Wednesday, December 9, 2015

Motion and Debate on Territorial Integrity submitted by See Chee How in Dec 2015 DUN sitting


My humble Motion to move the Honourable House to resolve and affirm our determination to preserve and uphold the territorial integrity of Sarawak reads as follows:

WHEREAS:

(1)       The Territorial Sea Act 2012 [Act 750] which was enacted by Parliament and comes into effect on 22.06.2012 providing that any reference to territorial sea 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 has altered and affected the State’s control over the territory of the State of Sarawak.

(2)       Pursuant to Article 1(3) of the Federal Constitution, the territory of the State of Sarawak is the territory comprised therein the Federation of Malaysia immediately before Malaysia Day. Article 2 stipulated that the Parliament may by law alter the boundaries to any State but a law altering the boundaries shall not be passed without the consent of that state in a state legislature and of the Conference of Rulers.

(3)       No law was passed in this Dewan to effect the altering of the boundary of Sarawak. The Territorial Sea Bill 2012 tabled in the Parliament did not stipulate that the prior consent of the Conference of Rulers had been obtained.

WHEREFORE THIS DEWAN IS MOVED AND RESOLVED:

(1)       This Dewan will preserve and uphold the territorial integrity of Sarawak; and

(2)       To notify the Federal Government that the Territorial Sea Act 2012 [Act 750] ought to be amended and or re-enacted to provide that the Act shall not be apply to the State of Sarawak.

Debate Speech


The Colonial Boundaries Act 1895 passed by the Queen in Parliament in 1895 was significant. Together with another 19th century legislature, the 1865 Colonial Laws Validity Act, they effectively gave the British government the power to administer its colonies and to set the boundaries of mostly self-governing colonies which include Canada, Australia, New Zealand and the Cape of Good Hope 120 years ago. These legislatures and the corpus of common laws emanated and developed from them pre-dated the development of international law in the twentieth century of which the British government, legislators and jurists substantially contributed, have laid the foundation for an invaluable legacy in territorial boundaries which nation states like Sarawak has greatly benefitted.

During the brief colonial era, the following crucial Orders were made with regards the boundary of Sarawak:

The Sarawak (Alteration of Boundaries) Order in Council 1954 was made at the Court at Buckingham Palace on 24th June 1954, providing that the boundaries of Sarawak are extended 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 Sarawak. To make it clearer, section 3 provides that nothing in the Order shall be deemed to affect the character as high seas of any waters above the said area of the continental shelf.

With the foresight of the drafters, the Oil Mining Ordinance 1958 [Cap 85] was enacted to make better legal provisions relating to oil mining in Sarawak and on its Continental Shelf. It is worth noting that the Ordinance not only expressly include the Continental Shelf as land belonging to Sarawak, the power to grant licences for exploration, prospecting and granting of oil mining leases and renewal of licences were to be exercised by Sarawak’s Governor in Council, expressly stipulated in section 34.

On September 11, 1958, the Sarawak (Definition of Boundaries) Order in Council 1958 was made to define the boundary of the waters and continental shelf of Sarawak in the neighbourhood of Brunei Bay and that of Tanjong Baram. Together with the North Borneo (Definition of Boundaries) Order in Council 1958, they were used and agreed to by Malaysia and Brunei in the determination of their maritime boundaries and the extension of their boundaries as an Exclusive Economic Zone (EEZ) to 200 nautical miles. The same boundary lines are also the basis for both countries to extend their boundaries for an extended continental shelf, approximately 60 nautical miles farther, but Putra Jaya has yet to concede that Brunei is also entitled to the extended continental shelf.

The North Borneo and Sarawak (Alteration of Boundaries) Order in Council 1960           and the North Borneo and Sarawak (Alteration of Boundaries) Order in Council 1962 respective made small alterations in the boundary between North Borneo and Sarawak in the area east of Brunei Bay, setting out precise description of the boundary in the area.                  

These Orders were endorsed in our Honourable Dewan and published in our government gazettes In our Land Code [Cap 81], enacted in 1958, it was expressed that “State Land” includes the foreshore and beds of the sea within the boundaries of Sarawak as extended by the Sarawak (Alteration of Boundaries) Order in Council 1954, and reference was made to the Orders of 1958 and 1960 for the definition of “boundaries” and adopted therefrom.


The boundaries of Sarawak, therefore, were clearly set out in Orders made by the Queen in Council, endorsed by our state legislative assembly and adopted by our Ordinances, are extended 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 Sarawak, the sovereignty vested in and exercisable by the Governor in Council, and the boundaries remained as such immediately before Malaysia Day.

On 02 August 1969, the Emergency (Essential Powers) Ordinance No. 7 of 1969 was promulgated by the Yang di-Pertuan Agung under Article 150 (2) of the Federal Constitution by reason of (i) the existence of a grave emergency threatening the security of Malaysia; (ii) Parliament was dissolved on 12 March 1969 and the elections to the Dewan Rakyat had not been completed; and (iii) the Yang di-Pertuan Agung was satisfied that immediate action is required for the delimitation of the territorial waters of Malaysia.

In essence, the Emergency Ordinance No. 7 of 1969 made modification to then existing laws, provided expressly in section 4(2) that: “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 milesmeasured from the low-water mark.”

Following that, the Emergency Ordinance (Essential Powers) No. 10 of 1969 was promulgated on 07 November 1969 to amend 2 important federal legislatures, the Continental Shelf Act 1966 and the Petroleum Mining Act 1966, and extend their application to Sarawak and Sabah effectively the next day 08 November 1969.

The effect, as spelt out in section 3(2) of this Emergency Ordinance No. 10 of 1969, was: “Upon the coming into force of this Ordinance, all rights accrued or due to and all liabilities and obligations imposed on or borne by the Government of the states of Sarawak and Sabah under and by virtue of any prospecting licence, mining lease or agreement referred to in subsection (1) shall accrue and be due to and shall be imposed on and borne by the Government of the Federation.”

The rights over petroleum in the continental shelf which were parts of the territorial boundary of Sarawak and Sabah has absolutely nothing to do with the political unrest and racial disharmony threatening peace in West Malaysia, neither was the exercising of the power to grant licences for exploration, prospecting and granting of oil mining leases and renewal of licences by Sarawak’s Governor in Council a security risk to the country. The ownership of the rich petroleum and gas reserves in the continental shelf within our territorial waters as a reference to such part of the sea adjacent to the coasts of Sarawak and Sabah beyond three nautical miles appeared to be the only significant consideration.

The Malaysian Parliament resumed in 1971 but the proclamations made were not lifted until 23 November 2011.

Pursuant to Article 150 (7) of the Federal Constitution, at the expiration of a period of 6 months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and to the extent that it could not have been validly made but for this Article, the law made shall cease to have effect.

It appeared that the Federal Government was slow in realizing the implications of Article 150 (7) and it rushed to present the Territorial Sea Bill 2012 in Parliament on 22 April 2012 and the Bill was, as a matter of course, bulldozed through and passed.

But the enactment of this Territorial Sea Act 2012, which has come into effect on 22 June 2012, was unconstitutional, in as far as it affects the territorial boundary of Sarawak.

By virtue of the lifting of the Proclamations of Emergency on the 23 November 2011, and pursuant to Article 1(3) of the Federal Constitution, the territory of the State of Sarawak is the territory comprised therein the Federation of Malaysia immediately before Malaysia Day.

Article 2 stipulated that the Parliament may by law alter the boundaries to any State but a law altering the boundaries shall not be passed without the consent of that state in a state legislature and of the Conference of Rulers.

Honourable Members of this august House would agree with me that no law was passed in this Honourable Dewan to effect the altering of the boundary of Sarawak.

Further, the Territorial Sea Bill 2012 tabled in the Parliament did not stipulate that the prior consent of the Conference of Rulers had been obtained.

The Territorial Sea Act 2012 was henceforth, enacted in contravention of the constitutional provisions and therefore null and void and of no effect.

The intention of the Federal Government in the enactment of the Territorial Sea Act is clear. The Act which has only 7 sections reproduces section 4(2) of the Emergency Ordinance No. 7 of 1969 in section 3(3) of the 2012 Act that: “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 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.”

Clearly, the legislative intend of the Federal Government is to maintain ownership of the rich petroleum and gas reserves in the continental shelf within our territorial boundaries at such part of the sea adjacent to the coasts of Sarawak and Sabah beyond 3 nautical miles.

It is therefore my humble Motion to move the Honourable House to resolve and affirm our determination to preserve and uphold the territorial integrity of Sarawak.

To notify the Federal Government that the Territorial Sea Act 2012 [Act 750] ought to be amended and or re-enacted to provide that the Act shall not be apply to the State of Sarawak.

I would also urge that the state government looks into the various enactments in the country which are affecting the rights of our state with regards the conservation and development of our resources within the territorial boundary of Sarawak.

It is in my humble opinion that, with the ownership of the continental shelf now reverted back to Sarawak, it is within our absolute constitutional rights to take control and to exercise the power to grant licences for exploration, prospecting and granting of oil mining leases and renewal of licences, generally the management of all the resources within our territorial boundaries. I am not advocating for the revocation of all the existing petroleum development agreements and licences for exploration, prospecting and oil and gas mining, which we shouldn’t and cannot do so. However, I do hold firmly that the state government should take charge and exercise full authority in the negotiation with companies for further and new agreements and licences for exploration, prospecting and oil and gas mining, and take initiatives to form a state corporation similar to Petronas to undertake petroleum development projects, to ensure that the state will get better deals out of petroleum development within the territorial boundaries of Sarawak and to better safeguard and conserve these and other valuable resources in our territorial sea.

I therefore support the Motion and propose that we add a part (f) to the Motion to resolve to preserve and uphold the territorial integrity of Sarawak and to reject the Territorial Sea Act 2012.

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