sabahlaw

I was looking at the documents as below

A careful look at the deed will show that this is a State government trying to grant POWER to a Corporation (created by parliament). There is also a clear ADMISSION by the Federal govt at that time that this resources and power fell under the exclusivity of the State.

The problem here is that whether a State government could validate this Act merely by a GRANT under the Petroleum Development Act (PDA). In short, whether the PDA (not being a Federal government entity but a separate entity in the form of a Corporation) is capable of being granted such power, resources by an Act of Parliament.

There is also the issue of the word “Malaysia” which is beyond the power of the State government as its Constitution is only limited to within said State boundaries (whether onshore or off-shore).

Look at the Federal Constitution

74. Subject matter of federal and State laws.

(1) Without prejudice to any power to make laws conferred on it by any other Article, Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List (that is to say, the First or Third List set out in the Ninth Schedule).

(2) Without prejudice to any power to make laws conferred on it by any other Article, the Legislature of a State may make laws with respect to any of the matters enumerated in the State List (that is to say, the Second List set out in the Ninth Schedule) or the Concurrent List.

(3) The power to make laws conferred by this Article is exercisable subject to any conditions or restrictions imposed with respect to any particular matter by this Constitution.

(4) Where general as well as specific expressions are used in describing any of the matter enumerated in the Lists set out in the Ninth Schedule the generality of the former shall not be taken to be limited by the latter.

77. Residual power of legislation.

The Legislature of a State shall have power to make laws with respect to any matter not enumerated in any of the Lists set out in the Ninth Schedule, not being a matter in respect of which Parliament has power to make laws.

Under the CURRENT schedule 9 of the Federal Constitution

The federal govt is in charge of

4. Civil and criminal law and procedure and the administration of justice, including -

(j) Admiralty Jurisdiction;

8. Trade, commerce and industry, including -

(j) Subject to item 2 (c) in the State List: Development of mineral resources; mines, mining, minerals and mineral 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;

9. Shipping, navigation and fisheries, including -

(a) Shipping and navigation on the high seas and in tidal and inland waters;

(b) Ports and harbours; foreshores;

(c) Lighthouses and other provisions for the safety of navigation;

(d) Maritime and estuarine fishing and fisheries, excluding turtles;

(e) Light dues; and

(f) Wrecks and salvage.

Now in the State list at 2(c) it says

(c) Permits and licences for prospecting for mines; mining leases and certificates;

Other than the admission above, common sense must prevail as these petroleum resources would be hidden under the sea (in the seabed) which are still State matters (being not in the Fed nor State list above). So while the Federal govt has power to legislate the development of the natural resources, it does not have the power to legislate the territories (sea-beds) where these resources are found.

And even assuming this Power is granted to Petronas, it is wrong to grant this in perpetuity (or irrevocable) as this is a state power and will prejudice the rights of the inhabitants of the State in the same way as usurping the territorial rights of the state government to an non-governmental entity (ie Petronas) which’s only concern is exploiting the resources.

The alternative view is that the State still has this power as it could not validly be granted to a corporation (even by an act of Federal Parliament as this power is a RESIDUAL power beyond the Federal being one that is not assignable or grantable) and as such the State still possess the power to make laws as to its sea-beds including all natural resources therein underground, ie petroleum.

More important if you must ask the obvious, is that there is NOTHING in the Federal constitution which expressly allow the granting of residual power to an non-government entity – ?? … Ops did Petronas know this ?
The other obvious question is what was the motive for state governments to grant away their natural resources for almost nothing ?

So what has this got to do with Sabah you asked ? Well, think about this for a while as this could be sensitive ?

STATE OF SABAH

I assent,

TAN SRI HAJI MOHD. FUAD STEPHENS,
Yang Dipertua Negara,

27TH SEPTEMBER, 1973.

No. 7 of 1973

An Enactment to authorise the extension of the provisions of the National Language Act, 1967, to restrict the use of the English language for official purposes and to provide for matters incidental thereto.

WHEREAS Clause (1) of Article 161 of the Federal Constitution provides that no Act of Parliament terminating or restricting the use of the English Language for any of the purposes mentioned in Clauses (2) to (5) of Article 152 shall come into operation as regards the use of the English Language in any case mentioned in Clause (2) of Article 161 of the Federal Constitution until ten years after Malaysia Day;

AND WHEREAS Clause (3) of Article 161 of the Federal Constitution provides that, without prejudice to Clause (1) of Article 161, no such Act of Parliament as is there mentioned shall come into operation as regards the use of the English Language for proceedings in the High Court in Borneo or for such proceedings in the Federal Court as are mentioned in Clause (4), until the Act or the relevant provision of it has been approved by enactments of the Legislatures of the Borneo States, and no such Act shall come into operation as regards the use of the English language in a Borneo State in any other case mentioned in paragraph (b) or (c) of Clause (2) of Article 161, until the Act or the relevant provision of it has been approved by an enactment of the Legislature of the State;

AND WHEREAS the period of ten years after Malaysia Day has lapsed;

AND WHEREAS the Legislature of the State of Sabah seeks to give its approval under Clause (3) of Article 161 of the Federal Constitution with regards the use of the English language for proceedings in the High Court in the State or for such proceedings in the Federal Court as mentioned in Clause (4) of Article 161 of the Federal Constitution and for purposes of restricting the use of the English language in the State in the Legislative Assembly or for other official purposes;

NOW THEREFORE, ENACTED by the Legislature of the State of Sabah as follows:

1. Short title

This Enactment may be cited as the National Language (Application) Enactment, 1973.

2. Approval under Article 161 of the Constitution.

The extension of any Act of Parliament terminating or restricting the use of the English language for any of the purposes mentioned in Clause (2) of Article 161 of the Federal Constitution is hereby approved.

3. Language used in native courts or for any code of native law and customs.

Notwithstanding anything in section 2, in the State a native language in current use in the State may be used in native courts or for any code of native law and custom.

CERTIFIED by me to be a true copy of the Bill passed by the Assembly on Tuesday, the 25th September, 1973.

DATUK HAJI MOHD. KASSIM BIN HASHIM,

Speaker.