better time than now with Sabah and Sarawak being the kingmakers,
as well as to review the position and status of Sabah in the federation of
Malaysia.
With the proposed Bill to amend the Constitution of Sabah and the Motions on the
Petroleum Development Act 1974 and the Petroleum Agreement 1976 as well as
the Malaysia Agreement 1976, the patriotism of the Sabah BN leaders and the
sincerity of the federal and Sabah government are now laid before the people of
Sabah and it is hoped that history will be changed for the future well-being of
Sabahans and Malaysians.
Dr. Jeffrey Kitingan
Chairman
STAR Sabah
09 April 2014
Sumber: Feed Bahasa Malaysia
0 comments:
Post a Comment