sabahlaw

I was reading the translation of Han fei’s work at

http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&doc.view=tocc&chunk.id=tpage&toc.depth=1&toc.id=0&doc.lang=bilingual

and in one of the chapters – Chapter XLIX. Five Vermin: A Pathological Analysis of Politic, he had this to say (as translated):

http://www2.iath.virginia.edu/saxon/servlet/SaxonServlet?source=xwomen/texts/hanfei.xml&style=xwomen/xsl/dynaxml.xsl&chunk.id=d2.49&toc.depth=1&toc.id=0&doc.lang=bilingual

In olden times, men did not need to till, for the seeds of grass and the fruits of trees were sufficient to feed them; nor did women have to weave, for the skins of birds and beasts were sufficient to clothe them. Thus, without working hard, they had an abundance of supply. As the people were few, their possessions were more than sufficient.

Therefore the people never quarrelled. As a result, neither large rewards were bestowed nor were heavy punishments employed, but the people governed themselves. Nowadays, however, people do not regard five children as many. Each child may in his or her turn beget five offspring, so that before the death of the grandfather there may be twenty-five grand-children. As a result, people have become numerous and supplies scanty; toil has
become hard and provisions meager. Therefore people quarrel so much that, though rewards are doubled and punishments repeated, disorder is inevitable.

In my opinion, this runs counter to prevailing policy to increase population particularly in countries like Singapore, Malaysia, Australia, EU etc where younger generations are needed to support the aged who are not only living longer but healtier. Even China which introduced one child policy is now having a second look as it turn inwards to find economic support in the domestic market. However, recently there has been a shift to ’sustainable’ population whatever that means in Australia is yet to be understood. Singapore has suggested a 6 mio as sustainable for its city state nation. So my opinion is whether there is any supporting evidence to show a double of popuplation will lead proportionally to double the disorder ? I am looking at how to measure ‘disorder’ in by linking to financial market turmoils, incidents of crimes, exhaustion of resources and movement of population ? There may be more variables ?

And there is this passage may shed some insights into present day (see the last vermin):

For such reasons, it is a common trait of the disorderly state that its learned men adore the ways of the early kings by pretending to benevolence and righteousness and adorn their manners and clothes and gild their eloquent speeches so as to cast doubts on the law of the present age and thereby beguile the mind of the lord of men; that its itinerant speakers 45 advocate deceptive theories and utilize foreign influence to accomplish their self-seeking
purposes at the expense of their Altar of the Spirits of Land and Grain; that wearers of private swords gather pupils and dependents and set up standards of self-discipline and fidelity with a view to cultivating their fame but thereby violate the interdicts of the Five Ministries 46 ; that the courtiers 47 assemble inside the gates of private residences,
use all kinds of bribes, and rely on influential men’s access to the sovereign in order to escape the burden of military service; and that the tradesmen and craftsmen disguise worthless, broken articles as proper goods, collect useless luxuries, accumulate riches, wait for good opportunities, and exploit the farmers. These five types of men are the
vermin of the state.

CK

I am sure I need not say much on this topic as the grievances are well known to most Sabahans. The link below is the speech made.

http://www.sabahlaw.com/SabahNightmares.doc

Article 8 of the Federal Constitution which provides as follows:

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

PETROLEUM DEVELOPMENT ACT 1974
ACT 144

Preamble

An Act to provide for exploration and exploitation of petroleum whether onshore or offshore by a Corporation in which will be vested the entire ownership in and the exclusive rights, powers, liberties and privileges in respect of the said petroleum, and to control the carrying on of downstream activities and development relating to petroleum and its products; to provide for the establishment of a Corporation under the Companies Act, 1965 or under the law relating to the incorporation of companies and for the powers of that Corporation; and to provide for matters connected therewith or incidental thereto.

[Am. Act A613]

[1 October 1974]

BE IT ENACTED by the Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows:

Act done or transaction carried out before enactment of this Act.

(1)Every act done or transaction carried out by PETRONAS before the enactment of this Act that would have been lawful if this Act had been enacted and in force when such act was done or transaction was carried out is hereby declared to be and always to have been lawfully done or carried out by PETRONAS, and such act or transaction may be continued and dealt with under the principal Act as amended by this Act.

(2)The provisions of this Act shall apply to all legal proceedings of whatever from or nature now pending, or which may hereafter be instituted, in any court – see Act A613

1. Short title and commencement.

This Act may be cited as the Petroleum Development Act, 1974, and shall come into force on such date as the Prime Minister may notify in the Gazette.

2. Ownership.

(1) The entire ownership in, and the exclusive rights, powers, liberties and privileges of exploring, exploiting, winning and obtaining petroleum whether onshore or offshore of Malaysia shall be vested in a Corporation to be incorporated under the Companies Act 1965, or under the law relating to incorporation of companies.

(2) The vesting of the ownership, rights, powers, liberties and privileges referred to in subsection (l) shall take effect on the execution of an instrument in the form contained in the Schedule to this Act.

(3) The ownership and the exclusive rights, powers, liberties and privileges so vested shall be irrevocable and shall enure for the benefit of the Corporation and its successor.

3. The Corporation.

(1) Notwithstanding the provisions of section 22 of the Companies Act 1965, relating to the names of companies, the Corporation shall be styled as the Petroleum Nasional Berhad or in short form PETRONAS.

(2) The Corporation shall be subject to the control and direction of the Prime Minister who may from time to time issue such direction as he may deem fit.

(3) Notwithstanding the provisions of the Companies Act 1965, or any other written law to the contrary, the direction so issued shall be binding on the Corporation.

3A. Powers of the Corporation.

(1) In additional to all the powers of the Corporation as prescribed in its Memorandum and Articles of Association, the Corporation shall have the power to take over or acquire by agreement, assignment, purchase or by any other means the whole or any part of any commercial undertaking, business or enterprise of whatever form of any person or body of persons (corporate or unincorporate) and carry out or enter into any activity, whether mentioned in this Act or not, which prior to such taking over or acquisition was carried out by, and for the purpose of, that undertaking, business or enterprise.

(2) The powers conferred on the Corporation under subsection (1) shall be in addition to and not in derogation of any of the rights, powers, liberties, privileges and benefits conferred on the Corporation by this Act or any other written law.

(3A) Subsection (3) shall not apply to any person who is licensed under the Gas Supply Act, 1993 to supply gas to consumers through pipelines.

[Ins. Act A842]

(3B) For the purpose of subsection (3A), the terms “gas”,”consumers” and “pipelines” shall have the same meaning assigned to them respectively by the Gas Supply Act 1993.

[Ins. Act A613]

4. Cash payment by the Corporation.

In return for the ownership and the rights, powers, liberties and privileges vested in it by virtue of this Act, the Corporation shall make to the Government of the Federation and the Government of any relevant State such cash payment as may be agreed between the parties concerned.

5. National Petroleum Advisory Council.

(1) There shall be established a Council to be known as the National Petroleum Advisory Council consisting of such persons including those from the relevant States as the Prime Minister may appoint.

(2) It shall be the duty of the National Petroleum Advisory Council to advise the Prime Minister on national policy, interests and matters pertaining to petroleum, petroleum industries, energy resources and their utilization.

6. Prime Minister’s permission required for downstream operations.

(1) Notwithstanding the provisions of any other written law, no business of processing or refining of petroleum or manufacturing of petro-chemical products from petroleum, may be carried out by any person other than PETRONAS unless there is in respect of any such business a permission given by the Prime Minister.

[Am. Act A290]

(2) Any person who on the commencement of this Act is carrying on any business referred to in subsection (1) may continue to do so but shall, not later than six months from the date of the commencement of this Act, apply in writing to the Prime Minister for his permission referred to in subsection (1).

(3) Subsection (1) shall apply to any business of marketing or distributing of petroleum or petro-chemical products; and any person who on the commencement of this subsection is carrying on any such business may continue to do so but shall, not later than six months from the date of commencement of this subsection, apply in writing to the Prime Minister for his permission referred to in subsection (1).

(3A) Subsection (3) shall not apply to any person who is licensed under the Gas Supply Act 1993 to supply gas to consumers through pipelines.

(3B) For the purpose of subsection (3A), the terms “gas”, “consumers” and “pipelines” shall have the same meaning assigned to them respectively by the Gas Supply Act 1993.

(4) Where the Prime Minister grants his permission under this section he may, at his discretion, impose such terms and conditions as he may deem fit.

(5) Any person who acts in contravention of this section or fails to comply with any term or condition of any permission granted under this section shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding five years or to both, and in the case of a continuing offence he shall be liable to a further fine not exceeding one hundred thousand ringgit for each day or part of a day during which the offence continues after the first day in respect of which the conviction is recorded; and all machinery, tools, plant, buildings and other property or thing used or intended to be used in the commission of the offence and any petroleum or its products thereby obtained shall be liable to forfeiture.

(6) The Prime Minister may by notification in the Gazette exempt any business referred to in subsections (1) and (3) or any company or class of company carrying on any such business from the provisions of this section.

[Ins. Act A382]

7. Power to make regulations.

The Prime Minister may make regulations for the purpose of carrying into effect the provisions of the Act and, without prejudice to the generality of the foregoing, such regulations may, in particular, provide for -

(a) the conduct of or the carrying on of -

(i) any business or service relating to the exploration, exploitation, winning or obtaining of petroleum;

(ii) any business involving the manufacture and supply of equipment used in the petroleum industry;

(iii) downstream activities and development relating to petroleum;

(b) the marketing and distribution of petroleum and its products;

(c) penalties in the form of a fine not exceeding one hundred thousand ringgit or imprisonment not exceeding five years or both such fine and imprisonment for breach of any of the regulations and for non-compliance with any term or condition of any licence, permission or approval issued or granted under the regulations;

(d) the forfeiture of anything used or intended to be used in the commission of any such breach or non-compliance

7A Delegation.

The Prime Minister may; by notification in the Gazette, delegate, subject to such conditions and restrictions as may be prescribed in such notification, the exercise of any of his powers or the performance of any of his duties under this Act, other than his powers and duties under sections 3(2), 5(1) and 7, to any person described by name or office.

7B. Offences by bodies of persons and by servants and agents.

(1) Where an offence against this Act or any regulations made thereunder has been committed by any company, firm, society or other body of persons, any person who at the time of the commission of the offence was a director, manager or other similar officer or a partner of the company, firm, society or other body of persons or was purporting to act in such capacity shall be deemed to be guilty of that offence.

(2) Whenever it is proved to the satisfaction of the court that a contravention of the provisions of this Act or any regulations made thereunder has been committed by any clerk, servant or agent when acting in the course of his employment the principal shall also be liable for such contravention and to the penalty provided therefor:

Provided that nothing in this section shall be deemed to exempt the liability of the clerk, servant or agent in respect of any penalty provided by this Act or any regulations made thereunder for any contravention proved to have been committed by him.

7C. Jurisdiction of courts.

Notwithstanding anything contained in any other written law to the contrary, a Sessions Court or, in Sabah and Sarawak, a Court of a Magistrate of the First Class, shall have jurisdiction to try any offence under this Act or any regulations made thereunder and on conviction to impose the full penalty therefor.

8. Saving.

(1) Save for section 14 thereof, the Petroleum Mining Act 1966 shall not apply to the Corporation.

(2) In the application of section 14 of that Act to the Corporation, any reference to the licensee shall be construed as a reference to the Corporation, and any reference to the exercising of any rights contained in the licence shall be construed as a reference to the exercising of the rights, powers, liberties and privileges vested in the Corporation by virtue of section 2 (1) of this Act.

9. Transitional.

(1) Any exploration licences issued and any petroleum agreements entered into pursuant to the Petroleum Mining Act 1966, and any licences, leases and agreements issued or made under any written law in force relating to prospecting, exploration or mining for petroleum shall continue to be in force for a period of six months from the date of the coming into force of this Act or for such extended period as the Prime Minister may allow.

(2) Where the six months’ period has elapsed and no extension thereto under subsection (1) is allowed, the licences, leases or agreements mentioned in that subsection shall determine or cease to have effect and there shall be paid to the person whose rights under the licence, lease or agreement have been so determined, adequate compensation which may be in the form of a single sum or in the form of periodical payments of money or in such other form as may be determined by the Federal Government or under any arrangement agreed upon between such person and other person designated by the Federal Government.

10. DEFINITION.

For the Purpose of this Act, the expression “petroleum” means any mineral oil or relative hydrocarbon and natural gas existing in its natural condition and casinghead petroleum spirit including bituminous shales and other stratified deposits from which oil can be extracted.

27. Supremacy of Constitution.

Any Enactment passed on or after Malaysia Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

One need to be aware that any enactments made prior to Malaysia day (ie Sept 16 1963 and not Aug 31) can stand on its own even if it is inconsistent with the Constitution.

Obviously the question is whether the 20 Points Agreement (see below) is such that even the Constitution is not capable of infecting it. Remember it was this 20 points agreement that made it possible for Sabah to be created.

Now, the broader issue is the National Language where in 27/9/1973 the Sabah government enacted an National Language enactment that is contrary to one of the 20 points (ie English forever). And note that the Sabah Constitution was purposely amended to accommodate this on same day – 27 Sept 1973.

11A. Official language.

Without prejudice to clause (8) of Article 24, the official language of the State Cabinet and the Legislative Assembly shall be in Bahasa Malaysia:

Provided that –

(a) not withstanding the provisions of this Article, the English language may be used for such period and for such purposes as may for the time being be provided by or in accordance with Article 152 of the Federal Constitution; and

(b) an official English version shall be provided of anything which is required to be printed or reduced into writing and may be published in the Gazette.

AS can be seen, it is explicit that Bahasa Malaysia is the official language of the State Cabinet and the Legislative Assembly..nothing else or more (in fact at the local government level, this is not even mentioned). So how this Bahasa Melayu is now impose as an official language on Sabahan (outside of the State Cabinet and Legislative Assembly) for all purpose is a mystery to me. As far as I remember Malay is the NATIONAL language of the federation but this does not make it an OFFICIAL language. The difference between the TWO is that the later “OFFICIAL” means mandatory usage by law while “NATIONAL” means a language common or known to all.

CK

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 ?

Malaysia Federal Court’s decision (21.1.2010), in the case of Tan Ying Hong vs Tan Sian San reinforced defer indefeasibility back into West Malaysia under the NLC after overturning Adorna Properties Sdn Bhd vs Boonsom Boonyanit. The effect of Tan Ying Hong is that only a subsequent purchaser will gain title (for a bona fide and without notice) transaction. In Adorna, the original owner lost her titles to Adorna after a culprit forged her signature on the titles (copies issued by Land Office after the culprit declared them stolen) and transfer them to Adorna. The law as it stands now is that Adorna will not gain the titles but anyone buying from Adorna (‘subsequent’) will get good titles – this is the principle of deferred indefeasibility which means it is not immediate as in Adorna – ie upon registration anyone will get good title – the principle of Torrens. Immediate indefeasibility is clearly stated in countries like Australia and to mitigate fraud and forgery (as in Adorna’s case), a fund was setup and available to help the victims. In this way the original principle of Torrens (from South Australia) is maintained and continued in its spirit.

Now in Sabah, we do not have NLC and instead we have Sabah Land Ordinance (SLO). The most well known case here is Borneo Housing Mortgage Finance Bhd v Time Engineering Berhad [1996] 2 CLJ 561 (Borneo Finance Case). However this does not deal with the issue of fraud as in Adorna but merely confirmed Section 88 of SLO as paramount.

88. No title or claim to land valid unless registered.

No new title and no dealing with, claim to or interest in any land except land still held under native customary tenure without documentary title shall be valid until it has been registered in accordance with the provisions of this Part.

As can be seen in Sabah, we used “validility” as the test and not indefeasibility as in the NLC (see Section 340 where the word “indefeasibility” is clearly expressed). Obviously the fact that a dealing can be valid does not mean it is also indefeasible (say in fraud or forgery).

So the position in Sabah is unique and in a way modified the Torrens System much the same way as “deferred indefeasibility” do in practise. In the past, Courts’ decisions have been a mixed bag with some Judges calling to align with West Malaysia (ie with Adorna – even though as can be seen now was wrongly decided ) by endorsing the principle of immediate indefeasibility. Some enlightened would consider the validity to be paramount but be defeated by fraud or forgery. See Wee Yee Ying v Emin Bin Sadi (Civil Suit K 22-153-1995) unreported in open court 2005 in KK by Datuk Ian Chin J (now retired).

The problem with land dealings in Sabah is well known to all and want of transparency. Currently, there are still many without titles to their land as the master title is still undivided to individual titles despite over 30-40 years wait. There are provisional leases (unsurveyed) that date back to 70s. A first step is to computerise the entire registry and make it available online instantly with security such as using MyCard (Microchip Identification Card) for transfer etc. It currently takes more than 1 day to check a title (if you are located in KK).

One also notice in the majority of cases this will involve Native Titles – and the Native Court or Syariah Court endorsing the transfer ( the con-man, shamster, fraudster claiming to be the son or executor of the land – in many cases the owner is still alive). The buyers will argue that they are subsequent bona fide buyers without notice (ie the first transfer was to the fraudster who later sold to them).

I have even encountered a case where the Title was printed and issued under a wrong section but the Judge rebutted this and you can read the judgement here http://tinyurl.com/nu448p. This case was an eviction case and it went to the Court of Appeal.

But other than the technical and administrative problems, the SLO should not be amended given the reason that we already subscribed to “deferred indefeasibility”. Furthermore, this reversal in West Malaysia will also see a number of law firms being sued now by disgruntled bona fide owners without notice (like Adorna – first buyer from fraudster in owner’s name) and will make conveyancers to be more vigilant. Also consider if there is any limitation to action in fraud. www.mylawyer.com.my/pdf/Limitation_Act.pdf

Where there has been a fraud or concealment however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff’s cause of action was delibrately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff. The effect of this section is plainly seen in the case of Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571 where the defendant’s insurers took great pains to conceal themselves from the knowledge of the plaintiff and thus the latter’s claim was not held statute barred as a result. Limitation periods also do not run where a plaintiff is under disability until the expiry of such a disability under section 24 of the Act.

Cheers